Burke v State of Queensland [2022] QDC 128

DISTRICT COURT OF QUEENSLAND CITATION: Burke v The State of QLD [2022] QDC 128 PARTIES: DOMONIC MICHAEL BURKE (Plaintiff) v THE STATE OF QUEENSLAND (Defendant) FILE NO/S: D 41/19 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court of Queensland at Toowoomba DELIVERED ON: 24 June 2022 DELIVERED AT: Brisbane HEARING DATE: 6, 7, 8 April and 6 May 2022 JUDGES: Burnett AM DCJ ORDER: 1. The plaintiff’s claim is dismissed 2. Subject to any other order or agreement, the plaintiff pay the defendant’s costs of and incidental to the proceeding, to be assessed on the standard basis CATCHWORDS: TORT – trespass to person – (assault) -negligence – false imprisonment – malicious prosecution – misfeasance in public office – causation – breaking continuity between alleged conduct and subsequent detention – effect of bail order upon continuity POLICE POWERS – DETENTION – where the plaintiff was detained in the watchhouse following refusal to give breath specimen – where the plaintiff sustained injury during arrest by police – whether officers used reasonable force in the exercise of their powers under the Police Powers and Responsibilities Act 2000 (Qld) – whether the plaintiff was unlawfully trespassed upon DAMAGES – ASSESSMENT OF DAMAGES IN TORT – assessment of damages arising from trespass to person – negligence – false imprisonment – malicious prosecution COUNSEL: D M Favell for the Defendant -- 1 of 23 -- 2 SOLICITORS: D Burke appearing as self-represented Plaintiff Crown Law for the Defendant Introduction [1] The defendant claims for damages made up as general damages of $195,000, aggravated or exemplary damages $80,000, past economic loss $337,480, future damages to be assessed, future medical expenses of $50,000, and $5,500 for past medical expenses. His claim is based upon various heads as detailed in his amended statement of claim. They are best characterised by the defendant in its submissions as: 1. Trespass to person. 2. Negligence. 3. False imprisonment. 4. Malicious prosecution. 5. Misfeasance in public office. [2] The plaintiff’s claim arises from events which occurred in Toowoomba on 4 and into 5 April 2015. It is a complex history and its context is relevant. History [3] Late on the evening of 4 April 2015, the plaintiff was observed driving south along Holberton Street, Newtown when at about 11.58pm his vehicle was intercepted by police. A roadside breath test was administered and the plaintiff was subsequently detained by Senior Constable Winnett and Constable Burrell1 before being conveyed to the Toowoomba Police Station so his breath could be subject to a formal analysis. At the Toowoomba Police Station, a request was made that he supply a specimen of his breath. He refused and instead requested that he be allowed to provide a blood sample. That request was refused and the plaintiff was told he was required to provide a breath test. [4] At about 12.20am on 5 April 2016, Sergeant McDonald administered the machine for the plaintiff and requested he provide a specimen of his breath. At 12.35am, 12.40am, and at 12.45am requests were made and the plaintiff failed to provide a specimen of breath. Accordingly, he was arrested and told he would be charged with an offence of failing to provide a specimen of breath. Officers Winnett and Burrell took the plaintiff from the police station to the Toowoomba Watchhouse for processing. [5] At about 12.54am, in the course of the plaintiff being processed at the charge counter at the Toowoomba Watchhouse an altercation occurred. The circumstances of the altercation and its cause are central to the plaintiff’s action against the defendant. 1 Constable Burrell has married since these events and by trial had changed her name to Ackers. Except when discussing her evidence at trial she will be referred to as Constable Burrell. -- 2 of 23 -- 3 [6] The events at the charge counter were captured by CCTV from various angles, some of which included audio and the matters preceding, at the time of, and following the incident. Those events were the subject of oral testimony. [7] The video and accompanying audio reveals that the defendant had proceeded into the watchhouse accompanied by each of Senior Constable Winnett and Constable Burrell. At that time, the watchhouse sergeant, Sergeant Smith, was seated at the watch house counter in front of a computer console. His assistant, another police officer, Senior Constable Richards, was in his vicinity. The plaintiff, Senior Constable Winnett, and Constable Burrell proceeded to a point along a counter to the immediate left of the computer console as it can be seen looking at the CCTV footage and the plaintiff approached the counter. There was a conversation between him and the watchhouse sergeant, Sergeant Smith. At one point the conversation proceeded as follows: Sergeant Smith: Right so any (indistinguishable) you say Plaintiff: Oh, I said I wanted to get a blood test – Sergeant Smith: Oh, ok. Plaintiff: And I was refused it. SC Winnett: That’s nothing to do with the sergeant here, he’s the watchhouse keeper. Plaintiff: Well you were the one who refused me having a blood test. SC Winnett: That’s exactly right. Plaintiff: Yep. SC Winnett: (indistinguishable) a breath test. Just like the sergeant here we’ve got a process. Plaintiff: No, I’m telling you tellin’ you; you wanna stick your friggin’ nose in it, keep your nose out of it (those words can be heard to be spoken loudly by the plaintiff as he looks towards Senior Constable Winnett in an aggressive manner). I’m talking to him (at this point he turns away from Senior Constable Winnett and points to the watchhouse keeper, then he returns his glare towards Senior Constable Winnett, who had remained passive and commenced smiling. Constable Burrell watched on) not you you poxy cunt (at this point the plaintiff turned back to the watchhouse counter and directed his attention to the watchhouse keeper. Senior Constable Winnett continued to smile). Sergeant Smith: Listen mate – Plaintiff: You wanna smirk at me ya fuckin’ dog (at this point Senior Constable Winnett remains still not having moved from his original position but has a -- 3 of 23 -- 4 grin on his face suggestive of some amusement. At this point the plaintiff moves aggressively towards Senior Constable Winnett and props; concurrently Senior Constable Winnett moves towards the plaintiff). SC Winnett: Do not face up to me like that you understand (by the time this statement is made Senior Constable Winnett has grabbed the plaintiff and pressed him up against