DEAN COSENZA v STATE OF SOUTH AUSTRALIA [2024] SASC 97

Applicant: DEAN COSENZA Counsel: MR G WATSON SC WITH MR P ADAMS - Solicitor: NICK XENOPHON & CO LAWYERS Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR T GOLDING KC WITH MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 31/01/2022 to 11/02/2022, 24/02/2022, 19/12/2022, 04/04/2023, 01/06/2023 to 02/06/2023 File No/s: SCCIV-16-358 A SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COSENZA v STATE OF SOUTH AUSTRALIA [2024] SASC 97 Judgment of the Honourable Justice McDonald 7 August 2024 TORTS - INTERFERENCE WITH THE PERSON - TRESPASS TO THE PERSON TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION - GENERALLY TORTS - MISCELLANEOUS TORTS - MISFEASANCE IN PUBLIC OFFICE TORTS - INTERFERENCE WITH THE PERSON - FALSE IMPRISONMENT - LAWFUL JUSTIFICATION - ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - GENERALLY TORTS - INTERFERENCE WITH PROPERTY - TRESPASS TO LAND - REMEDIES - DAMAGES On 3 April 2015 (Good Friday), the applicant was the subject of a roadside arrest by Brevet Sergeant Alan Graham, a member of South Australia Police (‘SAPOL’), after refusing to provide a breath sample. This incident, and the events which followed, now give rise to a wide-reaching claim in tort which can be broadly categorised into three distinct “episodes”: 1. The roadside arrest itself, for which the applicant brings claims of false imprisonment, assault, battery, and alleges an unlawful arrest (‘the roadside arrest’); 2. The applicant’s subsequent arrest under warrant in August 2015, which the applicant alleges occasions an unlawful arrest, malicious prosecution, false imprisonment and a misfeasance in public office (‘the arrest under warrant’); and -- 1 of 166 -- 3. The four attempts by SAPOL to serve the applicant with a court summons at his home address following the roadside arrest, each of which the applicant alleges to constitute an individual trespass (‘the four trespasses’). The claim, now in its fifth revision, is brought against the respondent as vicariously liable for the conduct of officers of SAPOL. The respondent denies any liability arising from the three episodes. As to the roadside arrest, the applicant alleged that not only was this arrest conducted unlawfully, but the apparent force used by Brevet Sergeant Graham was unprovoked, unexpected, and exacerbated existing injuries to the applicant’s spine. In contrast, Brevet Sergeant Graham alleges that the applicant was the aggressor during this interaction, which necessitated his arrest and subsequent conveyance to hospital upon suffering a panic attack. Both participants were cross-examined at length regarding their respective versions of events. The applicant introduced a significant volume of expert medical evidence which, in his submission, tended to suggest that the degeneration to his spinal vertebrae was more than likely caused by a traumatic event as opposed to natural degeneration overtime. In turn, expert medical evidence was led to counter this assertion by the respondent and, on 4 April 2023, both parties were granted leave to re-open their cases after the applicant underwent further spinal surgery in October 2022. As to the arrest under warrant, the applicant alleges that the prosecutorial process leading to this action was so occasioned by animosity toward the applicant on the part of SAPOL prosecutors as to render the respondent liable for malicious prosecution or misfeasance in public office. Further, the applicant alleges that the warrant authorising his arrest was invalidly issued by the sitting Magistrate, rendering the respondent liable in false imprisonment for the arrest and detention of the applicant upon executing that warrant. Several members of SAPOL involved in the prosecution gave evidence as to its conduct, and documentary evidence was tendered illustrating the procedural decisions which led to the withdrawal of the prosecution. As to the four trespasses, the applicant submits that, by virtue of his erecting signs on the outer boundary of his residence revoking the implied license to enter, each attempt by SAPOL to serve him personally with a court summons following the roadside arrest leaves the respondent liable in trespass. To this end, evidence was led regarding the applicant’s proprietary interest in the relevant property, and the state of knowledge of the police officers who attended upon the property to effect service. Held: 1. The applicant’s arrest was lawfully conducted, and the torts said to arise from the roadside arrest are not made out. The relevant medical evidence does not establish a causative link between a traumatic event during the roadside arrest and the subsequent injury to the applicant’s C4/5 disk. On balance, any injury to this region was a product of degenerative change over time. 2. The torts of malicious prosecution and misfeasance in public office are not made out on the evidence. Further, the applicant has not established the invalidity of the warrant, and the subsequent claims of unlawful arrest and false imprisonment fail as a result. 3. The applicant had revoked the implied licence to enter his property and had made SAPOL aware of this fact. The four trespasses are made out, and the applicant is awarded $10,000 in damages for each trespass. Road Traffic Act 1961 (SA) s 47E(4)(ab); Summary Offences Act 1953 (SA) s 75; Police Act 1998 (SA) s 11; Criminal Procedure Act 1921 (SA) ss 20, 58 and 59; Bail Act 1985 (SA) s 5(2); Independent Commission Against Corruption Act 1988 (NSW), referred to. A v State of New South Wales & Anor (2007) 230 CLR 500; Allen v Flood [1898] AC 1; Amin v Bannerjee [1947] AC 322; Cannon v Tahche (2002) 5 VR 317; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187; Cosenza v Magistrates Court of South Australia [2016] SASC 181; Danby v Beardsley (1880) 43 LT 603; Director of Public Prosecutions v Wille (1999) 47 NSWLR 255; Ea v Diaconu (2020) 102 NSWLR 351; Fanzelow v Kerr (1896) 14 NZLR 660; Galea v Camilleri [2023] NSWC 206; Gaskin v Police (2009) 267 LSJS 12; Georgeski v Owners -- 2 of 166 -- Corporation SP49833 (2004) 62 NSWLR 534; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336; Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1; Hadkinson v Hadkinson [1952] 2 All ER 567; Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1; Hamilton v The State of New South Wales [2020] NSWSC 700; Hicks v Faulkner (1987) 8 QBD 167; Hill v Higgins [2013] NSWSC 270; Hughes v Police (2009) 103 SASR 337; Jones v Dunkel (1959) 101 CLR 298; Lamb v Cotogno (1987) 164 CLR 1; Leerdam v Noori (2009) 227 FLR 210; MacIntosh v Lobel (1993) 30 NSWLR 441; Maynes v Casey [2011] NSWCA 156; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466; New South Wales v Abed [2014] NSWCA 419; New South Wales v Ibbet (2006) 229 CLR 638; Northern Territory of Australia v Mengel (1995) 185 CLR 307; Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; Obeid v Ipp [2016] NSWSC 1376; Obeid v Lockley (2018) 98 NSWLR 258; Plenty v Dillon (1991) 171 CLR 635; Plenty v Dillon (1998) 50 SASR 407; Police v Bleeze (2012) 112 SASR 568; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; Police v Spitzer (2003) 85 SASR 431; R v Nguyen (2013) 117 SASR 432; Roberston v The Queen (1992) 92 A Crim R 115; Roy v O'Neil [2020] HCA 45; (2020) 272 CLR 291; Ruddock v Taylor (2005) 222 CLR 612; Savile v Roberts (1869) 1 Ld Raym 374; 91 ER 1147; Shannon v State of New South Wales [2015] NSWDC 69; South Australia v Crossley [2020] SASCFC 128; Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020; Tampion v Anderson (No 2) [1973] VR 321; Tulloh v Chief Executive Officer of the Department for Correctional Services [2018] WASC 105; Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; Williams v Milotin (1957) 97 CLR 465; Williams v The Queen (1986) 161 CLR 278; Wilson v State of New South Wales [2010] NSWCA 333; Zaravinos v New South Wales (2004) 62 NSWLR 58, considered. -- 3 of 166 -- -- 4 of 166 -- COSENZA v STATE OF SOUTH AUSTRALIA [2024] SASC 97 Civil McDONALD J. The trial ................................................................................................................ 5 Reopening the case ............................................................................................ 6 A potential further delay ................................................................................... 7 The roadside arrest .............................................................................................. 7 Background........................................................................................................ 7 The applicant .................................................................................................. 7 Brevet Sergeant Graham............................................................................... 10 The events of Good Friday 2015 ..................................................................... 11 The applicant’s version of events .................................................................. 11 Brevet Sergeant Graham’s version of events ................................................ 14 Issues in dispute between the applicant and Brevet Sergeant Graham ........ 20 1. The applicant’s driving prior to the events on Chief Street ................. 20 2. The initial exchange between the applicant and Brevet Sergeant Graham ................................................................................................................. 21 3. The circumstances in which the applicant came to get out of his car.. 21 4. The arrest ............................................................................................. 22 5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee 22 6. Events at the hospital ........................................................................... 23 Evidence of Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee ................................................................................................................. 24 SA Ambulance Service Patient Report Form ................................................ 28 Evidence of applicant’s interactions with police on other occasions ........... 28 8 June 2010 .............................................................................................. 29 13 December 2019 ................................................................................... 30 9 October 2020 ........................................................................................ 31 The Central Market car park incident .......................................................... 32 Medical and psychiatric evidence ................................................................... 36 Psychiatric evidence ..................................................................................... 36 Dr Ivan Siklich ......................................................................................... 36 Professor Alexander McFarlane .............................................................. 37 -- 5 of 166 -- [2024] SASC 97 McDonald J 2 Dr Ian Jennings ........................................................................................ 39 Dr David Kelly ........................................................................................ 39 Conclusion – Psychiatric Evidence ......................................................... 40 Medical evidence........................................................................................... 40 The applicant’s evidence about his injuries ............................................. 41 Evidence of the physical interaction between the applicant and Brevet Sergeant Graham ..................................................................................... 44 The Radiologists - Associate Professor Roger Davies and Dr Christopher Pozza ........................................................................................................ 46 Dr Michael Selby (Spinal and Orthopaedic Surgeon) ............................. 49 Dr Simon Sandler (Neurosurgeon and Spinal Surgeon) .......................... 51 Reopening of the applicant’s and respondent’s cases .................................. 52 Dr Michael Selby (subsequent evidence) ................................................ 53 Dr David Hall (Spinal Surgeon) .............................................................. 56 Conclusion – medical evidence ............................................................... 63 Consideration of the evidence of the applicant and Brevet Sergeant Graham .......................................................................................................................... 64 Findings in relation to the applicant’s evidence........................................... 64 Reason for imprisonment ......................................................................... 64 2015 and 2018 admission applications .................................................... 65 Findings in relation to the evidence of Brevet Sergeant Graham................. 67 Criticisms of Brevet Sergeant Graham’s evidence .................................. 69 Clenched fists....................................................................................... 69 The circumstances in which the applicant got out of his car ............... 71 The prescribed oral advice (the good cause defence) .......................... 72 The combined effect of the criticisms of Brevet Sergeant Graham’s evidence ................................................................................................... 76 Findings of facts in relation to the roadside arrest ........................................ 76 1. The applicant’s driving prior to the events on Chief Street ...................... 76 2. The initial exchange between the applicant and Brevet Sergeant Graham ....................................................................................................................... 76 3. The circumstances in which the applicant came to get out of the car ...... 76 4. The arrest .................................................................................................. 77 5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee ..... 77 Determination of the issues arising out of the roadside arrest ...................... 78 A lawful arrest?............................................................................................. 78 -- 6 of 166 -- [2024] SASC 97 McDonald J 3 1. Failure to advise the applicant that he was under arrest and the reasons for the arrest ....................................................................................................... 79 2. The decision to arrest the applicant and the use of handcuffs .................. 84 3. Brevet Sergeant Graham did not reasonably suspect that the applicant had committed an offence under s 47E(2) of the Road Traffic Act 1961 (SA)..... 87 4. Brevet Sergeant Graham did not provide a “reasonable direction” as required by s 47E(3) ..................................................................................... 92 5. The failure of Brevet Sergeant Graham to fill out a PD207 ..................... 93 6. A breach of police General Orders by arresting and unarresting the applicant ....................................................................................................... 96 The roadside arrest – conclusion .................................................................. 100 False imprisonment ..................................................................................... 100 The arrest under warrant ............................................................................... 101 The circumstances surrounding the applicant’s arrest ............................... 102 The role of Brevet Sergeant Graham .......................................................... 102 The role of Sergeant Michelle Hollis .......................................................... 103 Police Prosecutions .................................................................................... 104 The Special Prosecutions Unit .................................................................... 114 Wrongful arrest ............................................................................................. 116 No underlying offence ................................................................................. 117 The arrest was not necessary ...................................................................... 117 Defects in the process ................................................................................. 118 Unlawful imprisonment................................................................................. 121 Malicious prosecution ................................................................................... 121 The elements of malicious prosecution ....................................................... 121 Reasonable and probable cause ............................................................. 122 Malice .................................................................................................... 123 Who was the prosecutor? ....................................................................... 123 Was there a malicious prosecution? ........................................................... 127 Misfeasance in public office ......................................................................... 128 Was Senior Constable De Bono a public officer who was exercising a power in the course of her duties? ......................................................................... 129 The four trespasses .......................................................................................... 132 The evidence .................................................................................................. 133 The applicant’s evidence ............................................................................. 133 The police evidence ..................................................................................... 136 -- 7 of 166 -- [2024] SASC 97 McDonald J 4 The applicant’s prior dealings with police ................................................. 138 Signs revoking the implied licence to enter ................................................ 138 Correspondence with SAPOL ..................................................................... 141 The applicant’s proprietary interest in 39 Glen Eira Street ........................ 143 Previous litigation ....................................................................................... 144 What was the nature of the applicant’s proprietary interest? .................... 146 Issues arising for consideration in relation to the four trespasses .............. 146 Did the applicant have a sufficient proprietary interest in 39 Glen Eira Street to revoke the implied licence to enter? ....................................................... 146 Had the applicant revoked the implied licence? ......................................... 149 The application of the principles ........................................................... 154 What is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the revocation of the implied licence? ..................................... 157 Damages ......................................................................................................... 157 Conclusion ........................................................................................................ 162 -- 8 of 166 -- [2024] SASC 97 McDonald J 5 1 At about 10.00pm on 3 April 2015 (Good Friday), Brevet Sergeant Alan Graham was on duty patrolling the back streets of Brompton when he observed a dark sedan “take-off” at speed. He took pursuit of this vehicle, losing sight of it momentarily on two occasions before arriving at Chief Street. It was there that he came across the applicant seated in the front driver’s seat of his vehicle. Neither of the men were known to each other prior to this. However, that chance encounter and what was to follow in the next 38 minutes,1 between Brevet Sergeant Graham and the applicant, would become the foundation of numerous complaints by the applicant against the police and litigation that has continued for over nine years since the initial event. 2 On 22 March 2016, the applicant filed his first Statement of Claim in this Court. 3 Since that time, there have been a number of revisions of that Statement of Claim, with the applicant ultimately relying on Claim Revision 5, filed on 4 January 2022. In that document, the applicant pleads a number of causes of action arising out of his various dealings with the police that commenced with the events of Good Friday. Throughout these proceedings, those interactions have, for the sake of convenience, been categorised into three parts or episodes. These have been described as “the roadside arrest”, “the arrest under warrant”, and “the four trespasses”, each of which is said to give rise to separate causes of action. In relation to the roadside arrest, it is claimed that the respondent is liable for false imprisonment, unlawful arrest, assault, and battery. In relation to the arrest under warrant, the applicant alleges that there was an unlawful arrest, and that there has been a malicious prosecution, a false imprisonment, and misfeasance in public office. For each of the four trespasses, a separate trespass is alleged. 4 The respondent denies any liability arising out of the three episodes. It was the respondent’s position at trial that, if the applicant did in fact suffer any damage as a consequence of his interactions with police, it was as a result of his own conduct. The trial 5 The trial commenced on Monday, 31 January 2022, and continued until Friday, 11 February 2022. At that time the matter was adjourned to enable time for written submissions to be filed. The trial resumed for a further day on 24 February 2022, in order for oral submissions to be made. 6 It was only in relation to the roadside arrest that there was any major factual contest between the applicant and the respondent. In relation to the arrest under 1 Estimate of time based on Exhibit R61 – a map of the Brompton area overlaid with auto vehicle log data points and times and Exhibit A1, the departure time recorded in the SA Ambulance Service Patient Report Form. -- 9 of 166 -- [2024] SASC 97 McDonald J 6 warrant and the four trespasses, the issues that arose were generally questions of law and inferences that are available on the mostly uncontested evidence. Reopening the case 7 On 25 October 2022, the applicant filed an interlocutory application for leave to reopen his case and to recall Dr Michael Selby, a spinal surgeon, to give supplementary evidence. Dr Selby had already given evidence at the trial. The basis of the application was that, on 18 October 2022, Dr Selby had carried out further spinal surgery on the applicant that was said to be relevant to the determination of the issues in the trial. An order was also sought deferring the delivery of the final judgment until the evidence of Dr Selby was heard. 8 On 19 December 2022, the matter came back before the Court for a directions hearing. By that time, a report had been obtained from Dr Selby. 9 Having received that report, the respondent made an application for an adjournment to enable it to obtain a report from their own expert, Dr David Hall. I adjourned the determination of the interlocutory application until March 2023 to enable the respondent to obtain their own expert report. 10 When the matter next came before the Court on 1 March 2023, I was advised that the respondent had obtained two expert reports from Dr Hall. Those reports had only recently been served on the applicant. Given the technical nature of the reports, counsel for the applicant requested time to seek advice from Dr Selby. That request was granted and the matter was listed for a further directions hearing on 4 April 2023. 11 On 30 March 2023, the respondent filed an interlocutory application for leave to re-open its case in order to call Dr Selby to give evidence. 12 On 4 April 2023, I made orders that “the applicant be given leave to re-open to recall Dr Michael Selby to give further evidence on the spinal surgery performed by Dr Selby on the applicant on 18 October 2022” and “the respondent be given leave to re-open so as to call evidence from Dr David Hall in response to Dr Selby’s evidence on the spinal surgery”. 13 Dr Selby gave evidence on 1 June, and Dr Hall gave evidence on 2 June 2023. Written submissions were filed by the respondent on 14 July 2023 and by the applicant on 7 August 2023. 14 This brief chronology demonstrates the reason for the delay between the commencement of the trial and the delivery of the judgment in this matter. -- 10 of 166 -- [2024] SASC 97 McDonald J 7 A potential further delay 15 In April 2024, I became aware of a decision of a single judge of the Federal Court in Stradford (a pseudonym) v Judge Vasta.2 At the time an appeal was pending in the High Court (the matter having been removed from the Full Federal Court). It was listed for hearing in August 2024. 16 It appeared that aspects of the judgment were potentially relevant to the parties pleaded cases in relation to some of the issues that arose in “the arrest under warrant”. I provided the parties with an opportunity to make further submissions as to what impact, if any, Stradford had on the applicant’s claim. 17 The applicant declined the opportunity. By his Senior Counsel, he disavowed any reliance on Stradford and requested that this Court not delay its judgment. 18 The respondent, however, took up the opportunity and provided a further written submission. The effect of that submission was that there was no reason for this Court to delay the delivery of its judgment pending the High Court’s decision in Stradford. 19 I acceded to that submission. The roadside arrest Background 20 The two main witnesses who gave evidence about the roadside arrest were the applicant and Brevet Sergeant Graham. Their evidence was significantly at odds and, consequently, it is necessary for me to make, insofar as I can, findings of credibility and reliability. Those findings are fundamental to a determination of the issues surrounding the roadside arrest. 21 A convenient starting point is to consider the background to the events of Good Friday. The roadside arrest did not occur in a vacuum. The background and history of the two main protagonists is, in my view, of some assistance in making an assessment of the two very different accounts of what occurred that evening. The applicant 22 I start with the applicant. He gave detailed evidence about various events in his life preceding that evening. It would be fair to say that his life appears to have been one of extreme highs and lows, ranging from a career as a talented and promising soccer player to imprisonment for serious criminal offences. 23 The applicant was born in Adelaide in 1966. He attended school at St Michael’s College, Henley Beach, graduating at the end of year 12. At school, the applicant had been a keen sportsman and, upon completing high school, attempted to pursue a career in soccer. He played for Adelaide City Soccer Club 2 [2023] FCA 1020. -- 11 of 166 -- [2024] SASC 97 McDonald J 8 and, at one stage, represented South Australia. The applicant’s soccer career came to an end as a consequence of a combination of the effects of a traffic accident when he was about 18, and the interference of his former wife, who did not want him to continue playing. 24 The applicant married in 1990 and had two children as a product of that marriage. The applicant and his former wife separated in 1998 and were divorced in 2000. It was an acrimonious breakup. 25 When the applicant first left school, he took up a position at a travel agency and continued to work in that industry for approximately four years. After that, the applicant completed a diploma course in real estate and worked as a real estate agent for four or five years. During that time, the applicant undertook a further year of study and obtained his real estate licence. 26 In 1993, the applicant, together with family members, purchased a business – a gelato and coffee bar known as ‘Flash Gelati’. The applicant worked in that business whilst continuing to sell real estate for about a year. At the end of that year, the applicant commenced operating a larger business, a restaurant and gelato bar called ‘Café Flash’. The applicant continued to work in that business for about four years until 2000, at which time he was forced to sell it as part of the property settlement that came about as a result of divorce proceedings. It was apparent from his evidence that, to this day, the applicant carries significant bitterness in relation to the impact that the divorce had on his business and other aspects of his life. 27 In 2001, the applicant was imprisoned for five years with a non-parole period of 18 months for three counts of inciting the commission of the offence of causing grievous bodily harm with intent to do harm.3 It would appear that these charges came about when, on three occasions, the applicant attempted to solicit the services of third parties to break the legs of his ex-wife’s new partner. The first and second individuals approached by the applicant said no. The third was an undercover police officer. After the applicant made a down payment of $1,000, he was arrested and charged with these offences. 28 At about the same time, the applicant started to meet significant financial difficulties as a consequence of Family Court proceedings. This resulted in two bankruptcies, the first from about 2003 to 2007 and the second in 2012. 29 In 2011, the applicant was convicted of the Commonwealth offence of managing a corporation whilst bankrupt. The conduct that was the subject of the charge occurred during the applicant’s first period of bankruptcy and was a consequence of his involvement in a managerial role in a soccer business. 30 A further consequence of the applicant’s marital breakdown and his imprisonment was that he started to experience psychological problems. Over time 3 Exhibit R44. -- 12 of 166 -- [2024] SASC 97 McDonald J 9 he suffered from anxiety, depression and post-traumatic stress disorder.4 The anxiety resulted in the applicant suffering from panic attacks for which he was prescribed medication5 and, in 2009, he commenced seeing a psychiatrist, Dr Ivan Siklich. 31 The next significant development in the applicant’s life was in 2008, when he commenced a law degree. Prior to that, subsequent to completing his prison sentence, the applicant had undertaken a double degree in economics and international finance. The applicant graduated from law school in 2011. It was whilst undertaking the law degree that the applicant first became aware of the High Court’s decision in Plenty v Dillon.6 He described that moment as something of a revelation:7 I was sitting in my torts law class and Professor Julia Davis walked in, and she walked in with a little sign which said, ‘No trespassing, Plenty v Dillon’, and she put it on the top of her desk and she sort of made a little bit of a joke about it as to how the law can be expressed in this type of signage, and she just wanted to express that to the students, and we also had a bit of a laugh, and then Professor Davis and I built a very good relationship and we both had a similar interest in this area of the law and ultimately it was like knowing that law, I found it as being a - I don’t know how to explain it - a light bulb that just came up in my mind, and I went, ‘Wow, this can change my life with respect to being able to be left alone in your own home.’ 32 The applicant gave evidence that the reason that this was of such interest to him was that, as a consequence of his dealings with police around the time of his arrest and incarceration, he had developed a deep distrust of police officers. On his release, the applicant had moved into his mother’s house at 39 Glen Eira Street, Woodville. He described the police turning up at that address and behaving in such a manner that it caused his mother to panic, in the belief that the applicant was about to be taken away again. 33 Such was the applicant’s interest in his ability to protect his property from trespassers and, in particular, the police, that the applicant created a business with the registered business name “Law in Action”. He also created a website for that business on which he promoted a “Law in Action Trespass Kit” that contained a handbook and “2 weather resistant trespass signs designed to fit your letterbox or gate”. At some stage, he attached signage to a low wall at the front of his house indicating that entry to his premises was forbidden, other than by express invitation. I will return to the topic of the signs and the evidence about when they were put up when I come to deal with the four trespasses. 34 It was evident from the applicant’s evidence that, over the years, and at least since the time of his arrest, he has developed a strong antipathy towards police. That was apparent from not only his account but also his demeanour during the 4 Transcript of Proceedings, Cosenza v State of South Australia, SCCIV-16-358, Trial of 31 January 2022 – 24 February 2022 (‘T’) at 87. 5 T88. 6 (1991) 171 CLR 635. 7 T90. -- 13 of 166 -- [2024] SASC 97 McDonald J 10 course of his evidence. At times, he appeared to become agitated in describing quite innocuous conduct by various police officers. 35 By 23 July 2008, the applicant had written to the Police Commissioner complaining about police having attended at his home address. In that letter he claimed “attendance by SAPOL twice in two days has rendered my mother now bedridden and sedated. She could have had a severe heart attack”.8 The letter made it plain that the applicant did not want the police to attend at his property regardless of the circumstances. He said, “should any further breach of this not be adhered to [sic], we will be making an application for trespass to land as well as a potential negligence claim for breach of duty of care, should my mother be placed under any further duress on a full indemnity basis”.9 36 Although when asked about his attitude towards police the applicant was at pains to present as though he held no animus against them, this evidence came across as disingenuous and contrived. When asked whether he had any respect for the police and the work that they do in the community, the applicant responded:10 I do, absolutely, yeah. I’ve met a lot of lovely police, wonderful police officers, absolutely. I had some police officer friends over the years, absolutely, lovely people. 37 This answer stands in stark contrast with the manner in which the applicant has behaved towards the police over many years and the tone in which he generally spoke about them during his evidence. It was apparent throughout the course of his evidence that the applicant was well aware of areas where his evidence might be attacked; he quickly appreciated lines of cross-examination and was alive to protecting his interests. The applicant’s evidence on this topic is a good example of that approach. 38 A further development10 in the applicant’s life occurred in 2012, when he started to experience some lower back pain which radiated down into his lower left leg. He was treated by injection for that pain and subsequently it subsided. In late 2013, the applicant also developed an unrelated neck problem. He experienced chronic pain in his neck, arm, and shoulder. The applicant was referred to Dr Michael Selby, who was at that time the head of the Queen Elizabeth Spinal Unit and who diagnosed the applicant with collapsed discs. In May 2014, the applicant underwent surgery for the fusion of two discs at C5/6 and C6/7. That surgery was successful in that the applicant experienced almost immediate relief from the extreme pain that he had previously been suffering.11 Brevet Sergeant Graham 39 For understandable reasons, there is considerably less evidence about the background of Brevet Sergeant Graham. At the time of giving evidence, he was a 8 Exhibit A22. 9 Ibid. 10 T332. 11 T86. -- 14 of 166 -- [2024] SASC 97 McDonald J 11 Detective Brevet Sergeant, having received his designation as a detective in early 2021. 40 In 2015, Brevet Sergeant Graham was a uniformed police officer working at the Neighbourhood Policing Team within the Western Adelaide Local Service Area. He worked there between 2012 and 2016. Brevet Sergeant Graham provided an overview of the role of that team:12 … in short we used to describe it as we were country police I guess in a metropolitan setting. So we get to know our neighbourhoods. We were given different areas to look at, high volume crime type areas and my responsibilities were Bowden, Brompton and Ovingham at the time. 41 Brevet Sergeant Graham went on to explain his duties in that team:13 … General duty policing, fly the flag if you like. So the presence, get to know all of your locals, keep an eye on the crime overnight, follow up what needed to get followed up. Might be given obviously crime reports to follow up if there were any. We would deal with people with breaches of bail, warrant, arresting people to have them appear before the courts within those areas. Getting to know your local community really being an option for them and also obviously getting to know your local persons of interest for police in relation to crime. So effectively it was a high visibility type approach. It didn’t necessarily always work but it was certainly - it was a good time to work there and I got to know a lot of people in the area. 42 Brevet Sergeant Graham gave evidence that he worked an afternoon shift on Good Friday 2015. That involved commencing at 3.00pm and finishing at 11.30pm. During that shift, Brevet Sergeant Graham was on solo patrol in a marked police fleet car in the Bowden-Brompton area. Brevet Sergeant Graham told the Court that, given it was Good Friday and licenced premises were closed, his target that day was the commission of traffic offences and drink driving. There is no suggestion that there was anything untoward or unusual that occurred on that shift prior to Brevet Sergeant Graham crossing paths with the applicant. The events of Good Friday 2015 The applicant’s version of events 43 The applicant gave evidence that on Good Friday 2015, he had dinner in the city with his then-partner, Susan Watson. They had dinner at a restaurant on Gouger Street. The applicant had his two dogs with him. It was the applicant’s evidence that he and Ms Watson left the city shortly before 10.00pm. He estimated it was between about 9.40pm and 9.45pm. From there, the applicant drove directly to Ms Watson’s house at Trembath Street, Bowden. It would have taken between five to eight minutes to drive to Ms Watson’s house from the city. It was the applicant’s evidence that once there, he dropped Ms Watson off and immediately left, planning to drive straight home. 12 T695. 13 T696. -- 15 of 166 -- [2024] SASC 97 McDonald J 12 44 The applicant told the Court that en-route he stopped at Chief Street, because he became aware that one of his dogs needed to urinate. As a consequence, he pulled over just before the intersection of Second Street and Chief Street. The applicant got out of the car with his dogs to give them the opportunity to do what they needed to do. He took his car keys with him for safety reasons. 45 After the dogs had urinated, the applicant got back into the car. Once in the car, he turned on the interior light and grabbed his phone. The applicant’s evidence was that he cannot recall why he looked at his phone. However, at one point in cross-examination, he appeared to agree with the suggestion that he was checking emails. It was during this process that the applicant became aware of a police car. He said, “I could see down the road quite a distance some brake lights and then those brake lights turned into headlights and then those headlights turned into flashing lights”.14 The applicant said that, when he first became aware of the police car, it was about 100 or so metres away. 46 It was the applicant’s evidence that the marked police car drove towards him and pulled up in front of his car in a manner that meant that he was blocked in and unable to drive away. The applicant described what then occurred:15 Q. Did he get out of the police car. A. He jumped – he alighted from the car in a hurry and he rushed toward me. He looked really angry and he came to me and the window was down and I – Q. Meaning the window next to you in the car. A. From my driver’s side, yes, and I said to him, ‘May I help you, sir?’ and he said ‘You were trying to get away from me, weren’t you?’ and I said ‘No, sir, I’m sorry, you’ve made a mistake because I’m just sitting here, minding my business’. He said ‘No, no, no, you were trying to get away from me’ and in a louder tone, he was getting more angry, and I said ‘No, sir, you’ve made a mistake. I’m sitting here minding my business’, and he then put his hand on the front bonnet of the car. Q. Of your car. A. Yes, and then I said ‘Sir, I’m going to have to record this conversation now’ and then he lunged in – 47 The applicant described the police officer then lunging into the car and pulling the phone out of his hand. He said that, in that motion his right elbow hit the driver’s side door, connecting with his funny bone causing him pain. The applicant described feeling very frightened of the behaviour of the police officer because he appeared to be angry and the applicant was concerned that he was going to be hurt. He said that his thoughts immediately went to his recent neck surgery. These concerns caused him to have a panic attack. It was the applicant’s evidence that, at about that point, Brevet Sergeant Graham told him 14 T106. 15 T107-108. -- 16 of 166 -- [2024] SASC 97 McDonald J 13 that he was going to require him to undertake an alcotest, although he had no alcotest in his hands. The applicant said that he responded by telling Brevet Sergeant Graham that he had a medical condition and that he wanted a blood test. It was the applicant’s evidence that this response appeared to make Brevet Sergeant Graham even more angry, which resulted in the applicant attempting to lock the door. He said that as he tried to lock the door, Brevet Sergeant Graham opened it causing the applicant to yell out, “Sir, please don’t hurt me. I’ve had spinal surgery, I have bolts in my neck, I can’t breathe, I have a medical condition”.16 The applicant described Brevet Sergeant Graham then grabbing him by his jumper and pulling him out of the car. The applicant said that he went with him in that motion and did not resist because he was concerned that he was going to be hurt. 48 The applicant described Brevet Sergeant Graham then turning him around and in one movement grabbing his right arm, pushing it up behind his back, and simultaneously slamming the applicant’s head on the top of the roof of the car. The applicant described Brevet Sergeant Graham twisting his right arm up behind him towards his left shoulder, with such force that he believed his arm had been broken. He described experiencing excruciating pain, such that he was screaming, yelling, and crying. It was the applicant’s evidence that it was at this point that Brevet Sergeant Graham applied handcuffs to his hands, causing him further pain with tension along his spine. He said that, at that point, Brevet Sergeant Graham told him that he was under arrest for “failing to comply with an alcotest”. The applicant described continuing to scream and cry out in pain. 49 The applicant said that, at about this time, Brevet Sergeant Graham released both hands from the handcuffs. It was the applicant’s evidence that the next words spoken to him by Brevet Sergeant Graham were “There’s an ambulance coming, you can now get your blood test”.17 The applicant described Brevet Sergeant Graham as laughing as he said those words. 50 The applicant said that two other police officers arrived at the scene shortly after the handcuffs had been released. One was male and the other female. The applicant said that they escorted him to the footpath and forced him to sit down. The applicant recalled the two police officers attempting to ask him questions, but he did not answer because he was having difficulty breathing. He said that, at one stage, he attempted to get up, but one of the police officers pushed him back down to the kerb. The applicant described that, at some point during this exchange, he told the police that he had some medication in his glove box. He explained that he kept Inderal in his glove box in case he suffered an episode of anxiety. The applicant said that he asked the police to get his medication. He saw the police go to his car, but they did not return with the medication. Rather, they made reference to some marijuana that had been found in 16 T110. 17 T117. -- 17 of 166 -- [2024] SASC 97 McDonald J 14 the middle console of the car. It was the applicant’s evidence that he remained on the kerb for about 10 to 15 minutes before the ambulance arrived. 51 The applicant told the Court that, once the paramedics arrived, he was placed in the back of the ambulance. The paramedics asked him questions about whether he had been drinking or taking drugs “which [he] found to be quite strange and self-incriminating”.18 The applicant said that, throughout his dealings with the paramedics, Brevet Sergeant Graham was seated in the front of the ambulance, laughing. During this time the applicant believed that he was still under arrest. 52 The applicant was conveyed from the scene by ambulance to the Royal Adelaide Hospital. The applicant said that, when they arrived there, he was taken through the Emergency Department to a closed room where he was left inside to wait for the attendance of a doctor. During that time, Brevet Sergeant Graham sat in front of the door so he could not leave. It was the applicant’s evidence that, at some point, he left the room and approached a doctor to see how much longer it was going to take. As he approached the doctor, he saw that the doctor was filling out the relevant prescribed form. He heard Brevet Sergeant Graham ask the doctor “Do you know which box to tick”, at which point the applicant said that Brevet Sergeant Graham commented, “Dean, you got away with this last time, I’m going to make sure that you don’t get away with it this time”.19 53 It was the applicant’s evidence that his blood was taken and he left the hospital. Upon leaving, he realised that he had left his jumper behind so he went back inside. The applicant said that as he went back into the hospital Brevet Sergeant Graham approached him and handed him his jumper and a licence disqualification notice. As he was handed the notice, Brevet Sergeant Graham said, “It looks like your shoulder has improved all of a sudden”.20 The applicant said that he did not respond and left. Brevet Sergeant Graham’s version of events 54 On 3 April 2015, Brevet Sergeant Graham was working an afternoon shift alone in a marked police car. It was Brevet Sergeant Graham’s evidence that, given this was a Good Friday the streets were unusually quiet. During this shift his attention was first drawn to a “dark sedan” in the vicinity of Trembath Street in an area almost adjacent to, or parallel with, Park Terrace. Brevet Sergeant Graham observed the vehicle take off very quickly. As a consequence, he took pursuit. Brevet Sergeant Graham followed the car to Chief Street, albeit on at least two occasions he momentarily lost sight of the car as it turned a corner. During that pursuit, Brevet Sergeant Graham observed the dark sedan commit a number of traffic offences, including failing to stop at a stop sign. When Brevet Sergeant Graham pulled into Chief Street, he observed the applicant seated in his black Audi 18 T122. 19 T124. 20 T124. -- 18 of 166 -- [2024] SASC 97 McDonald J 15 facing in a northerly direction. There were no other vehicles on Chief Street at that time. 55 Whilst it was put to me by Senior Counsel for the applicant that it was unnecessary for me to resolve whether or not the driver of the black sedan was, in fact, the applicant in his Audi, I am of the view that Brevet Sergeant Graham’s description of his pursuit of the dark sedan is a factor that is of some assistance to me in resolving the issues in relation to the competing accounts. It is significant that Brevet Sergeant Graham describes the pursuit starting on Trembath Street which was, in fact, the street on which Ms Watson lived at that time. As mentioned previously, on the applicant’s account, he had just dropped Ms Watson home immediately preceding these events. 56 It was Brevet Sergeant Graham’s evidence that once he was on Chief Street, he executed a U-turn and pulled up on the wrong side of the road, two to three metres away from the front of the applicant’s vehicle. He then got out of the police vehicle leaving the car engine on, with lights flashing. Brevet Sergeant Graham approached the applicant’s vehicle. He described his first interaction with the applicant:21 Q. How was it that you and the driver of this car first came to interact with each other. A. I approached the driver’s window and spoke to him. Q. You say you approached the window, was the window up or down. A. I believe it was down. Q. What was the first interaction. A. Word for word I don’t know but it would have been - Q. As best as you can recollect. A. As best as I can remember it, I would have said, ‘trying to get away, are you?’, you know, ‘some ordinary driving there’, I don’t know but it would have been something to do with - in relation to the manner of the driving at the time. Then, I had the alco with me to do my bit and hopefully 20 seconds be away if it was negative but that wasn’t to be the case. 57 When Brevet Sergeant Graham was asked what the first thing was that the applicant said to him, he said that he didn’t know but that he knew the “guts of most of it”. He said that the applicant repeated on multiple occasions “I wasn’t driving. I refuse to blow, I refuse to blow, I wasn’t driving, I wasn’t driving, I refuse to blow”. Brevet Sergeant Graham said that he responded by advising the applicant that he was required by law to submit a sample of his breath. He described the progression of the conversation:22 21 T711-712. 22 T717. -- 19 of 166 -- [2024] SASC 97 McDonald J 16 Q. I want to go through this step-by-step. A. Yes. Q. He said, ‘I refuse to blow.’ Is that in response to something that you’ve said. A. Yes, so the driver of a motor vehicle you’re required now by law to submit a sample of your breath. Q. I’m sorry, you will have to slow a little bit. A. But that’s the pace I say it at or said it at, I should say but it’s a quick thing of ‘how are you going, you’re driving, you’re required to supply a sample of your breath. Take one deep breath and blow steadily through this mouthpiece until I tell you to stop.’ And that’s the direction, if you like, for me to be able to give to a member of the public that I believe was driving a car, random breath testing. Q. And so, you gave that direction. A. Yes, I did. Q. And what was the response to that direction. A. From memory, ‘I wasn’t driving and I refuse to blow.’ Q. And what was your response to being met with that refusal. A. That it’s a criminal offence not to blow that you may lose your licence for 12 months or more and/or be fined. Obviously, they’re entitled to what’s called the good cause defence,23 which is I think what I’m going through now, used to roll off my tongue back then but not so much these days, how did it go? 58 Brevet Sergeant Graham went on to elaborate about what he meant by the “good cause defence”:24 So, everyone is required to undergo that direction to blow, my understanding of the instruments are they are designed for even people with the greatest of breathing difficulties but unfortunately, I’m not a doctor and neither are others but people do – it still is an offence to refuse or fail to comply with that direction but the good cause defence is something that can be raised later by an accused person if they’ve claimed to have got a medical issue that prevents them from blowing and I believe only if they ask for a blood sample to be taken. 23 The “good cause defence” was the shorthand expression used by Brevet Sergeant Graham to refer to the prescribed oral advice required under s 47E(4)(ab) of the Road Traffic Act 1961 (SA): 47E – Police may require alcotest or breath analysis (4) It is a defence to a prosecution under subsection (3) or (3a) that – (ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to – (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person’s right to request the taking of a blood sample under section (4a); … 24 T718. -- 20 of 166 -- [2024] SASC 97 McDonald J 17 59 The effect of Brevet Sergeant Graham’s evidence was that, at the time of the relevant events, he was administering breath analysis tests very regularly and, as a consequence, knew the directions that he was required to give. Brevet Sergeant Graham described the applicant’s attitude as being belligerent and argumentative throughout this exchange. He said that as the conversation progressed the applicant got out of his car in an aggressive manner, holding his phone. He described the applicant as “shaping up” to him. He explained that by using that term he meant that the applicant had his chest puffed out, his fists clenched, and that he was speaking in an angry and argumentative manner. He said:25 Commonly when someone shapes up to you, they puff their chest out, clench their fists, maybe grit their teeth, look angry, looking for a fight. 60 Brevet Sergeant Graham’s evidence was that, based on his 15 years of experience working in the Elizabeth Local Service Area, he was concerned that the situation was quickly escalating and that the applicant was a bigger man than him. He said that, on that basis, he determined at that point to arrest the applicant. When asked what words he said whilst effecting the arrest, Brevet Sergeant Graham said, “You’re under arrest, you’re under arrest for failing to blow’. I don’t remember the exact words, but he would have been told that he was under arrest”. 61 When asked whether he had a specific memory of saying this, or if it was his usual practice, he responded:26 Usual practice. Usual practice, especially if I’ve gone hands on with somebody, they’re getting told, because I think that word – I’m not going to guess for other people, but that word certainly makes people understand they’re being arrested. He further explained that, back in 2015, those words would roll off his tongue in circumstances where he was placing someone under arrest. 62 Brevet Sergeant Graham explained that in order to secure the applicant he held him up against the car, put his phone on the bonnet, and then secured the applicant’s right hand behind his back in a handcuff. It was his evidence that during the process of securing the applicant’s left hand, his demeanour completely changed. He said that, whereas the applicant had previously been tense, he suddenly became loose. He described the applicant starting to hyperventilate and behave in an erratic manner, not making much sense. When asked how long the process of handcuffing took, Brevet Sergeant Graham said:27 … it wasn’t long because his whole demeanour changed the minute I grabbed a hold of him. I remember taking I think the left one off. I’ve never seen someone behave the way he behaved. It was really strange. He was hyperventilating, he was carrying on, he wasn’t making much sense. I didn’t know if he was on any drugs. 