the counter and Constable Burrell is assisting him). Constable Burrell: Come on mate, settle, settle, settle, settle, settle down, settle down. Plaintiff: Fuckin’ smart arse cunt – Constable Burrell: Settle down, settle down, settle down (at this point the plaintiff is struggling against the counter. Senior Constable Winnett has his right arm around the plaintiff’s right arm and his left arm on the plaintiff’s forehead. Constable Burrell is seeking to restrain the plaintiff by holding on to his left arm and torso. The watchhouse sergeant has left his seat and has proceeded around the counter to presumably aid Senior Constable Winnett and Constable Burrell and the watchhouse keeper’s assistance is seen to be grabbing at the plaintiff’s arms to assist the other two officers in their restraint of the plaintiff). [8] At this point, there was a general melee with the plaintiff and the officers going to the ground and matters progressed from there. [9] It would appear that at some point the plaintiff collapsed. Ambulance officers were called and attended upon the plaintiff and following their assessment he was taken to the Toowoomba Base Hospital for further assessment. Their observations at the time were that he had “an abnormally high heart rate (over 100), high blood pressure and dilated pupils”. [10] At about 6:29am that morning the plaintiff was discharged from the hospital and returned to the Toowoomba Watchhouse. Between 6:29am and 7am he was subsequently charged with three offences namely: failure to provide a specimen (the drink driving offence which led to his initial arrest), serious assault of a police officer causing bodily harm (which arose from the incident at the watchhouse counter), and serious assault of a police officer (again another offence arising from the incident at the watchhouse counter). At about 7am he signed an undertaking as to bail which required him to report personally to the Ipswich Police Station on each Monday and Friday between 8am and 8pm and upon following the signing of the undertaking he was released. The plaintiff remained on bail between 5 April 2016 and 6 May 2016. [11] On 6 May 2016, the plaintiff was arrested and charged with five further offences. Two were breach of bail offences relating to his failure to report, one of obstruction -- 4 of 23 -- 5 which related to an alleged offence which occurred on that day in resisting an attempt to arrest him, and one of public nuisance related to circumstances surrounding his arrest on that day. Finally, there was a carriage service offence which related to allegations of abusive phone calls made to the Toowoomba Police Station between 20 April 2016 and 21 April 2016 concerning Senior Constable Winnett and Constable Burrell. He was arrested in respect of those offences at about 3:30pm on 6 May and taken to the Toowoomba Watchhouse. However, at about 4:24pm he was taken by police from the watchhouse to the Toowoomba Base Hospital for treatment and remained in the hospital until 9:45pm when he was discharged and returned to the watchhouse. He then appeared on Monday 9 May 2016 before being remanded in custody until Tuesday 10 May 2016. On 10 May 2016 he applied for bail but bail was refused and he was further remanded in custody. Subsequently on 21 September 2016 he made an application to the Supreme Court for bail which was refused by Justice Jackson. [12] On 28 October 2016, he came before the Toowoomba Magistrates Court in respect of eight charges (the three preferred on 5 April 2016 and the five preferred on 6 May 2016) and pleaded guilty to all charges. By that point he had been in custody for 176 days. A head sentence of 12 months was imposed in respect of the most serious of the charges. In addition, a six month suspended sentence was activated and the sentences imposed that day were ordered to be served cumulatively upon the activated six month suspended sentence. He had served 176 days in pre-sentence custody. That time served was the subject of a declaration and he was immediately released on parole. [13] He appealed the sentences imposed by the Magistrate. The appeal came on before this Court on 28 August 2017. On 8 September 2017, her Honour Judge Richards delivered judgment and ordered inter alia that the appeal be temporarily stayed and that the matter be remitted back to the Magistrates Court for consideration of an application to set aside his earlier pleas. When the matter went back to the Magistrates Court on 16 November the Magistrate set aside the plaintiff’s guilty pleas in respect of all charges (except for the carriage service offence). [14] On 28 September 2018, the QPS Prosecution Service determined that it was not in the public interest to pursue the plaintiff in respect of the first and second bail offences and subsequently no evidence was offered in respect of those charges. On 23 April 2018, the serious assault offence and the bodily harm offences, each being offences under the Code, were withdrawn and substituted with charges of obstructing police pursuant to s 790(1) of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’). However, it ultimately determined that as the plaintiff was charged in respect of those matters outside the limitation period applicable no evidence was offered in support of those charges. [15] The plaintiff went to trial in respect of the drink driving charge and was found guilty and sentenced to a conviction with no further punishment. A separate trial was conducted in respect of the first obstruction offence and the public nuisance offence which also resulted in the plaintiff being convicted. No further punishment was imposed. The plaintiff appealed those decisions. [16] The appeal before her Honour Judge McGinness was dismissed in respect of each of the drink driving offence and the public nuisance offence. His appeal in respect of -- 5 of 23 -- 6 the first obstruction offence was allowed and he was acquitted. An appeal to the Court of Appeal in respect of the decision of Judge McGinness was subject to an unsuccessful application for leave to appeal. [17] Despite that lengthy history, as I have earlier observed, the critical event was the momentary interaction between the plaintiff and Senior Constable Winnett in the watchhouse. It is from that that the plaintiff alleges his cause of action. [18] In his evidence, the plaintiff denies that he made any threatening gestures towards Senior Constable Winnett. He made statements in evidence in chief such as: “I wasn’t aggressive”2; “I was just using the elbow to get them – them hands off my face”3; “I didn’t elbow him directly in the chin or in the face or the cheek or whatever he’s claiming. My actions with me elbow were just to break the restraint … there was no violence from me.”4 [19] Later in cross-examination, he was shown the CCTV footage of events. At the outset he admitted that after the first body of offensive comments were directed to Senior Constable Winnett. He went back to the counter before then going back to Senior Constable Winnett but by that time leaning further into him.5 [20] This is entirely consistent with the CCTV. He accepted that until that moment Senior Constable Winnett’s stance did not change. His feet were unmoved and his hands remained behind his back. He accepted that it was only after he leaned further into Senior Constable Winnett that Senior Constable Winnett then engaged with him.6 However, he continued to state that it was immediately prior to that instant that Senior Constable Winnett said to him, “don’t ever stand up to me”.7 [21] At this point, two matters deserve comment. First, as the CCTV evidences, the plaintiff initially turned to Senior Constable Winnett and made remarks to him which were both offensive and aggressive. Senior Constable Winnett did not respond to that provocative situation. The second time the plaintiff turned and leant toward Senior Constable Winnett his advance was much more pronounced and followed immediately upon his aggressive and insulting remarks. In my view, the plaintiff’s second advance was threatening and Senior Constable Winnett would reasonably have interrupted it as such. [22] Secondly, the plaintiff is in error in his evidence when he stated that prior to Senior Constable Winnett engaging he said the words, “do not ever stand up to me”. [23] I’ve listened carefully to the CCTV as it is accompanied by audio. It is clear to me that those words were spoken as Senior Constable Winnett sought to restrain the plaintiff against the watchhouse counter, that is after he had responded to the plaintiff’s threatening behaviour and not before as the plaintiff’s asserts. [24] Generally I found the plaintiff a poor witness. He is understandably upset that he spent six months in custody before release under a sentence subsequently set aside. 2 T1-18 l 21. 3 T1-18 l 34. 4 T1-18 ll 39-43. 5 T1-46 l 24; T1-46 l 31. 6 T1-47 l 7. 7 T1-47 l 2. -- 6 of 23 -- 7 But his emotion is informed by views he holds against government agencies such as he expressed in his opening in the case and later in his written submissions. In essence, he complains about the CCC, QPS, and the courts. He maintains that QPS engaged in a “massive lie and massively exaggerated (the) prosecution case against (him)”. He suggested collusion between the QPS prosecutor in Toowoomba and the DPP. None of these wild allegations are substantiated. He alleged QPS engaged in perjury and in essence all of this is established by reference to the CCTV. However I do not accept the CCTV supports the allegations. [25] The evidence of Senior Constable Winnett is consistent with the CCTV. One point alone demonstrates this. The plaintiff says he never hit Senior Constable Winnett on the chin. Senior Constable Winnett says that the plaintiff elbowed him on the chin once he had the plaintiff up against the watchhouse counter. In the scheme of this litigation, this is a matter of no moment. This event occurred after the initial exchange. However, in my view, it provides a useful benchmark for testing reliability of witness’s evidence. In cross-examination, the plaintiff was taken through this part of the CCTV showing his elbow making contact with Senior Constable Winnett’s chin. He accepted his arm looked to be cocked,8 but when taken to the next frame he refused to accept the suggestion that his elbow had retracted as had Senior Constable Winnett’s face recoiled because of contact between the elbow and the face.9 [26] It is evident from a review of the running CCTV that this occurred. Even when this was put he maintained, in the face of the obvious, that “may have been – might have been a graze. He was never – never actually hit”.10 [27] Senior Constable Winnett said in his evidence that he thought the plaintiff was going to assault him.11 That is a matter which I have no hesitation accepting given the matters evident on the CCTV. Although his observations of the plaintiff’s aggressiveness are corroborated by each of Constable Ackers12, Senior Constable Richards,13 and Sergeant Smith,14 their evidence goes only to what they saw, not what Senior Constable Winnett thought. That matter aside, I am satisfied that the plaintiff’s threatening behaviour gave rise to an apprehension on the part of Senior Constable Winnett that he was about to be assaulted. His apprehension concerning an assault would have been heightened given the plaintiff’s uncooperative behaviour, abuse, and aggressive behaviour towards police while earlier being processed at the watchhouse. Assault/battery or trespass [28] The plaintiff claims he was unlawfully assaulted or trespassed upon or unlawfully battered or trespassed upon. His central submission was that Senior Constable Winnett went “hands on” unnecessarily. There is no doubt that Senior Constable Winnett’s action in seeking to restrain and restraining of the plaintiff constituted an assault. In the absence of some lawful justification the physical altercation between the plaintiff and Senior Constable Winnett and Constable Burrell would be capable of amounting to assault and battery. 8 T1-52 l 30. 9 T1-52 l 31. 10 T1-53 l 31. 11 T1-66 l 4. 12 T1-82 l 15. 13 T2-27 l 30. 14 T2-31 l 13. -- 7 of 23 -- 8 [29] However, the defendant says the interaction with the plaintiff was lawful because of s 615 of the PPRA and the fact that the force used by the officers was reasonably necessary. [30] Section 615 of the PPRA provides: “615 Power to use force against individuals (1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power. Example— A police officer may use reasonable force to prevent a person evading arrest.” [31] Section 615 of the PPRA imposes a test of objective necessity.15 The defendant bears the onus of satisfying that test on the balance on probabilities. [32] It was submitted for the defendant that in making such an assessment context is important with the assessment being realistic taking into account “the reality that the officer has to make a decision quickly, often in emergencies and under pressure.”16 Further that the matter must be judged by reference to the pressure of the events in the agony of the moment and not by reference to hindsight.17 