25 T736. 26 T723. 27 T724. -- 21 of 166 -- [2024] SASC 97 McDonald J 18 Brevet Sergeant Graham went on to further elaborate:28 He started making no sense. He said he - I can’t remember his exact words. He started mumbling, some really weird breathing. It was like nothing I haven’t seen [sic] so I called an ambulance. 63 As a consequence of this, Brevet Sergeant Graham released the applicant’s left hand and it was placed on top of the roof of the vehicle.29 He told the applicant to leave his hand there and advised him that he was getting an ambulance and arranging for another police car to attend. Brevet Sergeant Graham told the applicant that he would take the handcuffs off when the other police car arrived. It was at about this point in time that Brevet Sergeant Graham called for assistance. 64 A USB was tendered containing the SAPOL radio communications that occurred as a result of Brevet Sergeant Graham requesting backup.30 The series of communications commenced at 10.07pm. I have had the benefit of hearing all of these recordings. One thing that stands out from listening to the recordings, is that Brevet Sergeant Graham appears to sound relatively calm and measured. This stands in stark contrast to the applicant, who can be heard to be loudly moaning throughout a number of the recordings. That moaning is an unusual sound, and is consistent with the applicant having some sort of anxious episode. 65 It was Brevet Sergeant Graham’s evidence that Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee arrived shortly after his request for assistance. Brevet Sergeant Lee can first be heard on the recordings at 10.07.28pm. The following exchange occurred at that time:31 Male officer (Graham): Well, the […?] not working mate. I’m at Chief Street. Brompton, I just got one under arrest Female officer (Lee): With 20, making our way. 66 By 10.13pm, Brevet Sergeant Lee must have been at the scene because she is heard to say “Since I’ve been here…um, we’re not sure about what is going on with this male, some sort of panic attack. He’s saying he has a medical condition, but he’s not giving us much info. Can you just see how far ambos are?”. 67 Brevet Sergeant Graham was unable to say who called the ambulance or when that occurred. However, from the recordings, it is apparent that it must have occurred sometime prior to 10.13pm. 28 T728. 29 It is unclear on the evidence as to whether the applicant put his hand on the vehicle or Brevet Sergeant Graham put the hand there; as at T728, it appears that Brevet Sergeant Graham placed the applicant’s hand on top of the car to calm him down. 30 Exhibit R119. 31 Exhibit R119; a transcript of this recording was marked for identification but not tendered. -- 22 of 166 -- [2024] SASC 97 McDonald J 19 68 Brevet Sergeant Graham said that, once the other police officers arrived, they walked the applicant to the footpath, whereupon he removed the handcuff from the applicant’s right wrist and the applicant sat down on the ground whilst they waited for the ambulance. During that time, Brevet Sergeant Graham noticed that the applicant was moving in a way that made it appear he was taking turns in leaning back on each of his elbows. 69 Although the timing is unclear, Brevet Sergeant Graham gave evidence that during his dealings with the applicant, at some stage the applicant claimed that Brevet Sergeant Graham had aggravated an old injury in his right shoulder and that had only recently underwent surgery. When asked at what stage during the arrest process this occurred, Brevet Sergeant Graham explained:32 I think part of it was when he said that initially, because I know he repeated it multiple times, so I think the first time he made it clear it was either just prior to the ventilating or during, the hyperventilating, where he was moaning, because he chopped and changed a bit with the way he behaved, so I remember, for example, when he was on the footpath speaking with the ambulance officers, and then the ambulance officers came back to us to talk about - it was about the medication, and I don’t remember the exact words they used, but they said that he is claiming a, b, c, whatever he was claiming, and I got the impression he overheard what was said and he went from stopping his moaning to butting in and shouting out a comment about ‘No, that’s not right’, or - he was disagreeing with what was being said, I don’t remember exactly what was being said at the time. 70 Once the ambulance arrived Brevet Sergeant Graham briefed the paramedics and he observed them having a conversation with the applicant. 71 Neither of the paramedics was called to give evidence. However, the records of their attendance were tendered. I will come to deal with these records in due course.33 72 Brevet Sergeant Graham gave evidence that, whilst the paramedics were in attendance, they told him that the applicant had asked about some medication that he needed for his anxiety and had asked that someone go to the car and look for it. As a consequence of this, Brevet Sergeant Graham went to the car and retrieved a small white pill bottle which contained some cannabis and tablets. Brevet Sergeant Graham was unable to locate any other medication. 73 Brevet Sergeant Graham travelled in the front of the ambulance to the hospital with the applicant and paramedics. It was his evidence that his only interest in attending at the hospital was to obtain a sample of the applicant’s blood to determine if he had any drugs or alcohol in his system. 74 Once at the hospital, Brevet Sergeant Graham went inside with the applicant. He said that they arranged for a doctor to attend “pretty quickly”, who took the blood sample and provided it to him. When asked whether the exchange that the 32 T745. 33 At [115]-[116]. -- 23 of 166 -- [2024] SASC 97 McDonald J 20 applicant gave evidence about had occurred, Brevet Sergeant Graham said that he would have asked the doctor if he knew which box to tick, because he had known emergency department doctors to tick the wrong box. He however denied the second part of the conversation, and said that he did not know of the applicant before that night. 75 Brevet Sergeant Graham said that when he went to leave, he realised that he had not served the paperwork for the loss of his licence on the applicant, so he returned to the hospital. He described an exchange that occurred when he went back in:34 So, I’d not served him with an instant loss of licence at that stage, or I had not given him some paperwork, I had to give him something, I remember that, and at that time he was leaving the hospital, which I found very strange, and he was pulling a jumper on and raising his arms above his head and putting his jumper on and I thought ‘Well, this is really weird considering I’ve aggravated and caused some serious injuries’, and I gave him something, it was some document and then I said ‘You will be getting a fine in the post for your dope’, and he says ‘What dope?’ I said ‘The one in the centre console where there had been the medication packet’, and he said ‘Whatever, fuckhead’, and I [got] in my car and left. 76 Between that time and attending at court to give evidence, Brevet Sergeant Graham had not seen the applicant again. Issues in dispute between the applicant and Brevet Sergeant Graham 77 As is clear from the recitation of the accounts of these two main witnesses, there were significant differences in their versions of events. It is useful to identify what those differences were. 1. The applicant’s driving prior to the events on Chief Street 78 On the applicant’s account, there was nothing untoward or illegal about the manner in which he was driving after he left his partner’s address at Trembath Street. It was his evidence that he could not have been the driver of the car that Brevet Sergeant Graham saw “take off” from that street (if there had in fact been such a car) given, on his version, sufficient time had passed between his arrival on Chief Street and Brevet Sergeant Graham’s arrival, for him to take his dogs to urinate. 79 It was Brevet Sergeant Graham’s evidence that his attention had been drawn to the dark vehicle because of the manner in which it was driving. Although Brevet Sergeant Graham conceded that on two occasions, he had momentarily lost sight of the vehicle he was pursuing, the only logical inference from his evidence is that it was the applicant that Brevet Sergeant Graham had observed driving in an erratic manner. That is particularly so, given the absence of any other vehicles in the vicinity at that time. 34 T749. -- 24 of 166 -- [2024] SASC 97 McDonald J 21 2. The initial exchange between the applicant and Brevet Sergeant Graham 80 It was the applicant’s evidence that it was Brevet Sergeant Graham who was the aggressor in their interaction, that he was calmly sitting there minding his own business when Brevet Sergeant Graham alighted from the police car and rushed toward him in an angry manner. In the exchange that followed, it was the applicant who remained rational and unflustered, whilst Brevet Sergeant Graham became increasingly angry. 81 Brevet Sergeant Graham’s evidence was completely at odds with this. From his perspective, this was a routine traffic stop. So much so that when he got out of his vehicle, he already had the alcotest in his hand. Whilst Brevet Sergeant Graham could not recall the precise terms of what he had said to the applicant, it was in the nature of the typical sort of comment that a police officer would make in a traffic stop such as this. He said the applicant kept repeating words to the effect of “I wasn’t driving” and “I refuse to blow”. It was at this point that Brevet Sergeant Graham provided the applicant with the “good cause defence” as set out previously.35 82 The applicant denies that Brevet Sergeant Graham provided him with the good cause defence. 3. The circumstances in which the applicant came to get out of his car 83 Again, the accounts of the applicant and Brevet Sergeant Graham are diametrically opposed on the topic of how the applicant came to get out of his car. It was the applicant’s evidence that, in response to him saying that he was going to record the conversation, Brevet Sergeant Graham lunged into his car and effectively dragged him out. Although the applicant agrees that Brevet Sergeant Graham said that he wanted to conduct an alcotest, he denied that he had one in his hand at the time. He said that Brevet Sergeant Graham grabbed him by the jumper and pulled him out of the car, causing him to scream out, “Sir, please don’t hurt me. I’ve had spinal surgery, I have bolts in my neck, I can’t breathe, I have a medical condition”.36 Once out of the car, the applicant said that Brevet Sergeant Graham grabbed him by the right arm, turned him around, pushed him toward the car and slammed his head into the top of the roof of the car. 84 Consistent with his account about the earlier events, it was Brevet Sergeant Graham’s evidence that the applicant remained the aggressor throughout their interaction. He said that the applicant voluntarily got out of the car, that the applicant pushed the door open and shaped up to him, appearing angry with his fists clenched. It was at that point that Brevet Sergeant Graham determined that he would not allow the situation to escalate any further and made the decision to arrest the applicant. Brevet Sergeant Graham admitted that, in doing so, he used a degree of force in that he pulled the applicant’s right arm up against his back and 35 At [57]. 36 T110. -- 25 of 166 -- [2024] SASC 97 McDonald J 22 manoeuvred the applicant toward the car to effect the arrest. He however, denies pushing the applicant’s head into the roof of the car. 4. The arrest 85 From the point of the arrest, the differences in the versions of events provided by Brevet Sergeant Graham and the applicant are less stark. 86 It was the applicant’s evidence that, as Brevet Sergeant Graham was applying the handcuffs, he told him that he was under arrest for failing to comply with an alcotest. The applicant said that he was unhandcuffed almost immediately after he had been handcuffed. It was “almost instantaneously”.37 He described Brevet Sergeant Graham walking away once he was released from the handcuffs and then returning to say “The ambulance is on its way. You can get your blood test now”.38 Throughout all of this the applicant described himself as crying and screaming out in pain. 87 Brevet Sergeant Graham also described a change in the demeanour of the applicant once he had applied the handcuffs, although what he described was something more in the nature of a panic attack rather than someone crying out and screaming in pain. Brevet Sergeant Graham’s evidence was, however, consistent with that of the applicant in that as he was putting the handcuffs on, he believes that he said words to the effect of “You’re under arrest for failing to blow”.39 Brevet Sergeant Graham’s account as to how long passed before the right handcuff was removed is also consistent with the applicant in that it was a very short period of time. Brevet Sergeant Graham estimated that it was about 20 seconds.40 5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee 88 The applicant gave evidence that Senior Constable Westbrook and Brevet Sergeant Lee arrived at a point in time after both of the handcuffs were released. He described them as escorting him to the footpath and forcing him to sit down. The applicant describes one of the police officers, most likely the male, at one stage pushing him backwards when he attempted to stand. He said that it was about this time that he requested them to obtain medication from his car, and, although he saw them move towards his car, they did not return with any medication. It was the applicant’s evidence that about 10 to 15 minutes after that the ambulance and paramedics arrived. 89 Brevet Sergeant Graham’s evidence was that he believed that the applicant still had one handcuff on his right wrist when Senior Constable Westbrook and Brevet Sergeant Lee arrived. He said that, once they had arrived, they walked the applicant over to the footpath and removed the handcuff. The applicant sat on the ground whilst they waited for the ambulance to arrive. Brevet Sergeant Graham 37 T378. 38 Ibid. 39 T723. 40 T729. -- 26 of 166 -- [2024] SASC 97 McDonald J 23 thought about five to 10 minutes passed between the arrival of the two other police officers and the ambulance. Brevet Sergeant Graham said that, once the paramedics arrived, he stood back to enable them to undertake an assessment of the applicant. It was his evidence that, at some stage, one of the paramedics approached him and asked him to go and look for the applicant’s medication for anxiety in his car. Brevet Sergeant Graham described retrieving a small pill bottle containing cannabis and some other medication from the centre console of the car. 90 There is no dispute that Brevet Sergeant Graham travelled in the front seat of the ambulance that transported the applicant to the hospital. 6. Events at the hospital 91 The applicant described waiting a long time for the doctor to arrive and take a blood sample. During that time, he was in a room, with Brevet Sergeant Graham seated at the door. 92 The applicant said that, whilst the doctor was present, there was a conversation in which Brevet Sergeant Graham asked the doctor if he knew which box to tick and told the applicant that “he wouldn’t get away with it again”. 93 It was the applicant’s evidence that, on his return to the hospital to collect his forgotten jumper, Brevet Sergeant Graham approached him with the jumper and the licence disqualification paperwork. Brevet Sergeant Graham made a comment about the applicant’s shoulder appearing to be better. 94 The applicant denied swearing at Brevet Sergeant Graham and putting his jumper back on in Brevet Sergeant Graham’s presence. 95 Brevet Sergeant Graham agreed that the applicant was left waiting in a separate room to have his blood taken and that he had stood at the door. He said that they did not have to wait long for the doctor to arrive to take the blood, and although he admitted that he is likely to have asked the question about ticking the box, he believes that he is unlikely to have said anything about the applicant not getting away with it again. Brevet Sergeant Graham pointed to the fact that he did not know the applicant prior to these events. 96 It was Brevet Sergeant Graham’s evidence that it was he who left the hospital and returned in the realisation that he had forgotten to give the applicant the licence disqualification paperwork. He said that, right before he gave him the paperwork, he watched the applicant put the jumper on by putting his arms above his head without any apparent pain or restriction. This manoeuvre was at odds with the pain that the applicant had been complaining of. Brevet Sergeant Graham told the Court that it was as they went their separate ways that the applicant swore at him. 97 There are significant differences in the accounts of the applicant and Brevet Sergeant Graham. Before I make a determination as to what I find has been proved, I turn to consider the other evidence that may assist in shedding some light -- 27 of 166 -- [2024] SASC 97 McDonald J 24 on the events of Good Friday 2015. This includes evidence from other police officers who were present during parts of the events, SA ambulance records, evidence about interactions between Mr Cosenza and the police on other occasions, evidence about an incident that occurred in the Central Market carpark and the medical and psychiatric evidence. Evidence of Senior Constable Bradley Westbrook and Brevet Sergeant Melissa Lee 98 Senior Constable Westbrook and Brevet Sergeant Lee were both called to give evidence about the events of Good Friday. Before I turn to the details of their respective accounts, I want to make some general observations about their evidence. 99 I have no doubt that these witnesses were doing their best to tell the truth, however, their ability to provide a reliable account was hampered by a number of matters. The first was the length of time that has passed since these events occurred. Whilst it is not uncommon for witnesses to be required to give evidence after a lengthy delay, commonly, they will have been required to give statements or affidavits at a point much closer in time to the relevant events. The benefit of that is twofold. First, it generates a more contemporaneous document from which a witness can refresh their memory at a later point in time. The second benefit is that it enables a witness to bed down a memory at a time when that memory is still relatively fresh. The witness also knows from the point in time that they are required to produce a written account, that the relevant events have taken on some significance and, as such, the memory is more inclined to retain those details. 100 There is limited evidence about when Senior Constable Westbrook and Brevet Sergeant Lee were required to first produce statements or affidavits and, even more importantly, when they first became aware that their dealings with the applicant had any particular importance. Although there is evidence that Senior Constable Westbrook swore an affidavit on 30 November 2015, over seven months later, there is no context as to how that came about or the purpose for which it was required. As much emerged in his re-examination.41 That affidavit was tendered.42 It is so brief that I set out the contents in full: 1. I am a Constable of Police, ID74724 stationed at Kadina Police Station. I compiled this statement at about 10.00am on Monday the 30th of November 2015. 2. At about 10.00pm on Friday the 3rd of April 2015 I was working in company with Constable Melissa LEE when we were tasked to attend Chief Street BROMPTON to assist Senior Constable Alan GRAHAM with an arrest. 3. On arrival to the location I observed GRAHAM standing and holding a male at the driver side of the vehicle. The male is now known to me as Dean COSENZA. 4. COSENZA was walked from the road over to the footpath where he sat on the curb. 41 T874. 42 Exhibit A133. -- 28 of 166 -- [2024] SASC 97 McDonald J 25 5. I can’t recall when COSENZA was handcuffed but I heard him complain that he had a sore shoulder so we removed the handcuffs from his back and moved his arms to the front before applying the handcuffs again. At times he would roll around on the hard gravel and bitumen footpath. He was held as to prevent any injury occurring. 6. COSENZA was yelling but I can’t recall what he was saying. I can’t recall if I had any conversation with him in relation to the alleged incident. At some points during the incident he appeared to breathe short shallow breaths. I did not observe any injury. 7. Police requested an ambulance to attend. COSENZA was conveyed to the Royal Adelaide Hospital. I followed the ambulance to the hospital. 8. When I was present with GRAHAM at the hospital I heard COSENZA yelling. I can’t recall what he was yelling. 9. At about 11.00pm I left the hospital and resumed normal patrol duties. 101 There was no evidence about when Brevet Sergeant Lee first provided an affidavit or first turned her mind to these events,43 however in cross-examination, Brevet Sergeant Graham was taken to a statement purportedly made by Brevet Sergeant Lee on 30 November 2015.44 102 From their perspectives Senior Constable Westbrook and Brevet Sergeant Lee were two uniformed police officers who were on standard patrol duties. The most extreme of the applicant’s conduct had passed by the time of their arrival and, once there, they were given the relatively routine task of assisting Brevet Sergeant Graham by waiting with the applicant for an ambulance to arrive. From that point, their only remaining role was to drive Brevet Sergeant Graham’s car to the hospital to enable him to travel with the applicant in the ambulance. 103 As far as they were aware no serious offence had occurred that night and there is no suggestion that they were required to provide statements for a criminal prosecution. It could not possibly have been in their contemplation that they would be required to give evidence in a civil trial in the Supreme Court some seven years after the event about their brief interaction with the applicant that Good Friday evening. It would also be a safe assumption that, since that time, both officers would have had hundreds, if not thousands, of further interactions with members of the public. 104 Senior Constable Westbrook gave evidence that, at the time of these events, he was stationed at the Parks Police Station as a general duties patrol member. At the time of trial, he was undertaking similar duties at the Kadina Police Station. Senior Constable Westbrook’s recollection as to how he came to be involved in these events was, at best, vague. He gave evidence that he and Brevet Sergeant Lee were together in a police car when they received a call over the police radio to 43 Although an affidavit provided by Brevet Sergeant Lee was marked for identification, it was never tendered. 44 T813. -- 29 of 166 -- [2024] SASC 97 McDonald J 26 provide some assistance at Chief Street, Brompton. He was unable to say where they were when they received the call or provide any further detail of the information that they were given. 105 Senior Constable Westbrook could not say how long it took them to get to Chief Street, or from which end of the street they entered. His only memory of what occurred at the scene was that, at some point, he could recall the applicant standing at his car and he could also recall the applicant sitting on the kerb. He could not say which position the applicant was in when he first arrived. Senior Constable Westbrook described seeing Brevet Sergeant Graham standing close to the applicant but could not recall what Brevet Sergeant Graham was doing at that time. 106 When asked whether he was involved in assisting with the handcuffing of the applicant, Senior Constable Westbrook was unable to say whether or not he was. He could not recall whether he had deployed his own handcuffs. He said he could remember that at one point the applicant was sitting on the kerb whilst handcuffed. However, he could not say whether he had been handcuffed before they arrived, when he was standing at the car or when he was sitting on the kerb. His recollection was that the applicant was handcuffed to the rear. Senior Constable Westbrook gave evidence that he recalled, at one point, the applicant was pushing himself backwards and rolling on both shoulders whilst handcuffed to the rear. He said:45 One thing I can recall is that when he was handcuffed to the rear whilst sitting on the kerb making complaints about pain in his shoulders he was also laying backwards almost pushing himself backwards and rolling on his - on both shoulders side-to-side while handcuffed to the rear. Just against I guess the advice that was given to try and sit still and they would get his pain assessed but other than that I can’t recall any further behaviour. 107 Senior Constable Westbrook also had a recollection that, at some stage, the handcuffs were moved to the front. He said he believed that happened whilst the applicant was sitting at the kerb but he was not sure about that. He said that at some point, the handcuffs were removed but he cannot say who was involved in that process. 108 Senior Constable Westbrook had no recollection of an ambulance arriving. However, he did appear to have a vague memory of being at the hospital, although he cannot recall how he got there. 109 Since that time, Senior Constable Westbrook has had no further contact with the applicant. 110 Whilst Senior Constable Westbrook was clearly doing his best to assist the Court, I formed the clear impression that he had very little memory of these events. It seemed, at times, he was attempting to pull together a vague recollection or 45 T867-868. -- 30 of 166 -- [2024] SASC 97 McDonald J 27 impression. In those circumstances, there is limited weight that I can place on his evidence. 111 At the time of trial, Brevet Sergeant Lee was working at the Investigation Support Desk as an intelligence officer. In 2015, Brevet Sergeant Lee was a Senior Constable working at the Parks Police Station in uniformed patrols. 112 Brevet Sergeant Lee appeared to have a more detailed memory of the events of Good Friday than Senior Constable Westbrook. Her account, however, was also at odds with that of the applicant and Brevet Sergeant Graham as well as Senior Constable Westbrook. She recalls being on general patrols with Senior Constable Westbrook when they received a radio communication requesting assistance on Chief Street, Brompton. It was her memory that the purpose of their attendance was a traffic stop with a difficult person. It sounded to her like the patrol member in attendance needed some assistance. She said that, at that time, they were in the Brompton area already so they did not have far to travel. She believes that it took them about five to ten minutes to get to Chief Street. 113 Brevet Sergeant Lee said that, when they arrived at Chief Street, they pulled up behind the applicant’s vehicle. She said that as they pulled up, she saw that the driver’s door of the applicant’s car was open and that Brevet Sergeant Graham was standing with a male near the driver’s door. She explained that they were positioned in the cavity left by the open door. Brevet Sergeant Lee said that, as they approached, Brevet Sergeant Graham was standing behind the applicant and it looked like he was trying to put handcuffs on him. She said, however, that she saw no handcuffs. When asked why she drew the conclusion that Brevet Sergeant Graham was attempting to use handcuffs, she said because of the position in which he and the applicant were standing. She said that initially there did not appear to be any physical contact between them but, as she came closer, it looked like Brevet Sergeant Graham was trying to handcuff the applicant, and she recalled that Senior Constable Westbrook went to his assistance. At that time, the closest that she got to the three men was about a metre away whilst standing at the back of the applicant’s car. When asked when she first saw the handcuffs, Brevet Sergeant Lee said, “when they were on him already, so they’d already got his hands behind his back”.46 Brevet Sergeant Lee gave evidence that either Senior Constable Westbrook or Brevet Sergeant Graham asked the male to come off of the road and onto the footpath. Brevet Sergeant Lee said that, although at some point the applicant was released from the handcuffs, she was unable to say at which stage in the sequence of events that occurred. 114 When asked to describe the applicant’s demeanour during this time Brevet Sergeant Lee said “He was very heightened. Like he was just shouting and almost crying. Very emotional”.47 She recalled that he was complaining and saying that he had some medication in his car that he wanted. As a consequence, Brevet 46 T878. 47 T879. -- 31 of 166 -- [2024] SASC 97 McDonald J 28 Sergeant Lee went to the applicant’s car and attempted to locate medication. She was unable to find any. Brevet Sergeant Lee gave evidence that she then went back to tell the applicant that she was unable to locate the medication and attempted to clarify with him the nature of his medical issues. She said that she was however unable to get an answer from him that she could understand. It was the evidence of Brevet Sergeant Lee that, about five minutes after this, the ambulance arrived. She said that, once the paramedics were there, they endeavoured to ask the applicant some questions about any medical issues that he had. However, he remained heightened and continued shouting. She observed that the paramedics were not able to get much information from him. Brevet Sergeant Lee’s account gains some support from the SA Ambulance Service records. SA Ambulance Service Patient Report Form 115 As indicated previously, neither of the paramedics who attended at the scene was called to give evidence. Their record of this attendance, an SA Ambulance Service Patient Report Form (‘SA Ambulance Report’), was tendered as a business record.48 That record establishes that the ambulance arrived at the scene at 22.19 and left the scene at 22.40. The presenting complaint was recorded as anxiety. Under history, it is noted that: - 49 year old [male] pulled over by SAPOL, has refused to give alcohol reading claiming anxiety as a medical defence. - also [complaining of] [right] shoulder pain, alleging SAPOL assault. - non-compliant with SAAS or SAPOL requests. [Transfer] to RAH. 116 There are three other notes in the SA Ambulance Report recording that the applicant was non-compliant, a further note stating that he was argumentative, and a note that indicates that, at one point, the paramedics appeared to be considering whether his behaviour was a product of intoxication. Evidence of applicant’s interactions with police on other occasions 117 The next category of evidence capable of assisting in the resolution of the factual dispute surrounding the events of Good Friday 2015, is evidence that was adduced by the respondent about the applicant’s attitude and behaviour towards police on other occasions. 118 During the course of the applicant’s evidence, the respondent tendered three recordings of the applicant’s previous interactions with police. The first was footage taken on 8 June 2010 that was subsequently uploaded onto YouTube by the applicant on 13 August 2014.49 The remaining two pieces of footage related to attendances by police at the applicant’s property on 13 December 2019 and 9 October 2020.50 Each of the recordings showed the applicant becoming highly 48 Exhibit A1. 49 Exhibit R53, with the transcript of this video marked for identification as Exhibit MFI R54. The fact that the applicant published the recording on YouTube tends to demonstrate a degree of self-satisfaction in the manner in which he conducted himself towards the police officer. 50 Exhibit R55, Exhibit MFI R56, Exhibit R57 and Exhibit MFI R58. -- 32 of 166 -- [2024] SASC 97 McDonald J 29 agitated with police during relatively innocuous dealings with them. Although I take the point made by Senior Counsel for the applicant, that these recordings are not temporally connected with the events of 3 April 2015, they do relate to events on dates both before and after that occasion. In combination, they provide me with a window of insight into the applicant’s attitude towards police and the manner in which he has engaged with them in the past. 119 I will deal with each of the recordings separately. 8 June 2010 120 The footage of 8 June 2010 was taken by the applicant standing inside the doorway of his home showing a police officer through a flyscreen. Whilst there is no doubt that the police officer persisted for far too long in attempting to communicate with the applicant, the applicant’s response to the police officer’s presence was extreme. The applicant was non-responsive, belligerent and verbally aggressive. It was of note that he constantly repeated the same phrases, setting out his rights in a manner similar as to how Brevet Sergeant Graham described the applicant’s method of communication on Good Friday. The following is a portion of the much lengthier exchange that occurred on this occasion:51 Male (Cosenza): Leave the property now. Leave the property now. Leave the property now. Leave the property now. You are refusing to leave the property, this is a malicious trespass. Male (Cosenza): You are maliciously trespassing for the second time. You attended here yesterday and a malicious trespass. Leave the property now. Male Officer: Alright, then … Male (Cosenza): Leave the property now. Male Officer: You going to come and speak to me? Male (Cosenza): Leave the property now. Male Officer: Are you going to come and speak with me? Male (Cosenza): Leave the property now. Male Officer: Are you going to come and speak to me at the … Male (Cosenza): Leave the property now. Leave the property now. This is going to be a matter for the Courts my friend this is a malicious trespass. Leave the property now. Male Officer: **Inaudible talking** Male (Cosenza): Leave the property now. Leave the property now. Leave the property now. This is harassment. 51 Exhibit R53; MFI Exhibit R54. -- 33 of 166 -- [2024] SASC 97 McDonald J 30 Male Officer: It’s not harassment. Male (Cosenza): It is harassment. Leave the property now. Male Officer: **Inaudible talking** .... dealt with by now. Male (Cosenza): Leave the property now. Male Officer: **Inaudible talking** Male (Cosenza): You are trespassing. Male Officer: **Inaudible talking** … not trespassing Male (Cosenza): Leave the property now. Male Officer: I’m a member of the police force. Male (Cosenza): You are trespassing leave the property now. Whilst the police officer remained relatively calm throughout the exchange, the applicant became increasingly agitated to the point of becoming enraged. 13 December 2019 121 The second recording was produced by the body-worn camera of Constable Levi Turner on 13 December 2019. As only the second half of this incident was recorded, Constable Laura Brain was called to give evidence about what occurred prior to the recording. Constable Brain attended at 39 Glen Eira Street, Woodville South on 13 December 2019 in the company of Constable Turner. At that stage, she had only been out of the Police Academy for about six months. She said the purpose of her attendance in that street was because there had been an incident involving a firearm and police were conducting door knocks in order to determine whether anyone had witnessed the incident and to also look for the firearm. It was daylight. Constable Brain gave evidence that she entered the property of 39 Glen Eira Street and approached the front door. Once at the front door, she noticed the internal door was open and she heard a male voice asking her “where the fire was”.52 She said that she responded by saying that there was no fire and at that point a male person came out of the house, yelling at her, telling her to get off the property. When asked whether she told that person why she was there, Constable Brain responded that she did not get a chance, such was the manner in which the man was yelling at her. She described the remaining exchange in the following terms:53 Q. You said he was yelling at you to get off the property, did he say anything else. A. Not from what I can remember, it was just similar to get off the property, where’s the fire etc. 52 T912. 53 Ibid. -- 34 of 166 -- [2024] SASC 97 McDonald J 31 Q. Do I take from that he repeated that. A. Yes. Q. When the male started yelling at you, what did you do. A. I just walked away from the door because I was quite intimidated by him and what he was saying. Q. When you say you walked away from the door and then what did you do. A. I just, yes, I just kept stepping away. I didn’t say anything because the male had his phone in his hand and he was recording me, so I didn’t, I just walked away. Q. Did you keep walking off the property or did you remain on the property. A. I believe I was walking backwards, yeah, if I ... long, it wasn’t for very long. 122 Constable Brain gave evidence that she was on the property for no more than 30 seconds to a minute. Again, it is of note that Constable Brain describes the applicant holding up a mobile phone and repeating himself in a fashion similar to Brevet Sergeant Graham’s experience. 123 Shortly after this the body-worn camera of Constable Turner was activated. In that footage the applicant can be heard to be loud, aggressive, and belligerent. He continued to yell out at the police even after Constable Brain had left his property. 9 October 2020 124 The third recording was filmed on 9 October 2020. This was again footage captured by a police body-worn camera, although the applicant can be seen to be filming the same episode with his mobile phone. The footage commences at the entrance to the driveway of 39 Glen Eira Street. Present are the applicant and two police officers, Constable Dimitri Sarris and Probationary Constable Thomas Syrmas. The majority of the conversation is between the applicant and Constable Sarris. At the outset of the recording, it appears that the emotions of all parties are heightened. It would seem that the police had just endeavoured to pull the applicant over for driving offences. Shortly into the recording the demeanour of the police officers changes as Constable Sarris attempts to de-escalate the situation. In contrast, however, the applicant becomes increasingly angry and belligerent. The applicant’s tone was abusive and he continually repeated himself. At one point, the applicant is seen to raise his arm and point aggressively in the direction of the police. It is unclear from the footage as to whether or not the applicant actually made contact, however Constable Sarris can be heard on the recording to say, “don’t hit me otherwise you’re going to get in (inaudible)”. The applicant replied, “you’re trespassing, I didn’t hit you”, to which Constable Sarris said, “do not touch me again”. -- 35 of 166 -- [2024] SASC 97 McDonald J 32 125 In one sense it does not matter whether there was or was not physical contact, what is apparent from the recording is that not only was the applicant verbally aggressive during the exchange, but on at least one occasion he became physically aggressive. Not long into the conversation the two police retreated from the applicant’s driveway and got into their police car where they can be seen to be carrying out some enquiries on the computer. Significantly, even after the police left the applicant’s property, the applicant continued to be agitated and verbally aggressive towards them. 126 As said previously, although these events were some years before and after the occasion in question, they provide me with objective evidence of the manner in which the applicant has behaved with police on other occasions. The Central Market car park incident 127 It was the applicant’s evidence that given his recent neck surgery, he would not have instigated a physical altercation.54 Senior Counsel for the applicant also contended that it was highly unlikely that the applicant would be the aggressor in a confrontation with a police officer given his concerns about his neck injury and the previous surgery. It was in order to meet that evidence and submission that Senior Counsel for the respondent introduced evidence about an incident that had occurred in the Central Market carpark. 128 During his evidence, the applicant was cross-examined about an incident that was said to have occurred on 14 December 2017. That was about two and a half years after the events of Good Friday 2015. Central to that cross-examination was a Statement of Claim lodged by the applicant in the Port Adelaide Magistrates Court Registry on 10 May 201955 and a supporting affidavit sworn by the applicant on 7 May 2018.56 Both of these documents related to a civil action initiated by the applicant against the Corporation of the City of Adelaide. That action related to events that the applicant said occurred in the Central Market car park on 14 December 2017. In the Statement of Claim, the applicant set out an account of an incident that he said he was involved in at about 12.30pm on that day. He pleaded the following:57 16. On 14.12.17 at approximately 12.30pm, I entered the car park via Grote Street entrance and drove up to a parking bay which I found on the southern side (Gouger Street) end on Level 1, immediately next to the stairwell down to Gouger Street. 17. Approximately 2-3 minutes later, I heard a car beep its horn repeatedly. This car then drove/screeched into a vacant area alongside me but did not park in any specific parking bay. The car was a red 4 door Ford Falcon or Fairlane sedan. 18. I did not take much notice until someone hit/kicked the rear of my car and was repeatedly saying words to the effect: “I’m going to kill you, I’m going to kill you”. 54 T122. 55 Exhibit R59. 56 Exhibit R60. 57 Exhibit R59. -- 36 of 166 -- [2024] SASC 97 McDonald J 33 I immediately became in fear for my safety as the thump on the rear of my vehicle was very loud, so I suspected some serious damage was done. I was also very concerned as threats to kill me were being made. 19. I have had spinal surgery and have bolts in my neck. I have been seriously assaulted previously following my surgery which now requires me to undergo further surgery. I am in constant pain each day and am now very cautious and in continuous fear of further injury. 20. I do not want anyone to hit, punch, or touch me in any manner, especially on my face/head/neck or back as any contact could render me a quadriplegic. 21. As these threats to kill were directed to me, I exited my car and grabbed a stick that was in the car for my safety and to defend myself. 22. I exited the car and cautiously approached a man who was Asian (Chinese) in appearance, was wearing glasses (not sunglasses), approximately six feet tall, thin slim build wearing a short sleeved shirt and long shorts. The red Ford was his. (“the assailant”) 23. I then said words to the effect: “you hit my car what’s your problem.” I held my stick in my right hand hoping that it would have been enough for him to back down. I raised the stick and said words to the effect: “If you try and hurt me, I will defend myself.” 24. The assailant was raising his arms and subsequently lunged at me punching me in the face, to then jump onto me and force me onto the ground where we grappled and wrestled for a short time. I was in fear that he had caused me harm to my neck and back when I was forced onto the concrete car park floor, when my head hit the ground. I was wearing a blue suit and white business shirt which turned black after being forced onto the dirty car park floor. 25. The assailant subsequent to the assault held out his right hand in attempt to shake hands with me. I believe this may have been an attempt to apologise. I immediately said words to the effect: “No you have damaged my car and I am going to call the police.” 26. The assailant then said words to the effect: “I am going to call my friends.” As the assailant was Asian (Chinese) and we were in the heart land of Chinatown, I again became in fear for my safety as it could have been quite plausible that many of his friends or family could have attended us within a short time. 27. I lost my keys for my car and became immensely stressed, fearful and erratic in behaviour as I could not locate my car keys as he was on the telephone speaking with someone. 28. The assailant then said words to the effect: “don’t go anywhere they will be here soon.” I luckily found my car keys and then immediately drove away and out of the confined car park area noting that witnesses had seen the events and believed that the U Park cameras had recorded the events. I left immediately as I was in fear for my safety … -- 37 of 166 -- [2024] SASC 97 McDonald J 34 129 The applicant claimed that, as a result of this incident his chin, head, neck, and back were sore from the assault and that he was in constant fear of approaching or attending the Adelaide Central Market precinct. 130 In his evidence, the applicant maintained that the account set out in the Statement of Claim was a truthful account of the events of 14 December 2017. Whilst this occurred some two and a half years after the alleged assault by Brevet Sergeant Graham, the cross-examination on this topic was of assistance to me in making an assessment of the applicant’s evidence about what he said occurred on Good Friday 2015. On the face of it, his own account of the events of 14 December 2017 demonstrated the applicant reacting aggressively and introducing a weapon in to an unexpected confrontation. One would expect that ordinarily the reaction of someone confronted with such a situation would be to flee the scene rather than to step into the fray. It was put to the applicant that his response to hearing someone hit/kick the rear of his car and uttering the words “I’m going to kill you, I’m going to kill you”, was to get out of the car and confront the assailant. In that context, the applicant gave a somewhat unexpected answer:58 Q. Why did you on this day after a threat had been made to kill you twice get out of the car to approach what I call the assailant. A. I wanted to try and get some identification or just to find out what was going on. What all this was about or whether the threats were directed to me. I wasn’t sure because I was sitting in the car and this happened behind me but all I heard was a big bang and then when I got out I saw a big dent in the boot of the car. 131 This response is all the more surprising given the applicant’s assertion in the Statement of Claim that, at the time of this event, not only had he had spinal surgery and bolts put into his neck, but further since that time he had been seriously assaulted requiring further surgery (presumably referring to the Good Friday incident) resulting in constant pain that could mean that any further physical contact could render him a quadriplegic. In other words, on the applicant’s own account, his condition was much worse than it had been on Good Friday 2015. 132 The cross-examination on this topic continued and the applicant was asked about the purpose of taking a stick from the car with him. The applicant was at pains to say that, although it was a stick, it was not a weapon. In cross- examination, the applicant seemed reluctant to accept that taking any sort of stick or weapon into a situation like this had the potential to escalate the matter. During the applicant’s evidence on this topic, he came across as reluctant to make any concession that would paint him in a less than favourable light. The following exchange is but one illustration of his evidence on this topic:59 Q. You would accept, wouldn’t you, that where somebody has issued you with two threats - albeit in very quick succession - that they’re going to kill you whilst you’re 58 T337-338. 59 T341-342. -- 38 of 166 -- [2024] SASC 97 McDonald J 35 in your car, for you to then get out of the car and approach them and raise your stick, that that would be perceived by the person who’s making the threats, as aggressive. A. When I say ‘raise’ he wasn’t raise like that toward an affect having to hit him, it was raising it this way to show him that I had something to defend myself. Q. Well, all right, accepting that that you didn’t raise it to chest level or above, but that you nevertheless raised is so as to make it clear ‘I have a stick’ - A. I made it clear that if the threats were to be maintained and he was going to attack me, I was going to defend myself and I couldn’t defend myself with my hands or anything else because I didn’t want anyone to hit me or touch me. I needed the stick to create some distance between us so I didn’t get hit. That was the purpose of the stick. Q. And at the point at which you did that, can you say how far away physically you were from the assailant. A. At least 6-or-so feet away. Quite a distance. Q. But regardless of the words you used, and the words you used include that you will defend yourself, that the actions of getting out of the car and making it clear by raising your arm to a certain extent that you have a stick, that they are provocative and aggressive acts. A. No, he was the aggressor. I was defending myself. Q. Well in circumstances where he was the aggressor that what you were indicating was that you’re prepared for a fight. A. No, I was prepared to defend myself. I wasn’t prepared for a fight, I just wanted to prepare to defend myself. I was hoping the stick would have been sufficient for him to back down. I’ve actually said that in the pleading. He was angry. I had no idea what he was angry about. He was the aggressor. I was trying to calm things down and hopefully that the stick was enough to calm him down. 133 Throughout the course of the applicant’s evidence on this topic he maintained that he had been the victim and did nothing to escalate the situation or provoke his assailant. At times, the applicant’s protestations about his passive role in these events was highly implausible. 134 It was the applicant’s evidence that on both the occasions of Good Friday 2015 and the Central Market car park incident, he was concerned about sustaining any further injury to his neck. However, one would have thought the situation was more acute in 2017 at a time when he says that his injury had been significantly aggravated by the alleged assault by Brevet Sergeant Graham. This is to be compared with the situation in 2015, at which time the applicant described himself as feeling “terrific”, excited about his recovery, and planning to get back into the workforce.60 60 T128. -- 39 of 166 -- [2024] SASC 97 McDonald J 36 135 The evidence about the carpark incident significantly undermines the applicant’s evidence and argument that it would be unlikely that he would be the aggressor given his concern about his recent neck surgery. Medical and psychiatric evidence 136 It is the applicant’s case that the events of Good Friday 2014 had both physical and psychiatric consequences for him. For that reason, a considerable body of expert evidence was led by both parties. The question arises as to whether this evidence, or any aspect of it, is of assistance in determining the issue of what actually occurred on that evening. 137 Before turning to deal with the detail of the evidence of the experts, I pause to make an observation about the unsatisfactory state that this evidence has been left in. At the outset of the trial, it was proposed that both the applicant and the respondent would tender the reports of their respective experts and then produce them for cross-examination. The applicant’s case was presented in this fashion. However, at the outset of the respondent’s case, Mr Watson SC advised the Court and the respondent that he did not require that the respondent make its experts available for cross-examination. As a consequence, the reports of those experts were unchallenged. The difficulty is however, that a number of the respondent’s witnesses were not in agreement with those called by the applicant. That leaves me in the invidious position of having to make findings in relation to competing experts in circumstances in which I had the benefit of seeing the applicant’s experts tested in cross-examination, without the same approach being undertaken in relation to the respondent’s witnesses. In my view, the respondent should not be disadvantaged by the course adopted by the applicant’s counsel. The fact that the respondent’s reports were not challenged, when the witnesses were available for cross-examination is a matter that I take into account when considering any conflict between the evidence of competing experts. Psychiatric evidence 138 The applicant tendered a report from Professor Alexander McFarlane,61 and presented him for cross-examination. He also tendered a report from his treating psychiatrist, Dr Ivan Siklich.62 The respondent tendered reports from Dr Ian Jennings,63 and Dr David Kelly.64 Dr Ivan Siklich 139 The applicant first commenced seeing Dr Siklich in 2009 when he was referred to him by his general practitioner. Dr Siklich described the applicant presenting as “an extremely distressed individual; one whose life had been severely and negatively impacted by the acrimonious marital separation (which he 61 2 September 2021, Exhibit A70. 62 27 September 2020 (Exhibit R151). Letters of 23 November 2020 (Exhibit R152) and 10 March 2021 (Exhibit R153) were also provided. 63 10 April 2018 (Exhibit R146). 