Finally, arrests are frequently made in circumstances of excitement, turmoil and panic and it would be all together unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and from there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.18 [33] Those observations are in keeping with similar observations made in the Queensland Court of Appeal: Rowe v Kemper.19 [34] Further to the matters noted earlier, the evidence of Senior Constable Winnett was that when the plaintiff was being lodged at the watchhouse it was his responsibility to listen to the questions being asked by the watchhouse keeper and the answers being given by the plaintiff and assist in the administration of the prison as custody of the plaintiff was transferred from Senior Constable Winnett as arresting officer to Sergeant Smith, the watchhouse keeper. He observed the plaintiff was “becoming a bit argumentative”20 and the plaintiff turned towards him in an aggressive way and was swearing. He said he thought the plaintiff was going to assault him so he attempted to restrain the plaintiff against the counter and “then we’ve ended up in a scuffle, where Mr Bourke has elbowed me in the face”.21 [35] That evidence is entirely consistent with the CCTV footage that captured the incident. 15 Whitelaw v O’Sullivan [2010] QCA 366, [27]. 16 Walker v Hamm [2008] VSC 596, [55]. 17 Woodley v Boyd [2001] NSWCA 35, [37]. 18 McIntosh v Webster [1943] FLR 112, 123. 19 [2009] 1 Qd R 247, [84]. 20 T1-66 l 1. 21 T 1-66 ll 3-5. -- 8 of 23 -- 9 [36] I note in particular the plaintiff’s concession that he “leaned towards” Senior Constable Winnett,22 claiming that it was in response to Senior Constable Winnett crowding him and trying to intimidate him. However the CCTV footage does not support his assertion on that point. The CCTV footage reveals that Senior Constable Winnett remained stationary the entire time before the incident. The plaintiff can be seen to advance quickly and threateningly towards Senior Constable Winnett before propping. It is in that instance that Senior Constable Winnett can be seen to react and move towards the plaintiff. Further by that time it is well apparent that Senior Constable Winnett was committed to that cause, and that Constable Burrell sprung almost immediately to his aid. I do not accept that Senior Constable Winnett was baiting the plaintiff as he contends. While it is fair to state that from the CCTV Senior Constable Winnett had an apparent grin on his face (described by the plaintiff as a smirk), it is in my view more likely than not that Senior Constable Winnett’s facial expression, as he said, was merely one of laughing off the insults that had been cast in his direction by the plaintiff. [37] The plaintiff was plainly unhappy with his situation. It was evident from his demeanour at the outset including his statement to the watchhouse keeper well before these events occurred that he wanted a blood test and that Senior Constable Winnett had refused him one. His opposition and belligerent attitude to Senior Constable Winnett was plainly apparent by his remark directed to Senior Constable Winnett to “(not) stick your friggn’ nose in, keep your nose out of it, I’m talking to him not you, you poxy cunt”. While it might be thought that that comment was provocative (and clearly it was), nothing from Senior Constable Winnett’s reaction, at least evident on the CCTV, suggests that he responded to the provocation. Senior Constable Winnett’s response was reactive to the plaintiff’s aggressive move from his situation at the charge counter towards him; he was standing approximately one metre removed from the plaintiff. [38] Plainly, the conduct of the plaintiff was obstructive of the watchhouse keeper’s duty to process him in respect of the drink driving charge and I am satisfied on the balance of probabilities that the response of both Senior Constable Winnett and Constable Burrell involved the use of reasonable force. In any event, I do not think it is solely necessary to have regard to the PPRA. From my assessment of the evidence, Senior Constable Winnett’s response was a reasonable and proportionate response to the threat presented to Senior Constable Winnett and constituted an appropriate exercise of the right of self-defence. [39] I reject the plaintiff’s evidence concerning how events unfolded. He was moderately affected by alcohol on the night in question, and clearly bore animus toward the police. His behaviour at the time was emotional and the CCTV does not support his contention concerning how events unfolded. By contrast, I am satisfied the evidence of Senior Constable Winnett, Constable Burrell, and Sergeant McDonald, was balanced and is supported by the CCTV. Whilst it is clear that the plaintiff was assaulted, the assault was effected in self-defence and by Senior Constable Winnett supported by Constable Burrell in the context of them assisting Sergeant McDonald who was seeking to process the plaintiff in his duty as watchhouse keeper. Senior Constable Winnett’s response was not effected for personal reasons as submitted by the plaintiff and in my view he was not seeking to summarily punish the plaintiff by 22 T 1-25 ll 24-29. -- 9 of 23 -- 10 his response to the plaintiff’s assault upon him. Senior Constable Winnett was under no obligation to provide forewarning before he went to the aid of the watch-house keeper, indeed there would have been no time in the circumstances. The interaction with the plaintiff was necessary to assist Sergeant McDonald who was plainly being obstructed by the plaintiff’s behaviour and was justified by operation of PPRA. The plaintiff has not proved its action on this ground. Negligence [40] The plaintiff alleges that the police officers, in particular Senior Constable Winnett and Constable Burrell, had a duty to act in a way that did not cause him harm or injury and that their obligation was to take reasonable care for him in performing their duties. As was submitted by the defendant, it appears the plaintiff’s assertion seems to be that the initial physical altercation, that is at the counter, and the scuffle that followed amounted to a breach of duty. For reasons provided in respect of the first alleged cause of action, I do not accept that the evidence demonstrates there was any altercation giving rise to a general breach of duty. [41] As the defendant contends, the situation following the altercation is different. Plainly, once the plaintiff had been restrained and it was identified that he needed medical attention, police had a duty to act. They did, and their action in my view was reasonable. An ambulance was called immediately and he was released into the care of QAS members who transported him to Toowoomba hospital for assessment. While the plaintiff was in the custody of the defendant the defendant took all reasonable steps consistent with its duty of care, and on that basis the cause of action fails. [42] I note in the defence submission that, in any event, the cause of action would fail because of the plaintiff’s failure to prove damage. At its best, the plaintiff complains he suffered long term affects from the incident. While it is clear from the CCTV and the evidence that the plaintiff did lapse into temporary unconsciousness, the cause of that unconsciousness was not apparent. Although the plaintiff was non-compliant, once taken to the floor he was reasonably restrained. His lapse into unconsciousness does not appear to have been related to the manner of his restraint. Nonetheless there is no evidence to assist in determining that matter. Nothing about his restraint appeared excessive or unreasonable and in any event and aside from the temporary discomfort of being restrained, no damage ensued. In the circumstances no compensable damages occurred and the action would also fail on this basis. False imprisonment [43] The plaintiff claims that he was falsely imprisoned. To succeed in this action, the plaintiff must prove on the balance of probabilities (a) That he was intentionally imprisoned by the defendant; and (b) That the imprisonment was unlawful. The defendant bears the onus with respect to this element. [44] The defendant accepts that the plaintiff was intentionally imprisoned but says that the imprisonments were at all times lawful. [45] There are three distinct periods of imprisonment to be considered -- 10 of 23 -- 11 Immediate post-watchhouse incident [46] The first period is the seven hours between when the plaintiff was detained from about 12:45am on 5 April 2016 and released at approximately 7am that morning. [47] Between approximately 12:45am and 7am on 5 May 2016, the plaintiff was in custody in relation to the driving offence of failing to supply a specimen of his breath. Notwithstanding other charges and their disposition, ultimately the plaintiff proceeded to trial in respect of the driving offence and was found guilty. In due course, appeals to both the District Court and the Court of Appeal were unsuccessful. It follows that the plaintiff was lawfully in custody for that period as he was detained for that period in respect of that offence, in respect of which he was ultimately found guilty and convicted. The action fails in respect of the first period. Detention 6 May 2016 to 10 May 2016 [48] As noted earlier, the plaintiff was later arrested on 6 May 2016 and charged with five offences. Two of those concerned a failure to comply with his undertaking as to bail as it related to the undertaking entered into on 5 April 2016 in respect of the charge concerning his failure to provide a breath specimen. In addition, there were three further charges, one of which included a carriage service offence and the others being obstruction and public nuisance offences committed on 6 May 2016. By reason of the offences relating to bail, the police were entitled to arrest the plaintiff without a warrant because he was suspected of having breached a condition of his bail.23 Once arrested, it was open to the police to consider whether to grant bail under the Bail Act 1980 (Qld) (‘Bail Act’), assuming it was not practicable to bring the person before the court promptly.24 However because two of the offences were Bail Act offences the police were obliged to refuse bail unless the plaintiff showed that his detention was not justified.25 In this instance the plaintiff’s arrest occurred sometime after 3:30pm on Friday 6 May 2016. Given the time of day, it is I think appropriate to infer that “it was not practicable to bring [the plaintiff] before a court promptly”, and thus it was appropriate for police to consider whether bail ought to be granted. Bail was then refused as was inevitable having regard to s16(3)(d) of the Bail Act because the defendant was in a ‘show cause’ position. I infer he failed to show cause, and it follows that the plaintiff was lawfully imprisoned between 6 and 10 May 2016. Period 10 May 2016 to 20 October 2016 [49] On the morning of 10 May 2016, the plaintiff appeared before Magistrate Lee at the Toowoomba Magistrates Court. Initially he was not going to seek bail but changed his mind at the last minute. The magistrate then refused bail, observing materially his criminal history and in particular that he was at that time subject to a suspended sentence; there were appeals on foot in respect of that matter and that he had allegedly committed further offences whilst on the suspended sentence; and, he had allegedly committed further offences on bail. His Honour noted the plaintiff was in a show cause position and that normally “if not in show cause, a court must grant bail unless it makes a positive finding that you would be an unacceptable risk of reoffending or failing to appear”. He observed that because the plaintiff was in a show cause position, 23 PPRA s 367(3)(a)(i)(B). 24 PPRA s 394. 25 Bail Act s 16(3)(d). -- 11 of 23 -- 12 the plaintiff had to satisfy him why he should be released. He observed that “cause” had not been shown and accordingly he could not grant bail. Subsequently on 21 September 2016, the Supreme Court heard a further bail application brought by the plaintiff. On hearing the application, Jackson J refused him bail. [50] Any action against the state is limited only to that four days between 6 May 2014 and 10 May 2016 because from 10 May 2016 until his release in October 2016, his imprisonment was effective by operation of judicial order.26 However in respect of the period 6 to 10 May 2016, the decision to refuse bail was founded upon the exercise of a discretion in favour of the plaintiff only if the plaintiff showed that his detention was not justified. The plaintiff failed to discharge that burden. That is unsurprising in the circumstances, particularly given the plaintiff had been arrested in respect of his breach of undertaking, given only a month earlier, and because of his subsequent offending. [51] The plaintiff has not demonstrated in this instance that he was falsely imprisoned, and his cause of action on this ground fails. Malicious prosecution [52] The plaintiff claims that he has been maliciously prosecuted. He places particular emphasis on the CCTV footage and says that a “reasonable