64 12 November 2020 (Exhibit R148), and 19 November 2021 (Exhibit R150). -- 40 of 166 -- [2024] SASC 97 McDonald J 37 had experienced in 1997/98) and its ensuing consequences”. When he first saw him, Dr Siklich concluded that the applicant suffered from a chronic mix of anxiety and depression. Dr Siklich summarised his observations and diagnosis in the following terms: 65 Again, given the length of time that Mr Cosenza has attended my practice, there has been some variation in presentation and indeed in diagnosis. Clinically, according to DSM-V criteria, the diagnoses have been an adjustment disorder with anxiety and depressed mood, panic disorder with a degree of agoraphobia, major depressive disorder and aspects of post- traumatic stress disorder. In effect during the past 20 years, Mr Cosenza has suffered from varying degrees of anxiety and depression with at times anxiety being the more prominent feature and at other times depression being more apparent. It is in my view that Mr Cosenza’s psychological distress, during these past 20 years, is more than understandable when looked at in the context of the life stressors that he has had to deal with. 140 In his report, Dr Siklich makes no reference to the events of Good Friday 2015 and any impact that the events of that day might have had on the applicant’s psychiatric condition.66 Professor Alexander McFarlane 141 At the request of the applicant’s solicitor on 31 August 2021, Professor McFarlane met with the applicant for the purpose of conducting a medico legal examination.67 In his report, Professor McFarlane expressed the opinion that, on the basis of the history he had been provided, the applicant suffers from a major depressive disorder, which he first developed at the time of the breakdown of his marriage. In his view, the applicant developed a recurrence of this disorder along with post-traumatic stress disorder (PTSD) in the content of ongoing interactions with the police. Professor McFarlane expressed the view that, based upon the applicant’s account, the events of Good Friday 2015 may have retriggered an episode of PTSD. 142 Professor McFarlane, however, placed a caveat over a diagnosis of an episode of PTSD arising from the events of Good Friday 2015, he explained:68 The question arises in regards to the diagnosis of a post-traumatic stress disorder in the context of whether the circumstances of the actions of the police towards Mr Cosenza satisfies the stressor criterion. These matters are subject to the Court proceedings and the decision of the Court is paramount in this regard. The question arises in the context of Mr Cosenza’s extreme fear and distress about the way in which he has been dealt with by the police and the objective facts of the situation. If the police officer was reasonably 65 Report of 10 March 2021 (Exhibit R153) at p 3. 66 It appears that this report was prepared in support of the applicant’s application to be admitted as a legal practitioner for these proceedings and as a result focusses on the impact that the events of Good Friday might have had on the applicant in the context of the applicant’s pre-existing psychiatric condition. 67 Exhibit A70. 68 Report of 2 September 2021 (Exhibit A70) at 7-8. -- 41 of 166 -- [2024] SASC 97 McDonald J 38 exercising his duties, including his obligation to arrest Mr Cosenza in an appropriate manner, the circumstances are not consistent with him being exposed to actual or threatened death, serious injury or sexual violence. I have based my assessment on the account of Mr Cosenza. Also, the incident Mr Cosenza described where he was arrested in 2015, did result in serious injury. (Emphasis added) 143 In cross-examination, it was clarified that when Professor McFarlane had made a reference the applicant developing a recurrence of a depressive disorder along with PTSD in the context of his ongoing interactions with police, he was referring to many, many interactions going back over 15 years. He made the observation that the applicant had been diagnosed with those conditions prior to the Good Friday 2015 incident.69 144 Senior Counsel for the respondent put to Professor McFarlane that in order for a diagnosis of an episode of PTSD arising from these events, it would be necessary to find that there was an “exposure to actual or threatened death or serious injury or sexual violence”.70 Professor McFarlane agreed. Professor McFarlane fairly conceded that the only account that he had of the events came from the applicant. Further, Professor McFarlane accepted that if the applicant had not been forced and manhandled out of the car as he had described, and the applicant had been handcuffed behind his back with reasonable force, it “wouldn’t be an incident where an individual would reasonably anticipate that there was threatened serious injury”71 and a diagnosis of an episode of PTSD could not be made out. That did not, however, exclude the possibility that the episode was sufficiently stressful to retrigger an episode of depression or contributed to an exacerbation or a recurrence of a panic disorder. 145 Professor McFarlane went on to make the following observations about the applicant:72 He has persistent and exaggerated negative beliefs about how the police cannot be trusted and how the world has become a dangerous place. He also sees himself as having been significantly damaged as a consequence of his alleged harassment at the hands of the police. He has persistent and distorted cognitions about the cause of his arrests and how he has been managed by the police that focus on a sense of blame towards the police and their failure to both respect his rights and administer the law in a just and appropriate manner. 146 It is significant that the applicant’s dealings with police commenced with him attempting to solicit an undercover police officer to cause serious harm to his ex- wife’s partner and, subsequently, being imprisoned as a consequence of his conduct. That would no doubt have been extremely stressful for anyone, let alone someone who had previously led such a successful life. Following that, there have 69 T452. 70 T457, referred to as the “A criterion”. 71 T460. 72 Report of 2 September 2021 (Exhibit A70) at 8. -- 42 of 166 -- [2024] SASC 97 McDonald J 39 been over two decades of ongoing conflict with various members and branches of SAPOL. Dr Ian Jennings 147 Dr Jennings met with the applicant in early 2018 in order to provide a psychiatric report for the respondent. In his report, Dr Jennings addressed a number of questions that he had been asked to consider. In response to a question of whether the applicant suffered from any recognisable psychiatric disorder and the nature of any such disorder Dr Jennings gave the following answer:73 I believe Mr Cosenza’s history is consistent with a diagnosis of Adjustment Disorder with mixed disturbance of emotions and conduct (DSM V 309.4). This disorder relates to the development of emotional or behavioural symptoms in response to identifiable stresses which are clinically significant. Symptoms include marked distress that is out of proportion to the severity or intensity of the stressor and cause significant impairment in social and occupational functioning. This is in the context of a grief reaction to the significant losses Mr Cosenza suffered following his divorce, when he lost his home, business, financial savings and contact with his children. After having run a very successful business manufacturing ice cream and developing a franchise, he then had to declare bankruptcy. 148 Dr Jennings was also asked about “the extent to which any psychiatric disorder is attributable to the subject events in the current proceedings and consistent with them, or whether any psychiatric disorder is attributable to other events that preceded the subject events and/or post-dated them.” He responded:74 I believe that the Adjustment Disorder would have developed following his divorce, which was very acrimonious, and involved his ex-wife repeatedly calling the police to intervene with any conflict between her and Mr Cosenza, particularly relating to access with their children. However, the Adjustment Disorder has continued as a result of the ongoing police contacts, which are the subject events in the current proceedings, which would be perpetuating stresses for Mr Cosenza, and are consistent with them, as a result of perpetuating the trauma he reported as a result of police intervention at the time of the recurrent conflict with his ex-wife over access with their children after the divorce. 149 Dr Jennings was reluctant to engage in the exercise of apportioning any of Mr Cosenza’s symptoms, to the events of Good Friday 2015. He explained that this was because the initial police contact occurred in the context of intense conflict between the applicant and his ex-wife, and the nature and the number of the contacts with police since that time. Dr David Kelly 150 Dr Kelly was requested to provide a report in November 2020 on the basis that, by that time, Dr Jennings had retired from psychiatric practice. In his report of 12 November 2020, Dr Kelly observed that “Mr Cosenza gives some history consistent with, at times an active post-traumatic stress disorder”.75 Dr Kelly expressed the view however that, at the time that he met with the applicant, he did 73 Report of 10 April 2018 (Exhibit R146) at 5. 74 Ibid. 75 Report of 12 November 2020 (Exhibit R148) at 7. -- 43 of 166 -- [2024] SASC 97 McDonald J 40 not fulfil the criteria for any active psychiatric disorder. He said that he did, however, provide a history consistent with him having suffered from recurrent bouts of an Adjustment Disorder with Depressed Mood. He also expressed the view that “a Post Traumatic Stress Disorder should be considered. He has symptoms consistent with this diagnosis, however it is a matter of contention as to whether the first criteria regarding the nature of the trauma is fulfilled for the diagnosis of a post-traumatic stress disorder”.76 Dr Kelly expressed the view that, regardless, in his opinion, it is not possible to determine with any certainty the extent to which various incidents have impacted on the applicant’s psychiatric state. Conclusion – Psychiatric Evidence 151 There is nothing contained within the reports or evidence of the four psychiatrists that assists in determining what transpired on Good Friday 2015. Much of what they say is common ground. There is no doubt that Mr Cosenza suffered a significant pre-existing psychiatric condition prior to the events of Good Friday 2015. It commenced with the breakdown of his marriage and has been trigged by various events since that time. 152 There is also no doubt that on Good Friday 2015 Mr Cosenza experienced some form of anxiety episode, at the very least, from the point in time that he was placed under arrest. That is common ground and the reason that the ambulance was called. 153 There was nothing in the psychiatric evidence that advances the factual findings advocated for by either of the parties. The evidence goes no further than his behaviour might have been a recurrence of PTSD symptoms, it may have been a panic attack. Even if the criteria for an episode of PTSD could be made out, the fact of being arrested in the context of Mr Cosenza’s history with police and his distorted beliefs about them may have been the trigger. On the issue of what happened on Good Friday 2015, I find that the psychiatric evidence is of no particular assistance. Medical evidence 154 As previously mentioned, in this trial the medical evidence was led in two separate tranches. There was the evidence presented in the initial trial, and there was the evidence subsequently led after the applicant had further surgery. 155 In the initial trial the applicant relied upon reports and evidence from a number of expert medical witnesses. These were: Associate Professor Roger Davies (radiologist); Dr Roberto D’Onise (occupational physician); Mr Olivio Varricchio (physiotherapist); Dr Philip Griffin (retired plastic and reconstructive surgeon) and Dr Michael Selby (spinal and orthopaedic surgeon). 76 Ibid at 8. -- 44 of 166 -- [2024] SASC 97 McDonald J 41 When the applicant re-opened his case, Dr Selby was recalled for further cross- examination. 156 The respondent also relied on a number of expert medical opinions. In the initial trial reports were tendered from Dr Shaun Fowler (radiologist); Dr Christopher Pozza (radiologist); Dr Simon Sadler (neurosurgeon and spinal surgeon); Dr Lisa Gower (radiologist); Dr Robert Atkinson (orthopaedic surgeon); Dr Dion Suyapto (occupational physician) and Ms Rebecca Singh (occupational therapist). When the respondent reopened its case, reports from Dr David Hall (spinal and orthopaedic surgeon) were tendered and he was presented for cross- examination. 157 There were differences in the opinions of a number of the experts. On some occasions they were subtle, and on others they were marked. It follows that in so far as I can, I will need to make findings as to the evidence that I accept. 158 Each expert was well qualified in their field of expertise. Whilst there were differences in the level of experience or area of specialisation of some of the experts, this is not a matter in which those differences are ultimately of any significance. Each of the witnesses starts from a level playing field; that is that each is qualified to give evidence and assist the Court with their opinions in their respective field of expertise. The applicant’s evidence about his injuries 159 Before turning to deal with the evidence of the various medical experts, it is convenient to first of all set out the evidence that the applicant gave about his injuries. 160 It was the applicant’s evidence that, in 2012, he developed lower back pain that radiated down into his lower left leg. It was diagnosed as sciatica and he received injections from Associate Professor Roger Davies to assist him in managing the pain. The applicant described the pain as “tapering off”. However, it still remained in 2013 when he started experiencing unrelated pain in the upper neck. 161 In late 2013, the applicant was referred to Dr Selby, who at the time was the head of the Queen Elizabeth Hospital’s spinal unit. Dr Selby arranged for X-rays and MRI scans. The applicant described that the pain that he was experiencing at that time was debilitating and extended from his neck to his shoulder and arm. He described it in the following manner:77 Its my right arm. The pain is debilitating. I couldn’t even pick up a piece of paper, there was no strength in my arm. It was just agony and the level of anxiety that gave me was just off the chart, it was crazy. 77 T85. -- 45 of 166 -- [2024] SASC 97 McDonald J 42 162 When asked where the pain fell on a scale of 1-10, the applicant said “over 10”. 163 In May 2014, the applicant underwent surgery. Dr Selby performed that surgery and fused two of his spinal discs, C5/C6 and C6/C7. When asked how the surgery went, the applicant said he was “terrific”, and that he had “almost instant relief after the surgery”.78 His understanding was that this was because the pressure had been taken off the nerve, which had been the cause of his pain. 164 It was the applicant’s evidence that his lower back pain remained an issue and that in turn was agitating his anxiety. 165 During his evidence about the roadside arrest, the applicant described the pain he experienced, at what point he first experienced it, and the mechanism that caused it. 166 It was the applicant’s evidence that when Brevet Sergeant Graham twisted his right arm behind his back in order to apply the hand cuffs “I thought he’d broken my arm I was in excruciating pain”.79 He went on to elaborate “so he applied the handcuffs on me from behind, really tightly, so my arms were really tight and the pressure on my spine, I was screaming and crying with pain, with the tension along my spine”.80 The applicant said that the handcuffs were hurting his wrists, neck and arms. 167 In cross examination the applicant reiterated that as his right arm was twisted behind him, he felt his neck immediately and thought that Brevet Sergeant Graham had broken his arm.81 He said that he could feel pain in his spine because the handcuffs were so tight,82 however he agreed that he was unhandcuffed “almost instantaneously” after he was handcuffed. 168 The applicant was also asked about his experience at the Queen Elizabeth Hospital. He gave evidence that he believed that he was being taken to the hospital for his spine as well as an alcotest. He said:83 … I was taken to the hospital for the purpose of a blood test, I was also under the impression, at the time I was under the impression I was being taken for my pain, because I was in pain, I was in agony. 169 On the applicant’s account, it is curious, given the extreme pain that he claims to have experienced, that more attention was not paid to his neck and shoulder at 78 T86. 79 T110. 80 Ibid. 81 T375. 82 T377. 83 T276. -- 46 of 166 -- [2024] SASC 97 McDonald J 43 the hospital. The Emergency Department Adult RDR Chart records the “History of Presenting Complaint” as:84 BIB SAPOL – Refusing to do BAC when pulled over. Now C/O R arm pain after SAPOL pulled him from the car. Hyperventilating and being non-compliant. (Emphasis added) 170 The discharge summary contains the following relevant details:85 Dean Cosenza presented to the Emergency Department at Royal Adelaide Hospital on 3 April 2015 at 22:48. The presenting problem was other – blood Alcohol unable to blow, pain in right shoulder – nil trauma – Good rom. PS min. GCS 15. Non Communicative. PMH anxiety. PMHX: anxiety, agitation, depression, PTSD, cervical degenerative disc diseases with radiculopathy, lumbar spine nerve root impingement O/E: awake, alert, anxious++, hyperventilating, states tender to palpation of right arm/forearm around elbow, nil evident swelling or bruising, full ROMs. (Emphasis added) 171 I observe that, although there is reference to pain to the right shoulder, that is followed immediately by a reference to “nil trauma” and “Good rom” (range of movement) which is consistent with Brevet Sergeant Graham’s evidence about seeing the applicant put his jumper on. From the totality of the notes, it would appear that the treating doctor’s attention was being drawn to the forearm rather than to the neck and shoulder, and that is in the context of the applicant providing a history of injuries to the spine. No investigation was undertaken to confirm if there were any injury’s to the spine or neck. Had the applicant been experiencing the extreme level of pain that he now claims he was, it would be unusual, to say the least, that the doctor caring for him would paid such scant regard to those areas of the body that would have been more at risk, particularly given the applicant’s history of surgery, instead focussing on the right arm and forearm. It was the applicant’s evidence that the only form of test that was conducted at the hospital was some “reflex” type tests to see if his right arm was bruised or injured.86 172 The applicant was asked about whether he experienced any pain in the next couples of days after he returned to Glen Eira Street. He said:87 Yes, I was in a lot of pain. I had to take medication and I had difficulty sleeping. It was a long weekend so I knew I couldn’t go and see my treating doctor. So, and I also had a licence disqualification so it made it difficult for me to go and see anyone at that time but that said – I waited until Tuesday to see my doctor and also make an application to have my licence reinstated on the Tuesday before the Court. 84 Exhibit A2. 85 Ibid. 86 T381-390. 87 T125-126. -- 47 of 166 -- [2024] SASC 97 McDonald J 44 173 The applicant went on to say that the pain was worse than during the period he spent recuperating from the spinal surgery. When asked if the pain was in a different location he said:88 Yes, absolutely, it was the upper neck and the shoulder and I would always say the shoulder but the shoulder was a brachial plexus, it was like a pain that radiated from my neck to my shoulder and then it was a separate pain that pass in the shoulder which I call the shoulder blade but that was later diagnosed as being a brachial plexus. 174 In concluding his evidence on this topic, the applicant explained that the pain in his neck was separate to the pain in his shoulder. He described the pain in the following terms:89 It’s the pain in the neck – it’s a sharp, aching pain that radiates to the shoulder and then there’s a separate – it is shoulder pain but it’s not shoulder – it’s brachial plexus, in a different area. So the neck pain sort of radiates through the shoulder and then brachial plexus is like an aching burning pain; it’s totally different. He said that he did not have this prior to the roadside arrest. Evidence of the physical interaction between the applicant and Brevet Sergeant Graham 175 To put the evidence of the experts in context it is of assistance to consider the evidence of the applicant and Brevet Sergeant Graham about the physical contact between them and, in particular, to identify any differences between their accounts. 176 The applicant described Brevet Sergeant Graham as “lunging” into the car to pull the phone out of his hand and, by that motion, the funny bone in the applicant’s right elbow hit the driver’s side door. He said that he then tried to lock the door and Brevet Sergeant Graham pulled it open. On the applicant’s account, he was then pulled out of the car and “went with him in the movement”, meaning that he didn’t resist Brevet Sergeant Graham. He said that Brevet Sergeant Graham grabbed his right arm and turned him around, pushed his body into the car and slammed his head on the roof and then the following occurred:90 … he twisted my right arm behind me, right up towards my – behind me – right up towards my right shoulder. I thought he’d broke my arm. I was in excruciating pain. I screamed and yelled and cried in pain. 177 The applicant then described the handcuffs being applied:91 Yes, and then after that, after that he applied handcuffs on me. Now, the problem is after my surgery, my bolts, my arms don’t reach. It’s ‘cos I’ve got a very tight…. tension. So he applied the handcuffs on me from behind, really tightly, so my arms were really tight and 88 T128-129. 89 T153-154. 90 T110. 91 Ibid. -- 48 of 166 -- [2024] SASC 97 McDonald J 45 the pressure on my spine, I was screaming and crying with pain, with the tension along my spine. 178 It was the applicant’s evidence that the next thing that happened from there was that Brevet Sergeant Graham released the handcuffs. Although the applicant could not be precise, he said that the handcuffs were only left in place for a “very, very short time”.92 179 It would seem to me that, although it is not for the applicant to establish exactly when in the sequence of events he sustained the injuries, on his account the critical point must have been when he was pushed against the car, when his head was banged on the roof, and when his arm was pulled up in order to utilise the handcuffs. 180 It was Brevet Sergeant Graham’s evidence that the applicant got out of the car of his own volition, taking on a belligerent and aggressive stance. After he told the applicant that he was under arrest, he grabbed hold of him and held him up against the car. In cross-examination, Brevet Sergeant Graham agreed that he had applied pressure to the applicant to secure him against the vehicle using both hands. He was then asked about how he managed to secure the applicant’s right hand across his back. Brevet Sergeant Graham responded:93 Did you say up across his back, I pulled his arm behind his back, to best apply the handcuffs… they’re not chained… 181 He went on to elaborate: Well, it’s a difficult handcuff to apply, is what I’m trying to get to, so they’re just a brace, so when someone’s not cooperative they’re ideal for – they’re more of a conveyance cuff than – against violent offenders, it’s what we get allocated and issued. 182 Brevet Sergeant Graham agreed that, in order to secure the applicant’s right arm behind his back, he had to pull his arm using force. When asked about the degree of force used, Brevet Sergeant Graham responded:94 Look, he’s a broad shouldered man, it was - I know it was difficult, it wasn’t the easiest thing to get on, how far I pulled it up, there would be no more force than would have been necessary in the circumstances. Once that first cuff went on, like I said his whole demeanour changed to me, so it wasn’t that difficult. 183 When asked directly whether in the process he had pulled the applicant’s arm upward Brevet Sergeant Graham responded:95 Well, behind his back, I’m not too sure about pulling upwards because that doesn’t assist with cuffing. 92 T118. 93 T835. 94 T836. 95 Ibid. -- 49 of 166 -- [2024] SASC 97 McDonald J 46 184 Whilst in that position, Brevet Sergeant Graham hand-cuffed first the applicant’s right hand and then his left. 185 As is apparent from this distillation of the evidence of the relevant conduct, there is a considerable overlap between the critical acts described by the two protagonists. That will limit the extent to which the medical evidence will lend support to one version of events over the other. 186 In considering whether the expert medical evidence assists in the determination of what occurred during the roadside arrest, there are two questions to be considered. Firstly, what findings of fact can be made about what injuries, if any, were sustained by the applicant at that time. The second is, given those findings of fact, does that evidence shed any light on the events of Good Friday 2015. The Radiologists - Associate Professor Roger Davies and Dr Christopher Pozza 187 I will commence with the evidence that was given by the radiologists. Their evidence forms part of the basis of, and complements that of, the other medical experts. 188 There was evidence that the applicant has been the subject of a number of MRIs and CT scans since 2013. The results of the following scans were the subject of evidence: 21 November 2013 MRI Cervical Spine Jones and Partners 20 February 2014 MRI Cervical Spine Ashford Specialist Centre 7 April 2015 CT Cervical Spine Adelaide MRI 7 May 2015 CT Cervical Spine The Queen Elizabeth Hospital 1 June 2015 MRI Cervical Spine Benson Radiology 19 June 2015 CT guided right C4/5 Facet injection Adelaide MRI 20 April 2017 MRI Cervical Spine St Andrews Hospital 30 March 2019 MRI Cervical Spine St Andrews Hospital 5 December 2019 MRI Cervical Spine The Queen Elizabeth Hospital 30 December 2020 MRI Cervical Spine The Queen Elizabeth Hospital 11 October 2021 CT Cervical Spine Adelaide MRI 11 October 2021 MRI Cervical Spine Adelaide MRI -- 50 of 166 -- [2024] SASC 97 McDonald J 47 189 Both parties presented radiological evidence as part of their case. The applicant relied upon the evidence of Associate Professor Roger Davies and the respondent relied upon that of Dr Christopher Pozza. 190 There was a dispute between the evidence of those two witnesses. That dispute related to the etiology and significance of a disc protrusion observed across a number of the scans. 191 In summary, Associate Professor Davies expressed the view that his observations of the progress of the injury were consistent with a trauma occurring between 2014 and May 2015, whereas Dr Pozza favoured an explanation of natural degeneration overtime. 192 The applicant tendered a report provided by Associate Professor Roger Davies96 and presented him for cross-examination. In his report, Associate Professor Davies made observations of the various images listed above. Relevantly to the issues before me, Professor Davies observed a significant change in the size and shape of the disc lesion at C4/5 between 2014 and May 2015. He expressed the view that, since that time, there has been a further progression of disc disease at C4/5. In support of his opinion, Associate Professor Davies drew a distinction between what he observed at C4/C5 as compared to C2/3 and C3/4. In his view, the explanation for what he observed at C4/5 was mostly likely to be a trauma as opposed to degeneration. In comparison at C2/3 and C3/4, the disc disease had progressed minimally if at all between 2014 and 2021. He explained that, absent a local trauma or further injury, it would be expected that the disc disease in the upper three cervical segments would be expected to advance similarly and slowly over a 5-10 year period. Associate Professor Davies expressed the opinion that the more progressive deterioration at C4/5 was likely to be due to greater trauma at this level than the levels above this (C2/3 and C3/4). It follows that Associate Professor Davies’ evidence supported a finding that a traumatic event had occurred in that region of the applicant’s spine between 2014 and May 2015. 193 The respondent tendered a report provided by Dr Christopher Pozza.97 Dr Pozza reviewed the same images as Professor Davies. He observed a small focal posterior disc protrusion at C4/5 in the applicant’s spine prior to April 2015. The conclusions drawn by Dr Pozza from the appearance of this bulge are different to those of Associate Professor Davies. 194 Dr Pozza noted that in the MRIs taken on 21 November 2013 and 20 February 2014, a small focal posterior disc protrusion could be seen at C4/5. He expressed the view that the protrusion seen on 7 May 2015 shows gradual 96 Report dated 27 October 2021 (Exhibit A73). 97 Report dated 1 October 2021 (Exhibit R140). -- 51 of 166 -- [2024] SASC 97 McDonald J 48 deterioration over time when considered against all of the previous images. Dr Pozza explained:98 3. The cause for a disc protrusion of this type is often degenerative in nature as a person ages, although this may be exacerbated by repetitive motion and/or trauma. a. In the cervical spine, it most commonly involves the C5/6 and C6/7 discs. b. When there has been surgical spinal fusion, the disc above the level of fusion is subject to accelerated disc degeneration, due to the altered motion forces experienced at this level. c. Hypertrophic bony degenerative changes involving the uncovertebral and facet joints may also be accelerated by similar means. 4. It is my opinion that the disc protrusion noted in 1. (2013 and 2014) and 2. (2015) above was essentially unchanged in appearance from April 2013 to February 2014; thereafter it showed gradual deterioration over time, becoming more broad based by 2019. 195 Dr Pozza was not required for cross-examination. It follows that his evidence was unchallenged. It is significantly at odds with that of Associate Professor Davies, with Dr Pozza opining that the cause of the bulge at C4/5 is the product of deterioration over time whilst Associate Professor Davies suggested that trauma is likely the cause. 196 In his evidence, Associate Professor Davies was cross-examined about his opinion of the cause of the disc protrusion at C4/5. He confirmed his view that the increased size of the disc bulge in 2015 “generally implies some further injury or traumatic event to cause a failure of healing, and in fact a reversal of healing that had previously taken place”.99 Whilst Associate Professor Davies accepted that, after the applicant’s disc surgery, the disc level immediately above the surgery can be subject to accelerated disc degeneration, he did not believe that over such a short time frame this could account for the changes that he had observed. 197 When asked about the difference between his opinion and that of Dr Pozza, Professor Davies explained:100 I hope I’ve been able to take you to the particular features and in particular the CFS signal, the bright signal, disappearing from between the disc and the anterior or the ventral surface of the cord at that level. There is no doubt that interpretation of spinal imaging is to some extent subject to observer error between observers. So if we gave a panel of 10 neuroradiologists the same images, their interpretations could easily vary somewhat, not greatly, but there would be some discrepancies between them. So it doesn’t concern me that my interpretation is slightly different to Dr Pozza’s. There is a level of judgment in discerning whether or not an anatomical disruption corresponds with or is sufficiently severe as to be important from the clinical point of view, so it is a matter of judgment. And I am not familiar with Dr Pozza’s recent work, although we have worked together in the 98 Ibid at 2-3. 99 T495. 100 T506. -- 52 of 166 -- [2024] SASC 97 McDonald J 49 past, and certainly experience and skill in interpreting the image grows with time in particular in relation to the spine. There are features which I could teach you on a chest X- ray in five minutes you would get correct every time I showed it to you after that, whereas there are certainly some room for differences of opinion in terms of spinal imaging. 198 The evidence of the two radiologists highlights the unfortunate state that the medical evidence has been left in. Both witnesses are highly qualified and experienced. Both provided reports that set out their opinions and the basis upon which they arrived at those opinions. As Dr Pozza was not required for cross- examination, his opinion was left untested and, more importantly unchallenged. Associate Professor Davies, however, had the opportunity to further explain the basis of his opinion and re-emphasise his views about the cause of the disc bulge. Dr Michael Selby (Spinal and Orthopaedic Surgeon) 199 Dr Selby initially provided 3 reports.101 The applicant also tendered two letters from Dr Selby that provided further clarification of certain aspects of the reports.102 Dr Selby has been treating the applicant since 2013. As I have mentioned, when the applicant first consulted Dr Selby, he was a Visiting Specialist at the Queen Elizabeth Hospital. In his reports, Dr Selby sets out the applicant’s symptoms and treatment for his spinal injury between 2013 and 2020. 200 The applicant first presented to the Queen Elizabeth Hospital Spinal Assessment Clinic on 23 September 2013. At that time, he was diagnosed with a likely C5/6 foraminal disc protrusion. Due to ongoing pain, he was further reviewed at the Spinal Assessment Clinic throughout the remainder of 2013 into early 2014. During that time, he underwent an MRI scan which showed a C5/6 disc protrusion foraminal stenosis and disc degeneration as well as a C6/7 disc degeneration and foraminal stenosis. 201 On 8 May 2014, Dr Selby performed a C5/6 and C6/7 anterior cervical discectomy and fusion and with nerve root and spinal cord compression on the applicant. Subsequent to this there were a series of post operative reviews and radiographs and Dr Selby described the applicant’s progress as good. 202 The last review in 2014 occurred on 1 December 2014, at which time a further review was booked for 4 May 2015. At the May 2015 review, the applicant told Dr Selby “that now, just beyond one year following his surgery, he was 95% improved on his pre-operative state, however reported a traumatic event to his cervical spine on 3 April 2015”.103 On that date the applicant declined a CT scan and MRI on the basis that he had claustrophobia. However, plain radiographs showed no complications. 101 17 December 2015 (Exhibit A87), 31 October 2019 (Exhibit A88) and 7 September 2020 (Exhibit A90). 102 Exhibits A20 and A21. 103 Report of 17 December 2015 (Exhibit A87) at 3. -- 53 of 166 -- [2024] SASC 97 McDonald J 50 203 It was Dr Selby’s opinion that subsequent investigations with a CT scan and a subsequent MRI showed a new disc protrusion on the right at C4/5, above the two previously operated levels. 204 Dr Selby was asked to address the possible cause of the C4/5 disc protrusion in his reports. The following passage fairly summarised his opinion at the time of preparing the report:104 This surgery involved a C5/6, C6/7 anterior cervical discectomy and fusion with nerve root and spinal cord compression. Generally speaking, in long term studies, this surgery may carry a chance of adjacent segment degeneration (ie new cervical disc protrusion or bone spur formation) requiring further treatment, including surgery of between 10% and 30% over a ten year span post operatively. With the presence of a new disc protrusion at the C4/5 level after reported traumatic incident, traumatic rupture of the disc and subsequent disc protrusion is by far the most likely mechanism of this pathology, as demonstrated on Dean’s new MRI, postoperatively referred to in my initial report. Whilst a traumatic injury is most likely, I cannot entirely rule out that this disc protrusion was contributed to by subtle degenerative change already developing above his fusion, but I do consider this unlikely in this timeframe, given, not only my clinical experience, but the long term scientific data on adjacent segment disease. 205 Dr Selby first gave evidence in February 2022. His evidence generally confirmed the opinions that he had provided in his reports. Dr Selby was cross- examined about the surgery that he had undertaken on the applicant and he agreed that the damage to C5/6 and C6/7 were the product of a degenerative condition that was sufficiently severe to warrant surgery. 206 Dr Selby was also taken through a number of the MRIs and CT scans from before 2015 and, in particular, an MRI that had been taken on 21 November 2013. He agreed that, on that MRI, a small disc bulge could be seen at C4/5. Having been taken through a number of the radiological reports taken before the Good Friday 2015 incident, Dr Selby accepted that there had already been mild changes to C4/5 prior to the incident. Dr Selby was asked that, given that there was already degeneration that had been sufficient to give rise to a protrusion, why the acute onset of symptoms that the applicant had described would not just be further degeneration. Dr Selby again referred back to the studies and findings that between 10 and 30% of patients will, over the following 10 years, experience degeneration that will require further surgery. The following exchange then occurred:105 Q But you can’t exclude that Mr Cosenza is part of that, I think you described it as 10 to 30% of people who would have adjacent disc degeneration earlier than 10 years. 104 Report of 31 October 2019 (Exhibit A88) at 2. 105 T606. -- 54 of 166 -- [2024] SASC 97 McDonald J 51 A Correct, I cannot exclude that. Up to 10 years after the initial surgery he would not have been one of the 10 to 30% that do get accelerated disc degenerative changes at the level adjacent to a fusion. Q And if we come to now we are now eight years post the surgery, we would expect that we’re moving towards even on a usual case a person who would be experiencing degeneration at C4-5. A The question is whether that process has been accelerated or not by injury. Q So that’s the real issue here isn’t it, not one of causation but one of acceleration and whether the injury caused an acceleration, do you agree with that. A I think that is the issue. Q And so in terms of an acceleration then we’re talking that we can’t rule out that it would have happened before 10 years but you say that’s the minority of cases, you agree with that. A It is the minority. Q Sorry, but you can’t rule out that he’s part of that minority. A I cannot rule that out. Dr Simon Sandler (Neurosurgeon and Spinal Surgeon) 207 The respondent tendered the report of Dr Simon Sandler.106 He was not required for cross-examination, and consequently his report is unchallenged. In his report, Dr Sandler responded to a series of questions posed by the respondent. In order to answer those questions, Dr Sandler had access to all of the relevant medical reports and documents, as well as the radiological reports and associated medical imaging. He had also been provided with the applicant’s account of events. 208 Dr Sandler was asked whether there was any indication that the applicant suffered a shoulder or neck injury on or around 3 April 2015. His response was “given the events surrounding the arrest and the reports that I have read, it is possible that Mr Cosenza suffered a neck and shoulder injury”.107 209 Dr Sandler was also requested to look at the various MRIs and CT scans to determine whether there was any indication of degenerative changes at C4/5, or elsewhere, before or after 3 April 2015. Dr Sadler considered each image and report individually. He provided an overview of his observations:108 I have not reviewed the imaging from 3/12/13. There is an MRI from Jones and Partners dated 21/11/13. There was already disc degeneration present from C3/4 to C6/7. 106 Report of 17 April 2020 (Exhibit R137). 107 Ibid at 3. 108 Ibid at 5. -- 55 of 166 -- [2024] SASC 97 McDonald J 52 On the latest MRI from 30/3/19 fusion devices at C5/6 and C6/7 but now disc degeneration at C2/3, C3/4 and C4/5 which has progressed. There is evidence on the imaging as reported of disc degeneration already present at C4/5 pre 3/4/15 although documented as mild. 210 Dr Sandler also observed evidence of disc degeneration present C4/5 post- surgery in May 2014. 211 Dr Sandler was asked directly about whether the account provided by Mr Cosenza might explain the injury to C4/5. Given the significance of this issue, I set out the question and answer in full:109 6. For the purpose of this question please assume that the reverse arm restraint and the pushing onto the vehicle occurred as described by Mr Cosenza and summarised above. Could the current condition of C4/5 be caused, or contributed to, by the reverse arm restraint and/or the pushing onto the vehicle? The current condition, I believe is as a result of adjacent segment and natural degeneration of the C4/5 disc. There is no large soft acute disc prolapse identified on the imaging, which I might expect from the reverse arm restraint described. The foraminal narrowing is more in keeping with disc/osteophyte, which has progressively narrowed the foramina at this level. The reserve arm restraint could possibly have caused some nerve root irritation via a narrowed foramina on the right traction on the nerve or plexus (although no evidence of neuritis has ever been documented on brachial plexus or MRI scans that I am aware of). 212 The effect of Dr Sandler’s report was that, whilst it was possible that the applicant suffered a neck/shoulder injury on 3 April 2015, there was nothing that he observed on the medical imaging that was supportive of this. Reopening of the applicant’s and respondent’s cases 213 As previously mentioned, I granted leave to both parties to re-open their cases to lead further medical evidence. The applicant tendered two additional reports from Dr Selby dated 18 November 2022110 and 15 May 2023.111 Dr Selby was also recalled to give additional evidence and subjected to further cross-examination. 214 The respondent tendered two reports from a further spinal surgeon, Dr David Hall dated 10 February 2023112 and 21 February 2023.113 Dr Hall also gave evidence. 215 Although Dr Hall is more experienced than Dr Selby, Dr Selby is also highly qualified in his field of expertise. It would be fair to say that aspects of each of the 109 Ibid at 7. 110 Exhibit A210. 111 Exhibit A214. 112 Exhibit R211. 113 Exhibit MFI R212. -- 56 of 166 -- [2024] SASC 97 McDonald J 53 doctors’ evidence were at stark odds with each other. They were both also at times reluctant to concede that there was scope for both views or opinions to co-exist, implicitly, and at times explicitly, suggesting that the other was wrong or mistaken. I found the level of difference in the opinions somewhat surprising given the calibre of the experts. Dr Michael Selby (subsequent evidence) 216 On 18 October 2022, Dr Selby operated on the applicant a second time. That operation was an “anterior cervical discectomy and fusion at the C4/5 level, and an anterior cervical discectomy and disc replacement at the C3/4 level”.114 Both of these procedures were performed with a surgical incision higher than the previous surgical incision on the front part of the applicant’s neck, through the throat and into the spine. 217 Dr Selby confirmed his earlier evidence that in his view the injury in the C4/5 region was caused by a traumatic event consistent in timing with the Good Friday incident. Dr Selby said that in his opinion “on the balance of probabilities” a traumatic injury occurred to the C4/5 disc”.115 218 Given the conflict between the evidence of Dr Selby, and that given by Dr Hall, it is necessary to set out some of the detail underpinning that opinion. 219 In evidence in chief Mr Watson SC adopted the course of taking Dr Selby through the various MRIs, asking him to take various measurements and express his view as to what can be seen on the relevant image. 220 The first MRI that Dr Selby was taken to was the one taken on 20 February 2014 at the Queen Elizabeth Hospital, prior to the first surgical intervention.116 Dr Selby described seeing a disc bulge at almost every level of the neck. Dr Selby indicated a disc bulge at the C2/3 level, at the C3/4 and the C4/5 level, as well as the C5/6 and C6/7 level. Dr Selby described the bulge at C2/3 as minor and said that he did not operate on C4/5 during the first surgical intervention as it was only a small bulge at that stage. 221 The next MRI that Dr Selby was taken to was the image taken on 1 June 2015.117 It was Dr Selby’s evidence that there was a deterioration in the C4/5 area, in that there was a reduction of spinal fluid that could be seen resulting from an increase in the disc protrusion pushing it towards the spinal cord.118 222 Dr Selby explained that, on some occasions when this occurs, there can be no or minimal consequence to the individual. For others, however, it can result in 114 Transcript of Proceedings, Cosenza v State of South Australia, SCCIV-16-358, Hearings of 1 and 2 June 2023 (‘2T’) at 29. 115 2T38. 116 Exhibit A215. 117 Exhibit A216. 118 2T17-19. -- 57 of 166 -- [2024] SASC 97 McDonald J 54 pain. When there is pain the C5 nerve has a very particular pain pattern and distribution in the majority of the patients, being pain over the shoulder region and into the upper arm and sometimes into the side of the neck.119 223 Dr Selby then moved on to consider the C5/6 and C6/7 levels. On the images the small cage and plate that had been implanted during the first surgery were apparent. Moving further down to the C7/T1, level the spine was observed to be in a healthy state with no substantial disc protrusion.120 224 Dr Selby went to the MRI scans taken on 20 June 2022.121 It was his evidence that the disc protrusion at the C4/5 level had not improved with the passage of time. He said that there were differences since the 2015 scan with the disc protrusion having increased, resulting in the disc gradually losing height over the years. Dr Selby explained that this indicated that the applicant’s condition was getting worse.122 225 Dr Selby then considered the C7/T1 disc, which is the disc immediately below the area of surgery performed in 2014. This disc had a normal appearance. There was no obvious disc bulge visible. This was described as significant because, if this was a wear and tear process thought to be directly related to the surgery from 2014 (with the parts above and below the fusion wearing out more rapidly), the condition should also have substantially affected this level as well. Dr Selby said that on this basis it was his opinion “on the balance of probabilities” that a traumatic injury occurred to the C4/5 disc”.123 226 Dr Selby went on to explain that whilst there was certainly a tendency toward some degeneration in the applicant’s neck, it was by no means affecting every part of his neck. It was his evidence that if it was simply a case of degenerative change as a result of the respondent’s body wearing out you would expect to see the change evenly distributed.124 As that was not the case, it points away from the state of his spine from being normal degeneration. 227 Dr Selby then gave evidence about the surgical intervention that took place on 18 October 2022 and observations that he made during that procedure that supported his view about a trauma being the cause of the bulge at C4/5. 228 Dr Selby told the court that the initial plan for the operation changed during the course of the procedure, on the basis of the degree of adherence of disc and osteophyte that was found to the lining of the spinal cord and the dura and the nerve root associated with that. Dr Selby further elaborated that the applicant’s surgery was unusual because of the trouble that he had in dissecting out the adhesion and the inflammation. This resulted in the operation taking 60-90 minutes 119 2T20. 120 2T27. 121 Exhibit A218. 122 2T36-37. 123 2T38. 124 2T38. -- 58 of 166 -- [2024] SASC 97 McDonald J 55 longer than the average because of the care and caution required. This was a further basis upon which Dr Selby inferred that this condition was not caused by wear and tear as “wear and tear” operations do not normally present this type of difficulty.125 Dr Selby also put some weight on his observations of inflammation on the lining of the dura. He said that indicated that there had been an event that was potentially traumatic, bringing with it the inflammation. 229 In cross-examination Dr Selby agreed that a proportion of injuries of this kind may simply be put down to “bad luck”.126 Dr Selby could not provide an answer as to what proportion of cases would fall into this category. He explained that there were no scientific papers that he was aware of that identified such a number, but that in his experience about 50% of his patients are able to point to an event that occurred, and the other 50% have a more gradual onset of symptoms that become severe overtime.127 230 Dr Selby agreed that the C4/5 level was not completely normal and there was a small protrusion even before performing the first surgery, but a decision had been made to operate only on C5/6 and C6/7 levels based on the symptoms present, the imaging and the response to blocks or injections.128 231 Dr Selby was then taken to a radiological report dated 21 November 2013 which he had not previously been asked about.129 He described that image as very similar to the image obtained in 2014 in that it shows a minor disc protrusion at C2/3 level, again at C4/5 level and similarly C5/6.130 232 Dr Selby agreed that, as a starting point, the applicant had a narrow spinal cord well below the “normal” threshold. It follows that even absent a disc bulge there would be less spinal fluid present. Given that it is the reduction in spinal fluid that is a means of measuring the extent of the disc protrusion, Dr Selby was asked why the appearance of the spinal canal could not just an example of the degeneration process. Dr Selby answered that attempting to differentiate between degeneration and degeneration as a result of a trauma is very difficult. Dr Selby again placed some weight on his observation of the C7/T1 disc, that had remained normal. When questioned further about why degeneration would be expected to be uniform, he responded that it does not have to be uniform but that if a patient had advanced degeneration, or at least a tendency towards advanced degeneration, then it would be expected to occur at the lower levels of the spinal canal as well, particularly where a fusion has been undertaken immediately above that level, taking motion away from that segment. By treating the problem and, consequently by taking away the motion of the segment below, that segment would be subject to greater stress. Dr Selby said that there have been studies which show how 125 2T66-67. 126 2T42. 127 Ibid. 128 2T54-55. 129 Exhibit R221. 130 2T59-60. -- 59 of 166 -- [2024] SASC 97 McDonald J 56 segments above and below a fusion are affected by the adjacent segment which had the issue and considered that “it’s fairly uniform”.131 Dr Selby accepted, however, that the impact could be above or below the fusion point, it does not have to be both. Dr Selby also accepted that the impact may only then be on the C4/5 side, and not the lower side.132 233 In summary, although Dr Selby accepted that it is a possibility that the change to the applicant’s spine between 2013 and 2019 could have been caused by degeneration absent a trauma, he maintained that the timeframe was such that, in his view, it was more likely caused by trauma. When asked directly about the difficulty in determining whether degeneration or trauma was the source of the injury he said: 133 I agree that it is difficult to completely determine that. I think that we have to look at the timeline of these things and when these events tend to occur in the majority of patients undergoing these procedures. And we are informed by some relatively large scientific studies on this in terms of how rapid we tend to see the segments above or below, adjacent to a fusion procedure wearing it. And it’s my opinion, which I believe is supported by the literature, that this was a clear change on the scan, that is more rapid than I would expect from a natural degenerative process occurring within 18 months of the surgery. If it had occurred between 5 and 10 years after the procedure, I believe I would be far less certain in my view but with the timeline involved, I am, whilst conceding that it is possible, believe that on balance of probabilities this is a post traumatic event. 234 The final topic upon which Dr Selby was cross-examined was the extent of his reliance upon the account provided by the applicant. It was his evidence that he had arrived at his view based upon the applicant’s account in the context of the MRI scans and the timeline. He went on to agree, however, that he would not have been able to draw a firm conclusion that a trauma had occurred in the absence of the application’s account.134 It was then put to Dr Selby that if he had not received any account from the applicant, it would have been likely that he would have simply been placed into the category of patients for whom this type of degeneration happens quickly. Dr Selby agreed with this proposition.135 On that basis it was further put to Dr Selby that it follows that he was in fact quite reliant on the patient’s history, Dr Selby responded “I’m somewhat reliant, yes”.136 Dr David Hall (Spinal Surgeon) 235 Dr Hall did not give evidence during the initial proceedings. In summary, it was Dr Hall’s evidence that not only did he disagree with Dr Selby’s ultimate opinion about the likelihood of the C4/5 injury being the product of trauma, but also challenged some of his intermediate findings and observations. Dr Hall was present in court throughout Dr Selby’s evidence. 131 2T62. 132 2T62-63. 133 2T63-64. 134 2T98. 135 2T99. 136 Ibid. -- 60 of 166 -- [2024] SASC 97 McDonald J 57 236 Like Dr Selby, Dr Hall was taken to a number of MRI scans. In relation to the 2013 image, Dr Hall expressed the view that, even at that time, at least four out of the six discs were showing signs of degeneration.137 237 Dr Hall said that, by the age of 30, one in three people will have degenerative changes to the spine and, by age 50, almost everyone will have some form of degenerative change. C5/6 and C6/7 are the levels most likely to degenerate over a lifetime.138 Dr Hall also made the observation that the applicant’s spinal canal was narrow in 2013 and in fact appears very similar in 2022.139 238 Dr Hall was then asked to consider the MRI scan taken on 20 February 2014.140 Looking at the C4/5 level, Dr Hall opined that it was of similar appearances as in the 2013 image, that there were probably some degenerative changes but, overall, it appeared similar to 2013. Running through the various discs Dr Hall said that there was “nothing much happening” between 2 and 3, there was a slight bulge between 3 and 4, and again between 4 and 5.141 At C5/6 there was a noticeable degenerative change with a loss of disc and a small bulge, and the same at C6/7.142 239 Dr Hall was then taken to the 2015 MRI scan.143 He was asked about his view of how what could be seen in this scan compared to the two earlier scans discussed in his evidence. He said it appeared that at C2/3 there may be a hint of a bulge which may be early degenerative change at that level, and similar findings could be seen at C3/4 and C4/5. Surgery had clearly been undertaken at C5/6 and C6/7 and appeared pretty normal, although there may have been a slight bulge.144 Overall, Dr Hall opined that the 2015 scan was similar to the previous scans, albeit with slight progression of the degeneration at levels C3/4 and C4/5. It was Dr Hall’s evidence that, overall, the image taken on June 2015 was comparable to the two images taken in 2013 and 2014 “although there’s been a very slow progressive change over that two year period”.145 240 It was put to Dr Hall that Dr Selby’s evidence was to the effect that Dr Selby considered that there had been a significant deterioration at C4/5 that can be seen in the 2015 image. Dr Hall firmly disagreed with that proposition. In his opinion there was no notable difference from 2013 to 2015. The latter image was of course taken eight weeks after the Good Friday 2015 incident. Dr Hall expressed the view that if a traumatic or “wrenching” injury had occurred at that time, one would be able to see the white of the cerebrospinal fluid and also a white line in the disc indicative of the disc being torn or disrupted. Bleeding might be observed in the 137 2T135-136. 