prosecutor” ought to have reviewed the footage and discontinued the prosecution in light of what it showed. In particular, he relied upon the subsequent disposition of those charges in support of his contention. [53] For the plaintiff to succeed on his malicious prosecution claim, he must establish: (a) The criminal proceeding (being the charges for bodily harm offences and serious assault offences) were instituted or maintained by the complaining officers, Senior Constable Winnett and Constable Burrell; (b) The proceeding terminated in the plaintiff’s favour; (c) The prosecution was commenced or maintained without reasonable or probable cause; and (d) The officers in initiating or maintaining the criminal proceeding acted maliciously. [54] It is accepted the first two elements are satisfied in the plaintiff’s favour, however the last two elements are in issue. [55] The defence observed that the plaintiff alleges there was no reasonable and probable cause to warrant bringing the charges in the first place. It also noted that the plaintiff took particular issue with the charges having been maintained after his lawyer made submissions to the Police Prosecution Service in August/September 2016. Accordingly, the court must consider the charges at various points in time. 26 Calabro v Western Australia [2012] WASC 418, [45]. -- 12 of 23 -- 13 [56] As a matter of principle, the test of whether there is reasonable and probable cause is to be approached in a subjective and objective way. In A v New South Wales, the plurality of the High Court said:27 “[T]he enquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause before 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?” [57] As was submitted by the defendant, the plaintiff’s complaint must be examined from the perspective of a malicious prosecution by a malicious complainant in this case, each of Senior Constable Winnett and Constable Burrell, and further the malicious prosecution being one vindictively pursued by “the system”. [58] In this case, the complainant was noted as Constable Helena Cooper. She was then a very junior constable, having only recently joined the police force. This was her first formal complaint and her involvement constituted, in part, a professional development activity for her. In undertaking the duty she consulted with her partner, then Senior Constable Michael Grace, and under his guidance, undertook the step of interviewing each of Senior Constable Winnett, Constable Burrell, Sergeant Smith and Senior Constable Richards, all of whom were relevant witnesses. [59] Senior Constable Grace was her partner on the relevant shift. There is no suggestion of anything but the random involvement of all parties with regard to these events. Of those witnesses whose involvement was integral to events their recollections were assisted by their own notes. For instance Senior Constable Winnett stated he recorded his recollection of events in his official police notebook shortly after events. Additionally he furnished a QPRIME or ‘PAC report’ concerning the incident. In that report (exhibit 10) it states, ‘[The plaintiff] become (sic) verbally abusive towards arresting officer raising his arm in a (sic) aggressive manner. Police have attempted to restrain [the plaintiff] against charging counter. [The plaintiff] has then struck out at police.’ In her PAC report Constable Burrell stated, ‘…[The plaintiff] turned around and elbowed SConst Winnett in the head and kicked Const Burrell in the shin’ (exhibit 12). Statements were obtained from each of those officers at a later time, but the information in the PAC report, supplemented by oral answers which I assume were commensurate with the PAC reports, would have been sufficient to support the charges. [60] She satisfied herself that the allegations as she understood them from the versions obtained from those witnesses supported the charges to be brought, namely the driving and assault charges, and then finally obtained approval from her shift supervisor to prefer the charges. There was close supervision of her at every step of the process by QPS members who were disconnected from the events. Importantly, at the time that the complaint was made, the CCTV footage which the plaintiff principally relies upon in support of this contention was not available to Constable Cooper. 27 A v New South Wales (2007) 230 CLR 500, 520 [58], as discussed in Irving v Pfingst & Anor [2021] QCA 280, [45]-[48]. -- 13 of 23 -- 14 [61] The first matter to be resolved is whether Constable Cooper had reasonable and probable cause to refer the charges concerning events at the watchhouse. Both charges arose under the Queensland Criminal Code 1899 (Qld) (‘Criminal Code’). The first for bodily harm and the second for serious assault. They are provided for under s 340(1)(b) and (a)(ii), serious assault of a police officer causing bodily harm, and s340(1)(b), “serious assault police officer”. The first charge concerned the alleged assault on Senior Constable Winnett, and the second concerned the assault on Constable Burrell. [62] The statements of the relevant witnesses were not before the court at that time. However the QP9 court brief summarised the information then on hand stating: “Police had then arrested [the plaintiff] and conveyed him to Toowoomba watchhouse where police have started to lodge him and his property as per procedure. [The plaintiff] became verbally abusive towards the arresting officer, SConst Brett Winnett, and turned to face S/C Winnett, and stepped forward towards him in an aggressive manner. S/C Winnett has attempted to restrain [the plaintiff] as he was increasingly becoming aggressive. At this time [the plaintiff] has lashed out and used his right elbow and struck S/C Winnett to the right cheek. Police have attempted to restrain [the plaintiff] further against the charging counter. [The plaintiff] has then struck out at police again, in kicking Constable Stephanie Burrell in the leg. As a result, police and [the plaintiff] have fallen to the ground. [The plaintiff] has continued to resist police whilst on the ground and a struggle ensued. [The plaintiff] continually thrashed his arms and legs about in attempts to attack police. S/C Winnett has suffered a large contusion on his left hip due to [the plaintiff] striking out and causing himself and police to fall to the ground. Police after a short time were able to restrain [the plaintiff] on the floor of the watchhouse in front of the charge counter. Police have then rolled [the plaintiff] onto his side, so as he was no longer facing