138 2T136. 139 2T140. 140 Exhibit R236. 141 2T148. 142 2T148-149. 143 Exhibit A216. 144 2T151. 145 Ibid. -- 61 of 166 -- [2024] SASC 97 McDonald J 58 spinal canal, or anterior to the spine. Dr Hall admitted that such bleeding would likely have resolved within six weeks, but if there had been a soft tissue disruption sufficient to damage a disc, then one would certainly see such changes on an image at this point in time so soon after the injury.146 It was Dr Hall’s evidence that overall, what could be seen in the image was simply in keeping with the progressive narrowing of the canal with continued degenerative change. 241 In cross-examination, Dr Hall was taken to Dr Davies’ report in relation to the June 2015 MRI,147 in which Dr Davies refers to “a significant change in the size and shape of the disc lesion at C4/5 between 2014 and May 2015”.148 Dr Hall disagreed with that finding, making the observation that Dr Davies had not taken into account what can be seen in the 2013 MRI. Dr Hall repeated again that the subtle differences between the MRIs are simply consistent with degenerative change.149 Dr Hall also disagreed with Dr Davies statement that “the inference can be drawn that an episode of trauma has occurred between 20 February 2015 and 7 May 2015.” He said that he would not draw the same inference and that on any “reasonable view” the change at C4/5 is simply degenerative change.150 Dr Hall elaborated that “there were greater changes in 2013 and less in 14, more in 15, less in 19, more in 17 and less in 22. These are all natural changes occurring over time”.151 242 When it was put to Dr Hall that there were two opinions on one side (Dr Selby and Dr Davies) and his on the other, his response was: 152 I’m not alone. We could get a load of opinions that agree with what I am saying. There are a whole lot of other radiological reports that you have not tabled from Jones, Perrett’s, from a variety of radiologists, and none of them made a big deal of the C4/5 protrusion and I think that the changes are subtle and not important. 243 Dr Hall also made the observation that he was more senior than the experts relied upon by the applicant. 244 Dr Hall was taken to the MRI that was taken on 30 March 2019.153 He explained that there appeared to be a bulge developing at the C2/3 level and a similar observation was made at C3/4. To his observation, however, C4/5 seemed to have improved. Overall, Dr Hall noted that the appearance at each level was similar to 2013 with some slow progressive change. 245 Dr Hall was asked to elaborate on his observation that C4/5 had improved. Dr Hall displayed the image of 1 June 2015 alongside the image of 30 March 2019. Dr Hall demonstrated why, in his view, the image from 2015 146 2T151-153. 147 Exhibit A73; T188-190. 148 Exhibit A73 at 5. 149 2T188-190. 150 2T192. 151 Ibid. 152 2T193. 153 Exhibit R239. -- 62 of 166 -- [2024] SASC 97 McDonald J 59 displayed more ‘bulginess’ in comparison to the 2019 image. Overall, in relation to C4/5 Dr Hall observed that there was more of a disc protrusion in 2013, less in 2014, more in 2015, and now less again in 2019. Dr Hall explained that this was part of the natural reparative process of the human body to remodel overtime. Sometimes it proceeds with further degenerative change and greater bulging, and sometimes with diminutions in height and less bulging. Dr Hall described that it is not predictable.154 246 Dr Hall was then taken to the MRI taken on 20 June 2022.155 He said that there was a small bulge at the C2/3 disc and at the C3/4 disc there was also a bulge. At C4/5 there is a bulge of the two fused segments and then the C7/T1 disc is darker than the previous images, which suggests deterioration. The darkening indicates that there is a loss of water, which is part of the degenerative process. Dr Hall explained that what is apparent in this image is degenerative change in all cervical discs, two of which have been operated on. He said: “This is a pattern you see with ageing and in my view not a pattern associated with injury. An injury would normally cause a marked change at one level.”156 247 Dr Hall was asked specifically about Dr Selby’s evidence that what was seen at C4/5 was brought on at a rapid pace by injury. Dr Hall disagreed maintaining the view that it was ordinary degenerative change. He said: 157 It could be the most likely provocative event is the adjacent segment surgery, cos that’s a major structural change to the spine, but it could just have happened with the passage of time without any intervening surgery at all. 248 At the conclusion of his evidence about the various images, Dr Hall provided the following observation:158 The summary of the images is that there was degenerative change in 2013 and it has simply progressed in an expected pattern that I would say is in keeping with the normal degenerative process over those years. There is nothing there of any surprise to me. 249 Dr Hall was also questioned about Dr Selby’s evidence about his observations from the 2022 surgery, in particular in relation to inflammation and adherence. Dr Hall did not accept that it was possible for Dr Selby to have observed inflammation during the surgery. He was quite emphatic on the topic. He explained that this was a “pet subject” of his. In his report of 10 February 2023 Dr Hall said:159 154 2T157-158. 155 Exhibit R241. 156 2T159. 157 2T160. 158 2T161-162. 159 Exhibit R211 at 5. -- 63 of 166 -- [2024] SASC 97 McDonald J 60 The existence of inflammation is refuted. Inflammation can exist in situations where there is infection such as meningitis, tumour involvement or a clearly evidence bony fracture. I can think of no other instance when inflammation could exist. 250 Dr Hall went onto say “I have not been able to find a reference to any such condition, nor have I ever observed such a situation in a degenerative cervical spine in my experience”.160 251 In evidence Dr Hall further elaborated:161 It’s just simply not possible to observe inflammation without a microscope, not an operating microscope, but a histological microscope. Inflammation is a histological process of invasion by inflammatory cells. No human being with an operating microscope or with loupes in which you are operating can observe that. 252 Such was the conflict between the evidence of Dr Selby and Dr Hall on this topic that in cross-examination Mr Watson SC asked Dr Hall if he suggested that Dr Selby was lying. Dr Hall responded “I’m saying he was mistaken”. It was then put to Dr Hall “so you would know you weren’t there but you would know better than he” to which Dr Hall responded “I think I would, yes.” Mr Watson then referenced a number of papers published in peer review journals that Dr Selby said supported his position. Dr Hall responded, “I’m very willing to go through those papers. In fact I invite it”. He went on to say that not a single paper supports Dr Selby’s evidence about the presence of inflammation “if you want to get into that I’ll go through every single paper very willingly.”162 Mr Watson SC did not take up that invitation. Dr Hall concluded his evidence on this topic by saying of Dr Selby “he’s misinterpreted the literature, he’s wrong.”163 253 Dr Hall’s evidence then moved to the topic of adherence. His evidence was again at stark odds with that of Dr Selby. In his report of 10 February 2023, Dr Hall challenged Dr Selby’s evidence that there was ever adherence of the disc to the spinal cord. He said:164 Adherence of the disc to the spinal cord never occurs in the absence of a congenital abnormality or a severe structural derangement. There was no such condition present in Mr Cosenza’s case. 254 Dr Hall went on to say that even if Dr Selby was erroneously referring to the ‘cord’ when he in fact meant the dura mater,165 he has only very rarely encountered adherence of the disc to the dura in a degenerative situation. Even then it only occurs in very advanced degenerative change with major canal stenosis. That is to be contrasted with the applicant’s case where “there were only mild changes on the imaging, with no significant central canal compromise, no cord displacement 160 Ibid. 161 2T167. 162 2T176. 163 Ibid. 164 Exhibit R211 at 2. 165 Ibid; The dura mater are the outer three layers that encase the central nervous system, including the brain and spinal cord. -- 64 of 166 -- [2024] SASC 97 McDonald J 61 and no cord compression. Hence the reference to severe adherence of the disc to the ‘spinal cord’ (or for that matter the dura mater) is difficult to understand in Mr Cosenza’s case, and in my view almost certainly was not present”.166 255 In answer to a question about whether Dr Selby’s evidence on this topic was supported by any imaging or other record, Dr Hall responded:167 There is no evidence on my direct viewing of the imaging, nor in reports of the imaging, to support any adherence. Indeed, the canal compromise is relatively minor, with no compression of the cord, no displacement of the cord, and no signal change within the cord. 256 Dr Hall also disagreed with Dr Selby’s opinion that the presence of adherence is indicative of trauma. He said:168 I have never seen a traumatic event cause adherence as described by Dr Selby. I suppose if there is a major fracture of the vertebra body with intrusion into the spinal canal, then adherence to the bone could be encountered. Adherence is also commonly observed in a well described condition of Ossification of the Posterior Longitudinal Ligament (OPL 6). Adherence might also occur in an infected situation. None of these conditions were present in Mr Cosenza’s case. 257 During cross-examination Dr Hall was also asked a series of questions about any conclusions that he would be prepared to draw from the applicant experiencing pain during the events of Good Friday 2015. It was Dr Hall’s evidence that degenerative changes do not always present symptoms, however an intervening event may trigger symptoms. For reasons that will become apparent, Dr Hall’s evidence on this topic is important – I therefore set it out in full:169 Q If we go back to the night of the incident, the degenerative changes would have been present in Mr Cosenza’s neck immediately before the handcuffing incident. A Yes. Q You’ve made the point here today that degenerative changes can be present but not produce symptoms. A Yes. Q If you think about it, those degenerative changes being present appear to have been rendered symptomatic at the moment of the handcuffing if Mr Cosenza’s complaints at the scene were true, is that right. A That’s a reasonable conclusion, yes. Q It’s not going to be that, all of a sudden, by coincidence, the degenerative changes became symptomatic at the scene, it’s much more likely to be related to the trauma associated with that handcuffing, do you agree. 166 Exhibit R211 at 2. 167 Ibid. 168 Ibid at 3-4. 169 2T193-194. -- 65 of 166 -- [2024] SASC 97 McDonald J 62 A Sorry, you said - sorry, put that again? I’m sorry about that. I didn’t quite get the gist of it. Q The degenerative changes becoming symptomatic in the sense of producing neck and right shoulder and arm pain on the moment of the handcuffing would seem to suggest that they triggered them, those changes, becoming symptomatic, do you agree. A It’s a possibility. Q Well, what else is a possibility. You’re not suggesting it was just a wild coincidence that, while the handcuffs were being applied, that all of a sudden asymptomatic degenerative changes became symptomatic, you’re not saying that, are you. A It could happen, of course it could happen. It could happen if you’re just rolling over in bed. Q What do you think the probabilities are that he was standing there with, as he told you, his neck was in pretty good shape, the handcuffing goes on, are you saying just by way of wild coincidence, at that very instance in time, the degenerative changes which previously had been asymptomatic became symptomatic, is that what you’re telling the judge. A I’m saying that he had symptoms, but we can’t necessarily relate those to a change at C4-5. I think it is a wild proposition that’s not true. You can have a degenerative cervical spine, have no symptoms, you can have symptoms that come on. You’re trying to ask - make me say that the handcuffing caused symptoms to arise from either C3-4 or C4-5, which are the levels that were subsequently involved in surgical intervention. Absolutely no-one can say that. I certainly can’t say that. Q I didn’t put that question at all. A What are you putting again then? Put it again. HER HONOUR: I think there might be a communication breakdown here. I think the doctor is assuming you’re putting something quite different. MR WATSON: Yes, that’s for sure. Q I’m sorry, I’m just talking about this: if a man has degenerative changes in his spine which are asymptomatic and at the moment of the handcuffing they were rendered symptomatic, you’d draw the causal link between the two. A No, I can explain what I mean. I’m not trying to be awkward. What I’m saying is that at the time of the handcuffing he had symptoms, he reports symptoms, I accept that. What you’re trying further to infer is those symptoms are from the cervical spine. I don’t accept that. There can be many causes of - having a hand put behind your back and forced, there could be a soft tissue strain of the arm, could be anything that could cause that pain. It’s not true to say that those symptoms are from the cervical spine, full stop, end of case, I don’t agree with that at all. HER HONOUR Q Just to make sure I understand this, your position is he may well have experienced pain that had nothing to do with the C4-C5. -- 66 of 166 -- [2024] SASC 97 McDonald J 63 A Absolutely nothing to do with the neck, just he had pain at the time, he had a previous history of a sore neck, of neck pain and arm pain, and he’s handcuffed, presumably it was forceful, I would expect you could have a strain of the shoulder or some other symptom that could cause arm pain. It’s not necessarily the case that those symptoms are referred from the cervical spine. 258 The effect of Dr Hall’s evidence was that any pain experienced by Mr Cosenza during the arrest process cannot be causally linked to an injury at C4/5. The pain could have been triggered at the C4/5 level or it may have been caused by some other mechanism, given the applicant’s medical history. On Dr Hall’s evidence what cannot be reasoned is that the complaint of pain supports that an injury at C4/5 was caused during the process of arrest. Conclusion – medical evidence 259 The question currently under consideration is whether the medical evidence provides me with any assistance in determining what happened during the roadside arrest. 260 The applicant contends that, on the basis of the evidence of the experts, I can reason from the C4/5 injury that the events of Good Friday are more likely to have occurred as described by the applicant as opposed to Brevet Sergeant Graham. That on balance I can find that a traumatic event resulted in a new or further injury at C4/5. 261 On the other hand, it is the respondent’s position that, based on the evidence of their witnesses, I should find that there is no reasonable basis upon which to conclude that the C4/5 injury was a product of the applicant’s arrest. 262 This is not a situation in which the competing evidence of the experts can be easily reconciled. The experts disagree, and both Dr Selby and Dr Hall have expressed their views very firmly. 263 Of the witnesses called, I was most impressed by Dr Hall. His evidence was clear and he was able to articulate the basis of his opinions in a logical manner, with the use of the various images that were tendered. That is not however to detract from the evidence of Dr Selby. Given Dr Hall’s evidence, I do not find a causative link has been established between the C4/5 injury and a traumatic event during the Good Friday 2015 arrest. On balance I accept that the injury to C4/5 was a product of degenerative change that occurred over time. I have no doubt that the applicant experienced pain or at least discomfort during his arrest, however it has not been established that this pain correlated with a C4/5 traumatic injury. It follows that the medical evidence does not assist me in determining the issues surrounding the Good Friday arrest. 264 Even if I had found to the contrary, there is a further difficulty with the applicant attempting to gain any support for his version from the medical evidence. That comes about as a result of the manner in which the experts were led and cross- examined. As I set out previously, there was actually little difference between the -- 67 of 166 -- [2024] SASC 97 McDonald J 64 accounts of the applicant and Brevet Sergeant Graham about the physical manoeuvring involved in the arrest. At no stage were any of the applicant’s witnesses asked any questions to establish that the C4/5 injury could not have occurred in the process of the restraint described by Brevet Sergeant Graham. It follows that, even had I found that there was a causal nexus between an injury and the events of that day, there was no evidence to discount that such a link was at least equally consistent with Brevet Sergeant Graham’s evidence. Consideration of the evidence of the applicant and Brevet Sergeant Graham 265 I make a number of general observations about the evidence of the events of Good Friday, before setting out the factual findings that I have arrived at. Findings in relation to the applicant’s evidence 266 I found the applicant to be an unimpressive witness. His evidence came across as rehearsed, self-serving, and exaggerated. He appeared to carefully manage the answers that he gave during his evidence such that, when he gave an answer that could be considered as contrary to his case, he often made a counter statement in an attempt to advance his cause. The applicant constantly endeavoured to attempt to paint himself in the most favourable light and failed to make appropriate concessions. I will give some examples as to why I have arrived at this view. Reason for imprisonment 267 In the context of the applicant giving evidence about the reason that he was imprisoned, his counsel invited him to “come clean” about the reason that he had been imprisoned. The following exchange occurred:170 Q. You should come clean now and tell her Honour what happened. A. Well, it was obviously a very, very terrible time in my life. I was very successful, had several businesses that I was operating at the time. Quite financially well off. I later found out my wife was in a relationship with someone else who I knew and I was involved in another commercial business with his brother. His brother ultimately cheated, I suppose, misappropriated company funds so that business went away. Q. This was your perception anyway. A. Yes, my perception and then she was in a relationship with this other man and I foolishly attempted to try and hurt him. Q. You have heard me describe it as an event where there was an undercover police officer. A. Yes. 170 T77. -- 68 of 166 -- [2024] SASC 97 McDonald J 65 Q. You might say thankfully. A. Yes. 2015 and 2018 admission applications 268 The applicant gave evidence that he made applications to be admitted as a legal practitioner in the Northern Territory in 2015 and Tasmania in 2018. 269 In relation to the former, the applicant gave evidence that he had posted the application by express post overnight on Thursday 2 April 2015. He initially told the Court that he had subsequently withdrawn that application because of the events of Good Friday. The applicant was pressed on this topic in cross- examination:171 Q. You gave some evidence about that yesterday in which you said that the reason you withdrew that application was because of the Good Friday incident. A. Yes, I wasn’t - I wasn’t physically capable of pursuing the application at that time. Q. And you said that there was no other - it was only that reason. A. That’s right. There was - I did say there was a notice of objection to my application. I did say that, but that wasn’t the reason for the withdrawal. If there was going to be an objection, which we anticipated may be, I was prepared to challenge that. Q. So if we go to trial book 8 part 1 tab 327, starting at p.3835, I want to ignore that first page because it’s not actually relevant for present purposes and is about something else but if you turn over to 3836 there’s a letter from the Legal Practitioners Admission Board. A. Yes. Q. Dated 15 April. A. Yes. Q. 2015. A. Yes. Q. And that is a letter from the board rejecting your application, isn’t it. A. Yes. Q. If you go to the fourth paragraph on the first page it says ‘The board was of the view that you are not a fit and proper person to be admitted by reason of the conduct referred to in your affidavit’ - A. Yes. 171 T289-291. -- 69 of 166 -- [2024] SASC 97 McDonald J 66 Q. - and there’s various paragraphs there. So when you say there was an objection what you mean was your application for admission had been rejected by the board. A. Yes, which then allowed me to take the next step, to take the matter to the Supreme Court. Q. Yes, because the last paragraph says that, it says ‘Section 38(2) of the Act allows you to appeal to the Supreme Court -’ A. Yes. Q. ‘- against this decision’. A. Yes. Q. You say the only reason you didn’t pursue the application is because of the Good Friday incident not because of this rejection. A. That’s correct, yes. I couldn’t even consider this, to be quite frank. I wasn’t in a position to even consider this. Q. So it’s actually not correct, is it, to say that you withdrew your application from the Northern Territory, is it. A. That’s correct, it’s not correct based upon that document, no, that’s not - that’s correct. Q. What you should have said was that your application to be admitted was rejected. A. Yes. Q. And I put it to you that this rejection is the reason you didn’t further pursue the Northern Territory. A. No. Q. That it’s not because of the Good Friday incident. A. No. 270 The applicant was also cross-examined at some length about the affidavit that he swore in support of his application to be admitted as a legal practitioner in Tasmania.172 The applicant accepted that given the nature and purpose of the affidavit, there was an expectation of a high degree of candour in preparing the affidavit.173 His evidence was:174 Yes, and as I said, as a law graduate and someone who appears in court regularly, I treat myself as being an officer of the court, to be honest and diligent and do the right thing; that’s how I treat it. 172 Exhibit R44. 173 T250. 174 T329. -- 70 of 166 -- [2024] SASC 97 McDonald J 67 271 The effect of the cross-examination was that, whilst there were no outright lies in the affidavit, the applicant had put a particular slant on the matters that he deposed to in order to present himself in the best possible light. In setting out the details of the events of Good Friday 2015 the applicant said “I was arrested and assaulted by the police officer requiring me to be taken to hospital by ambulance”, in what was clearly an attempt to convey that his injuries were such that hospital treatment was required that night. That of course is not accurate or at the very least incomplete. The applicant said that, at the time, he was “convalescing from spinal surgery”, when his evidence in Court was that he had completely recovered, he had almost instant relief as the result of the surgery, and that he was feeling terrific.175 The applicant went on to say, “the police officer in question is being criminally prosecuted for the assault upon me”. What the applicant failed to mention is that it was a private prosecution brought by him, not the prosecuting authorities. A prosecution that he subsequently abandoned. In referring to the court proceedings in relation to the failure to blow charge, the applicant said, “the complaint was withdrawn by SAPOL on 3.5.16 with an indemnity costs order in my favour”. Whilst the first half of that sentence is accurate, there were no indemnity costs awarded. Given the applicant had just completed a law degree, was applying to be admitted as a legal practitioner, and was also an experienced litigant, he would have been well aware of the impression conveyed by claiming that indemnity costs were awarded against the police.176 272 The cross-examination about the Tasmanian affidavit is a good example of the overall approach taken during the applicant’s evidence namely to deliberately create an impression that portrayed events in his favour. Throughout the course of his evidence, the applicant carefully attempted to impression manage. Findings in relation to the evidence of Brevet Sergeant Graham 273 In my view, Brevet Sergeant Graham was a truthful and generally reliable witness. He did his best to answer questions frankly and in a straightforward manner without exaggeration or embellishment. In that respect his evidence stands in sharp contrast with that of the applicant. That is not to say that his evidence was without fault. However, the issues or problems with aspects of his evidence appear to be the consequence of the passage of time, and perhaps a degree of acerbity, over the process that he had been involved in over the last nine years. There was an exchange that illustrated this during Brevet Sergeant Graham’s evidence in chief, when Senior Counsel for the respondent asked him whether he had seen the applicant again since he left the hospital on Good Friday 2015:177 Q. You hadn’t seen him between that night and yesterday. 175 T86. 176 In Exhibit A22, the letter written to the Police Commissioner by the applicant, he makes reference to seeking indemnity costs. 177 T751-752. -- 71 of 166 -- [2024] SASC 97 McDonald J 68 A. No, I have - with respect to the court, the least I can see that man, the better my life will be. Q. Why do you say that. A. I’m not sure what the court is aware of and I’m not sure whether it’s relevant or not, but I’ve been through a tough process with this gentleman. Q. What you’re saying, though, is during that tough process, you never saw him. A. No. Q. Or spoke to him. A. Nope. 274 Counsel for the respondent later revisited this topic:178 Q. Just pause there. You gave some evidence earlier about having - and your words were ‘Being through a tough process’ with this man. A. Yes. Q. What does that mean. A. That means I was the subject of a criminal charge. Q. A criminal charge laid by whom. A. Mr Cosenza. Q. And when was that charge laid. A. Almost two weeks to the day - or maybe three, I don’t remember - but it was nearly the end of two years after the incident, so I know there was a lot of legal stuff going on in the background about whether or not he not intended to charge with me a minor indictable offence or a summary offence, and I think ultimately it came his intentions were to charge me with just common assault, and it went through, and here we are. Q. And ultimately that was withdrawn, is your understanding. A. Yes, yes. 275 As I have mentioned, it was common ground that the applicant had instituted a private prosecution against Brevet Sergeant Graham, that was ultimately abandoned. 276 During the course of his evidence, Brevet Sergeant Graham made appropriate concessions, and on occasions, gave answers knowing that they would not assist the respondent’s cause. A good example of this occurred during Brevet Sergeant Graham’s evidence about his dealings with a police prosecutor, Senior Constable De Bono. It was his evidence that, after he received the results of the applicant’s 178 T783-784. -- 72 of 166 -- [2024] SASC 97 McDonald J 69 blood analysis, he formed the view that the charge against the applicant should be discontinued. He conveyed that view to others. In that context, Brevet Sergeant Graham gave evidence about a telephone conversation that he had with Senior Constable De Bono:179 A. …I remember getting a phone call from Michelle De Bono asking me about my attempts to serve the summons, and I remember that specifically. I said ‘Well, I’m not serving that summons; it’s got nothing to do with me’. She was ‘Well, he’s not answering the summons, he’s not answering his emails, he’s not coming in to pick it; we want to get a no bail warrant to ensure him to get before the court’, and I - I again expressed that I didn’t understand why they were pushing the issue, but it continued, and before I knew it, it was - it was before the courts. 277 The topic was further explored in cross-examination during which Brevet Sergeant Graham provided additional details of that conversation:180 Q. What did she say. A. ‘Fuck him, he’s been a pain in the arse to us’, and I can’t remember the exact words, but it was certainly along those matters, that they’ve tried everything to attempt service of a summons, I’ve tried to have him come and pick the summons up, I believe they told me they emailed the summons to him, and I believe Michelle’s response was ‘No, fuck him, he’s being a pain in the arse, we’re going to get - the magistrate will issue a no-bail warrant for him’. 278 In that disarmingly honest response, Brevet Sergeant Graham probably provided the applicant with his strongest point in relation to his claim for malicious prosecution. 279 Overall, the assessment that I made of Brevet Sergeant Graham as a witness was a favourable one. Throughout his evidence, he emphasised the limitations on the extent of his recollection and did so in a manner that clearly conveyed that he was not prepared to go any further than his memory permitted. In that respect, and generally, he conveyed the impression of objectivity and appeared to give evidence in a reasonably measured fashion. 280 During the course of his closing address, Senior Counsel for the applicant made a number of criticisms of the evidence of Brevet Sergeant Graham. Some had more weight than others. I propose to deal with the most cogent of those submissions. Criticisms of Brevet Sergeant Graham’s evidence Clenched fists 281 Brevet Sergeant Graham gave evidence that when the applicant got out of the car, the applicant “shaped up” to him; he was angry; he puffed up his chest, and had clenched fists. In cross-examination, it was put to Brevet Sergeant Graham 179 T783. 180 T797. -- 73 of 166 -- [2024] SASC 97 McDonald J 70 that he was lying about the applicant “shaping up” to him or having clenched fists.181 In support of that contention, Senior Counsel for the applicant took Brevet Sergeant Graham to his handwritten notes that he had written during that shift.182 In those notes, there is no reference to the applicant clenching his fists. There is, however, a reference to the applicant “shaping up” to him. Similarly, in the Police Apprehension Report that was completed by the end of the shift, there is no reference to clenched fists, but there is again a reference to the applicant “shaping up” to Brevet Sergeant Graham. The same pattern emerges in the first affidavit provided by Brevet Sergeant Graham in September 2015, that is, it refers to the applicant “shaping up” to him but does not make mention of him clenching his fists. In November 2015, Brevet Sergeant Graham provided a further affidavit in order to clarify certain aspects of his initial affidavit. This second affidavit includes a reference to clenched fists. It said:183 COSENZA again shaped up to me, pushing his chest forward and clenching his fists, and started rambling. He looked angry. I was alone, it was dark and I then arrested him. I then continued to handcuff him and await the arrival of other police. 282 In assessing this criticism of Brevet Sergeant Graham’s evidence, I have had regard to the nature of the documents and the circumstances in which they were created. As mentioned, the handwritten notes were commenced at the scene. Those notes are brief and are recorded in a standard police issue memorandum notebook. There are two separate entries relating to the applicant “shaping up”. 283 The Police Apprehension Report is also a relatively brief document of its type. It is recorded as having been completed at 00.37 on 4 April 2015. Under the heading of “Police Version”, Brevet Sergeant Graham entered a summary of the events that had occurred at Chief Street. The following is the entirety of the narrative provided on this topic:184 At about 10.00pm on Friday the 3rd of April 2015 police (GRAHAM) was on uniformed duties on Chief Street BROMPTON when he stopped and spoke to the driver (accused) of a black Audi sedan (SA) XUA802. The accused was requested to submit to an alcotest, to which he refused several times, continually being belligerent. He was given the prescribed advice and continued to refuse. He sighted a medical condition and then shaped up to police. The accused was then arrested and handcuffed to the rear when he almost immediately began to hyperventilate and breathe heavily complaining of a medical condition. The accused was released from custody and an ambulance was requested and arrived a short time later. … 181 T833-839. 182 Exhibit R126; T765-767. 183 Exhibit R131. 184 Exhibit R124. -- 74 of 166 -- [2024] SASC 97 McDonald J 71 284 The final document in this category, the affidavit dated 28 September 2015, is also relatively short, with five pages of double-spaced font. 285 Given the nature of the documents in question, it is not of any great moment in an assessment of Brevet Sergeant Graham’s evidence that he did not include the detail of the applicant clenching his fists. It is apparent from the relevant documents that at no point did Brevet Sergeant Graham attempt to provide any further detail of what he meant by the term “shaped up”. This descriptor is a phrase of common colloquial usage which would, in most circumstances, require no further explanation. It is a satisfactory answer to the criticism made by the applicant, that when it appears that Brevet Sergeant Graham was requested to provide some further explanation or detail, he included a reference to his observations of the applicant’s clenched fists. The circumstances in which the applicant got out of his car 286 Counsel for the applicant identified an inconsistency in the various accounts provided by Brevet Sergeant Graham about the sequence of the events that he described occurring on Chief Street. In his evidence, Brevet Sergeant Graham said that he approached the applicant’s car as the applicant remained seated inside. He said that, after an introductory exchange, he explained to the applicant that as the driver of the vehicle he was required to provide a sample of his breath.185 When the applicant started repeating that he refused “to blow”, he gave the applicant the recitation of his rights with respect to s 47E(4)(ab) of the Road Traffic Act 1961 (SA) (the good cause defence). The applicant then got out of the car in a belligerent manner and “shaped up” to him. He said that it was at that point that he told the applicant that he was under arrest and went to handcuff him. 287 Counsel for the applicant contrasted that evidence with the account provided in Brevet Sergeant Graham’s affidavit of 28 September 2015. In that affidavit Brevet Sergeant Graham relevantly said:186 COSENZA was belligerent and aggressive with me and at one point denied driving his vehicle. I directed COSENZA to submit to an alcotest. He refused on several occasions. I advised COSENZA of his defence to any charge of refusing, and I directed him out of the vehicle and attempted to arrest him for the offence. At one point whilst effecting the arrest, I removed a mobile telephone which he was now holding from his hands and placed it on the roof of his car. In the process, he alighted the drivers’ seat and shaped up to me. 288 The applicant placed emphasis on the affidavit stating that the applicant was directed to get out of the car, which was contrasted with Brevet Sergeant Graham’s evidence that the applicant got out of the car of his own volition.187 289 Whilst there is a difference between the two versions I find that given the passage of time it is hardly remarkable. There is also an imprecision in the manner 185 T717. 186 Exhibit A130. 187 Although relied upon in submissions, the inconsistency was not put to Brevet Sergeant Graham during his evidence. -- 75 of 166 -- [2024] SASC 97 McDonald J 72 in which the affidavit is expressed that means that it is capable of more than one interpretation. 290 Honest and reliable witnesses can and will be inconsistent on the repeated telling of the same account. The question that arises is whether the inconsistency is such that it indicates a lack of candour on the part of the witness. In my view, this inconsistency falls a long way short from falling into that category. The prescribed oral advice (the good cause defence) 291 The applicant also contended that Brevet Sergeant Graham was inconsistent in his evidence as to whether he provided the applicant with the prescribed oral advice as required by s 47E(4)(ab) of the Road Traffic Act 1961 (SA) (‘the good cause defence’). 292 Section 47E of the Road Traffic Act 1961 (SA) (‘the Road Traffic Act’) relevantly empowers a police officer to require a person who is driving, has driven, or is attempting, or has attempted to drive a motor vehicle to submit to an alcotest or a breath analysis. Section 47E(3) makes it an offence to refuse or to fail to comply with a reasonable direction of a police officer in relation to the requirement to submit to such a test. In particular it is an offence to “refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the direction of a police officer.” 293 Section 47E(4) creates a defence to non-compliance with 47E(3). It reads: (4) It is a defence to a prosecution under subsection (3) or (3a) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person’s right to request the taking of a blood sample under subsection (4a); or (b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (Emphasis added) 294 The reference in the section to the prescribed oral advice is a reference to a warning that, under reg 18 of the Road Traffic (Miscellaneous) Regulations 2014 (SA), police are required to give. Regulation 18 provides “The prescribed oral advice for the purposes of section 47E(4)(ab) of the Act is set out in Schedule 1, Form 2”. That form reads: -- 76 of 166 -- [2024] SASC 97 McDonald J 73 Road Traffic Act 1961 Oral advice on refusal or failure to comply with alcotest or breath analysis direction: section 47E(4)(ab) It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined and lose your licence for 12 months or more. It is a defence if you have some physical or medical condition that prevents you from providing a breath sample, but only if you ask for a sample of your blood to be taken instead or can show that your condition also prevents the taking of blood. If you want a blood sample taken because of your condition, you should ask for that and the police will help you to have the sample taken at Government expense. 295 As I have mentioned, during the course of his evidence Brevet Sergeant Graham referred to this direction as the “good cause defence”. This shorthand terminology was adopted by other witnesses and counsel during the trial. Brevet Sergeant Graham gave evidence that, after he had advised the applicant that he was required to supply a sample of his breath and the applicant refused, he gave the applicant the good cause defence direction. He described what he meant by that:188 Q. And what was your response to being met with that refusal. A. That it’s a criminal offence not to blow that you may lose your licence for 12 months or more and/or be fined. Obviously, they’re entitled to what’s called the good cause defence, which is I think what I’m going through now, used to roll off my tongue back then but not so much these days, how did it go? Q. So just pause there. A. Yes. Q. What you’ve just described to me or to the court about it’s an offence not to blow etc, is that what you said. A. Yes, that’s what I would have said. Q. You’ve mentioned a good cause defence, what was your understanding of that. OBJECTION: MR WATSON OBJECTS OBJECTION OVERRULED Q. You’ve made reference to the good cause defence as being something that you said. A. Yes, that’s correct. Q. And what did you mean and understand by that when you said it. A. So, everyone is required to undergo that direction to blow, my understanding of the instruments are they are designed for even people with the greatest of breathing 188 T717-719. -- 77 of 166 -- [2024] SASC 97 McDonald J 74 difficulties but unfortunately, I’m not a doctor and neither are others but people do - it still is an offence to refuse or fail to comply with that direction but the good cause defence is something that can be raised later by an accused person if they’ve claimed to have got a medical issue that prevents them from blowing and I believe only if they ask for a blood sample to be taken. Q. And a refusal to blow and the claiming of a good defence, is that something that you had experience prior to this incident. A. Yes, it is. Alcotest not so much, to the point that we got to that might but sometimes when you bring people back whether it’s been via a positive alcotest or whether it’s been via other means for a proper breath analysis test, I’ve had experiences where I’d give that good cause defence within that as well. So, how many times I’ve given it, I don’t know. Static RBT blocks that we used to do, you would see hundreds of motorists a night and there wouldn’t be a night where you wouldn’t use it at least a couple of times and that usually kicks people up to sort of ‘okay, I will blow’. Q. Sorry, you referred there to static something. A. RBTs; random breath testing sites. Block RBTs, if you like, where we set up a station. This was a different scenario than that. Q. But you have experience in that - A. Yes, I do, yes. Q. - RBT function. You’ve said the good cause defence, your words were, ‘used to roll off the tongue’. Can you just explain that. Why is that. A. Uniform duties, I did my general duties experience at Salisbury, I was on the road for about eight years. We’d be required as part of what we’d do - to assist with road safety and part of that was block RBTs. When I left patrols, I went to Traffic for a short time. I think all up in two stints about two years. My duties back then was traffic offences, which predominantly consisted of drink-driving and speeding- related offences, plus other things. It was kind of like some of the work I do now, some of those words roll off my tongue when I’m in the moment, it just was something that was said every day. I used to be able to read the blood rights at the back without reading because it was just something you’d say quite regularly. Q. Sorry, just explain that, the blood rights at the back. A. So if someone was positive on breath analysis results, which is after the alcotest, if you like, so they’ve blown a positive result, we used to have proforma sheets and you would read verbatim their rights to basically challenge the result. The same deal with the good cause defence, that used to roll off my tongue. That was a page of writing. So it’s not uncommon for me not to know that. I have been in the CIB now for five or six years and I don’t recall the last drink driver I’ve dealt with, so it’s still there in me as experience, but it’s not something I deal with every day anymore. 296 The effect of his evidence was that, whilst in 2022 he could not recall the precise words he used, in 2015 he could give the direction by rote. 297 In closing submissions it was put to me that I should not accept Brevet Sergeant Graham’s evidence on this topic. The applicant placed reliance on the -- 78 of 166 -- [2024] SASC 97 McDonald J 75 September 2015 affidavit of Brevet Sergeant Graham in support of this submission. It was put that, given the importance of the direction, it was incumbent upon Brevet Sergeant Graham to set out the detail of what was said in full. He did not do so. In his affidavit, Brevet Sergeant Graham did however say “… I directed Cosenza to submit to an alcotest. He refused on several occasions. I advised Cosenza of his defence to any charge of refusing…”.189 298 If that were the full extent of the written record of the fact and detail of the direction given, it might well have caused me to doubt what was in fact said. However, there are relevant documents that post-date and pre-date this affidavit. In his handwritten notes made during that same shift, Brevet Sergeant Graham records this aspect of his exchange with the applicant:190 H/S I’m not driving, I’m [sic] wasn’t driving I was just sitting here with my dogs and wasn’t driving. You are just harassing me. I am sick of police harassing me. I/S As the driver of a motor vehicle I require you to supply me with a sample of your breath. I now direct you to supply a sample of your breath by blowing through this tube now. H/S I refuse, I refuse, I refuse I am not going to blow. I/S It is a criminal offence H/S I refuse, I refuse, I refuse. I’m not going to blow. He then got out of the car and shaped up to me and told me he wasn’t going to blow. I/S Step back. I need you to blow. It is a criminal offence to refuse or fail to provide a breath sample without good cause. You could be fined or lose you licence for 12 months or more. H/S I’ve got anxiety. I want a blood test. I/S It is a defence if you have some physical or medical condition that prevents you from providing a breath sample but only if you ask for a blood sample to be taken instead or can show that your condition also prevents the taking of blood. If you want a blood sample taken because of your condition you should ask for that and the police will help you to have the sample taken at government expense. Do you understand. 299 There is also a reference to this direction in the Police Apprehension Report that Brevet Sergeant Graham prepared that same night. In that document he recorded that the applicant was “…continually being belligerent. He was given the prescribed advice and continued to refuse. He sighted [sic] a medical condition”.191 189 Exhibit A130. 190 Exhibit R126. 191 Exhibit R124. -- 79 of 166 -- [2024] SASC 97 McDonald J 76 300 There is further detail provided of this exchange in an affidavit of Brevet Sergeant Graham dated 26 November 2015.192 This appears to have been produced as the result of a request from Police Prosecutions. In that affidavit, he sets out the same details that are contained in his handwritten notes. 301 In all of the circumstances, I am of the view that any inconsistency, insofar as an inconsistency has been established, does not have any adverse impact on the credibility and reliability of Brevet Sergeant Graham. The combined effect of the criticisms of Brevet Sergeant Graham’s evidence 302 Whilst I have dealt with each criticism of Brevet Sergeant Graham’s evidence separately, I have also turned my mind to their combined effect. I have also carefully considered and reviewed the other criticisms made by the applicant about the evidence of Brevet Sergeant Graham. There is nothing that has been raised by the applicant that impacts on my overall findings as to the credibility and reliability of the witness. Accordingly, I make the following findings in relation to the roadside arrest. Findings of facts in relation to the roadside arrest 1. The applicant’s driving prior to the events on Chief Street 303 At about 10.01pm, Brevet Sergeant Graham observed the applicant take off quickly in his vehicle from Trembath Street, Brompton. Brevet Sergeant Graham followed the applicant’s vehicle until such time as the applicant had parked his car on Chief Street. During that time, Brevet Sergeant Graham observed the applicant commit various traffic offences, including failing to stop at a stop sign on at least one occasion. 2. The initial exchange between the applicant and Brevet Sergeant Graham 304 Brevet Sergeant Graham got out of his vehicle holding an alcotest and approached the applicant who remained seated in his vehicle. Brevet Sergeant Graham requested that the applicant blow into the alcotest. The applicant immediately became belligerent, argumentative, and aggressive, and repeated numerous times words to the effect of “I wasn’t driving. I refuse to blow”. In response, Brevet Sergeant Graham provided the applicant with the good cause defence. 3. The circumstances in which the applicant came to get out of the car 305 The applicant got out of his car of his own volition. Upon exiting the vehicle, the applicant “shaped up” to Brevet Sergeant Graham. The applicant was angry and belligerent, and his fists were clenched. Brevet Sergeant Graham feared for his safety. 192 Exhibit R131. -- 80 of 166 -- [2024] SASC 97 McDonald J 77 4. The arrest 306 Brevet Sergeant Graham placed the applicant under arrest for the offence of failing to comply with a reasonable direction of a police officer (failing to exhale into an alcotest) contrary to s 47E(3) of the Road Traffic Act. Brevet Sergeant Graham made the decision to arrest the applicant in order to prevent the commission of further offences as a consequence of the applicant’s aggressive and threatening conduct. Brevet Sergeant Graham told the applicant that he was under arrest for failing to comply with an alcotest. Brevet Sergeant Graham removed the applicant’s telephone from him and placed it on the roof of the applicant’s car. Brevet Sergeant Graham then applied handcuffs to the applicant. To do so, Brevet Sergeant Graham pushed the applicant against the car and forcibly secured his right hand behind his back with handcuffs. Brevet Sergeant Graham did not force the applicant’s head onto the roof of the car. During the course of attempting to secure the applicant’s left wrist, Brevet Sergeant Graham observed a change in the applicant’s demeanour that caused him almost immediately to release the left wrist. In the course of applying handcuffs to the applicant, Brevet Sergeant Graham caused the applicant some pain or discomfort. 307 At the time of being handcuffed, the applicant’s demeanour changed in that he was no longer threatening. The applicant started hyperventilating and moaning, consistent with suffering the symptoms of high-level anxiety or a panic attack. 308 After releasing the applicant’s left hand, Brevet Sergeant Graham placed that hand on the roof of the car and told the applicant that he was calling an ambulance. An ambulance was called at 10.10pm. 309 At some stage the applicant complained that Brevet Sergeant Graham had aggravated an old injury to his right shoulder. 5. The arrival of Senior Constable Westbrook and Brevet Sergeant Lee 310 Brevet Sergeant Graham first called for assistance at 10.07pm. Senior Constable Westbrook and Brevet Sergeant Lee were at the scene by 10.13pm. On their arrival, Brevet Sergeant Graham was standing with the applicant in the vicinity of the applicant’s car door. By that time, the handcuff had been removed from the applicant’s left hand whilst, in all likelihood, it remained attached to his right wrist. 311 The applicant was directed by one or more of the police officers to sit on the kerb. At about this time, Brevet Sergeant Graham made the decision to unarrest the applicant, although he did not tell the applicant that he was no longer under arrest. The applicant was not wearing handcuffs whilst seated on the kerb. At some point whilst seated, the applicant raised the topic of requiring some medication that was in his car. Brevet Sergeant Lee went to the car to look for medication but was unable to locate any. She advised the applicant of this. I reject the suggestion that, whilst seated on the kerb, one of the police officers stood over the applicant and pushed him down. -- 81 of 166 -- [2024] SASC 97 McDonald J 78 312 The ambulance arrived at the scene at 10.20pm. The paramedics attempted to ask the applicant questions about any medical issues that he had. However, the applicant remained in a heightened emotional state and was uncooperative and argumentative. Whilst the paramedics were in attendance at the scene, they asked Brevet Sergeant Graham to look in the applicant’s car for medication for anxiety. Brevet Sergeant Graham did so and located a small white pill bottle containing some white pills and a small amount of cannabis. The ambulance left the scene at 10.40pm. Determination of the issues arising out of the roadside arrest A lawful arrest? 313 There was no dispute that the onus is on the respondent to establish the lawfulness of the arrest. 314 It was Brevet Sergeant Graham’s evidence that, in arresting the applicant, he believed that he was exercising his power of arrest under s 75 of the Summary Offences Act 1953 (SA) (‘the Summary Offences Act’) for failing to comply with a reasonable direction of a police officer. Section 75 of the Summary Offences Act provides: 75—Power of arrest A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence. 315 The power provided is broad and is only available to police officers, not members of the public. It follows that a valid arrest under s 75 of the Summary Offences Act requires that the officer has reasonable cause to suspect the offender of having committed, or being about to commit, an offence. Such satisfaction need not be based on admissible evidence. Rather the arresting officer need only be satisfied that the arrested person is likely guilty of the offence.193 Reasonable cause requires that the information and material from which the suspicion arises “must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information”.194 Section 75 does not require the police officer to positively determine whether or not, as a question of fact or law, an underlying offence has been committed. 316 Counsel for the applicant contends that Brevet Sergeant Graham’s arrest of the applicant was unlawful. There are a number of issues raised about the circumstances of the arrest which the applicant submits either individually, or in combination, resulted in the arrest being unlawful. These are: 193 Williams v The Queen (1986) 161 CLR 278 at 300 per Mason and Brennan JJ. 194 R v Nguyen (2013) 117 SASR 432 at 437 [22] per Kourakis CJ, Blue and Stanley JJ; see also Gaskin v Police (2009) 267 LSJS 12 at 19 [48] per Doyle CJ. -- 82 of 166 -- [2024] SASC 97 McDonald J 79 1. The failure to advise the applicant that he was under arrest and the reasons for that arrest. 2. The decision to arrest the applicant and the use of handcuffs. 3. Brevet Sergeant Graham did not reasonably suspect that the applicant had committed an offence under s 47E(3) of the Road Traffic Act. 4. Brevet Sergeant Graham did not provide “reasonable direction” as required by s 47E(3). 5. The failure of Brevet Sergeant Graham to fill out a PD207. 6. A breach of police general orders by arresting and then unarresting the applicant. 1. Failure to advise the applicant that he was under arrest and the reasons for the arrest 317 This criticism has no merit. I have found that Brevet Sergeant Graham did, in fact, tell the applicant that he was under arrest for failing to “blow/comply with an alcotest.” 318 Given the confusion surrounding this evidence, it is necessary for me to set out my reasoning process in arriving at this position. 319 Both the applicant and Brevet Sergeant Graham gave evidence on this topic. The evidence of the applicant could not have been clearer. On the first day that the applicant gave evidence, he told the Court that, after he had been handcuffed, Brevet Sergeant Graham said, “You’re under arrest for failing to comply”.195 Counsel for the applicant then asked a further question of the applicant: “No, I want the exact words, Mr Cosenza. He said – he said what. What were the words that are used”, to which the applicant repeated “You’re under arrest for failing to comply”.196 320 The following day, when the applicant resumed his evidence, his counsel revisited the topic:197 Q. Yesterday, very near the end of your evidence, I’d asked you to specify or relate the words utilised by Senior Constable Graham after you said he handcuffed you in respect of announcing the arrest. A. Yes, sir. Q. Have you thought about that overnight. A. Yes, sir. Q. What words were used. 195 T111. 196 Ibid. 197 T115-116. -- 83 of 166 -- [2024] SASC 97 McDonald J 80 A. ‘You are under arrest for failing to comply with an alcotest.’ Q. Yesterday, you’d just said that the words were - A. ‘Fail to comply - under arrest for failing to comply.’ Q. What you said yesterday was wrong, what you say today is right. A. Yes. Q. On your evidence. A. Yes. Q. Let’s restart from the - yesterday you described how your handcuffs had been applied to you, behind your back, and Senior Constable Graham had spoken those words. A. Yes, sir. Q. What happened next. A. Well, handcuffs were applied, I was - I was screaming with pain, and crying, and - Q. Did he say something to you - we discussed the crying and screaming yesterday. Who spoke next. A. Well, then he released my handcuffs - Q. So let’s just stop for a second. He did not say anything to you after the arrest. A. He said ‘You’re under arrest for failing to comply for an alcotest.’ 321 As I have said, the applicant’s evidence on this topic could not have been clearer. Whilst I am generally not prepared to accept the applicant’s evidence unless it is supported by other evidence, I accept his evidence on this topic. I do so on the basis that it is a statement made against interest and, consequently, given that it is not self-serving, is more likely to be truthful and reliable. Further, it is entirely consistent with the evidence of Brevet Sergeant Graham. 322 Unfortunately, Brevet Sergeant Graham’s evidence on this topic was not as clear as it might otherwise have been in large part because of a failure by the cross- examiner to properly represent the witness’ evidence in chief, in cross- examination. In examination in chief, when first asked what he had said to the applicant as he handcuffed him, Brevet Sergeant Graham gave the following evidence:198 Q. What, if any, words did you say. A. ‘You’re under arrest’, ‘You’re under arrest for failing to blow’. I don’t remember the exact words, but he would have been told that he was under arrest. 198 T723. -- 84 of 166 -- [2024] SASC 97 McDonald J 81 Q. You say he would have been told. Is this based on your memory, or are you saying ‘This is my usual practice’. A. Usual practice. Usual practice, especially if I’ve gone hands on with somebody, they’re getting told, because I think that word - I’m not going to guess for other people, but that word certainly makes people understand they’re being arrested. Q. Sorry, what word. A. ‘You’re under arrest’, yeah. Q. The phrase ‘You’re under arrest’. A. Yeah. Shortly after, he further clarified:199 Q. If I were to suggest to you that you did not at the point at which you handcuffed Mr Cosenza tell him that he was under arrest what do you say to that. A. I would suggest that that would be one of very few times. It’s just the first thing that again we come back to that rolling off the tongue thing, if I’m going to arrest someone I tell them they’re under arrest. 323 The topic was picked up again in the context of counsel for the respondent asking Brevet Sergeant Graham what he meant by describing the applicant “shaping up” to him:200 Q. What about when you told him he was under arrest. Was there any shaping up then. A. No, it’s a fluid moment of grabbing a hold of him and telling him he’s under arrest at the same time. So the shaping up had happened. I saw that - I felt for my own safety and I’d rather have control of the situation than him and I grabbed him and that’s when I handcuffed him. It was all - it just flows. 324 Brevet Sergeant Graham was cross-examined on this topic. It commenced with the following exchange:201 Q. Well show us in these notes where you record what you said to comply with that. A. I don’t see any. Q. There’s nothing, is there. A. No. Q. I listened carefully to your evidence-in-chief while you were being asked questions by the other barrister. 199 T724. 200 T737. 201 T804-805. -- 85 of 166 -- [2024] SASC 97 McDonald J 82 A. Yep. Q. And you didn’t say a word about announcing to Mr Cosenza that he was under arrest, did you. A. I did but I don’t know if I said it in evidence-in-chief. Q. You didn’t say it earlier but here’s the point, you didn’t say anything about the grounds for his arrest. You don’t have that in your handwritten notes. A. No, and I may not have got to that entire point. Q. Sorry, are you saying what. A. I don’t think I got quite to that point because my involvement with Mr Cosenza that night was short in the scheme of what was happening. There were other things at play than just an ordinary traffic stop where we would go through the normal motions with thousands of other motorists. We had the issues of his mental health, was he affected by mental health, was he affected by drugs, was it alcohol, and my - on the night was (a) I don’t want him driving, and (b), let’s get him the medical treatment that he needs. Q. What did you mean when you said you may not have got to that point of announcing the grounds of his arrest. A. Of sitting him down and telling him exactly what he was arrested for because I effectively released him straight soon after. Q. Did you or did you not announce the grounds upon which you had arrested him. A. I don’t remember. Probably not. But to arrest someone, common practice is if you grab someone I tell them that they’re under arrest, we can sit down later or might go through their rights. All things in a perfect world I would have had all of the time in the world to deal with Mr Cosenza and explain things to him and ask his questions but this incident, whilst can be common with belligerent motorists is not always frequent. So it’s not an easy task to manage yourself, your safety, him and then arrange medical help, backup for myself. (Emphasis added) 325 Clearly Senior Counsel for the applicant did not listen carefully enough, because as is apparent from the passage set out above, Brevet Sergeant Graham had given evidence that he had told the applicant that he was under arrest for failing to blow. In circumstances in which no objection was taken, and Senior Counsel was putting as a matter of fact that this evidence had not been given, it is unsurprising that Brevet Sergeant Graham to some extent capitulated in the manner that he did. Not content to leave it there, Senior Counsel for the applicant returned to the topic:202 Q. I’m just going to go back over something. Remember I told you that nowhere in your evidence earlier today you mentioned that you’d said to Mr Cosenza that he was under arrest or the grounds for that arrest. I’ve asked you to look at Exhibit R126 202 T812. -- 86 of 166 -- [2024] SASC 97 McDonald J 83 and the words don’t figure in there. Similarly, in these two affidavits, in neither of them do you say that you announced that you were arresting Mr Cosenza or the grounds upon which you were arresting Mr Cosenza. Do you accept that. A. Yes I do. Q. And that’s probably because you didn’t. A. Probably. Q. You didn’t announce to him that you were arresting him. A. Yes. Q. And you certainly didn’t announce the grounds upon which you were arresting him. A. I’ve answered your question. (Emphasis added) 326 Not only was this manner of cross-examination unfair to the witness, but what was being put was completely at odds with the applicant’s own evidence. 327 Senior Counsel for the applicant subsequently returned to the topic to capitalise on the concession that he had earlier obtained:203 Q. When you arrested him. I thought you said yesterday that you didn’t get around to stating that you had arrested him. A. No, touch and tell is a form of arrest. In fact, I think it’s considered quite well that it’s well known that it’s effectively even a de facto arrest, so, yes, I consider it an arrest, me grabbing his hands and he is in my custody. Yes, I hadn’t given him any rights yet and gone through many processes that should follow, but part of that is to remove property from a person, including things that are in their hands. Q. So an arrest is an arrest if you think so. A. No, I think the law says that’s quite clear. 328 Based on the combined effect of the evidence of the applicant and Brevet Sergeant Graham, I have arrived at the firm view that the applicant was told that he was under arrest and the offence for which he was under arrest. Whilst in some cases it may be necessary to provide more details of the alleged offending,204 given the circumstances and the words used, there can be no doubt that the applicant knew exactly what offence he was being arrested for. Based on my findings of fact, this argument falls away. 203 T832. 204 New South Wales v Abed [2014] NSWCA 419 at 30-33 [85]-[92] per Gleeson JA, Bathurst CJ and Macfarlan JA agreeing. -- 87 of 166 -- [2024] SASC 97 McDonald J 84 2. The decision to arrest the applicant and the use of handcuffs 329 It was submitted by the applicant that an arrest, unless necessary, is unlawful and that a police officer must positively consider whether an arrest is warranted as often an arrest, as opposed to a summons, cannot be justified.205 It was further put that a lawful arrest can only be made where the arrest is reasonably necessary for the effective conduct of the prosecution. 330 There are then two questions that arise for consideration. The first is what offence did Brevet Sergeant Graham apprehend that the applicant had committed; and, the second, on what basis did Brevet Sergeant Graham determine to arrest the applicant as opposed to utilising some other means to secure his attendance at court? 331 During the course of the trial, and in particular during the cross-examination of Brevet Sergeant Graham, counsel for the applicant tended to conflate these issues, but they are in fact two separate questions. An example of this conflation, and hence the confusion, that crept in on a number of occasions is evinced in this passage of cross-examination:206 Q. We’ll come back to that. When we look at this arrest release form, it says that Mr Cosenza was ‘arrested for refusing an alcotest’; is that correct. That’s the reason for the arrest you gave. A. Yes. Q. He wasn’t arrested because he was shaping up or clenching his fists, you have said that he was arrested for refusing an alcotest; correct. A. That’s correct. 332 Brevet Sergeant Graham remained firm and consistent in his evidence that the offence that he was arresting the applicant for was failing to comply with a reasonable direction. He said that, whilst in his mind the applicant had committed multiple driving offences, he was not particularly interested in those.207 333 That is a different question to that of why the decision was made to arrest the applicant which, on the facts as I have found proved, clearly overlapped with the decision to handcuff the applicant. Both decisions were made simultaneously, in the heat of the moment, in circumstances in which the events had escalated very quickly. 334 It was Brevet Sergeant Graham’s evidence that the decision to arrest and handcuff the applicant arose out of concerns about his safety. He repeated that on numerous occasions throughout his evidence.208 He explained that he was 205 South Australia v Crossley [2020] SASCFC 128 at [57] per Peek J; Zaravinos v New South Wales (2004) 62 NSWLR 58 at 71-72 [37] per Bryson JA 206 T851. 207 T723, T793. 208 T850. -- 88 of 166 -- [2024] SASC 97 McDonald J 85 concerned about the situation escalating and the risk of the applicant committing further offences. He explained:209 Yes, but as I said to you, his demeanour was aggressive, he shaped up to me. I’ve fought and had incidents with other people involving violence that’s far more than the resistance that he was putting up, but he was – I didn’t want it to escalate at that stage and being on my own – we’re given handcuffs for a reason and that is for our safety. 335 In cross-examination it was put to Brevet Sergeant Graham that he had other options available to him rather than arresting and handcuffing the applicant. In particular, it was suggested that Brevet Sergeant Graham could have said “if you do not unclench your fists, I’m going to handcuff you”,210 or that Brevet Sergeant Graham could have just stepped back from the applicant or “applied a technique such as a ‘pressure point’”,211 or explored the option of proceeding by way of summons. 336 There was an air of artificiality to this line of cross-examination. Brevet Sergeant Graham was the smaller man, alone at night with someone he had never met before. The man that he was dealing with was behaving in the most extraordinary fashion. As Brevet Sergeant Graham said:212 A. These scenarios can be quite dynamic, these situations and I’m by myself, I’m at the furthest - I think I touched on this yesterday, I’m at the furthest end of my LSA, my Local Service Area. Staffing on a public holiday isn’t what the public think it is, there’s limited resources to us, so my safety and waiting for my back-up was my priority. 337 Brevet Sergeant Graham had no dealings with the applicant prior to this evening. He had been in his company for a very short period of time. He had no idea whether the explanation for his bizarre behaviour was alcohol, drugs, mental health or a combination of any of these.213 338 The veracity of Brevet Sergeant Graham’s explanation is supported by his conduct immediately following the arrest, in that as soon as the arrest was effected and the threat had passed, Brevet Sergeant Graham’s immediate reaction was to remove the handcuff and attempt to calm the situation. His evidence was that he subsequently unarrested the applicant because it wasn’t ideal to have him in police custody over a long weekend and in order for him to obtain medical assistance.214 339 In support of his submissions on this topic, Senior Counsel for the applicant relied heavily on the Full Court’s decision in South Australia v Crossley.215 In that case, the Court dealt with a number of issues that have arisen in this matter. These 209 T841. 210 T843. 211 T843. 212 T842-843. 213 T793. 214 T753 and 849. 215 [2020] SASCFC 128. -- 89 of 166 -- [2024] SASC 97 McDonald J 86 include the requirement to tell a defendant that they are under arrest and what they are under arrest for; the requirements for a valid arrest; and the degree of force that may lawfully be used to effect an arrest. 340 The facts in Crossley were very different to those in this case. In Crossley, a number of police arrived at the scene where Mr Crossley was engaged in an altercation with a group of youths. Mr Crossley drew the attention of the police as he was a very large man who at the time was speaking loudly.216 When the police arrived at the scene, the encounter between Mr Crossley and the youths was all but over. The police either assumed that Mr Crossley was the focal point of the imbroglio or instinctively considered the best way to “defuse” the situation was to remove him from the scene. The police approached Mr Crossley and moved him away from the youths. Mr Crossley appeared to take umbrage, and, perceiving an injustice, commenced verbally protesting. The police interpreted that reaction as uncooperativeness. As a consequence, the police used capsicum spray twice on Mr Crossley. Mr Crossley was then held on the ground with police officers on top of him, performing a manoeuvre called a “figure four leg lock”. They then handcuffed him. As the result of this incident Mr Crossley suffered serious psychological and physical injuries. 341 It was not established that Mr Crossley had been told the reason that he was under arrest. The Full Court did not ultimately determine whether the failure of the police to advise Mr Crossley of the reason for his arrest rendered the arrest unlawful. That was on the basis that the Full Court found that the use of pepper spray, physical restraints and handcuffs was not justified, with the consequence that the arrest was unlawful, irrespective of whether or not Mr Crossley had been properly informed of the reason for his arrest. 342 In considering the question of whether the degree of force used resulted in the arrest being unlawful, Peek J observed:217 It is axiomatic that even if the plaintiff were lawfully arrested, the defendant bore the onus to establish that the police used only “such a degree of force as in the circumstances they reasonably believe to be necessary to effect their purpose, provided that the means adopted by them are such as a reasonable person, placed as they were placed, would not consider to be disproportionate ‘to the evil to be prevented’”. (Footnote omitted) 343 His Honour went on to consider the decision to use handcuffs:218 To be clear, any citizen who is handcuffed without adequate reason has an action for damages against the police officer(s) responsible. Indeed, if a police officer reasonably 216 Mr Crossley is 6’2” - 6’3” tall and weighed 90 kg at the time, see South Australia v Crossley [2020] SASCFC 128 at footnote 23. 217 South Australia v Crossley [2020] SASCFC 128 at [52]. 218 Ibid at [56]-[58]. -- 90 of 166 -- [2024] SASC 97 McDonald J 87 suspects a person of having committed an arrestable offence, a number of stages of consideration by that police officer should follow. First, the officer must positively consider whether an arrest is warranted at all. Depending upon a number of considerations (including the confidence with which the personal particulars of the suspect can be ascertained), it will often be the case that an arrest, rather than a report with a summons to attend Court to follow, cannot be justified. Secondly, if an arrest must be made, the officer must positively consider in each case whether the circumstances actually require the use of handcuffs. A mere habit or preference of the officer to use hand cuffs when arresting is certainly not sufficient justification. And nor is some internal SAPOL custom or directive, oral or written. SAPOL can in no way change the laws of the land by the issuing of an internal “order”, “directive” or any other communication referred to by whatever impressive name. (Footnote omitted) 344 As I have said, the circumstances in Crossley were very different to those currently before this Court. That arrest involved multiple police in the vicinity of Hindley Street, in circumstances in which (at least arguably) Mr Crossley was not told why he was under arrest. On the recitation of the facts of that case, it is difficult to determine what offence it was alleged that Mr Crossley had committed. The degree of force was extreme, violent, and protracted as compared to the brief period of handcuffing experienced by the applicant. There was also no suggestion that the group of police officers involved felt that Mr Crossley posed any genuine threat to their safety or was at risk of committing a further offence. 345 In my view, this was not a situation in which Brevet Sergeant Graham demonstrated a habit or a preference for the use of handcuffs, but rather he believed that he was left with no other real option given the circumstances confronting him. I find that Brevet Sergeant Graham reasonably suspected that the applicant had contravened s 47E(3) of the Road Traffic Act. He arrested the applicant for that offence and was motivated to do so rather than to adopt an alternative course as the result of Mr Cosenza’s aggressive conduct and concerns for his safety, combined with a reasonable belief that, in such a heightened state, the applicant was at risk of further offending. The force used by Brevet Sergeant Graham was not excessive, it was objectively necessary and reasonable in all of the circumstances. 3. Brevet Sergeant Graham did not reasonably suspect that the applicant had committed an offence under s 47E(2) of the Road Traffic Act 1961 (SA) 346 Section 47E of the Road Traffic Act relevantly reads: 47E—Police may require alcotest or breath analysis (1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person— (a) is driving, or has driven, a motor vehicle; or -- 91 of 166 -- [2024] SASC 97 McDonald J 88 (b) is attempting, or has attempted, to put a motor vehicle in motion; or (c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence, the police officer may require the person to submit to an alcotest or a breath analysis, or both. … (3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a police officer. Penalty: (a) for a first offence—a fine of not less than $1 100 and not more than $1 600; (b) for a subsequent offence—a fine of not less than $1 900 and not more than $2 900. … (4) It is a defence to a prosecution under subsection (3) or (3a) that— (a) the requirement or direction to which the prosecution relates was not lawfully made; or (ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to— (i) the consequences of refusing or failing to comply with the requirement or direction; and (ii) the person’s right to request the taking of a blood sample under subsection (4a); or (b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction. (4a) If a person refuses or fails to comply with the requirement or direction under this section by reason of some physical or medical condition of the person and forthwith makes a request of a police officer that a sample of the person’s blood be taken by a medical practitioner, a police officer must do all things reasonably necessary to facilitate the taking of a sample of the person’s blood— (a) by a medical practitioner nominated by the person; or (b) if— (i) it becomes apparent to the police officer that there is no reasonable likelihood that a medical practitioner nominated by the person will be -- 92 of 166 -- [2024] SASC 97 McDonald J 89 available to take the sample within 1 hour of the time of the request at some place not more than 10 kilometres distant from the place of the request; or (ii) the person does not nominate a particular medical practitioner, by any medical practitioner who is available to take the sample. … (5a) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless— (a) a sample of the person’s blood was taken in accordance with subsection (4a); or (b) the person made a request as referred to in subsection (4a), but— (i) a police officer failed to facilitate the taking of a sample of the person’s blood as required by that subsection; or (ii) a medical practitioner was not reasonably available for the purpose of taking such a sample; or (c) the taking of a sample of the person’s blood in accordance with subsection (4a) was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person. … 347 Section 47E(1) empowers a police officer to require a person to submit to an alcotest or breath analysis if they hold the requisite belief. There was no suggestion that Brevet Sergeant Graham did not hold the relevant belief. 348 As previously mentioned, s 47E(3) creates the offence of refusing or failing to comply with a reasonable direction of a police officer. The refusal or failure here being to exhale into the apparatus as directed. 349 As discussed previously, a potential defence to this offence is contained in s 47E(4). A person will have a defence when the requirement or direction was not lawfully made, the person was not allowed the opportunity to comply with the direction after having been given the prescribed oral advice, or the person had good cause to refuse to follow the direction. It is the good cause defence which applies if a defendant has a medical condition. 350 As a consequence of s 47E(5a) before the good cause defence can be relied upon, a person must provide a sample of blood, or at least make a request to have a sample of blood taken pursuant to subsection (4a). -- 93 of 166 -- [2024] SASC 97 McDonald J 90 351 Section 47E(4a) sets out the obligations on a police officer to do all things reasonably necessary to facilitate a blood test when a person refuses or fails to comply on the basis of some physical or medical condition. 352 Establishing a good cause defence by reason of a physical or medical condition requires positive evidence of the relevant condition219 and not merely assertions from the roadside. It is for the defendant to establish one of the reasons in s 47E(4) to justify the initial non-compliance. The provision of a sample of blood is merely a precondition to subsequently being able to advance a good cause defence by reason of a physical or medical condition. 353 Much of the cross-examination of the witnesses by Senior Counsel for the applicant, in relation to this section of Road Traffic Act, appeared to be predicated on the mistaken view that, once a medical reason was advanced for a failure to comply, it followed that the applicant had a defence and the offence could not be made out. 354 By way of example, in the course of the cross-examination of Brevet Sergeant Graham, the following exchange occurred:220 Q. But the point is this, is that there was nothing to charge him with because he had already set up a defence, which is - A. No, I disagree, that’s not my understanding of it. Q. Let’s put it this way, had he told you that he suffered from a medical condition. A. Had he? Q. Yes. A. According to my notes, yes, anxiety. Q. What do you mean according to your notes, do you doubt your notes. A. On my recollection of it, it’s where we’re at, it’s a long time ago. Q. Had he told you that he had anxiety. A. Yes. Q. Had he told you that he would undergo a blood test. A. Yes, and he did. Q. And he did. What’s wrong with that as a defence. 219 Police v Bleeze (2012) 112 SASR 568 at 581 [39] per Gray J, 594 [104]-[105] per Kourakis and Blue JJ. 220 T790-791. -- 94 of 166 -- [2024] SASC 97 McDonald J 91 A. It’s not for me to determine guilt or innocence, I need a reasonable suspicion and then the others, prosecutors, everyone in the chain determine what they want to charge. Q. You knew that by him stating that he had anxiety and that he wanted a blood test he had complied with the requirements under sub-s.(4)(a), didn’t you. A. No, he’s committed the offence, is my understanding at the time. He can raise that defence later, is my understanding of how that works. And further:221 Q. And what did he say. A. ‘I’ll have a blood test, I’ve got anxiety and I refuse to blow’. Q. So he’d complied with your direction, hadn’t he. A. My understanding is the offence is an absolute offence and if it - when we go through the court, that defence is raised in court. Q. So you knew, even if you charged him, he had to succeed in his defence. A. I think it makes a mockery of the drink-driving system, if everyone can just turn around and say ‘I’ve got a medical exemption’, and ‘Okay’, if we walk away, I think the road toll, the whole purpose behind drink-driving legislation would - no, I disagree. Q. It makes a mockery of my questions if you don’t answer them. He had a defence, based upon what you’ve recorded in your notes, didn’t he. A. Well yes, but that’s to be raised in court. Q. You knew that if you charged him, the charge was certain to fail, didn’t you. A. No, I did not. He - his behaviour indicated maybe he might have had drugs on board. He might have had alcohol, I don’t recall smelling alcohol and I think, from memory, the certificate came back with some alcohol in his system, but no, the - no. Q. I thought he was charged with s.47E sub-s.(3). A. Yes, he was. Q. Are you saying that you were charging him because he may have had drugs in his system. A. No, I charged him with refusing to comply with an Alcotest. Q. Let’s stick to that then. A. I didn’t charge him, I arrested him and unarrested him. 221 T792-793. -- 95 of 166 -- [2024] SASC 97 McDonald J 92 Q. Let’s stick to that then. You knew that if you charged him under s.47E sub-s.(3), he had a perfect defence. A. No. Q. Why not, what was wrong with it. A. It’s for him to raise, I’m not a doctor, I don’t know if he’s telling the truth. If - I’ll go back to it. If at the end of the day if everyone turned around and said when the police stopped them for a breath-test ‘I’ve got a medical reason’ and we take it on face value, I think you’ll find that the road toll will go up, that everyone will just be getting away with everything. No, I completely refute that. 355 Counsel for the applicant attempted a similar line of cross-examination with Senior Sergeant Grant Watterson. Senior Sergeant Watterson was the officer in charge of the Port Adelaide Prosecution Unit. His evidence was most relevant to the malicious prosecution aspect of the case. He was also, however, cross- examined with a view to suggesting that the applicant had a defence from at least the point that he started hyperventilating at the scene:222 Q. Now, I think a fine point has been taken as to whether or not it was recognised that there was independent medical evidence. Did anybody tell you that Mr Cosenza was behaving in an odd way, hyperventilating, moaning and groaning, apparently with pain, and that Senior Constable Graham called an ambulance. A. The only information I’ve got is what was in Graham’s affidavit. Q. Well I mean, would you think, perhaps, if a man who was claiming, for example, that he had anxiety, was hyperventilating to such an extent that the police officer involved called on ambulance. That makes the good cause defence pretty solid, doesn’t it. A. It certainly raises the defence but you would need to have more evidence to get the requisite degree, but at that point, yes, it’s clearly been raised and would have to be taken into account. 356 The evidence clearly establishes that Brevet Sergeant Graham had a reasonable suspicion that the applicant had committed an offence pursuant to s 47E(3) of the RTA. 4. Brevet Sergeant Graham did not provide a “reasonable direction” as required by s 47E(3) 357 Pursuant to s 47E there are two obligations imposed on a police officer that must be satisfied in order for a successful prosecution for the offence of failing to comply with a reasonable direction. The first is that there must be a direction to undertake the alcotest or breath analysis and the second is that the person must be given the prescribed oral advice. I have set out my findings in relation to the second requirement at [304]. 222 T941. -- 96 of 166 -- [2024] SASC 97 McDonald J 93 358 Section 47E(3) creates an offence that is committed if a person fails to comply with reasonable directions in relation to the requirement to exhale into the relevant apparatus. That raises the issue of what amounts to “reasonable direction”. In Police v Spitzer,223 Duggan J gave consideration to this question. His Honour made the following observation about the nature of the direction required under the legislation: 224 In the event that a police officer believes on reasonable grounds that one of the conditions referred to in s 47E(1) of the Act is present, the police officer may require the driver of the vehicle to submit to an alcotest or a breath analysis or both. The section contemplates that directions in relation to this requirement will then be given and s 47E(3) creates the offence of refusing or failing to comply with all reasonable directions given in relation to the requirement. The legislation draws a distinction between the concept of requiring the driver to submit to the alcotest or breath analysis and the giving of directions which are required in order to direct the carrying out of that requirement. I agree with the comments made by von Doussa J in Bormann v Coldwell (1986) 43 SASR 297 at 304: ‘In my view when subs (3) of s 47e is read with subss (4) and (5) it is apparent that the “reasonable directions” comprehend directions by the member of the police force to perform physical acts necessary to carry out the required test. The ‘reasonable directions’ would deal with such matters as a direction to wait until a breath analysis instrument arrived, a direction not to drink alcohol in the meantime, a direction to walk to the police car so that the test could be conducted, and directions about exhaling into the apparatus.’ 359 Brevet Sergeant Graham gave evidence that he gave the applicant a direction to perform the alcotest. He said “how are you going, you’re driving, you’re required to supply a sample of your breath. Take one deep breath and blow steadily through this mouthpiece until I tell you to stop”.225 There was no challenge to this evidence. Such a direction is sufficient to amount to a reasonable direction under the Road Traffic Act. 5. The failure of Brevet Sergeant Graham to fill out a PD207 360 I have already set out my finding that Brevet Sergeant Graham provided the applicant with the prescribed oral advice. From the applicant’s perspective however, that is not the end of the matter as there was a failure by Brevet Sergeant Graham to fill out a SAPOL proforma document called a PD207, which, it was submitted, impacted on the lawfulness of the arrest. 361 A copy of a ‘Road Traffic Act – Alco Test for Alcohol, Oral Advice on Refusal or Failure to Comply’ (PD207) proforma was tendered.226 It is a one-page document that sets out a series of questions to be asked by a police officer in 223 (2003) 85 SASR 431 at 433 [8]. 224 Ibid at [6]-[8]; Although it was a former version of s 47E(3) of the Road Traffic Act that was under consideration, it was in almost identical terms to the current section. 225 T717. 226 Exhibit R129. -- 97 of 166 -- [2024] SASC 97 McDonald J 94 circumstances in which someone has either failed to comply with a direction or refused to supply a breath sample. It contains spaces in which to record the person’s responses. 362 Senior Sergeant Watterson was asked a number of questions about PD207 proformas. He told the Court that the introduction of these forms was part of SAPOL’s response to the judgment of Duggan J in Spitzer. The purpose behind the proforma was to ensure that police officers followed the relevant steps required under s 47E(4)(ab) of the Road Traffic Act. 363 Senior Sergeant Watterson gave some general evidence about the requirement for police officers to complete PD207s. He told the Court that the obligation to fill in these documents arises from Police General Orders that are created under legislation as a regulation. Senior Sergeant Watterson agreed with the proposition put to him that these orders are binding on police officers, and a failure to comply with them can amount to a procedural irregularity.227 Non- compliance can, in some circumstances, lead to disciplinary proceedings. It is apparent from the form that it is intended to be filled in whilst the police officer is dealing with the member of the public as it requires their signature. It was Senior Sergeant Watterson’s evidence that Brevet Sergeant Graham should have completed a PD207 in his dealings with the applicant. 364 Brevet Sergeant Graham accepted that he had not filled in a PD207 during the roadside arrest. He accepted that he failed in that aspect of his duty.228 He did not, however, accept the proposition that the completion of a PD207 was necessary for a “valid arrest”.229 Brevet Sergeant Graham provided an explanation for why he had failed to complete this paperwork. He said:230 … having a conversation with Mr Cosenza on that night was not an easy task so should I have gone through that? Hindsight, yes, in completeness but we’re here, it happened and that’s where we’re at. 365 When he was asked where he understood the obligation came from, he explained that he did not know. He went on to elaborate:231 … I would have been taught it in my early training or breath analysis training but no, I - the requirement comes from the act and my understanding is as long as you warn them and avail them to that defence, which I attempted to do, Mr Cosenza was - he was belligerent and – 366 It would seem that Brevet Sergeant Graham was taking the position of substance over form. He did not appear to appreciate the importance of complying with this General Order and, at times, on this topic he came across as somewhat cavalier. He did, however, accept that on 8 October 2015 he received a disclosure 227 T937. 228 T801. 229 T802-803. 230 T802. 231 Ibid. -- 98 of 166 -- [2024] SASC 97 McDonald J 95 request from Senior Sergeant Watterson, advising that he should have completed this form and enquiring as to whether he had done so.232 Brevet Sergeant Graham responded in writing on 15 October 2015 saying “no pd207a was completed at the time. I advised him verbally (which was difficult with him being belligerent)”.233 367 The resolution of this issue is dependent upon the status of police General Orders. 368 A police General Order is a direction issued by the Commissioner under s 11 of the Police Act 1998 (SA). That section authorises the Commissioner to make binding general or specific orders, for the control and management of police. Section 11(2) provides that the orders may concern, the various duties to be performed, the manner in which or the time and place at which they are to be performed, and any other matter which the Commissioner considers relevant to the control and management of police. These orders have no statutory or other legal force and, at worst, can lead to disciplinary measures or consequences. 369 In Police v Henwood,234 Doyle CJ gave consideration to the status of police General Orders, in particular, His Honour considered an order that related to ‘Random Breath Testing Operations’. He observed:235 I doubt whether the Order is a statutory instrument as defined. It is not an “instrument of a legislative character”. It is an instrument of an administrative character. Some of its provisions may be sourced to provisions of the RTA, such as s 47DA, but as a whole it is no more than an exercise of the Commissioner’s powers of management and control of SA Police. It is a series of detailed administrative instructions. Nor, for much the same reason, can it be described as a code or standard, as a matter of ordinary language. Nor, as a matter of ordinary language or ordinary legal usage, is the Order a regulation, rule, bylaw or statute. I accept that these terms cover a wide range of instruments, but in my experience they would not usually be applied to a document like the Order. It is, as I have already said, by and large a series of administrative or management instruments given to police officers as to the performance of their functions. While a number of the instructions, not surprisingly, reflect or can be related to provisions in the RTA, other provisions do not. 370 In Hughes v Police,236 White J was required to determine whether a Magistrate had correctly found that a police officer had a defence to the offence of driving in a manner dangerous to the public as a consequence of the nature of his duties. One of the arguments advanced was that a police General Order bound a police office, under threat of disciplinary action, to drive in a manner that could be dangerous to the public. In that context, White J gave consideration to the force and effect of General Orders. In determining that the relevant General Order did not provide a defence to the offence, White J observed:237 232 T779; Exhibit R128. 233 Exhibit A13. 234 (2005) 92 SASR 15. 235 Ibid at 23-24 [52]. 236 (2009) 103 SASR 337. 237 Ibid at 350 [54]. -- 99 of 166 -- [2024] SASC 97 McDonald J 96 … Although the General Orders are binding on members of the SA Police, they do not have any wider status or authority. They are not subordinate legislation to which the Subordinate Legislation Act 1978 (SA) applies. The Commissioner could not alter the standard by which driving is to be assessed as dangerous which has been established for the purposes of s 46 by binding decisions of the Full Court of this State and of the High Court. … (Footnote omitted) 371 In Police v Hodder,238 Parker J similarly expressed the view that a police General Order, whilst providing information and administrative direction to police and public servants, had no legislative effect.239 372 In Crossley, Peek J also touched on the subject of the status of police General Orders. In that case, it was the police who placed reliance on the General Orders in support of their actions. In that context, Peek J said:240 … A mere habit or preference of the officer to use hand cuffs when arresting is certainly not sufficient justification. And nor is some internal SAPOL custom or directive, oral or written. SAPOL can in no way change the laws of the land by the issuing of an internal “order”, “directive” or any other communication referred to by whatever impressive name. 373 Whilst a breach of a police General Order may be a measure by which to evaluate the conduct of a police officer and creates a potential disciplinary issue for the officer in question, it does not affect the legality of an arrest. There is no doubt that Brevet Sergeant Graham was in breach of the relevant Order by failing to complete a PD207, and potentially faced disciplinary action. The non- compliance, however, did not have the effect of invalidating what I have found to be an otherwise lawful arrest. 6. A breach of police General Orders by arresting and unarresting the applicant 374 A further basis upon which the applicant contends that the conduct of Brevet Sergeant Graham was unlawful, or at the very least demonstrated that he believed that the initial arrest was unlawful, was his failure to follow the police General Orders in relation to the arrest and release of the applicant. The General Order relevant to this process is Order 5 in the General Order “Arrest/Report Procedures and Documentation.”241 That Order creates certain standards as to how and when an arrest-release (or unarrest) should take place. Relevantly it provides:242 At the scene of the arrest, if it becomes evident that the arrest was erroneous or not justified, the arrested person must be arrest-released pursuant to s 78(5) of the Summary Offences Act 1953. In any other circumstances the arrested person must be forthwith delivered into the custody of the police officer in charge of the nearest police station, unless section 78(2) of the Summary Offences Act 1953 applies. 238 [2016] SASC 70. 239 Police v Hodder [2016] SASC 70 at [47]. 240 South Australia v Crossley [2020] SASCFC 128 at [58]. 241 Exhibit A197. 242 Ibid. -- 100 of 166 -- [2024] SASC 97 McDonald J 97 … Under any circumstances the arrest-release of a person should be unconditional. After the arrest-release process, police cannot impose any other sanction for example report, expiation, formal caution et cetera in relation to the offence for which they were arrested. 375 The process of an arrest-release can only be undertaken prior to charging. Once the arrested person has been charged, they cannot be arrest-released. There is no suggestion here that the applicant had been charged at the time that he was arrest- released. 376 The applicant also submitted that his release was an acknowledgment by Brevet Sergeant Graham that the arrest was erroneous and, hence, unlawful. That is because the General Order stipulates that the arrest-release procedure is to be used in circumstances in which the original arrest was “erroneous or not justified”. From this, it was submitted that it can somehow be extrapolated that Brevet Sergeant Graham was effectively admitting that the original arrest was unlawful. Further, because the General Order provides that such a release is “unconditional”, it prevented charges being laid against the applicant and the applicant’s licence should not have been cancelled. 377 This is not, however, the only circumstance in which the General Order allows for the arrest-release of a person. The Order continues to provide for release in circumstances in which the original arrest was not erroneous:243 There will be circumstances when the arrest is appropriate and justified, however arrest- release of the person is necessary due to the change in circumstances, for example: CCTV footage viewed at a later time shows that the arrested person did not commit any offence. 378 Brevet Sergeant Graham gave evidence about his understanding of the arrest- release process:244 Effectively releasing someone, so if you use your power of arrest, there are ways - there’s - how do you say this - they need to be taken forthwith to a police station for charging, a reasonably practicable time frame, those sorts of things, given their arrest rights. They can be detained or that can be delayed for serious offences. That’s not applicable in this case. This is a summary traffic matter. The un-arrest is me releasing him from arrest without charge and it’s to either a place of apprehension or a place that he chooses. Now, I do know throughout the process - well, the place of apprehension, we didn’t leave, and then he chose, I believe, in consultation with the ambulance to go to the hospital, so we made every arrangement possible for that to happen. 379 Brevet Sergeant Graham also explained the basis on which he determined to release the applicant:245 Q. Why did you un-arrest him. 243 Exhibit A197. 244 T752. 245 T753. -- 101 of 166 -- [2024] SASC 97 McDonald J 98 A. Well, he had - he is claiming significant injuries. He is claiming, you know, that the way he behaved, I didn’t think sitting in a cell for the entirety of the public holiday weekend was appropriate in the circumstances. I think his medical needs, whatever those were, far outweighs anything that I have got to deal with him, be it they’re legitimate or not, so that’s the ultimate, I guess, and, yeah, I can’t explain that any more. 380 He further elaborated in cross-examination:246 A. … My purpose that night, the drink-driving offences do not carry custodial sentences. Having a man in police custody over the weekend I didn’t think was ideal. The pressures of working on a public holiday and trying to obtain authorisation for overtime, there’s multiple things going through my head to make that decision that late at night. It’s not ideal, but it is what it is. Q. Which were the principal reasons, or was there a single principal reason. A. There was no single principal reason, I think it was just a series of the whole event. He claimed I caused serious injuries, I expected him to be staying in the hospital for some time, I was quite shocked to find - when he walked out five - well, I don’t know if it was five minutes or whatever it was after I had and raising his arms above his head and putting his jumper on and calling me a fuckhead. 381 This was a situation in which circumstances had changed over a very short period of time. Whilst I accept that Brevet Sergeant Graham genuinely believed that it was necessary and reasonable to arrest the applicant at the relevant time, the applicant very quickly ceased to be the aggressor. Brevet Sergeant Graham was dealing with a rapidly evolving situation, in which there were a number of complex and competing factors at play. It was necessary for him to balance the need to protect his own safety with the applicant’s complaints of being injured, whilst simultaneously attending to evidentiary requirements. During that time, Brevet Sergeant Graham had no information about, or insight into, why the applicant had been behaving and was continuing to behave in such a bizarre manner. 382 Brevet Sergeant Graham complied with the requirements of the General Order in that after releasing the applicant, he completed a PD216, an arrest-release form.247 In that form Brevet Sergeant Graham indicated that he had notified Inspector Amit Sareen at 00.10 on 4 April 2015 of the applicant’s arrest-release, as he was required to under the General Order. In that document, Brevet Sergeant Graham noted that he proposed to report the applicant. 383 It is apparent from the endorsements on the PD216 that the form was reviewed by Chief Inspector Teakle on 10 April 2015. It appears that Chief Inspector Teakle made the following handwritten note on the document:248 246 T849. 247 Exhibit A3. 248 Ibid. -- 102 of 166 -- [2024] SASC 97 McDonald J 99 I have reviewed the PD216 in conjunction with an email from Insp. Sareem [sic] and having spoken personally with S/C Graham regarding this arrest. Whilst S/C Graham’s actions are reasonable he should have continued with the arrest process despite the health issues of the defendant, Mr Cosenza. Whilst Mr Cosenza’s health is paramount arrest/charging processes could have taken place at the hospital. S/C Graham has reviewed G.O arrest/report procedures and documentation and is conversant with the requirements/obligations conferred by arrest-release. I have also discussed the application of arrest-release with S/C Graham. Nil further action required. 384 It is somewhat ironic that the only criticism levelled at Brevet Sergeant Graham by the Chief Inspector was that he should have continued to keep the applicant under arrest and, if necessary, charged him at the hospital. It could hardly be suggested that this would have been a preferable outcome for the applicant. 385 It is apparent from his evidence, that the precision of Brevet Sergeant Graham’s knowledge about the arrest-release procedures and the General Order under which they arose, was not what it should have been. He was clearly endeavouring to take a pragmatic route out of the situation that he found himself in, a situation which might have resulted in the applicant spending at least part of the Easter long weekend sitting in police cells had Brevet Sergeant Graham kept him under arrest as suggested by Chief Inspector Teakle. 386 I also accept that the General Order is clear in its terms that an arrest-release should be unconditional, in that after that process the police cannot impose any further sanction. Here, there were two further sanctions in that the applicant had his driver’s licence suspended249 and was reported for failing to submit to an alcotest. It is apparent that others involved in the process, including Inspector Sareen and Chief Inspector Teakle were aware that the applicant was to be reported after the arrest-release and no steps were undertaken to stop that process occurring. 387 At its highest, the evidence about the unarrest of the applicant goes no further than demonstrating that Brevet Sergeant Graham had an incomplete understanding about the General Orders relation to the process of arrest-release. Whilst I find that Brevet Sergeant Graham’s level of knowledge was below the standard that should be expected of operational police officers, his actions were well- intentioned. He was endeavouring to balance competing considerations in difficult circumstances. This was a dynamic, volatile situation that occurred over a matter of minutes during which Brevet Sergeant Graham was attempting to factor in a number of different considerations including his own safety and the wellbeing of the applicant. There is nothing about this aspect of the evidence that impacts on a consideration of whether the arrest was unlawful. 249 Exhibit A67. The applicant later applied to the Port Adelaide Magistrates Court for a review of his licence disqualification. This application was granted on 21 April 2015, and the applicant’s licence was returned. -- 103 of 166 -- [2024] SASC 97 McDonald J 100 The roadside arrest – conclusion 388 For the reasons that I have set out, I do not find that the applicant’s arrest on Good Friday 2015 was unlawful. I also find that the force used was no more than was necessary to effect the lawful arrest. It follows that the torts of unlawful arrest, assault, and battery have not been established. False imprisonment 389 There is a basis in the evidence to give separate consideration to the tort of false imprisonment. It was the evidence of Brevet Sergeant Graham that, although he unarrested the applicant at the time that he let go of him and took him to the kerb, he did not communicate that decision to the applicant. 390 False imprisonment is an intentional act which confines an individual within a delineated area. It is an act by which a person causes (either intentionally or negligently) the total restraint of liberty of another person, for however short a time, without lawful justification within an area defined by the tortfeasor. The only intention that it is necessary to establish is the intention to detain the subject.250 The “focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant”.251 391 It is for the applicant to prove that his imprisonment was caused by Brevet Sergeant Graham. In the event that this is established, it is then for the respondent to show lawful justification for Brevet Sergeant Graham’s actions.252 392 In Clerk & Lindsell on Torts,253 the nature and degree of the “imprisonment” required to make out the tort was described as follows:254 A prisoner, therefore, need not be placed under lock and key for the purposes of this tort. It is enough that his movements are simply constrained at the will of another. The constraint may be actual physical force amounting to battery, or merely the apprehension of such force, or it may be submission to a legal process. (Footnotes omitted) 393 It was the evidence of Brevet Sergeant Graham that, from the point of the unarrest, he had no intention to detain the applicant. 394 The applicant gave evidence that he believed that his liberty continued to be restricted and he was not free to go. He said that when he was seated in the ambulance he believed that he was still under arrest. The applicant suggested that 250 Ruddock v Taylor (2005) 222 CLR 612 at 650-651 [140] per Kirby J. 251 Ibid. 252 Ibid. 253 P Giliker, ‘Trespass to the Person and Harassment’ in A Tettenborn, M.A Jones, R Bagshaw, R. A Buckley, P Giliker, B Longstaff, F McMahon, J Murphy and J Steele, Clerk & Lindsell on Torts (24th ed, 2023, Sweet & Maxwell). 