the ground. [The plaintiff] has then begun to have what appeared to be a seizure. Medical assistance was sought and [the plaintiff] was then transported to the Toowoomba Base Hospital by QAS.” [63] The written word conveys the impression of a much more significant event than that which was revealed by the CCTV, principally by reference to the injuries sustained. [64] In DPP Reference No 1 of 1993; R v K (1993) 119 ALR 596, it was held that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of a duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein. There is in my mind no doubt that these events occurred whilst Senior Constable Winnett was acting in the execution of his duties. However, as Judge Richards determined upon watching the footage, the charge of serious assault occasioning bodily harm was not made out because the bodily harm which was alleged to be the bruise to the hip caused by the fall to the ground was not a direct consequence of the elbow to the chin, that being -- 14 of 23 -- 15 the assault complained of.28 As the appeal before Her Honour was an appeal against sentence and not conviction, her Honour was restrained by s 222(2)(c) of the Justices Act 1886 (Qld) concerning her disposition of the appeal. Ultimately her Honour stayed the appeal, not ruling on her assessment of the conviction, but invited the plaintiff to apply to the Magistrates Court for his pleas to be set aside. As noted earlier in the background, it was following Her Honour’s ruling that the charges of serious assault were withdrawn and substituted with the charges under s 790 PPRA for “offence to assault or obstruct a police officer”. Contrary to the plaintiff’s submission there was no negligence in Constable Burrell proceeding without having viewed the CCTV footage. [65] The QP9 was prepared before the first court date which was noted to be 10 May 2016. Constable Cooper gave evidence that the QP9 and charges were principally based upon entries by each of the relevant officers in QPRIME, together with information provided in the course of interviews with each of the relevant officers and the verbal information provided. Formal statements were not obtained from Senior Constable Winnett or Constable Burrell until July 2016, and a statement from Sergeant Brown was not obtained until August 2016. Furthermore the evidence was that the CCTV could not be quickly recovered by Constable Cooper as the investigating officer because of the various delegations in place and the need to obtain the approval of a more senior officer. Whilst that eventually occurred, Constable Cooper acted upon the information which was then available to her in determining to charge the plaintiff with the two counts under s 340 Criminal Code. [66] Constable Cooper said it was on the basis of that information in consultation with her supervisor that she preferred the charges. She satisfied herself there was sufficient evidence to establish each element of each charge using specimen charges and guidelines found in the QPS system.29 She made no recorded note of her conversations with the various witnesses but typed up a Word document which was then imported into other documents such as the QP9. That document was created in the QPRIME system prior to the end of her shift. It appears that once a task is saved in QPRIME the system itself generates other tasks and assigns them to other officers as appropriate. In this case each of the QPS witnesses were entered by Constable Cooper into QPRIME which in turn instructed them to prepare the formal statements ultimately submitted. [67] The shift supervisor, Sergeant McDonald, was the person responsible for assigning to Constable Cooper the duty of investigating, preparing and referring the charges. Constable Cooper was appointed because she was on shift and working with a more experienced police officer. Constable Cooper, as a junior constable, was deemed in need of the experience to be gained from this activity. The more senior police officer, Senior Constable Grace was an officer randomly partnered with Constable Cooper and again there is nothing to suggest he or Constable Cooper had any direct involvement with matters nor engaged in any improper collusion with other police officers concerning the processing of the charges. Constable Burrell was appropriately supervised. There is no evidence to suggest any failure of oversight of her by her supervisors, as the plaintiff contended. 28 Burke v Commissioner of Police [2017] QDC 227. 29 T 2-43 l 47. -- 15 of 23 -- 16 [68] In my view there was sufficient information to render it appropriate for Constable Cooper to prefer charges, that is to put the criminal law in motion. The recollections of Senior Constable Winnett and Costable Burrell were largely accurate although it is plain from the CCTV that some aspects of their recollection were some minor discrepancies on some detail. That said however, the discrepancies were not of great moment and in my view fall within the tolerance to be expected in the context of a witness to an event being called upon later to recall those events. Having seen each of those officers give evidence, I do not find that their evidence concerning events was dishonest or unreliable. As I have observed, any apparent disparity between their evidence and what can be seen on the CCTV falls within reasonable tolerance allowing for individual perception and recollection of events as they unfolded, given their individual participation. Plainly the focus of attention of a witness at the time of their participation in these events differed as each had a differing involvement as events unfolded. I reject the plaintiff’s assertions that the CCTV footage clearly contradicts the officers’ recollections. In some respects the footage is far from definitive, and whilst for instance, a kick cannot be clearly seen in the course of the footage, it is plain that the plaintiff was flailing about as he struggled and fell onto the floor. Whether or not a flailing leg constitutes a kick on the part of the plaintiff or was interpreted as a kick on the part of the recipient is of no moment in my view. The critical issue is that there was contact between the plaintiff’s leg and that of an officer. In the circumstances it was reasonably open for the attacked officer to interpret that contact as being malicious as she did. [69] It follows that I accept the recollection of the officers, particularly Senior Constable Winnett and Constable Burrell, was honestly provided to Constable Cooper. Upon the statement provided by them to Constable Cooper, it