254 Ibid at 1092 [14-24]. -- 104 of 166 -- [2024] SASC 97 McDonald J 101 it was his concern about self - incrimination that caused him to be uncooperative with the paramedics. 395 I reject that evidence. From the arrival of the paramedics, it was the paramedics who dealt with the applicant. The police did not endeavour to keep him under control or restrict his movements in anyway. Whilst Brevet Sergeant Graham travelled in the front of the ambulance to the hospital, that was a matter of practicality as a result of the need to obtain a blood sample. 396 What is the most telling, however, is that after he was dealt with by the doctors at the hospital, the applicant simply left. There was no suggestion that he checked with Brevet Sergeant Graham to see if he was free to go or still under arrest. As I have said, he simply left. 397 I find that even in that narrow window between the unarrest and the applicant’s departure from the hospital, a false imprisonment has not been established. The arrest under warrant 398 I turn then to consider the arrest under warrant. 399 The applicant gave evidence that he returned from overseas on the morning of Sunday 30 August 2015. Shortly after he arrived home, a police car pulled up in front of his house. At the time the applicant was standing in the carport next to his car. Concerned for his safety the applicant attempted to pull the roller door down. Before he could do so, two police officers entered his property via the driveway and came into the carport under the roller door. They advised the applicant that they had a warrant for his arrest. The applicant was then taken to the Port Adelaide watch house.255 400 It was the applicant’s evidence that he was humiliated and embarrassed by this experience. He was still in the clothing that he had travelled in, and he was not given the opportunity to shower.256 At the time he was driven away the applicant saw neighbours outside of their houses watching what was happening. 401 Because it was a Sunday and the warrant was endorsed that the applicant was not eligible for police bail, he was kept in custody overnight. He said that the accommodation was basic, the lights were left on, and he was provided with McDonalds for breakfast, lunch and dinner.257 402 The applicant was brought before the Court at about 9.30am the following morning. He described that this caused him further embarrassment because there were a number of people in the Court including legal practitioners. It was the applicant’s evidence that Magistrate Grasso recognised him which added another 255 T142-T145 256 T143-T145. 257 T146-T147. -- 105 of 166 -- [2024] SASC 97 McDonald J 102 layer of humiliation, particularly given he had not had a chance to shower or change since arriving back from overseas.258 403 The applicant was granted bail. Subsequent to that the applicant was required to attend Court on a number of occasions until 3 May 2016, when the charges were ultimately withdrawn.259 404 Before dealing with the question of any liability arising out of this aspect of the police conduct, it is necessary to consider the various steps that were involved in the exercise of the prosecutorial discretion to charge and maintain the charge against the applicant. The circumstances surrounding the applicant’s arrest The role of Brevet Sergeant Graham 405 It again begins with the involvement of Brevet Sergeant Graham. For reasons set out previously, he made the initial decision to charge the applicant with the s 47E offence. As a consequence, it fell upon him to complete the necessary paperwork. The relevant documents were tendered. 406 The first document in this category was the Police Apprehension Report.260 That document was created at 12.37am on 4 April 2015,261 although some details may have been added in later.262 In the report Brevet Sergeant Graham set out a brief narrative of the events that occurred during the roadside arrest, including the arrest and unarrest of the applicant. It was his evidence that the only reason for creating the Police Apprehension Report that night was to generate an Apprehension Report number that could then be married up with the Instant Loss of Licence paperwork and that could then be sent off for processing.263 407 The next document that Brevet Sergeant Graham gave evidence about was a Quality Assurance Certificate completed on 9 April 2015.264 Whilst he had no particular recollection of completing this document, he could give some general evidence about it. The document was a form of checklist designed to ensure that the correct paperwork, including the Apprehension Report, was submitted to Police Prosecutions. In that document Brevet Sergeant Graham certified the following:265 • There is sufficient admissible evidence to establish the identity of the defendant as the person who has committed the offence(s). 258 T149-T150. 259 Exhibit A9. 260 Exhibit R124. 261 T760. 262 T761; The latest any further details could have been added was 10 April 2021. 263 T761. 264 Exhibit R125. 265 Ibid. -- 106 of 166 -- [2024] SASC 97 McDonald J 103 • There is sufficient admissible evidence of every element of the offence(s) AND rebuttal for any lawful defence(s). • There is a reasonable prospect of conviction in relation to all offence(s) and prosecution of the offence(s) is in the public interest. 408 Brevet Sergeant Graham gave evidence that the matters that he certified in that document were a true reflection of his state of mind at that time.266 The role of Sergeant Michelle Hollis 409 Once Brevet Sergeant Graham had completed part A of the certificate it was forwarded to the inbox of his supervisor, Sergeant Michelle Hollis in order for her to complete part B of the certification. 410 Sergeant Hollis gave evidence that in April 2015 she was a supervisor in the Neighbourhood Policing Team based at the Parks Police Station.267 She said that she filled in part B of the Quality Assurance Certificate and, in doing so, she certified that there was a reasonable prospect of conviction and that the prosecution was in the public interest. Sergeant Hollis described the reason why she made this certification:268 A. Because I would have, in my normal course of my duty with these sort of – when an apprehension’s submitted from one of my members, I’ll read the apprehension report, ensure that the elements of the offence are covered and that’s generally what I would tick to say there’s reasonable prospect of conviction, in regard to the apprehension and the elements of the offences covered. 411 Sergeant Hollis was cross-examined about what impact, if any, it would have had on her decision to certify the document had she been advised that when Brevet Sergeant Graham had asked the applicant to undertake the alcotest, the applicant had responded by saying “I’ve got anxiety, I want a blood test”.269 Although the cross-examination of Sergeant Hollis on this topic went on for some time, a fair summary of her responses is that the use of those words by the applicant did not provide him with a defence to a s 47E offence. She said that it was not until such time that there was proof of the nature of the medical condition that the defence could be made out. Sergeant Hollis used the analogy of the decision to provide an expiation notice to someone for failing to wear a seatbelt:270 … if they have a defence against a claim, as an example in the Road Traffic Act with a seatbelt, if they have a medical exemption not to wear a seatbelt, then – and they could produce it or they can show evidence that that is the case, we wouldn’t give them an expiation for not wearing a seatbelt … 266 T772-T773. 267 T883. 268 T888. 269 T890-891. 270 T895. -- 107 of 166 -- [2024] SASC 97 McDonald J 104 412 Referring back to the circumstances facing Brevet Sergeant Graham, Sergeant Hollis said:271 A. People can – I don’t know, I wasn’t there for the conversation, but people can say things at the time and they’re not, maybe not telling the truth, but if it’s the truth that he’s saying, then yes, it would be a defence. … A. Did he prove the medical condition, medical exemption? If the medical exemption was proven, then I would say I wouldn’t sign this form ... 413 There is no evidence to suggest that the applicant provided proof of a medical condition at any stage during the course of the prosecution. Sergeant Hollis gave evidence that once she signed part B of the Quality Assurance Certificate it was sent off to the prosecution section and she had no further involvement in the prosecution process.272 Police Prosecutions 414 Senior Sergeant Watterson was the next to become involved. Although he had no recollection of it, on 21 April 2015, he signed a Complaint and summons charging the applicant with refusing to submit to an alcotest pursuant to s 47E of the RTA.273 That Complaint provided for an initial hearing date of 18 May 2015. Although he had no memory of seeing the Quality Assurance Certificate274 endorsed by Brevet Sergeant Graham and Sergeant Hollis, Senior Sergeant Watterson agreed that it was the document that would have been sent to him in order for him to lay a Complaint.275 Whilst he had no recollection of having signed that Complaint, Senior Sergeant Watterson gave some evidence about his usual practice:276 A. So I would read the file that’s been submitted by the police officer have the summons prepared and then hang on, referred my mind to the contents of the complaint with reference to the file to make sure the particulars of the matters are correct. I would then sign it and then it would be forwarded for the JP to process. 415 As I will come to later, after the laying of the Complaint there were then attempts on 1 May, 2 May and 11 May 2015 to serve the applicant with a summons to attend court. On 18 May 2015 the matter came on before Magistrate Grasso in the Magistrates Court sitting in Port Adelaide. This was the first hearing date. On that occasion Assistant Police Prosecutor (APP) Willis appeared for the 271 T891-893. 272 T887-888. 273 Exhibit A6; T920. 274 Exhibit R125. 275 T920. 276 T920. -- 108 of 166 -- [2024] SASC 97 McDonald J 105 prosecution.277 The following entry appears in the Certificate of Record for that date:278 NO APPEARANCE DEFENDANT SNR279 PLEA: NO PLEA FRESH SUMMONS TO ISSUE – PERSONAL SERVICE REQUIRED 416 These entries indicate that as of that date the applicant had not yet been served with the summons. As a consequence, the summons lapsed and it was necessary to issue a fresh summons. New dates for the return of the fresh summons would have been provided by the court reporter on that date. The reason that personal service was required was that a licence disqualification was involved, which made it important that the applicant was aware that he was required in court.280 417 The matter next came before Magistrate Alexandrides on 6 July 2015. On that occasion APP Patterson appeared for the prosecution.281 The following entry appears in the Certificate of Record for that date:282 NO APPEARANCE SNR PLEA: NO PLEA FRESH SUMMONS TO ISSUE 418 These entries reflected that as of 6 July 2015 the police had still not been successful in serving the applicant with the summons. 419 On 21 July 2015, there was a further unsuccessful attempt to serve the summons. 420 On 6 August 2015, an email was sent from Port Adelaide Prosecutions to the applicant. It read:283 Dear Sir, The alleged offence of refuse alcotest committed on 3/4/15 at BROMPTON is still before the Port Adelaide Magistrates Court. The date of the 17th day of August 2025 at 2:15pm is 277 There was no evidence about who APP Willis is nor was there any suggestion that this person bore any ill-will towards the applicant. 278 Exhibit A9. 279 Summons not returned. 280 T945. 281 There was no evidence about who APP D Patterson is nor is there any suggestion that this person bore any ill-will towards the applicant. 282 Exhibit A9. 283 Exhibit R62; The email was sent to ‘[email protected]’. -- 109 of 166 -- [2024] SASC 97 McDonald J 106 the date that the matter is next listed for court at Port Adelaide. Please indicate if you are able to attend that court date and answer the charge. If you are not able to attend, then advise when a summons can be served on you personally so that an alternative court date can be fixed for you to attend court. If you are not able to attend on the 17th of August 2015 or indicate a method whereby a summons can be served on your alternative means will be considered. This would indicate the issuance of a warrant for your arrest. Please advise at your earliest convenience your position on 82076440 and quote the Apprehension report no. listed above. Included is a copy of the original Complaint and Summons. 421 There was no evidence about whether Mr Cosenza received or responded to that email. 422 The matter next came before the Court on 17 August 2015. Magistrate Alexandrides again presided over the matter and Senior Constable Michelle De Bono appeared for the police. The following entry appears on the certificate of record for that date:284 NO APPEARANCE DEFENDANT SNS285 FRESH SUMMONS TO ISSUE ON APPLICATION. 423 Senior Sergeant Watterson gave some evidence to explain the meaning of the entry “fresh summons to issue on application.” He told the Court that usually two attempts are made to serve a summons. In the event that those two attempts are unsuccessful, the record is endorsed in this manner. That has the effect of putting the file “in a cupboard” to deal with at some future time. The rationale behind this approach is that the failure to serve the summons over this length of time suggests that there is an issue preventing service, such as an incorrect address, which warrants looking at the file more closely when time permits.286 424 Although this was the first date upon which Senior Constable De Bono is recorded as having any involvement with this file, there is evidence that establishes that by this stage the applicant was no stranger to her. The evidence was that Senior Constable De Bono had been one of the two police officers who the applicant alleged had trespassed on his property in 2008. The applicant gave evidence that on this occasion the two police officers had attended at his home despite him warning them not to do so. The applicant described becoming irate as a consequence of their attendance and he subsequently made a complaint about Senior Constable De Bono’s partner Constable Paul Kaftan to the Police Commissioner.287 284 Exhibit A9. 285 Summons not served. 286 T947. 287 T97-99, with the complaint exhibited A22; Although Senior Constable De Bono was not mentioned in the complaint and it refers only to one officer attending, the applicant maintained that the complaint was also about the conduct of Senior Constable De Bono. -- 110 of 166 -- [2024] SASC 97 McDonald J 107 425 In August 2011 the applicant instituted a civil claim against the State arising out of this alleged trespass. Constable De Bono was personally named in the pleadings.288 Senior Counsel for the applicant contended that it was as a consequence of this history that Senior Constable De Bono continued to hold some animus towards the applicant.289 426 Another police record that was tendered by the respondent was the police brief cover sheet.290 That document was described as the brief cover for the prosecution file and is a document that prosecutors use to make notes about the progress of the case.291 Generally, the dates of the entries on the police brief cover sheet accord with the dates recorded on the Certificate of Record. There is, however, a note on the brief cover for which there is no corresponding entry on the Certificate of Record. That entry is undated and is in the handwriting of Sergeant Greg Modra.292 It falls between the entry for the court attendance on 6 July 2015 and 17 August 2015. That entry reads:293 If on 17/8/15 deft does not attend Court on (illegible) contact. Speak to S/Sgt Watterson re Next Course of Action. Warrant??? Possibly. 427 That entry provides further detail of the thought processes of yet another of the police prosecutors involved in this matter. It reflects that Sergeant Modra was at least contemplating the option of making an application for a warrant. Sergeant Modra was not called to give evidence. 428 On 18 August 2015 Constable Matthew Kluzek prepared and signed a statement in relation to his efforts to effect service on the applicant.294 429 The matter was next called on before Magistrate Field on 24 August 2015. On this occasion Senior Constable De Bono again appeared for the prosecution. The following entry appears on the Certificate of Record for that date:295 NO APPEARANCE PLEA: NO PLEA affidavit tendered NO APPEARANCE RIGHT TO BE AT LIBERTY CANCELLED. 288 Exhibit A25. 289 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [163]–[164]. 290 Exhibit R134. 291 T922. 292 T924. There is no evidence about who Sergeant Greg Modra is. 293 Exhibit R134. 294 Exhibit A10. 295 Exhibit A9. -- 111 of 166 -- [2024] SASC 97 McDonald J 108 Warrant Issued WARRANT OF APPREHENSION Endorsement EXCLUDED FROM BAIL 430 There has been an assumption that the affidavit referred to in that endorsement is in fact the statement of witness that was prepared by Constable Kluzek on 18 August 2015. The basis for that assumption is twofold. Firstly, the contents of the statement are consistent with it having been prepared for the purpose of obtaining a warrant. It sets out the steps undertaken to serve the applicant with the summons. The second is that on 28 September 2015 the Listings Manager at the Port Adelaide Magistrates Court Registry wrote to the applicant attaching a copy of Constable Kluzek’s statement. The letter reads:296 We have attached a copy of the sworn affidavit,297 that is on file. There is no other sworn evidence or transcript available. You are welcome to inspect the file during office hours. 431 There is no evidence to suggest that the applicant ever took up that offer. I will return to the issue of Constable Kluzek’s statement in due course. 432 The warrant was executed on 30 August 2015 when the applicant was arrested. He was then detained in custody until released on bail on 31 August 2015.298 433 There is a hiatus in the evidence about what led up to and occurred on 24 August 2015. Senior Constable De Bono did not give evidence, although she had been on the respondent’s witness list. On Wednesday 9 February 2022, day eight of the trial, Senior Counsel for the respondent advised that there appeared to be an issue in relation to Senior Constable De Bono’s ability to attend at court. Although at that stage Mr Golding KC had limited instructions, he advised that Senior Constable De Bono had undergone a medical procedure the day before and that there were other ongoing issues that may be an impediment to her ability to give evidence.299 Mr Golding KC indicated that he may need to consider providing an expert report to the Court to explain the failure to call the witness. 434 On Friday, 11 February 2022 Mr Golding KC tendered a report of a psychologist and hypnotherapist, Sandy Litt.300 In that report Mr Litt advised that he had been seeing Senior Constable De Bono since 2020 and expressed the view that she was unfit to give evidence either in person in the courtroom or by video link. He further explained that Senior Constable De Bono’s condition was 296 Exhibit A10. 297 The Listings manager appears to have made the same mistake of referring to the statement as an affidavit. 298 Exhibit A9. 299 T951; Mr Golding KC provided the Court with further details of the issues relating to Senior Constable De Bono’s ability to give evidence. Out of respect for Senior Constable De Bono’s privacy and the subsequent concession made by counsel for the applicant, there is no need to delve into the issues in any further detail. 300 Exhibit R199. -- 112 of 166 -- [2024] SASC 97 McDonald J 109 permanent and, as a consequence, there was no prospect that she would be fit sometime in the future. 435 Mr Golding KC quite candidly acknowledged that there were some limitations to the extent of Mr Litt’s expertise and indicated that he was considering whether it would be necessary to obtain a further report.301 In that context Mr Watson SC made the following concession:302 This person’s a psychologist. Perhaps if I just say this, we don’t mind my learned friend tendering that. We’re not going to suggest that that doesn’t provide a basis for explaining why Senior Constable DeBono is not – it does provide a basis for explaining why she’s not here. That’s fine. Then my learned friend’s got to make a choice as to whether he wants to adjourn it. It would seem to me as though we may have to adjourn for the rest of Senior Constable DeBono’s life. I mean she may never become fit again, or whether or not he closes his case and we move to the next part of the case. That’s their choice. 436 I take it from this concession that the applicant accepts that the respondent has a reasonable explanation for failing to call Senior Constable De Bono. It follows that no adverse inference should be drawn against the respondent as a consequence of the absence of the witness.303 437 Be that as it may, there remains a gap in the evidence. There is no evidence to explain why it was that after the appearance on 17 August 2015, at which time the court records indicate that the next step in the process was for a “fresh summons to issue on application”, the matter came back before Magistrate Field a week later and a warrant was issued. There is also no evidence about what occurred in court on that occasion other than that Magistrate Field, an experienced Magistrate, made the decision to issue a warrant of apprehension with the endorsement that the applicant was to be excluded from police bail. 438 Although Senior Constable De Bono did not give evidence, some understanding of the role that she played in this process can be gleaned from the evidence of other witnesses. One of those witnesses was Senior Sergeant Watterson. 439 In August 2015, Senior Constable De Bono was a part of Senior Sergeant Watterson’s team.304 He described her as a reasonably experienced prosecutor, having spent a number of years in that section.305 Senior Sergeant Watterson had no memory of having had any conversation with Senior Constable De Bono about this matter and in particular, he had no memory of any conversation about obtaining a warrant for the arrest of the applicant.306 He also 301 T1010-T1011. 302 T1011. 303 Jones v Dunkel (1959) 101 CLR 298 at 319; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 at 343 per Kirby P, Mahoney and Clarke JJA agreeing; Galea v Camilleri [2023] NSWSC 206 at [163]–[164]. 304 T926. 305 T927. 306 Ibid; T930-931. -- 113 of 166 -- [2024] SASC 97 McDonald J 110 had no memory of Senior Constable De Bono expressing any animosity towards the applicant.307 440 Senior Sergeant Watterson was asked some questions about the fact that the warrant that was issued by Magistrate Field was endorsed “no bail”. It was his evidence that, given that the maximum penalty for the offence with which the applicant was charged was a $1,600 fine, he would not have sought a warrant that did not allow for police bail to be granted.308 441 Having said that, Senior Sergeant Watterson conceded that despite having no memory of it, he would have instructed Senior Constable De Bono to obtain the warrant, to obtain an affidavit from Senior Constable Kluzek, and to have the matter relisted for the application to be made.309 He said that as Senior Constable De Bono had previously appeared on the matter and was familiar with it, it was appropriate for her to appear and make the application.310 Senior Sergeant Watterson went on to say that Senior Constable De Bono was an experienced prosecutor who would have made the appropriate application. It was the sort of application that they made every day. He however went on to repeat that he was not sure why in the circumstances it was not certified for bail to be permitted.311 442 In cross-examination Senior Sergeant Watterson was also asked some questions about whether he was aware that there had been a history between Senior Constable De Bono and the applicant and, in particular, that the applicant had made a claim for damages on the basis that Senior Constable De Bono had trespassed on his property. It would be fair to say that Senior Sergeant Watterson appeared taken aback when these propositions were put to him.312 He was clear in his response that, if that was the case, Constable De Bono should have immediately told him and he would have transferred the case to someone else.313 He went so far as to agree that a reasonable prosecutor should have recused themselves from the conduct of the prosecution or, at the very least, should have alerted Senior Sergeant Watterson of the issue.314 443 There is no doubt that based on Senior Sergeant Watterson’s evidence, which I fully accept, that it was highly inappropriate for Senior Constable De Bono to have been in any way involved in the prosecution of the applicant. There was, at the very least, apprehended bias. 444 Brevet Sergeant Graham also gave some evidence about Senior Constable De Bono’s involvement in this matter. It was his evidence that once he had certified the quality assurance certificate, he had no further involvement with the 307 T936. 308 T961. 309 T970. 310 Ibid. 311 Ibid. 312 T963. 313 T964. 314 Ibid. -- 114 of 166 -- [2024] SASC 97 McDonald J 111 file until he received a telephone call from Senior Constable De Bono.315 It appears as though Senior Constable De Bono mistakenly believed that Brevet Sergeant Graham had been involved in the attempts to serve the summons, and it was in that context that she made the telephone call. Whilst Brevet Sergeant Graham could not place a date on that conversation, it was his evidence that by the time of the call he had obtained a certificate with the blood test results.316 That certificate recorded that the applicant had a blood alcohol level of 0.011 per cent, which was below the legal limit and there were no drugs in his system. It was Brevet Sergeant Graham’s view that, in those circumstances, it was a “pointless exercise” to continue with the charge and in the telephone call he expressed that view to Senior Constable De Bono.317 445 Brevet Sergeant Graham described his conversation with Senior Constable De Bono in the following terms:318 … I remember getting a phone call from Michelle De Bono asking me about my attempts to serve the summons, and I remember that specifically I said ‘Well, I’m not serving that summons; it’s got nothing to do with me’. She was ‘Well, he’s not answering the summons, he’s not answering his emails, he’s not coming in to pick it; we want to get a no bail warrant to ensure to get him before the court’, and I - I again expressed that I didn’t understand why they were pushing such the issue, but it continued, and before I knew it, it was - it was before the courts. 446 Brevet Sergeant Graham gave further evidence about this conversation in cross-examination:319 Q. I am just asking you about the conversation with Michelle De Bono. A. With Michelle, yeah, yeah, the conversation, yes, is - Q. Okay, and during it, you told her in no uncertain terms that you thought that the prosecution should terminate. A. Yes. Q. And you told her that was because, in part, Mr Cosenza had fulfilled the requirements of his defence. A. I believed he would be. It’s not in the public interest. We’re going around in circles on that part, but that’s what I told - Q. No, I do need to ask you this. A. Yes. Q. You told her, didn’t you - 315 T783. 316 Exhibit A66. The certificate of Blood Analysis for Alcohol and Drugs is dated 27 April 2015. 317 T782-783. 318 T783. 319 T796-797. -- 115 of 166 -- [2024] SASC 97 McDonald J 112 A. Yes, I did. Q. - ‘Well, look, he requested a blood test and he undertook it’. A. Yes. Q. You told her that it wasn’t in the public interest. A. Yes. Q. Did you also say to Michelle De Bono it would be a waste of State resources. A. In some roundabout way, no doubt. Q. Did she tell you that she intended to proceed in any event. A. Yes, I believe so. Q. What did she say. A. ‘Fuck him, he’s been a pain in the arse to us’, and I can’t remember the exact words, but it was certainly along those matters, that they’ve tried everything to attempt service of a summons, I’ve tried to have him come and pick the summons up, I believe they told me they emailed the summons to him, and I believe Michelle’s response was ‘No, fuck him, he’s being a pain in the arse, we’re going to get - the magistrate will issue a no-bail warrant for him’. 447 Senior Sergeant Watterson gave evidence about his role in the prosecution of the applicant for the s 47E offence. As I have mentioned, it was Senior Sergeant Watterson who signed the Complaint charging the applicant with the offence. 448 Senior Sergeant Watterson told the Court that he had filled in and forwarded a PD90 to Brevet Sergeant Graham.320 He explained that this document was a request from Police Prosecutions to the investigating officer to obtain additional information that would be needed if the matter was to be contested.321 In that document, Senior Sergeant Watterson requested a full copy of the brief including a copy of the certificate of analysis of the applicant’s blood. In cross examination Senior Sergeant Watterson was taken to the response that Brevet Sergeant Graham provided to his request for the brief.322 In that response, in relation to the request for the blood analysis certificate, Brevet Sergeant Graham had written: CERTIFICATE OF ANALYSIS ALREADY PROVIDED. APPEARS BAC LESS THAN 0.05 AND DEFT HAS FULFILLED HIS DEFENCE REQUIREMENTS. SUGGEST PD108 IF DEFT RAISES THIS DEFENCE.323 320 Exhibit R127, a document entitled “Pre Trial Conference”. 321 T931. 322 T932; Exhibit A17. 323 T794; Brevet Sergeant Graham gave evidence that this note reflected his change in attitude to the prosecution proceeding after he received the certificate of analysis -- 116 of 166 -- [2024] SASC 97 McDonald J 113 449 Senior Sergeant Watterson had no particular recollection of this response. When asked what weight he would place on such a suggestion by an investigating officer, Senior Sergeant Watterson said that he would give it a lot of weight because they were usually best placed to know if there was a problem with the file.324 450 As a consequence of his concerns about the file, on 19 October 2015 Senior Sergeant Watterson wrote a memorandum to the Officer-in-Charge of the Special Prosecutions Unit.325 The Special Prosecutions Unit is a section within prosecution services that deals with novel or complex prosecutions or matters in which there may be a conflict of interest.326 Although Senior Sergeant Watterson had no particular memory of this memorandum, the nature of his misgivings are clear from the document. They relate to concerns about whether there was a reasonable prospect of conviction as a consequence of the failure by Brevet Sergeant Graham to complete a PD207, the fact that the evidence was based on the word of one person against another and a belief that the applicant may have a defence based on a pre-existing medical condition. In relation to this last consideration, Senior Sergeant Watterson referred to the history of litigation between the applicant and SAPOL and the likelihood that SAPOL were already in possession of information establishing that the applicant was suffering from a psychological condition.327 The act of forwarding that memorandum to the Special Prosecutions Unit was Senior Sergeant Watterson’s last involvement in the prosecution. 451 In his evidence, Senior Sergeant Watterson was very clear that whilst the file was with Port Adelaide Prosecutions, it was he who made the decisions. When asked about the relevance of Senior Constable De Bono’s views about whether the matter should proceed Senior Sergeant Watterson said: 328 …It wasn’t her choice. I was monitoring it as it was going along. Really it was my decision as to whether it was going to proceed or not. She can certainly make a recommendation but we’ve never had that conversation with her. 452 In re-examination, Senior Sergeant Watterson was asked about why it wasn’t for Senior Constable De Bono to make a decision about whether the prosecution should continue. He gave the following response:329 A. At that time, I was aware of the case. I’m monitoring it because it’s high profile, if you like, and the lack of any other term. So I was in my own mind conducting it overseeing it and I was - for example, I had sent off a PD90 for the full brief and I was going to make a determination just to make sure that everything was proceeding as normal, as would be expected, to make sure we had all the evidence. I was aware that it was a one-on-one. There was no witnesses, certainly no admissions. There was this potential defence which needed to be fleshed out. So it 324 T933. 325 Exhibit A11. 326 T933. 327 Exhibit A11. 328 T966. 329 T969-970. -- 117 of 166 -- [2024] SASC 97 McDonald J 114 was one that required a bit more experience to monitor it and I fully intended to make a determination about any 108 once I had the brief. So I am quite happy for my people to speak to me about files and make recommendations, but at the end of the day, I was going to make the determination. My determination at the end of the day was that there was insufficient evidence, but it was appropriate to send it up the corporate chain because there were a number of things that would flow from that determination. I don’t possess all legal knowledge in this State, so it would be appropriate for someone to review my decision before other actions are taken, so when I sent it up for review, I expected my decision to be reviewed itself, and then certain actions to flow from that, either civil, disciplinary, that type of thing. So I did have a number of cases where prosecutors become involved and do things for me and they can certainly speak to me about it, but at this stage, it was my decision and, as a result, I put that memo in. The Special Prosecutions Unit 453 The next witness to give evidence about her role in the decision-making process in relation to this prosecution was Superintendent Narelle Kameniar. In 2015/2016, Superintendent Kameniar was the Operations Chief Inspector at the Prosecution Services Branch.330 It was her evidence that it was ultimately her decision that the s 47E charge not proceed against the applicant.331 However, there were a number of matters that occurred prior to that decision being made. 454 Superintendent Kameniar was asked about why someone of her level of seniority was involved in the decision-making process in relation to this file. She said:332 A. South Australia Police have policy positions in relation to who has the authority to discontinue a prosecution and depending on the nature of a particular matter against a defendant depends on who has that authority. There are a number of classifications of files where it’s been determined by policy that only an officer of police, so a commissioned officer can discontinue, and one of the reasons - one of the files that would fit that criteria as it was at the time was that it was on the grounds of public interest as opposed to reasonable prospect of conviction. Q. Just pause there. Commissioned officer, that’s the rank of inspector or above. A. That’s right. So there were three - sorry, five people in prosecution services who are commissioned officers. The other policy at the time was if a file was a declared a file of significant interest and that would mean that it should also be subject to that higher level of authority for discontinuance and I understand that this matter was classed as a significant file. 455 Whilst she could not recall precisely why the charge against the applicant was classed as a “significant file”, she said that it may have been deemed in some way sensitive by virtue of the nature of the applicant or the victim or another party in the proceedings or it could be an issue of corporate significance to SAPOL.333 330 T971. 331 T975-976. 332 T973. 333 T974. -- 118 of 166 -- [2024] SASC 97 McDonald J 115 456 It was Superintendent Kameniar’s evidence that once the file was received by the Special Prosecutions Unit it was allocated to a prosecuting solicitor, Damon Ind, who worked under the management of Senior Supervising Prosecutor Sally McCardle.334 Since that time Mr Ind has passed away. Consequently, there was no direct evidence from him about his involvement in the file. There were, however, a number of documents that were tendered that provide a level of insight into his role in the conduct of the matter. 457 The Certificate of Record335 shows that Mr Ind first appeared on this file in the Magistrates Court on 29 October 2015. He again appeared on 27 November 2015. On 22 January, 2 February and, 1 March 2016, APP Schwartz appeared. On 31 March and 3 May 2016, Mr Ind again appeared in court. Over the course of these hearings the matter was listed for trial on 30 and 31 March 2015. Various legal arguments were foreshadowed. On 16 March 2016, the trial date was vacated on the basis that the applicant had instituted proceedings in the Supreme Court. On 3 May 2016, Mr Ind withdrew the charge against the applicant and the Complaint was dismissed. 458 On 7 March 2016, Mr Ind wrote to the applicant’s solicitor, Mr Kerin.336 At that stage the charges were still proceeding. In that letter Mr Ind set out a summary of the evidence relied on by the prosecution and raised a number of issues in relation to how the trial would be conducted. Of note, the letter also included the following:337 The RTA also provides for a defence to the charge of failing to comply with a request. Specifically, section 47E(4)(b) provides a “good cause” defence. Section 47E(5a)(2) says that a good cause defence cannot be raised unless a sample of blood has been taken. From my reading of the brief, it appears that the good cause defence is available to your client. However, to date this has not been raised. In the interest of narrowing the issues, I ask that you confirm whether or not your client seeks to use this defence. If he does, then are you intending to provide evidence of a physical or mental condition to support the good cause defence? My experience in this area suggests that a mere submission from counsel at the bar table will not be enough to establish the defence. For the remainder of the letter Mr Ind appears to attempt to engage in a meaningful way in order to identify and narrow the issues at trial. 459 From this letter it appears that far from denying the applicant the opportunity of relying on this defence, it was Mr Ind who was endeavouring to raise the issue in order to bring the matter to a head. The applicant, on the other hand, appears to have made no efforts to advance his position on this front. 460 Superintendent Kameniar gave evidence that whilst her decision to discontinue the prosecution was based on her view that there was no reasonable 334 T973. 335 Exhibit A9. 336 Exhibit R113. 337 Ibid. -- 119 of 166 -- [2024] SASC 97 McDonald J 116 prospect of conviction, and also that the prosecution was not in the public interest, the predominant reason for discontinuing was the latter.338 Superintendent Kameniar said that her decision was based on her belief that the applicant had not been given the verbatim oral direction as set out in the PD207, in relation to refusing an alcotest, and the blood test had come back showing that the alcohol in the applicant’s system was below the prescribed amount. She considered that in those circumstances, regardless of whether the facts of the charge could be made out, it was not in the public interest to prosecute the applicant. On 22 April 2016, Superintendent Kameniar sent an email to Mr Ind and conveyed her decision to him and instructed him to advise the applicant when the matter next came before the Court.339 461 Superintendent Kameniar gave evidence of completing further paperwork as a consequence of her decision to discontinue the prosecution. One of those documents was a PD108 Discontinuance Report.340 It was her evidence that these reports are generated when a prosecution is discontinued. They are used by senior prosecutors to make an assessment of whether, given the outcome of the prosecution, any training issues can be identified.341 In that document Superintendent Kameniar recorded that the reason for the prosecution not proceeding was because it was not in the public interest. She elaborated:342 The defendant is charged with refusing an alco test. The defendant having refused and raising a medical defence had a sample of his blood taken, which has been analysed by the Forensic Science Centre. The sample of blood contained not less than 0.011% alcohol. The prosecution having satisfied the defendant was not driving a motor vehicle exceeding the prescribed concentration of alcohol deem it is not in the public interest to continue this prosecution. The prosecution notes while the defendant has raised a medical defence to his refusal no evidence has been provided in support of this claim. 462 The applicant contends that arising from this sequence of events, the conduct of SAPOL involved a wrongful arrest; a false imprisonment; a malicious prosecution; or alternatively a misfeasance in public office. Wrongful arrest 463 Counsel for the applicant raised a number of complaints about the issue of the warrant and the circumstances of the applicant’s arrest. These were that there 338 T979. 339 Exhibit A14. 340 Exhibit A16. 341 T977. 342 Exhibit A16. -- 120 of 166 -- [2024] SASC 97 McDonald J 117 was no underlying offence,343 that the arrest was not necessary,344 and that there were defects in the process.345 No underlying offence 464 In relation to the contention that there was no underlying offence, as I have set out previously, this argument is based on a misunderstanding of the “good cause defence” and therefore requires no further discussion. The arrest was not necessary 465 As to the suggestion that the arrest was not necessary, the applicant again relied upon the State of South Australia v Crossley.346 It was submitted that the only purpose of the arrest was to serve a summons and that there were other options open to SAPOL, including seeking an order for substituted service and, if necessary, arranging for a process server to wait for the applicant to leave the premises.347 466 The purpose of the warrant was not, however, to serve a summons but rather to secure the attendance of the applicant at court, in circumstances in which efforts to serve the summons had been unsuccessful. 467 Section 58 of the Summary Procedure Act 1921 (SA) (‘the Summary Procedure Act’) empowered a Magistrate to issue a warrant to have a defendant arrested and brought before the Court if one of two preconditions are satisfied. These are if either (a) the allegations in the information are substantiated on oath; or (b) the defendant fails to appear in obedience to a summons and the Magistrates Court is satisfied that the summons was served a reasonable time before the time appointed for the hearing. It is hardly remarkable that such a power exists to facilitate the Magistrates Court ensuring the attendance of defendants at court. 468 Counsel for the applicant went further and suggested that there was effectively another layer of unlawfulness on the basis of the “no bail” endorsement. In support of this submission he relied upon the evidence of Senior Sergeant Watterson about his views as to whether he would have sought a “no bail” endorsement on the warrant. 469 Regardless of what Senior Sergeant Watterson would or would not have done, the Magistrate was empowered by the Bail Act 1985 (SA) (‘the Bail Act’) to make such an endorsement. Section 5(2) of the Bail Act provides: 343 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [144]. 344 Ibid at [145]. 345 Ibid at [147]. 346 [2020] SASCFC 128. 347 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [146]. -- 121 of 166 -- [2024] SASC 97 McDonald J 118 5—Bail authorities … (2) If a warrant for the arrest of a person is issued, the court or justice issuing the warrant may, by endorsement on the warrant— (a) authorise or require a specified person, or a person of a specified class, to release the arrested person on bail; or (b) exclude the granting of bail to the arrested person by a police officer. … 470 Significantly, there are no criteria or preconditions provided for determining which endorsement should be made. The Magistrate consequently had a broad discretion in determining the appropriate approach to be adopted. There is no evidence as to whether it was in fact Senior Constable De Bono who sought the ‘no bail’ endorsement or whether the Magistrate made the determination of his own volition. Regardless of the genesis of the idea, it was ultimately the decision of an experienced Magistrate to issue the warrant in the relevant terms. Even if another Magistrate may not have issued the warrant, or may have endorsed it differently, it does not follow that the issue of the warrant was unlawful or invalid. 471 There was a warrant that was valid on its face issued for the arrest of the applicant. Defects in the process 472 The applicant also relies on a number of purported defects in the process of obtaining and in the issue of the warrant. 473 The first is the endorsement on the Court file for 17 August 2015 of “NO APPEARANCE OF DEFENDANT” in circumstances in which the applicant had not been served with a summons.348 The applicant contends that it can be inferred from that entry that the Court was deliberately misled by Senior Constable De Bono. 474 The difficulty with that submission is that on other occasions, when other police prosecutors appeared, similar or identical entries appeared on the Court file. It could hardly be said that across these various hearings involving different prosecutors and Magistrates there were multiple efforts to mislead the Court. 475 As a matter of fact, the applicant did not appear in court on any of these occasions. It should also be borne in mind that entries of this nature are made by Magistrates’ clerks during the course of busy lists. In such circumstances, it would be ill advised to attempt to place any significance on such an endorsement, and 348 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [149]. -- 122 of 166 -- [2024] SASC 97 McDonald J 119 I am certainly not prepared to draw the inference that the applicant invites me to draw for the entry on 17 August 2015. 476 The second procedural defect relied upon by the applicant is the reference in the Court record to an “affidavit” being “tendered” on 24 August 2015. I am prepared to draw the inference that the document being referred to was the statement prepared by Mr Kluzek setting out his efforts to serve the applicant with the summons. I am not however prepared to find anything sinister in the incorrect description of the document. At that time, both statements and affidavits were routinely relied upon by the prosecution depending on the nature of the proceeding. At its highest, the Court record erroneously reflects that it was an affidavit that was tendered when it was, in fact, a statement. 477 The nature and contents of the affidavit provided by Mr Kluzek are also relevant to a consideration of the third procedural defect raised by the applicant. 478 As set out previously, under s 58 of the Summary Procedure Act there were only two circumstances in which a warrant of apprehension could be obtained. One relates to when a person has been served with a summons but has failed to attend court. There is no dispute that the applicant was not served. The other is if “the allegations in the information are substantiated on oath”. There is no record of this having occurred. Putting the respondent’s case at its highest, the statement by Mr Kluzek has mistakenly been found to satisfy this requirement. The statement by Mr Kluzek does not deal with the allegations in the information and it is not on oath. 479 It was the applicant’s submission that these defects remain unexplained. Even if the defects are given an innocent explanation “the warrant is rendered invalid and the arrest under warrant unlawful”. Counsel for the applicant did not go on to advance any legal analysis or authorities in support of this proposition.349 480 The obligation for the enforcement of warrants issued by the Magistrates Court under s 58 of the Summary Procedure Act falls upon the police. The warrant directs the police to apprehend the applicant to bring him before the Court to answer the charges and be dealt with according to law. Police are obliged to enforce warrants and there is a necessary implication that the police will act on warrants issued by the Court lest the system of bench warrants effectively collapses. The Summary Procedure Act cannot be taken to intend that police are required to undertake an assessment of a warrant’s validity prior to its execution. 481 It follows that the mere fact of a warrant that is valid on its face, provides the legal justification, at the relevant time, for the arrest. In Tulloh v Chief Executive Officer of the Department for Correctional Services350 the West Australian 349 Ibid at [150]. 350 [2018] WASC 105. -- 123 of 166 -- [2024] SASC 97 McDonald J 120 Supreme Court was concerned with the detention of the applicant after the applicant’s parole was invalidly cancelled. Le Miere J said:351 While a void administrative act is not an act in law, it is an act in fact, and its mere factual existence may provide the foundation for the legal validity of later decisions and acts. In other words, an invalid administrative act may, notwithstanding its nonexistence at law, serve as the basis for another valid decision. Its factual existence, rather than its invalidity, is the cause of the subsequent act, but that act is valid since the legal validity of the first act is not a precondition to the second. The proper inquiry is not whether the initial act was valid, but whether its substantive validity is a precondition of the consequent act. If the validity of the consequent act was dependent only on the factual existence of the initial act, then the consequent act will have legal effect for so long as the initial act is not set aside on review. (Emphasis added) 482 His Honour further stated:352 If the cancellation order had no effect before it was quashed, those apparently bound by the order were obliged to disregard it. A police officer would be acting unlawfully in arresting a prisoner upon the making of the cancellation order subsequently declared to be invalid and the CEO would not be obliged to receive the prisoner into custody. … The CEO cannot, except in extreme cases, know that a cancellation order is legally invalid before it is declared to be so but must made a decision about a prisoner’s release date and hence whether to detain him in custody based on whether a cancellation order is to be given effect. The legislature could not have intended the CEO to enquire into and be satisfied that the cancellation order is legally valid before acting on it. (Emphasis added) 483 It follows that even had there been procedural irregularity in the circumstances353 in which the warrant was issued, a warrant which appears on its face valid and enforceable remains enforceable until set aside and must be obeyed.354 Those required to enforce the warrant are not liable for any underlying invalidity or want of jurisdiction.355 484 The arrest warrant has never been set aside or found invalid.356 485 I find that the warrant was valid, binding and enforceable and consequently the applicant has not established that there was an unlawful imprisonment. 351 Tulloh v Chief Executive Officer of the Department for Correctional Services [2018] WASC 105 at [38]. 352 Ibid at [45]-[46]. 353 This is to be contrasted with legal processes infected with jurisdictional error issued by an inferior court of record. In circumstances of such a jurisdictional error, it is at least arguable that such a warrant was void ab initio. See Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020. 354 Hadkinson v Hadkinson [1952] 2 All ER 567 at 588. 355 Robertson v The Queen (1992) 92 A Crim R 115 at 122-123. 356 In Cosenza v Magistrates Court of South Australia [2016] SASC 181, the applicant made an unsuccessful application for the judicial review of the decision of the Magistrate to issue a warrant for his arrest. -- 124 of 166 -- [2024] SASC 97 McDonald J 121 Unlawful imprisonment 486 This cause of action rises and falls with the unlawful arrest. This cause of action has not been made out. Malicious prosecution 487 The applicant contends that the malicious prosecution commenced on about 24 August 2015, when Senior Constable De Bono appeared in front of Magistrate Field and the warrant was issued. It continued until 3 May 2016 when the charge was withdrawn. It was submitted that “it involved each and every occasion that Mr Cosenza was brought back before the Court and all those months during which the charges infringed on his peace of mind”.357 The elements of malicious prosecution 488 A malicious prosecution is committed when a person maliciously and without reasonable and probable cause initiates judicial proceedings against another which terminate in favour of that other and which result in damage to the latter’s reputation, person, freedom or property. This tort seeks to balance the individual’s right not to have his or her reputation sullied by being the subject of groundless proceedings, with the right of the prosecuting authority to robustly and fairly bring those who have committed criminal offences to account for their actions.358 489 In order to succeed in an action for malicious prosecution the applicant must prove that the respondent instigated the proceedings; that those proceedings terminated in the applicant’s favour; that the respondent’s conduct was without reasonable and probable cause; and that the respondent was motivated by malice.359 There is no dispute that the respondent instigated proceedings against the applicant and there is also no dispute that the proceedings terminated in the applicant’s favour. The real issue is whether the prosecution acted maliciously in initiating or maintaining the proceedings and whether in doing so the prosecution acted without reasonable and probable cause. 490 It follows that to succeed with respect to the tort of malicious prosecution, the applicant is required to prove two distinct elements, one positive (malice) and the other negative (absence of reasonable probable cause). Each has a separate role to play. In Allen v Flood, Lord Davey described this tort in these terms:360 From motives of public policy the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for the prosecution. But if the person abuses his privilege for the indulgence of his personal spite he loses the protection, and is liable to an 357 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [156]. 358 David Rolph, Jason N E Varuhas, Penelope Crossley and Michael Douglas, Balkin & Davis Law of Torts (LexisNexis, 6th ed, 2021) 828. 359 A v State of New South Wales & Anor (2007) 230 CLR 500 at 502-503 [1] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. 360 [1898] AC 1 at 172-173. -- 125 of 166 -- [2024] SASC 97 McDonald J 122 action, not for the malice but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation of a causeless prosecution. Reasonable and probable cause 491 There will be no absence of reasonable and probable cause where the relevant circumstances, assuming them to be true, would “reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”.361 492 In A v State of New South Wales,362 the High Court gave detailed consideration to the elements of the tort of malicious prosecution. Relevant to the present case, the majority dealt at some length with the requirement of absence of reasonable and probable cause. Emphasis was placed on the need to recognise that in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause).363 It was observed that there are two aspects to this test. The Court described the approach to be adopted in determining the question of absence of reasonable and probable cause:364 … the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. 493 The question as to whether there is an absence of reasonable and probable cause must be determined at the time that the prosecution was commenced or a decision was made to maintain it.365 It follows that attention must necessarily be directed to what material the prosecutor had available for consideration at that point in time. 494 The majority in A v New South Wales cited with approval the decision of Jordan CJ in Mitchell v John Heine & Son Ltd,366 in which his Honour set out five conditions to be met in order for a person to have reasonable and probable cause for prosecuting another for an offence. These were:367 361 Hicks v Faulkner (1987) 8 QBD 167 at 171. 362 (2007) 230 CLR 500. 363 Ibid at 519 [54]. 364 Ibid at 520 [58]. 365 Ibid at 520 [59]. 366 (1938) 38 SR (NSW) 466. 367 Ibid at 469. -- 126 of 166 -- [2024] SASC 97 McDonald J 123 (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. 495 It was determined that whilst these five conditions should not be understood as exhaustively describing what will constitute reasonable and probable cause, they provide guidance about the particular issues that might arise for consideration.368 Malice 496 The concept of malice is much more readily succinctly encapsulated. In order to prove malice, the applicant must establish that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law. It must be an “illegitimate or oblique motive”.369 That improper purpose must be the sole or dominant purpose actuating the prosecutor. The relevant authorities provide various examples of what may amount to malice such as personal animus, ill-will, spite, a desire to punish the plaintiff or to stop a civil action brought by the prosecutor. The list is non-exhaustive. Who was the prosecutor? 497 The foundation of an action for malicious prosecution lies in the abuse of the court process by wrongfully setting the law in motion. The tort is designed to “discourage the perversion of the machinery of justice for an improper purpose”.370 That then raises the question of who “set the law in motion” or who instituted or maintained the prosecution? 498 Whilst the proceedings are brought against the respondent on the basis that it is vicariously liable for the conduct of the police officers involved in the prosecution, that does not satisfy the need to identify the relevant individuals involved in the decision-making process. It is against those individuals that an absence of a reasonable and proper cause and malice must be established. Various terminology has been used in describing how these individuals are to be identified, including the person “procuring the charge”,371 the individual actively instrumental 368 A v New South Wales (2007) 230 CLR 500 at 523 [66]. 369 Ibid at 531 [91]. 370 Amin v Bannerjee [1947] AC 322 at 330, cited with approval in Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 192. 371 Savile v Roberts (1869) 1 Ld Raym 374; 91 All ER 1147 at 1150. -- 127 of 166 -- [2024] SASC 97 McDonald J 124 in setting the law in motion,372 or “a person who really instigates the proceedings”.373 In A v New South Wales it was said:374 … The identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. “To incur liability, the defendant must play an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion.” (Citations omitted) 499 In this case there is a particular complexity given the number of individuals who were involved in and around the prosecution of the applicant. It is necessary to look at the roles of those individuals to determine whether the applicant has made out this cause of action. 500 The applicant has particularised the “malicious prosecution” as commencing on about 24 August 2015 when Senior Constable De Bono appeared before Magistrate Field and a warrant was issued for the applicant’s arrest. It is claimed that it continued until 3 May 2016 when the charge was dismissed. 501 There is an obvious explanation as to why the applicant chose to nominate the date of the issue of the warrant as the day of the commencement of the malicious prosecution, as the evidence clearly establishes that Senior Constable De Bono harboured some ill-will towards the applicant at about this time.375 There is no evidence to suggest that any of the other police officers involved in the prosecution shared that view. To the contrary, the evidence demonstrates that a number of individuals involved in the prosecution process gave balanced and reasoned consideration to the question of whether the charge should be withdrawn. 502 The prosecution however commenced before any involvement of Senior Constable De Bono. It effectively began on Good Friday when Brevet Sergeant Graham drafted the Police Apprehension Report.376 That was followed up with the completion of the Quality Assurance Certificate in which Brevet Sergeant Graham certified that at that time he believed that there was a proper basis for a prosecution to proceed.377 That view was subsequently endorsed by Sergeant Hollis, who certified that in her view the prosecution had reasonable prospects of success.378 These documents were then forwarded to Senior Sergeant Watterson who laid the Complaint.379 The laying of the Complaint was the formal commencement of the prosecution of the applicant. 372 Danby v Beardsley (1880) 43 LT 603 at 604. 373 Fanzelow v Kerr (1896) 14 NZLR 660 at 664 per Prendergast CJ. 374 A v New South Wales (2007) 230 CLR 500 at 512 [34]. 375 T796-797. 376 T760; Exhibit R124. 377 Exhibit R125. 378 Ibid. 379 Exhibit A6. -- 128 of 166 -- [2024] SASC 97 McDonald J 125 503 There is not, nor could there be, any suggestion that Senior Sergeant Watterson acted out of malice or did not have reasonable and probable cause to lay the Complaint. 504 There is also no suggestion that any of the events preceding 24 August 2015 were any part of a malicious prosecution. Brevet Sergeant Graham, Sergeant Hollis and Senior Sergeant Watterson had before them evidence that the applicant had failed to follow a direction to blow into an alcotest and all three gave evidence that whilst ultimately the applicant may have a defence available to him, it was for him to make that out.380 505 There is very limited evidence about Senior Constable De Bono’s role in the prosecution. 506 The evidence of Brevet Sergeant Graham establishes that, at some stage after he received the blood results, Senior Constable De Bono telephoned him making enquiries about what attempts had been made to serve the summons. In the course of that conversation she made the comments referred to at [446].381 507 Given that Senior Constable De Bono did not give evidence, the details of what she said in that conversation are hearsay and I do not rely on them for the truth of the matters asserted. Two points, however, can be made about the conversation. The first is that, by this date, Senior Constable De Bono had turned her mind to the obtaining of a “no bail” warrant. That is a relevant factor to be considered in assessing the evidence about what her role was on the day that the warrant was issued. The second is that it highlights how little evidence there is about what transpired between the laying of the complaint and the issue of the warrant. Whilst there is evidence of three attempts by Mr Kluzek to serve the summons, a further attempt by Senior Constable Mitchell and the email that was sent to the applicant, that does not positively prove that was all that was done over that intervening period to secure the applicant’s attendance at Court. That is of particular significance in circumstances in which the onus of proof is on the applicant. 508 Finally, in respect to the telephone call between Brevet Sergeant Graham and Senior Constable De Bono, it was on this occasion that Brevet Sergeant Graham expressed the view that given the blood analysis results, the prosecution should not go ahead. In such circumstances it could hardly be suggested that Brevet Sergeant Graham was acting with any malice. 509 The next matter that may shed some light on the extent of Senior Constable De Bono’s role is the undated handwritten note of Sergeant Modra382 on the police 380 T791-793 (Brevet Sergeant Graham); T895-896 (Sergeant Michelle Hollis); T941 (Senior Sergeant Watterson). 381 T783. 382 As a sergeant, Sergeant Modra held a more senior rank than Senior Constable De Bono. -- 129 of 166 -- [2024] SASC 97 McDonald J 126 brief coversheet.383 The detail of that note is set out above at [426]. It suggests that there were others involved in the decision-making process including Sergeant Modra and Senior Sergeant Watterson. 510 Senior Sergeant Watterson gave evidence that whilst he has no specific memory of a conversation with Senior Constable De Bono about obtaining a warrant, he accepted that is something that probably occurred given their respective roles384 511 The only further evidence about the nature and extent of Senior Constable De Bono’s involvement are the court record and the police brief coversheet entries for 17 August and 24 August 2015. In large part, the contents of the two records mirror each other. They record on 17 August 2015 the applicant did not attend at court and a fresh summons was to issue on application. In the entries for 24 August 2015 the extra words “warrant application made” appear on the police brief coversheet but not on the court record. This indicates that the warrant was applied for by Senior Constable De Bono. It remains the fact however, that it was the Magistrate who made the decision to issue the warrant with the no bail endorsement. 512 There is no suggestion in the evidence that after this date Senior Constable De Bono had any further involvement in the prosecution. More than that, given the evidence about what happened with this file subsequently, it is highly unlikely that she had any further involvement in the prosecution. 513 Given the limited nature Senior Constable De Bono’s role it is difficult to see how it can be suggested that she was “procuring the charge” or “instigating the proceedings”. The evidence establishes that the role of Senior Constable De Bono was to participate in the administrative exercise of making an application for a warrant for the arrest of the applicant to enable him to be brought before the Court. Even then, Senior Constable De Bono was acting under instructions. As Senior Sergeant Watterson explained:385 A. I would have given the instructions to get the warrant and instructed her to have Kluzek put in an affidavit and get the matter relisted and the application made. As De Bono had previously appeared on the matter, she was aware of it, it was appropriate for her to appear and make the application. She was an experienced prosecutor of years’ experience. My expectation is that she would have made an appropriate application. It’s an application we make every day for either bail or not certified for bail. I’m not sure why it was not certified for bail. 383 Exhibit R134. 384 T970. 385 T970. -- 130 of 166 -- [2024] SASC 97 McDonald J 127 514 It was clear from the evidence of Senior Sergeant Watterson that Senior Constable De Bono had no role in determining whether to continue the prosecution.386 515 From the laying of the Complaint and summons on 21 April 2015, until 19 October 2015, Senior Sergeant Watterson was responsible for and had conduct of the prosecution. He had sent the PD90 requesting the full brief. It was his evidence that by mid-October he had determined that “there was insufficient evidence, but it was appropriate to send it up the corporate chain because there were a number of things that would flow from that determination”.387 He decided that it would be appropriate to have someone review his decision. 516 From that point on, Mr Ind took over conduct of the file. It is clear from the correspondence that Mr Ind approached his task diligently, in that he attempted to obtain further evidence and engage in meaningful discussions with the applicant’s legal representative.388 517 As set out previously, it was ultimately the decision of Superintendent Kameniar to discontinue the prosecution. Was there a malicious prosecution? 518 As is apparent from this summary of the evidence, Brevet Sergeant Graham, Senior Sergeant Watterson, Mr Ind and Superintendent Kameniar all had a role in either initiating or maintaining the prosecution of the applicant. The applicant does not contend, nor is there any evidentiary basis to suggest, that any of them acted maliciously or without reasonable and probable cause. Whilst criticism could be levelled that the process was too slow or overly bureaucratic, that falls significantly short of establishing a malicious prosecution. It has not been established that any of these individuals acted without reasonable and probable cause nor that their conduct was malicious. 519 The applicant alleges malice by Senior Constable De Bono. I have already made observations about the peripheral role that she played in the process. Even if that were not the case, the applicant has not established malice to the degree that is required for this tort. Whilst it has been demonstrated that Senior Constable De Bono had a strong dislike for the applicant, that is as far as the evidence went. The evidence did not establish that the sole or dominant purpose actuating Senior Constable De Bono to institute or maintain the prosecution was improper. She in fact had no role in making that determination. 520 I find that the tort of malicious prosecution has not been made out. 386 T969-970. 387 T969. 388 Exhibit R113. -- 131 of 166 -- [2024] SASC 97 McDonald J 128 Misfeasance in public office 521 The applicant contends that in the alternative to a malicious prosecution, the conduct of Senior Constable De Bono amounts to a misfeasance in public office. For this alternative cause of action the applicant relies on the same conduct of Senior Constable De Bono as relied on for the malicious prosecution.389 522 The respondent meets this claim on a number of different fronts. It submits that a police prosecutor is not a public officer exercising public powers, that Senior Constable De Bono did not in fact exercise any power, and the warrant was not sought to cause harm, or with reckless indifference as to the harm that would likely ensue.390 523 The tort of misfeasance in public office permits an individual to recover for the loss or damage suffered as a consequence of the actions taken by the holder of a public office, if that officer acted maliciously or knew that the action was beyond their power and was likely to harm the applicant.391 It is concerned with the misuse of public power,392 and with ensuring that a person injured by an intentional or knowing misuse of public power will have an effective means of redress.393 524 The rationale for such liability is that, in a legal system based on a rule of law, executive, administrative and on occasions judicial power must be exercised only for the public good and not for an ulterior or improper purpose. This tort can only be committed by a person who fulfills some public function.394 525 Misfeasance in public office is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power.395 526 In Nyoni v Shire of Kellerberrin,396 in a joint judgment, North and Rares JJ described the tort of misfeasance in public office as follows:397 The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, “material damage” such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): … 389 Applicant’s Fifth Revised Claim (FDN 234) at [53]-[57]. 390 Respondent’s Fourth Amended Defence (FDN 244) at [23]. 391 David Rolph, Jason N E Varuhas, Penelope Crossley & Michael Douglas, Balkin & Davis Law of Torts (6th ed, LexisNexis, 2021) at 846 [25.28]. 392 Sanders v Snell (1998) 196 CLR 329 at 344 [37]. 393 Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 at 328 [83]. 394 Obeid v Lockley (2018) 98 NSWLR 258 at 284. 395 Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 345. 396 (2017) 248 FCR 311. 397 Ibid at 331-332 [97]. -- 132 of 166 -- [2024] SASC 97 McDonald J 129 527 In Northern Territory of Australia v Mengel,398 Brennan J explained that malice and actual knowledge, including reckless indifference, were alternative states of mind. His Honour said that either state of mind established “the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office”.399 528 The majority in Nyoni observed that the circumstances in which public officers can misuse their powers cannot be confined to closed categories.400 That is because the experience of human affairs suggests that it is unwise to attempt to categorise possible abuses.401 Was Senior Constable De Bono a public officer who was exercising a power in the course of her duties? 529 A public officer is an officer occupying a public office or exercising public duties. However not every public servant, nor every person engaged on the basis that they will be remunerated from the public purse, is a public officer.402 A public officer is not merely created by a contract of employment with the executive. Rather, the concept of a public officer requires an official position to which public functions and duties are attached.403 As this tort is concerned with the misuse of a relevant power which is an incident of a public office, an office cannot be characterised as a public office for the purpose of the tort if no relevant power is attached to it.404 Therefore, an essential feature of such a public office is that public power is an incident of it and that power is abused.405 530 As the tort is concerned with the abuse of a public power, it is a public power which must be exercised for the “public good” which is attached to the office. As the Court observed in Cannon v Tahche:406 … It is a deliberate tort for which the defendant is personally liable and, relevantly, one of its essential constituents is malice in the sense explained later. Moreover, in order to succeed in an action founded on the tort, the plaintiff must establish that he or she is a member of the public to whom the defendant owed a duty to exercise the power legitimately, namely, only in the public interest and not for an ulterior purpose. … 531 There is no doubt that a sworn police officer can, in certain circumstances, be described as exercising the powers of a public officer.407 Whether or not they 398 (1995) 185 CLR 307. 399 Ibid at 357. 400 Nyoni v Shire of Kellerberrin (2017) 248 FCR 311 at 328-329 [83] per North and Rares JJ. 401 Ibid. 402 Tampion v Anderson (No 2) [1973] VR 321 at 337. 403 Leerdam v Noori (2009) 227 FLR 210 at 214-215 [16]-[17]. 404 Cannon v Tahche (2002) 5 VR 317 at 336-337 [49]. 405 Obeid v Ipp [2016] NSWSC 1376 at [240]-[242]; Leerdam v Noori (2009) 227 FLR 210 at 214-216 [16]; Cannon v Tahche (2002) 5 VR 317 at 337 [49]. 406 Cannon v Tahche (2002) 5 VR 317 at 328 [28]. 407 See, for example; Ea v Diaconu (2020) 102 NSWLR 351; Obeid v Lockley (2018) 98 NSWLR 258. -- 133 of 166 -- [2024] SASC 97 McDonald J 130 are exercising such powers will be dependent upon the particular role that they are undertaking at the time. 532 In Obeid v Lockley408 the New South Wales Court of Appeal found that, in executing a search warrant, two Senior ICAC Investigators were public officers to whom the tort applied. Albeit the role of the two investigators was defined under the relevant sections of the Independent Commission Against Corruption Act 1988 (NSW), a member of SAPOL exercising a similar role could be described as exercising a power of a public officer - a power that should be exercised in the public good. 533 In Hamilton v The State of New South Wales,409 the alleged act of misfeasance that was relied upon by the plaintiff was the sending of letter by a Detective based in the Child Protection and Sex Crimes Squad of the New South Wales Police force, offering the plaintiff an opportunity to be interviewed in relation to serious sex crimes. It was determined that the act of sending the letter by a police officer, carrying out an investigation into alleged criminal activity, is ordinarily an exercise of public power. In arriving at that decision, Walton J gave consideration to the application of this tort to police officers more broadly. His Honour made the observations that many investigative functions of the police do not involve the exercise of public power or public duty in the context of the elements of the misfeasance tort.410 Each case will be determined on an assessment of the nature of the duties being undertaken by a police officer at the relevant time. By way of example, Walton J expressed the view that a police officer may be a public officer when (1) carrying out coercive duties, and (2) when investigating a criminal activity.411 534 The role that Senior Constable De Bono was undertaking was very different to that of a police officer executing a search warrant or carrying out coercive duties. She was appearing in court as a prosecutor, with the attendant duties and responsibilities that involves. The role of a police prosecutor in the Magistrates Court is akin to that of a solicitor or prosecutor employed by the Office of the Director of Public Prosecutions.412 535 In Cannon v Tahche, the Court gave consideration to whether an independent barrister briefed by the Director of Public Prosecutions (‘DPP’) and a solicitor employed by the DPP were public officers exercising a public power in conducting a prosecution. In the context of considering that question, it was observed that just because a person is involved in the discharge of public duties in which the public has an interest does not necessarily mean they are public officers absent the 408 (2018) 98 NSWLR 258. 409 [2020] NSWSC 700. 410 Ibid at [242]. 411 Ibid at [247]-[248]. 412 Whilst the appointment of police officers is provided for by statute the statutory power is no more, for ranks below Assistant Commissioner, than a bare conferral of a power on the police Commissioner to appoint public officers. The Police Act 1998 (SA) does not prescribe any particular powers or duties to police officers. -- 134 of 166 -- [2024] SASC 97 McDonald J 131 exercise of some form of power. The Court determined that the lawyers involved with the prosecution were not captured by the misfeasance tort on two separate bases. The first was that whilst a prosecutorial duty existed, that was a duty owed to the Court and not the plaintiff. The Court summarised the position of the prosecutorial duty of disclosure vis-à-vis the misfeasance tort:413 The historical development of the prosecutor’s “duty of disclosure”, its discretionary nature and the variability of the circumstances which will inform its content all confirm that it is a duty which is owed to the courts and not to the accused or the public generally. Further, it seems to us that the obligation is one which lacks the characteristics of a duty, breach of which is enforceable at law at the instance of the accused, whether by way of “malicious prosecution” or “misfeasance in a public office”. The prosecutor does not have a duty, as his Honour seems to have assumed, to ensure that the accused has a fair trial. The prosecutor’s obligation is to assume standards of fairness which will assist the court in the fulfilment of its task of ensuring that the accused has a fair trial. As Newton J and Norris AJ pointed out in R v Lucas, prosecuting counsel are “ministers of justice” whose duty it is “to assist the court in the attainment of the purpose of criminal prosecutions, namely to make certain that justice is done between the subject and the State”. The obligation is, we think, ethical in nature and, quite apart from any question of prosecutorial immunity, is incompatible with the existence of the type of public power or duty breach of which will or might support an action for the tort of misfeasance. As Deane J said in Whitehorn v R, those requirements of: … the standards [of fairness] are not … directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages. Apart from disciplinary action against prosecuting counsel if failure to observe those standards amounts to professional misconduct, the sanctions available to procure their observance are mainly to be found in the powers of the trial judge … to ensure that an accused receives a fair trial and the powers of the appellate court to quash a conviction if the failure of the Crown to observe them has resulted in the accused being denied a fair trial. (Citations omitted) 536 The second basis upon which it was determined that the tort had no application was that no relevant “exercise of power” could be identified. The Court determined:414 … In our view, it is plain, having regard to what we have said, that the position of prosecutor did not have, as an incident of it, any relevant power. … even the director and a statutorily appointed Crown Prosecutor, each of whom is, probably, a holder of a public office, are not invested with any relevant powers in respect of the conduct of a prosecution. Whatever powers may be said to attach to the office of the director, for example, when appearing in court to prosecute at a trial, he or she does not thereby exercise any relevant power but, rather, performs a function of the office, that being to represent the Crown at a criminal trial. That function incorporates the ethical “duties of fairness” to which we have previously referred. This position applies, a fortiori, to the second applicant who, as a member of the Bar was bound, subject to exceptions which are not presently relevant, to accept any brief that was proffered to him. When briefed to prosecute at the plaintiff’s trial he did not thereby assume any office and did not acquire any relevant power as prosecutor. 413 Cannon v Tahche (2002) 5 VR 317 at 341 [59]. 414 Ibid at 342 [61]. -- 135 of 166 -- [2024] SASC 97 McDonald J 132 Throughout the trial he did no more than fulfil his brief by appearing as prosecutor. Nowhere in R v Apostilides, where the High Court laid down a number of general propositions applicable to the conduct of a criminal trial, including the obligations of the prosecutor, was it suggested that, in conducting the prosecution or in making relevant decisions as to its conduct, the prosecutor is exercising any relevant power, whether judicial, executive or administrative. (Citations omitted) 537 The role of Senior Constable De Bono was even further limited in that the only role that it can be determined that she undertook was to make an application for a warrant to be issued, and possibly made the submission that it be endorsed ‘no bail’. As I have said, it was ultimately the Magistrate who made the decision to issue the warrant. Even if Senior Constable De Bono made the most forceful submission, she had no power in relation to the determination of the matter. 538 It follows that it has not been established that the respondent is liable for the tort of misfeasance in public office. The four trespasses 539 That then brings me to the third episode – the four trespasses. 540 It is the applicant’s case that by May 2015 he had withdrawn the implied licence to enter his property from the world at large, and in particular from the police. He had done so by correspondence with SAPOL and by attaching signage to the wall at the front of his house. 541 It is well understood that the law of trespass requires that for a person to lawfully enter a private residence there must be an invitation or permission from the occupier. It is for the person who entered the property to establish that they had some form of permission. In Halliday v Neville,415 the High Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or that driveway for any legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the person or property of the occupier or the occupier’s guests.416 542 In Roy v O’Neill,417 Kiefel CJ considered the rationale underpinning the existence of an implied licence such that commonplace, everyday entry into a residential premises does not amount to a trespass.418 415 [1984] HCA 80; (1984) 155 CLR 1. 416 Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1 at 6-7 per Gibbs CJ, Mason Wilson and Deane JJ. 417 [2020] HCA 45; (2020) 272 CLR 291. 418 Roy v O’Neill (2020) 272 CLR 291 at 302 [11]-[12] per Kiefel CJ. -- 136 of 166 -- [2024] SASC 97 McDonald J 133 The common law also recognises that such a rule would be unworkable in our society if it were strictly applied so as to render all visitors who did not have an express permission from the occupier, trespassers. It recognises that it is in the interests of the occupier, entrants and society more generally that there be a qualification to the law of trespass. It effects that qualification by implying a permission, on the part of an occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes. It balances its recognition of that implied permission by acknowledging that an occupier may negate that permission, by sufficiently indicating that entry is not permitted, and that the occupier may revoke the permission at any time, by requiring the visitor to leave the premises. The implied licence applies to members of the public and the police alike, albeit that the business which they have with the occupier or those present on the premises may differ. The most common such licence, a majority of this Court in Halliday v Nevill observed, relates to the means of access, usually by path or driveway, to a suburban house. If access is unobstructed, the entrance gate unlocked and there is no notice or other indication that entry by visitors is prohibited, “the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. If the implied licence is revoked at any time, the visitor becomes a trespasser if they remain. 543 It is the applicant’s case that, having revoked the implied permission to enter his property, the police were trespassers on the four occasions that they attended in order to serve him with a summons in May and July 2015. The evidence 544 The evidence that founds the basis for this tort came from the applicant, Constable Kluzek and Senior Constable Megan Mitchell. Whilst there is no dispute about the fact of the four attendances, there are some issues about what occurred whilst the police were at the applicant’s premises. The applicant’s evidence 545 The applicant gave evidence that police had attended at his residential premises at 39 Glen Eira Street on 1 May, 2 May, 11 May and 21 July 2015. He said that on each occasion he had been at home and on 11 May 2015 his mother was also present.419 It is each of these four attendances that are the subject of the claims for trespass. 546 The applicant gave evidence about what occurred on each of these occasions. He said that on 1 May 2015 he first became aware of the presence of police by hearing banging on a window at the front of the house, followed by the ringing of the doorbell.420 Whilst the applicant could not say what time of day it was, he recalls that it was daylight. He went to the front door and he could see through the glass that there was a police officer standing there. He called out to the police officer “You’re trespassing, get off the property please”.421 It was the applicant’s evidence that the police officer did not respond and continued to knock as the 419 T133. 420 T131. 421 T132. -- 137 of 166 -- [2024] SASC 97 McDonald J 134 applicant walked away.422 At no stage did the police officer identify himself or leave a calling card. When asked how this police attendance made him feel, the applicant said:423 I was angry, I was angry, I think – you know, the police know they’re not supposed to attend my home yet they still come, banging on doors, you know, just angry, they just kept coming and coming, no care for me or my mother, nothing. 547 The applicant went on to further elaborate:424 It upset me to the point that I would get - I was frightened again from being in my own home again, you know, I just this issue with a police officer injured me and not long after they’re coming after me again harassing me in my home. I started having problems with - you know - started giving me anxiety again, all of that. It was affecting me mentally. 548 The events of 2 May 2015, as described by the applicant, were very similar to the previous day. He said that it was late morning, that again it commenced with a police officer knocking on his window in an apparent attempt to get his attention.425 There was then ringing on the doorbell. The applicant described approaching the door and telling the police officer “get off the property, you’re trespassing”426 to which the police officer did not respond and instead continued to knock. The applicant estimated that the police officer remained at his house for between 30 seconds and a minute.427 On this occasion, the police officer left a police calling card endorsed with the name of Constable Kluzek and a telephone number.428 The applicant was asked about how the police attendance on this occasion made him feel. The applicant said:429 Again, I was angry, again, just the day before, police starting to come regularly now, harassing me, frightening me in my own home. I did nothing wrong. 549 The applicant gave evidence that on 11 May 2015 a police officer attended at his address about 9.20pm. It was on this occasion that the applicant’s mother was present. He said:430 She was in her front part of the house, she was sitting down in the lounge watching television. I was in my part of the house, in my back room in my office. And mum screamed out ‘Dean, Dean’, so I jumped up, she said ‘Someone’s banging on the window’. The applicant said that he responded by going to the front door. His mother told him that there was someone with a torch at the front of the house. The applicant’s evidence was that his dogs were barking and when he looked outside, he saw that 422 Ibid. 423 T133. 424 T133. 425 T134. 426 Ibid. 427 Ibid. 428 T135. 429 Ibid. 430 T136. -- 138 of 166 -- [2024] SASC 97 McDonald J 135 there was someone standing near to the garage door.431 The applicant could not tell if they were male or female. He said:432 Well, I don’t know if they had a torch but it was dark at that stage and they were trying to lift the roller door. Now I don’t know if they were banging on the roller door or it was the dogs banging on the roller door, making the noise, they were attempting to lift the roller door. 550 The applicant described that the person approached his car and looked inside with a torch, before attempting to open the car door. The person then walked up to the front door and started banging on it. It was the applicant’s evidence that as a consequence the sensor light came on and it was only at that time that he realised it was a police officer.433 He said that up until then he had believed that the person was an intruder who was attempting to break into his house or car. It was the applicant’s evidence that once he realised it was a police officer, he repeated two or three times to get off the property as he was a trespasser.434 As on the previous two occasions, the police officer remained mute and said nothing. The police officer did not identify himself, nor did he leave a summons or a calling card.435 551 When asked how he felt on this occasion, the applicant said “Again, angry, mum was home, she was in a panic, she was frightened, she was shaking, you know, it’s happening again. It doesn’t stop”.436 552 The fourth police attendance is said to have occurred during the day on 21 July 2015.437 Again, the applicant was alerted to the presence of a police officer by someone ringing the doorbell and banging on the door. The applicant opened the door and saw that it was a female police officer. The applicant did not recognise her but saw that she had something in her hand which he assumed to be a summons.438 He said that he repeatedly told her to leave by saying “Please get off the property. You’re trespassing”.439 Eventually she left. The applicant’s evidence was that yet again the police officer did not utter a word.440 553 When asked about how he felt on this occasion, the applicant said “Again I was angry. If it was a summons, what for? What’s this about? I’ve done nothing wrong. Leave me alone. I want to be left alone please”.441 431 Ibid. 432 T137. 433 T137-138. 434 T138. 435 T138. 436 T139. 437 T140. 438 Ibid. 439 T141. 440 Ibid. 441 Ibid. -- 139 of 166 -- [2024] SASC 97 McDonald J 136 The police evidence 554 The respondent called Constable Kluzek and Senior Constable Mitchell to give evidence about their attempts to serve the applicant with the summons. At the relevant time Constable Kluzek was a police officer stationed at the Henley Beach Inquiries Unit.442 Part of his duties was the service of summons. He explained that generally he would serve people at their homes and on any given day he could serve between 30 and 40 summonses.443 555 Constable Kluzek gave evidence that he had a memory of attempting to serve a summons on the applicant in 2015. Normally he did not work in that area, however on this occasion he was assisting a colleague who was away at that time.444 It would seem that at least part of the reason that Constable Kluzek remembers these occasions was because he had previously played football at the Woodville Oval and Glen Eira Street was in close proximity. 556 Constable Kluzek told the Court that he believes that he attempted to serve the summons on the applicant at 39 Glen Eira Street on three occasions.445 His memory of each of those three occasions was vague. It appeared as though his evidence was a combination of a skerrick of memory, a degree of reconstruction and a fallback position of relying on his usual practice at that time.446 557 Through that means, Constable Kluzek described attending at the applicant’s house on three occasions. Two attendances were during the day and one was at night. On each occasion he either knocked or rang the doorbell once or twice and waited a couple of minutes before leaving.447 558 Although Constable Kluzek’s evidence that he attended at the property on three occasions, twice during the day and once at night, is consistent with the applicant’s account, there are differences between their accounts as to what occurred whilst he was there. There is no suggestion by Constable Kluzek that on any of these occasions he saw or heard the applicant, nor that he banged on windows, attempted to open the garage door or search through the applicant’s car. 559 No doubt seeing the obvious inconsistencies between the applicant’s evidence and that of Constable Kluzek, the applicant’s counsel attempted to cross- examine Constable Kluzek in a manner to suggest that he and the applicant may be describing different occasions. That resulted in the following exchange:448 442 Since that time Mr Kluzek has resigned from SAPOL; T897. 443 T898. 444 Ibid. 445 T899. 446 T900. 447 T900. 448 T904. -- 140 of 166 -- [2024] SASC 97 McDonald J 137 Q. Not at all. You’ve said that you went on three occasions, or roughly, not having a go at that. Mr Cosenza has said in this case that police officers came to his place on four occasions. On three occasions it was a male. A. That would probably be me. Q. Well he says that he had a loud interaction telling the person to leave the property. Could that have happened and you’ve forgotten it. A. No. Q. Right, so it must have been some other male. A. Possibly. Q. And there were other males who served processes in that area. A. I would guess at the time there was probably three or four males and one female working the Henley Beach enquiries staff. 560 I reject the suggestion that it was some other male police officer who, over that same timeframe, attended at the applicant’s premises on two occasions during the day and once in the evening. There is no evidence to that effect, and such a scenario is highly improbable. It was Constable Kluzek’s evidence that he was assisting by attempting to serve the summons for his colleague who normally covered that area because for some reason she was not at work. It is also of relevance that on the last occasion that a police officer attended at the house it was a female police officer who attempted to serve the summons consistent with Constable Kluzek’s female colleague having returned to work and resumed in her usual role. 561 The evidence establishes that the female was Senior Constable Mitchell. At the relevant time she was working as an inquiries officer at Henley Beach Police Station.449 Although her evidence was brief, she appeared to have a much clearer memory than Constable Kluzek and a specific recollection of the one occasion that she attended at 39 Glen Eira Street. She described an occasion in 2015 on which she attempted to serve a summons on the applicant at his home. She initially pulled up in front of the neighbour’s house and then made her way up to the door by passing through the entry gate and walking up the pathway.450 Senior Constable Mitchell described knocking on the front door and then, when she received no response, she knocked on a window in an attempt to raise someone. She returned to the front door and saw that the door had been opened but the screen remained shut with a man standing behind it. Senior Constable Mitchell gave evidence that she attempted to explain who she was and what she was there for, however the person behind the door started to become belligerent. She elaborated on what she meant by belligerent:451 449 T905. 450 T908. 451 T908. -- 141 of 166 -- [2024] SASC 97 McDonald J 138 [He] was very loud, was yelling, wouldn’t let me attempt to speak to - I got out that who I was, and that I was attempting to serve a summons. The person then raised their voice, was very loud. I then tried to interject a couple of times to attempt, at the time to answer what that person was saying. The person just continued to get louder and louder, what I would describe as yelling at me. 562 Senior Constable Mitchell described asking the person behind the door to identify who they were so she could determine who she was talking to, however, he kept repeating “you’re not welcome”.452 She was also told she was being videoed. Realising she was getting nowhere, Senior Constable Mitchell left the property and returned to her police car.453 563 I find that the attendances at the applicant’s house by Constable Kluzek and Senior Constable Mitchell occurred in the manner that they described. I found the evidence of Senior Constable Mitchell to be particularly compelling in its detail and clarity, and also in its consistency with how the applicant has behaved towards police officers on other occasions. Although Constable Kluzek’s memory was vague I formed the impression that he was doing his best to recollect the relevant events. I have no doubt that had the applicant behaved in the manner that he described, this could not have gone unnoticed by Constable Kluzek, nor is it something that he would be likely to forget. 564 Insofar as the evidence with the police officers conflicted with that of the applicant, I prefer the evidence of the police officers. I am not persuaded that the applicant was even at home on the occasions that Constable Kluzek attended.454 The applicant’s prior dealings with police 565 Before I come to consider the relevant legal principles underpinning this tort, and their application to the facts of this case, it is necessary to set out the evidence of the applicant’s dealings with police in relation to entering into 39 Glen Eira Street. This evidence is relevant to an assessment of the issues to be determined in relation to the four trespasses. Signs revoking the implied licence to enter 566 As mentioned previously, it was the applicant’s evidence that having learnt of the decision of the High Court in Plenty v Dillon during the course of his legal studies, he created a website from which he gave advice and sold books and signage.455 The applicant gave evidence that in 2011 he put a sign up at his house at 39 Glen Eira Street on a pillar of a low wall at the front of the house adjacent to the driveway. The sign was made of UV resistant plastic and was attached to the 452 T908-909. 453 T909. 454 Exhibit A10, a letter from the Courts Administration Authority dated 28 September 2015 annexing a copy of a statement Mr Kluzek establishes that from this date the applicant was aware of Mr Kluzek’s attendance at 39 Glen Eira Street. 455 Exhibit A20. -- 142 of 166 -- [2024] SASC 97 McDonald J 139 pillar by glue and adhesive.456 It was the applicant’s evidence that by 2015 a second sign had also been attached to the pillar on the other side of the driveway. 567 The respondent did not accept the applicant’s evidence about the presence of the signage in 2011 through to 2015. For that reason, it is necessary to set out the applicant’s evidence on this topic in some detail. 568 It was the uncontested evidence that running along the front of the applicant’s property there is a low wall with a wrought iron gate in front of a footpath that leads up to the front door of the house. The applicant was not asked about whether that gate was ever secured to prevent entry. Given that no witness described any difficulty in accessing the property through the front gate and no locking device is apparent in any of the photographs, I draw the inference that it was generally not locked. There was also another double gate that leads to the driveway into the front yard of the house. There was also no evidence led from the applicant as to whether these gates were ever closed or secured. In the photographs and videos that have been tendered these gates are always open. There is also no suggestion from any of the police witnesses that these gates were at any stage closed. I am prepared to draw the inference that these gates were generally left open. 569 When the subject of the signage was first raised, counsel for the applicant tendered three photographs of front aspects of 39 Glen Eira Street.457 Those photographs showed a sign attached to the pillar to the left of the open driveway. None of the photographs showed the right pillar, nor the entry gate. It was the applicant’s evidence that these photographs had been taken by him in about 2012. He said that the reason that he had taken them was “for a record of evidence” in other court proceedings.458 There is no objective evidence of when this sign was placed on the pillar or when the photographs were taken. The applicant gave evidence that there had also been a second sign attached to the pillar to the right of the driveway gate, although not at the time these photographs were taken.459 After I asked the applicant some questions about the provenance of the photographs, counsel for the applicant elicited from him that the signs were still in situ and that overnight he would obtain some photographs showing the sign attached to the right pillar. 570 The following morning when the applicant resumed his evidence, he produced some further photographs of the front of 39 Glen Eira Street.460 These photographs showed the right pillar as well as the entry gate opening onto a footpath leading up to the front door of the house. The applicant told the Court that these photographs had been taken the evening before, after Court had adjourned.461 These photographs depicted signs on both the left and right posts of 456 Exhibit A21; T94. 457 Exhibit A21. 458 T94. 459 Ibid. 460 Exhibit A24. 461 T113-114; Exhibit A24. -- 143 of 166 -- [2024] SASC 97 McDonald J 140 the driveway, as well as the entry gate. The quality of the images was however very poor462 such that it is difficult to see whether they are the same or different signs. Although they appear to be of relatively similar dimensions and general appearance, the writing is illegible. It would also appear from the second group of photographs that there are now three signs in place. There was no evidence about when the third sign went up. 571 Senior Counsel for the respondent cross-examined the applicant on the topic of when the signs went up. At the commencement of cross-examination, the applicant confirmed that he had put the first sign up on the left side of the driveway in 2011 and the one to the right of the driveway in 2012. Counsel for the respondent produced some further photographs463 of the front of the applicant’s house said to have been taken in November 2015 which showed that, whilst there was a sign on the pillar to the left of the driveway, there was not one to the right. Whilst the applicant did not dispute that there was no second sign on that date, he was quick to provide an explanation:464 Q. The reason there is not a sign there is because you had never affixed a sign there on that right pillar before the date of this photograph, had you. A. I did, yes. Q. It had fallen off, had it. A. People actually did come and pull them off on stages so, you know, that did occur. 572 The applicant was then taken back to the evidence that he had given about the first bundle of photographs465 that showed a sign on the left pillar that he said were taken in 2012. He was asked why, if there had been a sign attached to the right pillar, he had not photographed it given he told the court that the purpose for taking the photos was for their use in court proceedings. The applicant responded in a manner that is a good example of how he obfuscated when it became necessary during the course of his evidence:466 Q. I just want to unpack that, to be clear you’re saying these photos at Exhibit A21 were taken for a court matter. A. They were taken for the purpose of recording there were signs, and they were used for a court matter. Q. But then when you eventually, you say you affixed a sign to the right-hand pillar, no never took a photograph. 462 Given the importance of this topic and the availability of digital technology, it was surprising to say the least, that the applicant produced photographs of such poor quality. 463 Exhibit R26. 464 T161. 465 Exhibit A21. 466 T163. -- 144 of 166 -- [2024] SASC 97 McDonald J 141 A. No I didn’t, I didn’t need to. Q. Why didn’t you need evidence of that as well. A. Because the signs are there as of 2012, the evidence is there that they are on the gate, I don’t need to put them on every pillar for the purpose of revoking or communicating that entry is not permitted, the law doesn’t say that. 573 The applicant was then asked about his car that appeared in the photographs that he claimed were taken in 2012 and he agreed that he did not purchase that car until March 2014.467 The applicant conceded that on that basis that he was clearly wrong about when the photographs were taken.468 That is no small matter given the importance of this issue and how definite he was in his evidence in chief that one sign went up in 2011, one in 2012 and that these photographs were taken for court purposes in 2012. 574 For the reasons that I have already given, I generally do not accept the evidence of the applicant unless it is a statement made against interest or it is supported by the other evidence. In addition to that, there are some particular problems with the applicant’s evidence about when the signs were put in place. As such, the evidence on this topic was left in a state of disarray. 575 To compound the issue neither Constable Kluzek nor Senior Constable Mitchell were asked any questions about whether they observed any signage on their attendance at the house. Constable Kluzek was not even asked about which gate that he entered through to gain access to the house, that would have been relevant to the likelihood that he would have seen any signs. This is surprising to say the least, given the significance of the issue to this aspect of the applicant’s case. 576 I am prepared to find however, on balance, that there would have been at least one sign in place by 2015 given the applicant’s fixation with Plenty v Dillon and his relationship with, and attitude towards, police. Given the combined effect of all of the evidence, I find that it is most likely that the sign was of the dimensions and contained the words that appear on the signs depicted in the photographs and it was attached to the pillar to the left of the driveway. There is an inadequate evidentiary basis upon which to find that there were any other signs in place at that time. Correspondence with SAPOL 577 The applicant also gave evidence about communications that he had with SAPOL over this period, in an attempt to convey his desire for police to not attend at his premises, and to advise that he had revoked the implied right to enter the property. As previously mentioned, in 2008 the applicant wrote to the Police Commissioner in the context of making a complaint about an unwelcome 467 T164-165. 468 T165. -- 145 of 166 -- [2024] SASC 97 McDonald J 142 attendance at his home by Constable Kaftan.469 In that letter, the applicant complained about various police attendances at his property on the basis that they caused his mother considerable distress. 470 He also advised the Commissioner that he had requested that an entry be made on “SAPOL computers” to the effect that police were not to attend at his premises and, in the event that they wished to speak with him, they were to telephone him and he would attend at a police station for that purpose.471 578 Counsel for the applicant also tendered correspondence between the applicant and SAPOL relevant to this issue. One of these documents is a letter from Sarah Bolt from the Police Complaints Authority to the Commissioner of Police dated 5 December 2011.472 That letter deals with a number of complaints that the applicant appears to have made about police attendances at this home address. In the letter in the context of considering the various complaints, Ms Bolt observed:473 It is not in dispute that Mr Cosenza had revoked the implied licence police would otherwise have to enter his property. He has communicated this revocation of licence to individual officers and to SAPOL more generally. His revocation is specifically noted with his personal details on SAPOL’s PIMS data base. He has repeatedly advised both SAPOL and the PCA of his concerns regarding police trespassing on his property, and he has sought advice on what more he can do to prevent such trespasses occurring.474 579 The letter concludes with Ms Bolt making a number of recommendations:475 I have given considerable thought as to what other recommendations I could make in order to reduce the likelihood of police trespassing on Mr Cosenza’s property in the future. The most obvious method of alerting officers to the fact that Mr Cosenza has revoked the implied licence to enter his property has been done – namely an entry to this effect on the first page of his personal particulars on SAPOL computer systems. Indeed, in the present case Sergeant McDonald was aware of the revocation of the licence prior to attending. It appears that the problem in this case, as with the previous cases, is that notwithstanding being so informed, officers believe they have the right to enter his property. Clearly this is not the case in all situations. I have referred to at least one exception to this in the discussion above, and that is where police are attending the premises to effect an arrest. As in Constable Jarvis’ case, she had a lawful authority to be there notwithstanding the occupier’s objection. I believe that the message on the PIMS data base relating to the complainant’s revocation of licence should be strengthened, so that it specifically states that prior to attending Mr 469 Exhibit A22. 470 Ibid; Although Constable Kaftan is referred to in the letter, there is no specific mention of Senior Constable De Bono. It would appear however that it is not in dispute that she was with Constable Kaftan on the occasion in question. 471 Exhibit A22. 472 Exhibit A117. 473 Ibid at 4. 474 “PIMS” refers to the Police Information Management System. 475 Exhibit A117 at 8. -- 146 of 166 -- [2024] SASC 97 McDonald J 143 Cosenza’s property (in non-emergency type situations) officers must seek guidance from their supervisor. I make a formal recommendation pursuant to s32(1)(b)(ii) to this effect. Unless you (Commissioner of Police) disagree with my assessment and recommendation the register will be noted accordingly. I would appreciate your early reply so that I might notify the members and the complainant as required by Section 36 of the Act. 580 The evidence was that neither Constable Kluzek nor Senior Constable Mitchell were aware that the applicant had revoked the implied licence to his premises prior to their attendances. Both had subsequently become aware of the entry recorded on the PIMS database. 581 Senior Constable Mitchell gave some evidence on the topic of the accessibility of the information on the police system about the applicant revoking the implied licence to enter his property. She told the Court that, on the day of the unsuccessful attempt to serve the applicant with the summons she returned to her police vehicle and did some checks on the computer. In doing those checks Senior Constable Mitchell located a report on PIMS “to say that he has removed his consent for police to attend his property”.476 In cross-examination, Senior Constable Mitchell agreed that she could have undertaken that search before she had entered onto the applicant’s property.477 582 In summary, I find that by the time that the four attempts were made to serve the summons, there was a sign attached to the post to the left of the driveway at 39 Glen Eira Street and there was an electronic recording on the PIMS system of the applicant’s revocation of the implied licence to enter his property. The applicant’s proprietary interest in 39 Glen Eira Street 583 The final factual matter to be determined is the applicant’s proprietary interest in 39 Glen Eira Street. That is of some importance because the action for trespass to land only vindicates violations of actual possession of the land. The tort is not concerned with protecting people, even owners, who might have other interests in the land but who were not in possession at the time of the intrusion.478 The evidence on this topic is far from clear. 584 The applicant gave evidence that his mother was the registered proprietor of the property,479 and whilst she was not living there (she was sleeping at her daughter’s house)480 she was an “occupier” who was entitled to occupy the property at any time. His mother kept all of her property at the house.481 The applicant initially said that the property was still his mother’s residence482 and she could have 476 T909. 477 Ibid. 478 MacIntosh v Lobel (1993) 30 NSWLR 441 at 454 per Kirby P. 479 T212. 480 T170-172. 481 T170. 482 T172. -- 147 of 166 -- [2024] SASC 97 McDonald J 144 evicted him at any time.483 However he later changed his position on that topic saying that she could not have evicted him.484 The applicant had been living at the address since he was released from custody in June 2002.485 585 The applicant told the Court that following his father’s death, he paid $150 a week for “exclusive use” of one half of the house.486 The applicant paid all rates, taxes, outgoings and dealt with any maintenance issues.487 He said that his mother maintained “exclusive use” of half of the house after she began living with the applicant’s sister in 2010/2011.488 There was a division of the house with his mother occupying the front and the applicant using the back.489 He said that he had exclusive possession over his half of the house.490 There was a common passageway491 and his mother had an entitlement to use the bathroom, however she generally did not need to because she washed at his sister’s house.492 The applicant described the front and back garden as common property.493 586 In terms of the legal position, the applicant gave evidence that in his view he had no “legal interest” in the property but claimed that he nonetheless was in possession.494 He said that his interest in the property was based on a “possessory right”.495 587 When pressed on this topic in cross-examination, the applicant claimed that there had been a written lease agreement between him and his mother however he was now unable to locate it.496 This was the first time in his evidence that there was any mention of a written lease. Previous litigation 588 During cross-examination, in an attempt to undermine the applicant’s evidence and highlight the inconsistencies about his proprietary rights to the property, Senior Counsel for the respondent asked him a number of questions about various legal proceedings that he has instituted. These questions focussed on the manner in which the applicant has previously described the proprietary interests in 39 Glen Eira Street. 483 T174. 484 T213. 485 T70-71, 76. 486 T81. 487 T82, 213. 488 T82, 214. 489 T136, 211. 490 T211-213. 491 T216. 492 T211-212. 493 T215. 494 T174. 495 Ibid. 496 T174-175. -- 148 of 166 -- [2024] SASC 97 McDonald J 145 589 In June 2013 the applicant and his mother were the plaintiffs in a civil action for trespass against Eco Advantage for an incident that occurred on 3 April 2013.497 In the pleadings it was claimed that the applicant’s mother “was at all material times an invalid pensioner residing at 39 Glen Eira Street”.498 When that was first put to the applicant he said:499 No. It was her primary place of residence by way of still getting mail coming to her home. She would still come to the home whenever she wanted and she had all of her belongings and clothing at home but she stayed with my sister. 590 When pressed further the applicant suggested that he had “probably” used the “wrong terminology” in the pleading because she was in fact staying with his sister.500 591 On 19 March 2015, the applicant and his mother instituted trespass proceedings against Henker and Alinta Energy. In those proceedings the applicant pleaded that as of 13 July 2012 his mother resided at 39 Glen Eira Street. That is of course at odds with the applicant’s evidence about his mother moving to live with his sister in 2011. 592 Counsel for the respondent put to the applicant that the only reason that he had nominated his mother as a plaintiff in both claims was because he knew that he had no proprietary interest in the property. The applicant denied that was the case.501 593 The applicant was also cross-examined about further proceedings instituted in 2015,502 2018,503 and 2019.504 In each of these actions it was pleaded that the applicant’s mother resided at 39 Glen Eira Street between a date range of 5 December 2011 and 11 February 2017. In none of the proceedings is there any reference to any proprietary interest that the applicant had in the property, even in circumstances in which he was a plaintiff. There was also no qualification or caveat to the statement that the applicant’s mother resided at 39 Glen Eira Street to reflect that she did not live there but kept her belongings there. 594 By the time of the trial in this Court the applicant’s mother had passed away. 497 Exhibit R27. 498 T170, Exhibit R27. 499 T170. 500 T170-171. 501 T174, 177. 502 Cosenza and Cosenza v Van Dykeand Clement and Alinta Energy (PADCI 15-396) (Exhibit R34), Cosenza (Eleonora) v Medallion Homes and De Ron (PADCI-15-397) (Exhibit R37), Cosenza (Eleonora) v The State of South Australia (PADCI-15-390) (Exhibit R41). 503 Cosenza and Cosenza v Roy Morgan Interviewing Services Pty Ltd (PADCI-18-139) (Exhibit R35), Cosenza and Cosenza v Ryan and XL Marketing Pty Ltd (PADCI-18-294) (Exhibit R39). 504 Cosenza and Cosenza v Johnston and Spartan Elite Pty Ltd (PADCI-19-176) (Exhibit R40). -- 149 of 166 -- [2024] SASC 97 McDonald J 146 What was the nature of the applicant’s proprietary interest? 595 It is for the applicant to establish the nature of his interest in the property. The evidence is that his mother was the registered proprietor and she permitted him to live at the property on an ongoing basis. The only evidence of the terms of that arrangement comes from the applicant. I do not accept his evidence about an unorthodox agreement under which the applicant and his mother effectively divided the house in two with each of them retaining “exclusive possession”505 over their respective half of the house. Nor do I accept that although the applicant’s mother kept all of her clothing and possessions at 39 Glen Eira Street she always slept and bathed at his sister’s house retaining “an entitlement to share a bathroom”506 at 39 Glen Eira Street. Such an arrangement does not accord with common sense or normal life experience. It is rather a further attempt by the applicant to tailor his evidence to meet the issues as he perceives they arise in these proceedings. 596 On the evidence before me I find that the applicant’s mother was the registered proprietor of 39 Glen Eira Street. Although, on occasions, she would stay with her daughter. 597 The applicant’s mother permitted the applicant to live with her at the house under a longstanding informal arrangement which involved the applicant paying rent and contributing towards the household expenses. This arrangement resulted in the applicant having a right of possession in respect of the property, at least against those with no such right of possession. The applicant had the right to exclude others from entering the premises. Issues arising for consideration in relation to the four trespasses 598 There are three issues that arise for consideration in relation to the four trespasses. These are: 1. Did the applicant have a sufficient proprietary interest in 39 Glen Eira Street to revoke the implied licence to enter? 2. Had the applicant revoked the implied licence? 3. What is the significance of Kluzek and Mitchell being unaware of the revocation of the implied licence? Did the applicant have a sufficient proprietary interest in 39 Glen Eira Street to revoke the implied licence to enter? 599 In answering the question of ‘who may sue for trespass to land?’, in MacIntosh v Lobel,507 Kirby P explained: 505 T211. 506 Ibid. 507 (1993) 30 NSWLR 441 at 454. -- 150 of 166 -- [2024] SASC 97 McDonald J 147 …The key to the tort is to be found in its purpose. That purpose is the protection of quiet possession of land. In Clerk and Lindsell on Torts, 16th ed (1989), London, the authors state that: ‘…a person in possession can sue although he neither is the owner, and indeed may be in possession adverse to the owner. Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for ‘by possession is meant possession of that character of which the thing is capable.” 600 It is generally accepted that a mere licence is not a sufficient basis for a claim of trespass. In Georgeski v Owners Corporation SP49833,508 the plaintiff held a licence from the Crown over the riverbank where a jetty and slipway had been built. The plaintiff sought declaratory and injunctive relief to prevent the defendants from trespassing onto the jetty and slipway. In his judgment, Barrett J determined that “[t]he plaintiff has no legal right of possession in respect of the land the subject of the licence”.509 Further, “the plaintiff does not occupy in relation to the land in question any position from which she may resort to the law of trespass to land in order to restrain entry by another person”.510 601 Barret J observed that on the facts of that case the effect of the licence was “no more than to confer on her the landowner’s permission to occupy for a stated purpose. Nor, as a factual matter [was] she in possession”.511 The plaintiff did not reside on the land and did not ‘conduct any sustained activity there that cause[d] other persons to be excluded in a physical and factual sense’.512 Her right to occupy was for a limited purpose. 602 Barrett J found that a “focus on the licensee’s bare rights overlooks the nature of the wrong of trespass and its foundation in possession”.513 His Honour further went on to say that:514 Trespass to land is sometimes said to be an unlawful interference with one’s property, but more particularly it is an inference with possession. A right of possession of the kind enjoyed by a lessee will support an action in trespass. Possession in fact may also be sufficient, at least as against a defendant having no right of possession. Such a defendant, unless entering with the authority of the owner or lessee, may not plead that person’s right to possession as a defence and, for that reason, may be unable to resist an action by a plaintiff whose possession is possession in fact only. But possession in fact is by no means the equivalent of occupation even sole occupation. It may be found to exist where[…] a person “is, as a matter of observable fact, enjoying the rights and incidents of an estate or interest in land”. Mere physical presence or physical use can never satisfy that test. 603 It is the respondent’s contention that absent evidence to the contrary, the title is conclusive in establishing the applicant’s mother’s exclusive possession of the 508 (2004) 62 NSWLR 534. 509 Ibid at 563 [107]. 510 Ibid at 563-564 [108]. 511 Ibid at 563 [107]. 512 Ibid. 513 Ibid at 563 [105]. 514 Ibid at 563 [106]. -- 151 of 166 -- [2024] SASC 97 McDonald J 148 property. It was submitted by the respondent that the applicant’s evidence as to precisely what interest he had in the property was confused, inconsistent and did not establish in any way that he had a possessory interest adverse to, or from, his mother be it by lease or otherwise. Senior Counsel for the respondent submitted that on the evidence the best characterisation of the applicant’s status was as a boarder or lodger, that is as a bare licensee. If that is correct, the applicant does not have standing to sue in trespass. 604 Senior Counsel for the applicant contended that the applicant was an occupier in possession of the premises. The evidence was that he had resided at the same address for nearly 15 years, alone for much of the time. During that time, he maintained the property and paid relevant taxes and outgoings. The applicant had physical control over the property, at times solely and at times jointly with his mother. The arrangement was such that he had the power and intention to exercise control of the property to the exclusion of all others except his mother. 605 In Shannon v New South Wales,515 the Court was required to consider the proprietary interest of a son living in his mother’s house for which she held the title. Mr Shannon sued the State of New South Wales for trespass said to have been committed by two police officers. Mr Shannon had erected signs with the relevant words being “No Trespassing”; “Warning, admittance to this property is only by appointment or prior invitation” and “Appointments may be requested by correspondence or telephone”.516 606 In that matter the respondent argued that Mr Shannon was a licensee and did not have the capacity to sue in trespass on the basis that the land in question had been sold to his parents. Mr Shannon had previously owned the property. Williams AJ noted, however, that the only thing that had changed was that the legal title vested in someone else. That “someone else” was not a stranger at arm’s length but his parents, who allowed him a form of permissive occupancy of the land indefinitely thereafter. Relevantly, Williams AJ found that:517 …at the time of this incident Mr Shannon had, as a matter of fact and practicality, exclusive right to possess the property, albeit the legal title was in his mother’s name. That was a right he could exercise against the world at large. Whilst his mother may also have such a right, she was not in possession at the time, nor was she capable of exercising any control. It is unhelpful to try and categorise Mr Shannon’s position in terms of a lease or licence or permissive occupancy as those terms are generally understood at law. Mr Shannon was in de facto possession and control of the land and had been since 1993 and earlier. Whilst his mother had a right to be on the land, that was a right she did not exercise, in effect passing it over to her son to control. 607 There is an additional layer of complexity in this matter as compared to Shannon in that the applicant’s mother would at times stay at the house. 515 [2015] NSWDC 69. 516 Ibid at [5]. 517 Ibid at [28]. -- 152 of 166 -- [2024] SASC 97 McDonald J 149 608 It is my view that as a matter of fact and practicality, the applicant had the exclusive right to possess the property to the exclusion of all others with the exception of his mother. His mother’s rights to possession did not cut across those of the applicant but rather they ran in tandem. It is significant that the registered owner of the property was not a stranger or someone engaged in a commercial transaction with the applicant, but his mother. A mother who permitted the applicant to live in and have control of the property and, whilst she was not there, effectively passed over control to her son. On the occasions that she was present she and the applicant were jointly in possession and, as a matter of fact, shared the same interest in the exclusion of others from the property. That much is evidence from her involvement in the various actions commenced in the Magistrates Court for trespass. In the circumstances of a mother and son relationship, with the mother commonly not present at the house and the son taking on significant financial responsibility for the household expenses, there is an air of artificiality in attempting to contort the nature of the relationship into one of licensee or lodger. 609 It would make no sense to suggest, given the living arrangement that I have found to exist, that the applicant would not be entitled to exclude others from the property whether or not his mother was present. It was a situation in which the applicant and his mother were in possession of the property to the exclusion of all others. In my view the applicant was in possession of 39 Glen Eira Street and consequently has standing to sue for trespass. Had the applicant revoked the implied licence? 610 There can be no doubt that the applicant had made efforts to revoke the implied licence. By the sign on his driveway, he purported to revoke the implied licence to the world at large and by the communications to SAPOL, he specifically targeted the police. 611 The question that then arises is whether the steps undertaken by the applicant were sufficient to amount to an adequate communication for a successful revocation of access to SAPOL. There is limited assistance on this question, as the majority of the authorities have proceeded on the basis that the implied licence had been revoked without considering what is necessary to constitute a revocation. For example, in the seminal decision of Plenty v Dillon,518 the appeal to the High Court was argued on the basis that it was accepted that Mr Plenty had expressly revoked any implied consent given to any police constable to enter upon his farm to serve a summons. It followed that the issue for determination was simply whether a police officer, who is charged with the duty of serving a summons is authorised, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons. The Court was not required to consider what is necessary for an effective revocation of the implied licence to enter the property. 518 [1995] HCA 1; (1991) 171 CLR 635. -- 153 of 166 -- [2024] SASC 97 McDonald J 150 612 There are, however, two decisions of the NSW Court of Appeal that are of some assistance in determining this issue. These are Wilson v State of New South Wales,519 and Maynes v Casey.520 613 In Wilson, two sheriff’s officers had attended at the home of the appellant and his wife in order to enforce a Property Seizure Order for outstanding traffic fines owed by the appellant. The officers had entered onto the land and went upstairs to a covered veranda that led to the front door. There was an initial conversation between Mr and Mrs Wilson through the screen door, following which the screen door was opened by Mr Wilson and the conversation continued. During that exchange Mrs Wilson claimed that she was the owner of the premises and Mr Wilson denied ownership. Although Mr Wilson asked the officers to leave, Mrs Wilson did not. 614 Throughout the exchange Mr and Mrs Wilson were aggressive and abusive, with the events culminating in a physical struggle which resulted in one of the officers using OC spray on Mr Wilson. 615 The two officers left the property for a period of time to return to their car and await the arrival of police. Whilst waiting for the police, Mr Wilson left the house and made his way to a vehicle parked on the property. One of the officers re-entered the property in an attempt to stop Mr Wilson leaving. 616 In his proceedings against the State, Mr Wilson claimed inter alia that the officers had trespassed when they first entered the property and that there was a further trespass when one of the officers had re-entered to prevent him from leaving. 617 In the first instance the trial Judge found that at common law, the officers were entitled to go to the front door pursuant to an implied licence. That licence was not withdrawn because Mrs Wilson did not ask the officers to leave and Mr Wilson disavowed ownership and consequently disavowed any authority to revoke the licence. Further, the immediate physical altercation did not allow the officers sufficient time to withdraw. The first trespass was not established. 618 The trial Judge, however found that the second entry onto the property was not for a legitimate purpose and accordingly amounted to a trespass. 619 On appeal, the Court of Appeal were required to consider the circumstances in which an entrant becomes a trespasser following the withdrawal of permission or licence to remain on a premises. In considering the question of what is necessary in order to revoke authority for a person to remain on a property after they have lawfully gained entry, Hodgson JA made the following observation:521 519 [2010] NSWCA 333. 520 [2011] NSWCA 156. 521 Wilson v State of New South Wales [2010] NSWCA 333 at [50]-[51] per Hodgson JA. -- 154 of 166 -- [2024] SASC 97 McDonald J 151 [The principle] that once his or her licence to be on a property is revoked a person must leave as soon as is reasonably practicable, should not be considered as displacing the principle adopted by Dixon J in Cowell v Rosehill Racecourse Co Limited [1937] HCA 17; (1937) 56 CLR 605 at 631, that A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence… Thus, in my opinion, the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence on which a reasonable person in the position of the licensee would understand as a revocation of the licence. This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it; both as coming from a person with authority to revoke the licence and as having such context as to constitute such a revocation. If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with authority to revoke the licence. But in some cases, more particular facts may need to be considered. (Underlining added) 620 On the facts of that case Hodgson JA found that the communications from Mr Wilson were such as to convey to the officers, or to a reasonable person in their position, that he did not have the authority to revoke their implied licence and accordingly the licence was not revoked.522 621 In Maynes v Casey, the Shire Council of Cowra sought to serve Mr and Mrs Maynes with papers to commence proceedings in the Local Court for the recovery of unpaid rates. The Council through their solicitor engaged a process server to effect service of the paperwork. This process server was the son of a solicitor who was a partner in the firm used by the Council. The process server attended upon the property of Mr and Mrs Maynes to serve the papers. It is this conduct that became the basis of an action for trespass. The respondents to that action were the solicitor and the process server. 622 One of the issues that fell for determination by the Court of Appeal was whether, and if so, when the implied licence to enter the property of Mr and Mrs Maynes had been revoked. There were three courses of conduct undertaken by Mr and Mrs Maynes that were relied upon as amounting to a communication of a revocation. These were the publication of a letter in a local newspaper in 2006, correspondence between Mr and Mrs Maynes and the Council and the positioning of a sign at a point where a public roadway commenced to cross the property. 623 The letter written by Mr and Mrs Maynes was published in a local newspaper in June 2006, predating the relevant events by more than two years. The Court of 522 Ibid at [52] per Hodgson JA. -- 155 of 166 -- [2024] SASC 97 McDonald J 152 Appeal also proceeded on the basis that the respondents had not read the letter and it did not suggest that Mr and Mrs Maynes were attempting to give notice that they were withdrawing an implied right of entry onto their property from any Council officer or other person. 624 The second matter upon which reliance was placed was more closely contemporaneous with the relevant events. In August 2008 Mr and Mrs Maynes wrote to the Council, setting out their views as to the legal entitlement of Council officers to enter their property without permission. The respondents were not aware of the correspondence, even though one of them was a partner in a firm who acted for the Council. 625 The third and primary basis relied upon Mr and Mrs Maynes as amounting to a withdrawal of implied consent, was the erection of a sign near a cattle grid where the road crossed the southern boundary of their property. The trial Judge found that the sign was positioned too far from the cattle grid to be visible at a time when the process server was negotiating the grid in the dark, the sign not being illuminated and, even if visible, its contents other than the word “STOP” were not legible. The trial Judge therefore concluded that the sign was ineffective to communicate to the process server that implied consent to enter the property had been withdrawn. 626 The findings of fact were inconsistent with any awareness on the part of the respondents that the authority or licence implied by law, permitting the first respondent to drive up to the applicant’s home, had been withdrawn. 627 It was argued on appeal that the liability for trespass arose if the owners of a property had taken reasonable steps to notify potential visitors that they had no implied permission to come onto the property. On that argument if followed that the lack of subjective awareness on the part of the visitor is irrelevant. 628 In support of that proposition the appellants purported to rely on Halliday v Nevill523 and Plenty v Dillon.524 In considering that submission and those authorities Basten JA (with whom Allsop P concurred) made the observation that:525 while the passages relied upon all support the principle that an implied permission can be withdrawn by notice, none stated that the mere publication of a notice, unbeknownst to the visitor was sufficient to render the person a trespasser. 629 Basten JA identified that the only authority to deal with the particular issue was Wilson which was squarely on point against the appellants, requiring that a licensee must have notice that the licence is revoked. 523 [1984] HCA 80; 155 CLR 1 at 7. 524 [1991] HCA 5; 171 CLR 635. 525 Maynes v Casey [2011] NSWCA 156 at [28] per Basten JA. -- 156 of 166 -- [2024] SASC 97 McDonald J 153 630 On that basis, in Maynes v Casey, the Court held on the facts of that case that the implied licence for the process server to enter the premises had not been revoked prior to him stepping onto the property.526 631 The final authority that may be worth mentioning on this topic is Plenty v Dillon. Although the High Court proceeded on the basis that there had been a revocation of the implied licence, it is worth considering the basis upon which that decision was arrived at by reference to the decision of the court below. 632 In Plenty v Dillon527 the relevant trespass took place on 5 December 1978 when two police officers, Constables Dillon and Will, attended at Mr Plenty’s property to serve a summons. Prior to this there had been earlier efforts to serve the summons. On 6 October 1978 two different police officers, Constables Fisher and Vort-Ronald, had attended Mr Plenty’s property to serve the summons. On that occasion Mr Plenty was uncooperative and ordered the police officers off his land. 633 Subsequent to this but before 31 October 1978, Mr Plenty had written to Chief Inspector Jennings,528 enclosing a copy of a letter to the Premier. The gist of the letter was that Mr Plenty wanted any summons to be served by mail. 634 On 31 October 1978, Chief Inspector Jennings and Constable Will attended at Mr Plenty’s property in a further unsuccessful attempt to effect service of the summons. There was another acrimonious exchange between Mr Plenty and the police during which it was made plain that Mr Plenty would not accept personal service of the summons. 635 On appeal to the Full Court, it was Mr Plenty’s main argument that Constable Dillon was a trespasser on his land because he knew that his implied or tacit leave or licence to come onto the land had been expressly revoked.529 Whatever his motives, Mr Plenty adopted a strong stand that he wished the summons to be served by post. He made it plain to the police (this was conceded by the Crown) that he did not wish the police to set foot on his property. In so far as it was with in his power, he withdrew the common law tacit or implied leave or licence for members of the public (including the police) to enter upon his property. He did this in October 1978 when the third defendant (Jennings) attempted unsuccessfully to serve the daughter’s summons non- personally upon him. Mr Plenty ordered Jennings off the premises. He also wrote to the Premier and sent a copy of that letter to Jennings. In that letter he ‘required’ service of process by post. 526 Ibid at [28]-[29] per Basten JA. 527 (1988) 50 SASR 407. 528 There is no information contained in the judgment about the police stations at which these officers were based on their respective roles. 529 Plenty v Dillon (1998) 50 SASR 407 at 408 per White J. -- 157 of 166 -- [2024] SASC 97 McDonald J 154 636 Although in dissent on the determinative issue of the appeal, Cox J also expressed the view that on the evidence Mr Plenty had revoked the implied licence. His Honour said:530 In my opinion, the appellant had plainly withdrawn any implied licence to the police to enter his land for the purpose of serving a summons or notice on an occupant, and it has not been shown that there was any common law right which provided the police with an effective substitute for that licence. The application of the principles 637 It is clear from Wilson and Maynes v Casey, and to a lesser extent the Full Court decision in Plenty v Dillon, that in order for a person to revoke an implied licence to enter a residential premise there must be effective communication of that decision. A mere intent is insufficient, as is an intent accompanied by some nominal act that was unlikely to put the relevant member of the public on notice. Whether the relevant communication is sufficient will depend on the particular facts of a case, the category of the individuals to be excluded, the means of the communication and to whom the communication was made. 638 Maynes v Casey highlights that point. The first form of communication was temporally disconnected, remote in time and was not a clear expression of an intent to revoke the implied licence. The second form of communication was not directed to the respondents, nor were they provided with access to it. The final attempt to communicate took the form of signage at the property which was inadequate in terms of the size and positioning of the signs and consequently did not amount to an effective communication. 639 In this matter, the applicant’s communications took the form of written correspondence with SAPOL and a sign on a pillar adjacent to the driveway. 640 As to the written communications, on 23 July 2008 in a letter already referred to at [577], the applicant wrote to the Commissioner of police complaining about police attendances at his home.531 The letter included this further passage: We do not wish for any SAPOL member to attend my mother’s home under any circumstances; should any further breach of this not be adhered to (sic), we will be making an application for trespass to land as well as a potential negligence claim for breach of duty of care, should my mother be placed under any further duress on a full indemnity basis. 641 Chronologically, the next relevant correspondence before me is a letter from Anthony Wainwright, Acting Police Complaints Authority to the Commissioner dated 9 September 2009.532 That letter refers to an earlier letter and enclosures sent 530 Ibid at 415 per Cox J. 531 Exhibit A22. In the letter, the applicant makes a reference to a request made in “January last year” in a manner that tends to suggest that there had been some form of earlier communication. However, no evidence of that communication (if it occurred) was produced. 532 Exhibit A23. -- 158 of 166 -- [2024] SASC 97 McDonald J 155 by the Commissioner on 4 August 2009. The earlier letter and enclosures were not produced or tendered. 642 In his letter Mr Wainwright appears to be responding to a complaint made by the applicant. Mr Wainwright sets out the details of the complaint in his letter as follows:533 The complaint The complainant alleged that, on 26 June 2009, Senior Constable Abbott had unlawfully trespassed at his residence. He said that he had previously revoked the implied licence of police officers to enter his place of residence. He claims that this was a trespass which had no consideration for the rights of himself and his mother who, he says, was distressed by it and required medication. 643 In the letter Mr Wainwright acknowledges an Ancillary Report on the PIMS system raised on 23 July 2008 which makes reference to the applicant having withdrawn consent for police to enter onto his property. 644 In concluding the letter, Mr Wainwright advised that there would be no disciplinary action because the police officer who attended at the applicant’s house genuinely believed that she had authority to be there. Further, Mr Wainwright stated that it would appear that the applicant was instituting civil proceedings and that was the appropriate forum in which to have the issue determined. 645 On 5 December 2011, there was a further letter from Sarah Bolt, Police Complaints Authority to the Commissioner.534 I have already referred to this in passing. This is the letter that raises a complaint by the applicant about police attending at his house on 27 May, 7, 8 and 22 June 2010. In the letter Ms Bolt sets out in some detail the applicant’s history of dealings with SAPOL. She makes specific reference a further incident in June 2009 and that when the applicant was advised of the outcome in relation to the incident, he expressed concerns that such further trespasses would occur in the future. Ms Bolt notes “the PCA advised him that the relevant warning and ancillary report remained on SAPOL’s computer system”. 646 In the letter Ms Bolt set out the law in relation to the revocation of an implied licence to enter a property. In that context she makes some observations about the applicant’s circumstances.535 It is not in dispute that he has advised SAPOL of the fact he has revoked police officers’ implied licence to enter his property and this has been recorded on SAPOL computer systems. When a PIMS (Police Incident Management System) search is conducted on Mr Cosenza’s name the following message appears on the screen: 533 Ibid. 534 Exhibit A117. 535 Exhibit A117. -- 159 of 166 -- [2024] SASC 97 McDonald J 156 “Do not Approach Home Address, Ancil 09/L69651”, Ancil 09/L69651 is a reference to an ancillary report which indicates Mr Cosenza has withdrawn his consent for police to enter his property, that police should contact him by phone, and that he would complain if they came onto his property.” 647 Towards the end of the letter Ms Bolt summarised the situation: It is not in dispute that Mr Cosenza had revoked the implied licence police would otherwise have to enter his property. He has communicated this revocation of licence to individual officers and to SAPOL more generally. His revocation is specifically noted with his personal details on SAPOLs PIMS data base. He has repeatedly advised both SAPOL and the PCA of his concerns regarding police trespassing on his property, and he has sought advice on what more he can do to prevent such trespasses occurring. 648 On 6 March 2012 Ms Bolt wrote to the applicant advising him of the progress of his complaints.536 In that letter she advised that SAPOL should strengthen the message on the police data base with a view to reducing the risk of police committing trespasses in the future. She told him:537 Now when officers check your details a warning comes up advising them the implied licence to enter your premises has been revoked. It refers officers to an ancillary report that states the following: Dean Cosenza of 39 Glenira (sic) St Woodville South has revoked the implied licence for SAPOL members to attend his address. In the absence of a lawful authority to do so, members who go on to his property may commit a civil trespass and be subject to civil and Police Disciplinary Proceedings. The circumstances where officers will have lawful authority to go on to the property notwithstanding the revocation of the licence include: a) To affect an arrest, warrant pursuant to section 75 of the Summary Offences Act. b) Executing a warrant of apprehension. c) In the case of an emergency d) With the express permission of Dean Cosenza or other occupant of the premises. Attendance for the purpose of serving a summons or other general enquiries will not amount to a lawful authority. Guidance should be sought from the member’s supervisor before attending the premises. 649 In my view the applicant through his communications with SAPOL and the police complaints authority had clearly and unequivocally revoked the implied licence to enter his premises. 536 Exhibit A118. 537 Ibid. -- 160 of 166 -- [2024] SASC 97 McDonald J 157 What is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the revocation of the implied licence? 650 The next issue that arises for consideration is the significance of Mr Kluzek and Senior Constable Mitchell being unaware of the applicant’s revocation of the implied licence. There was no dispute that neither were aware of the applicant’s history with SAPOL and his revocation of the implied licence to enter his property. They had no previous dealings with him and did not know of the entry on the PIMS system. It was only after the relevant events that they became aware of this information. Also, as I have previously mentioned, neither Mr Kluzek nor Senior Constable Mitchell were asked about whether they saw the sign at the front of the applicant’s property. In the circumstances I am prepared to infer that they did not. Given the importance of the issue, had they seen the sign it would have been something that was raised in their evidence. Also, given the size and position of the sign, it would hardly be surprising for them to have not seen it or registered its importance or meaning. I will come back to the size and position of the sign when I come to deal with the question of damages. 651 The question that arises is that in circumstances in which SAPOL were clearly on notice about the revocation of the implied licence, does it detract from their liability that the two officers in question were ignorant of the situation? Ithink not. This is a very different situation to that in Maynes v Casey for two reasons. Firstly, although one of the respondents in that case was a partner in a law firm which acted for the Council, neither of the respondents worked for the Council, nor would it be expected that they would be privy to the Council’s day to day affairs. Also, whilst in Maynes v Casey the applicants wrote to the Council setting out their views about the legal entitlement of Council officers to enter the property without permission, this was no way near the extent of the communications that passed between the applicant and SAPOL. By May 2015 not only had significant correspondence passed between the parties but the applicant had already instituted an action against SAPOL for trespass. The applicant could not have been any clearer about his desires for police to not attend at his property. It was incumbent upon SAPOL to ensure that information was passed on to its officers. 652 I find that the four trespasses have been made out. Damages 653 The tort of trespass is actionable per se. It is the interference with basic interests that is the gist of the cause of action, rather than actual harm.538 This permits an applicant to bring a claim to vindicate their interests, regardless of whether the conduct leaves them any worse off.539 Compensatory damages are not only available to compensate for any negative physical, psychological, emotional or economic effects actually suffered by an applicant as a result of the wrong, but 538 Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 at 258 [19] per Kirby J. 539 Hill v Higgins [2013] NSWSC 270 at [36] per Harrison J, citing Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 at 654-5 per Gaudron and McHugh JJ. -- 161 of 166 -- [2024] SASC 97 McDonald J 158 damages may also be given for the interference with basic interests in and of itself, irrespective of whether actual loss was suffered. Such awards, serve to vindicate the importance of those basic interests which are the very objective of the law’s protection.540 This reflects that the principal concern of the law as it relates to trespassory torts is in maintaining basic interests inviolate, notwithstanding whether an interference results in actual harm.541 654 It follows that a wide range of damages are available in order to afford protection to those interests protected by the trespassory torts. By way of summary, nominal damages are available for transitory interferences; even a minor interference with basic interests shall be met with a remedy to mark the wrong. Exemplary damages have long played a significant role in trespassory actions, and an egregious interference must be met with a strong remedial response to reinforce that such interests ought to be respected. 655 There is no dispute that each trespass is a separate tort and damages should be awarded for each. 656 It is the applicant’s position that he is entitled to receive damages for each of the four trespasses and that he is also entitled to aggravated and exemplary damages. 657 The applicant submitted that the cases have established a “kind of tariff for trespasses of this kind – sometimes $20,000 and sometimes $25,000”.542 On that basis it was suggested that the applicant should be awarded $100,000 for the four trespasses.543 658 The respondent contended that this claim was excessive and that an award in the order of $8000-$12,000 for each trespass is more appropriate.544 In support of that submission reliance was placed on the decision of New South Wales v Ibbet,545 ($10,00 in general damages) and Shannon v State of New South Wales,546 ($3,000 for general damages). 659 The applicant also sought aggravated damages on the basis that the “anger, shock and humiliation felt by Mr Cosenza were a natural and probable consequence of the police intrusions; moreover, the likelihood of such a reaction was well known to SAPOL”.547 The applicant also relied upon the longstanding history between SAPOL and the applicant, that was such that SAPOL was aware 540 David Rolph, Jason N E Varuhas, Penelope Crossley and Michael Douglas, Balkin and Davis; Law of Torts (LexisNexis, 6th ed, 2021) 42 [2.73]. 541 Williams v Milotin (1957) 97 CLR 465 at 474 per Dixon CJ, McTiernan, Williams, Webb and Kitto JJ. 542 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [133]. 543 Ibid. 544 Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2. 545 (2006) 229 CLR 638. 546 [2015] NSWDC 69. 547 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [135]. -- 162 of 166 -- [2024] SASC 97 McDonald J 159 that this was the very kind of conduct which could cause or exacerbate the applicant’s already vulnerable state.548 660 Finally, it was submitted that the situation was compounded by the fact that each breach occurred separately and amounted to a separate incursion into the applicant’s proprietary rights. It was submitted that “each time Mr Cosenza announced that he opposed police presence on his property and reacted in a loud way, he was sending a message that it should not happened again – yet it happened again”.549 661 The difficulty with that submission is that it is at odds with Mr Kluzek’s evidence that he did not see or hear the applicant on the occasions that he attended at his house.550 662 The applicant submitted an appropriate tariff for aggravated damages in these circumstances was $10,000 for each trespass.551 The respondent submitted that this figure was excessive and if I arrived at the view that it was appropriate to award aggravated damages a more appropriate amount was a collective figure of $8,000 - $15,000.552 Again reliance was placed on Ibett where there was an award of $20,000 for aggravated damages. 663 Finally, the applicant submitted that there should also be an award of exemplary damages. The basis of that claim was expressed in the following terms:553 One might have thought since the High Court delivered its judgement in Plenty v Dillon that SAPOL would have acted with the same considerable care before trespassing onto the property of South Australians – but apparently, not so. The rights which Mr Cosenza was asserting are rights owned by each of us; he was entitled to assert them. Mr Cosenza did the right thing by negotiating a wording to be placed upon the SAPOL database in accordance with a proposal made by the police Ex A118. How that came to be ignored reflects a defect in SAPOL’s systems as well as the training and discipline of police officers. Each of Mr Kluzek and Constable Mitchell were able swiftly to get to the database after they had trespassed on the property. Police officers should be trained to check on these matters before they enter a property. (Emphasis in original) 664 It was submitted that the applicant should be awarded $25,000 for exemplary damages.554 665 It was the respondent’s submission that $25,000 was excessive and that in the event that I arrived at the view that exemplary damages should be awarded, a 548 Ibid at [136]. 549 Ibid at [135]. 550 T900. 551 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [138]. 552 Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2. 553 Written Submissions of the Applicant dated 16 February 2022 (FDN 260) at [140]. 554 Ibid at [141]. -- 163 of 166 -- [2024] SASC 97 McDonald J 160 sum in the order of $10,000 - $20,000 was more appropriate.555 The respondent again relied upon Ibbett ($20,000 for exemplary damages) and Shannon v State of New South Wales ($5,000 for exemplary damages). 666 There is some force in the matters that were raised by the applicant in support of the application for aggravated and exemplary damages. The applicant had made significant efforts to convey to SAPOL that he had withdrawn the implied licence and he had received a response that would have given him some comfort in that members of SAPOL had been put on notice of his attitude towards their entry onto his property. 667 There are however factors that weigh against the award of aggravated and exemplary damages. First of all, there are the circumstances in which the two police officers came to attend at the applicant’s premises. On each occasion there was a legitimate purpose for being there. They were unaware of the notification on PIMS. Mr Kluzek gave evidence that he believed that he had tacit consent to enter the property. He explained:556 I mean that I believed that it was like a common law thing. I was entitled to go to the door and at least knock on the door and if someone requested me to leave no worries I had to leave, but until that occurred, I was entitled to enter the property and at least, go to the door and attempt to make enquiries as to who was there. 668 There was also nothing untoward or inappropriate about the conduct of either police officer whilst they were there. They each only remained at the property for a very short time and never moved beyond the front doorstep. Mr Kluzek did not hear or see the applicant on each of his three attendances suggesting that either the applicant was deliberately ignoring Mr Kluzek or was in fact not at home. Whilst Senior Constable Mitchell had some success in managing to speak with the applicant that conversation was very short. There is nothing in the evidence to suggest that she in any way delayed her departure once the applicant made his wishes known. 669 The second matter that I take into account that weighs against awarding aggravated or exemplary damages are the limited efforts that the applicant made to put those who attended at his property on notice that he had revoked his implied licence to enter. To my mind, an extraordinary feature of this case is that despite the applicant’s vehement protestations about any member of the public entering his property, he did remarkably little to convey that message. There was one relatively small sign attached to the pillar to the left of the driveway. It was positioned in such a way that only people entering the property from a particular direction and angle would necessarily see it. Its appearance was such that it was not inconsistent with common signage to the effect of “no junk mail”. Even more significantly, the applicant did not take the easy and obvious step of closing the 555 Written Submissions of the Respondent dated 21 February 2022 (FDN 269) at Annexure D, 2. 556 T902. -- 164 of 166 -- [2024] SASC 97 McDonald J 161 driveway gates or securing any of the gates leading onto the property to ensure that his intentions were known. 670 Whilst there is no obligation on the applicant to do anything more than convey his revocation of the implied licence, his relatively feeble attempts to communicate that intent to any member of the public calls into question how genuine his motives were. 671 It is clear from the evidence before me that many unsuspecting members of the public and police have failed to see or appreciate the notice, have entered the property and, as a consequence, have ended up as the respondent in litigation instituted by the applicant. Although in his evidence the applicant claimed it was not about the money, and that he was happy with an apology,557 relying on just those matters that I have been made aware of, the applicant has received in excess of $35,000 as a result of various settlements. In circumstances in which all that was necessary to keep people off his property was secure his gates. 672 I award the applicant $10,000 for each trespass. 673 I turn to the question of whether I should award aggravated damages. Aggravated damages are ordinarily given to compensate an applicant when harm is caused to him by an unlawful act or conduct that was aggravated by the manner in which the act was done.558 As they are compensatory in nature they are awarded for injury to an applicant’s feeling “caused by insult, humiliation and the like”.559 674 It involves consideration of the conduct of the two police officers and SAPOL more generally and the impact that the four trespasses have had on the applicant. 675 As I have said these were four brief attendances at the applicant’s house, for three of which it is unclear as to whether the applicant was even home. In my view there is no appropriate basis upon which to award aggravated damages. 676 The applicant also seeks exemplary damages. Exemplary damages are rarely awarded. They recognise and punish fault although not every finding of fault warrants their award. Mayne and MacGregor on Damages provides a commonly cited description of exemplary damages:560 Such damages are variously called punitive damages, vindictive damages, exemplary damages and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only to be considered to be where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts with contumelious disregard of the plaintiff’s rights. 557 T179. 558 Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at 4 [6]; citing Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J. 559 Lamb v Cotogno (1987) 164 CLR 1 at 8. 560 H. MacGregor, Mayne and MacGregor on Damages (Sweet & Maxwell, 12th ed 1961) 196. -- 165 of 166 -- [2024] SASC 97 McDonald J 162 677 In my view the respondent’s conduct does not fall into this category. At worst it demonstrates inadequate systems and a need for further training. I also find that the applicant’s limited efforts to convey to those in attendance at his property that he revoked his implied licence contributed to the four trespasses. I decline to award exemplary damages. Conclusion 678 It follows that I award the applicant $40,000. 679 I will hear the parties on the costs consequences following these reasons. -- 166 of 166 --