was reasonable for Constable Cooper to proceed with the charges she alleged against the plaintiff. Those recollections constituted a reasonable and probable cause in respect of those charges and the prosecutor properly interpreted them as supporting the charges. [70] Once all the material is collated it is subject to “a brief checker” and then submitted to prosecutions.30 The brief checker in this case was the shift supervisor for the day, Sergeant McDonald. Again, there is no suggestion he had any other connection with these events. The brief was sent to Toowoomba Prosecutions and beyond that Constable Cooper had no further dealings with the matter. She swore that she had an honest belief that she had undertaken the appropriate course in referring the complaints. I have no reason to reject her evidence on that matter and I accept it. [71] Sergeant McKenzie gave evidence of the processing of prosecutions through the Toowoomba Police Prosecutions cell. He was at the material time the case manager and officer. He recalls that, in respect of this matter, he dealt with Mr Bouchier, a solicitor, and in particular recalls receiving byemail a submission from him in respect of these matters. Those dealings occurred in August – September 2016. [72] Negotiations followed and in particular the following submission was made: “[The plaintiff] is charged firstly with failing to provide a specimen of breath, and two counts of serious assault. having viewed the footage and considered the statements of the officers, it is clear that [the plaintiff’s] assaults on the officers, one by elbowing and the other by 30 T2-49 l 28. -- 16 of 23 -- 17 kicking to the shin, were committed in the course of a struggle with police while they were trying to restrain him, and did not in fact cause any significant injury. The injury to Officer Winnett was caused by the fall to the ground of the struggling parties. In my submission, the nature of the defendant’s assault can be adequately dealt with as offences of assault police under the PPRA, to which the defendant would plead guilty.” [73] Concerning that submission, Sergeant McKenzie responded in writing: “In respect of the two counts of serious assault we are not prepared to consider reducing the charges. I would consider the hip injury quite a reasonable injury. Also, it arose because of the defendant’s attitude to Police and his actions on the night.”31 [74] In view of the submission and before he responded he said that he familiarised himself with the file. He accepts that he did not look at the CCTV. However because of the comments made by Mr Bouchier he considered Mr Bouchier raised no factual disputes. Accordingly he saw no need to review the CCTV itself. If there had been such a matter raised he says he would have examined the material closely to understand the points of difference. Otherwise, he stated in cross-examination,32 that in the exercise of his discretion he refused to reduce the charges because nothing Mr Bouchier submitted to him supported a reduction of the charges based upon the material which was then before him. Whilst he accepted that with the benefit of hindsight, informed now of other matters, he may have reached a different conclusion, the fact remains that Mr Bouchier’s email acknowledged the assaults alleged. Mr Bouchier sought to secure a reduction of the charges as he contended the outcome was not as serious as the charges suggested. His submission was directed to the significance of the injury and his submission that they only warranted charges under the PPRA and not Criminal Code. However, as Sergeant McKenzie stated, that it was not the test. Importantly, nothing was put to Sergeant McKenzie to suggest that the facts presented in the QP9 were in error. They were accepted, so there was nothing malicious, nevertheless intentionally malicious, in his decision. [75] I accept Sergeant McKenzie’s explanation. In my view nothing in the correspondence would have put him on notice that the plaintiff disputed the underlying assault. Sergeant McKenzie as the supervising officer would reasonably have concluded appropriately that there was no reasonable need to examine the CCTV footage in circumstances where the assault was admitted and the only contest concerned the nature of the injuries. In the circumstances there was reasonable probable cause. [76] The plaintiff believes the whole process constituted one large conspiracy. That is not the case. The process of charging him as police did followed the routine practices of the QPS. Each officer involved acted independently of any influence from any other officer. There is no evidence to support any malice on the part of police in preferring the charges and prosecuting the matter. The plaintiff’s claim on this basis fails. 31 Trial bundle (exhibit 1) at pages 73-74. 32 T2-66 ll 20-24. -- 17 of 23 -- 18 Misfeasance in public office [77] To establish a cause of action of misfeasance in public office, five matters must be established. They are: (a) An invalid or unauthorised act; (b) Done maliciously; (c) By a public officer; (d) In the purported discharge of his or her public duties; and (e) Which causes loss to the plaintiff.33 [78] This cause of action fails at the threshold for because the evidence does not demonstrate any malicious conduct on the part of either of the police witnesses, Senior Constable Burrell and Constable Winnett, the police investigator Constable Cooper or the senior prosecutor Sergeant McKenzie. Damages [79] In Bulsey & Anor v State of Queensland [2015] QCA 187McMeekin J provided a useful analysis of the relevant principles for damages in the context of false imprisonment.34 As was submitted for the defendant, the principles described by Lord Diplock in Cassell & Co Ltd v Broome (No 1) [1972] AC 1027 and referred to by McMeekin J in Bulsey are largely uncontroversial. They have been referred to and applied many times by Queensland Courts including in Coleman v Watson and Shaw & Ors,35 Eaves v Donnelly & Anor,36 and Hemelaar & Red v Walsh, Gough & State of Queensland.37 [80] In Hemelaar & Red v Walsh the Chief Justice (as she now is) said; “The nature of damages recoverable for torts of the kind relied on this case was explained by Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027 at 1124, as follows: “The three heads under which damages are recoverable for those torts for which damages are ‘at large’ are classified under three heads. (1) Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical 33 NT v Mengel [1995] CLR 307, 370. 34 [2015] QCA 187. 35 [2007] QSC 343. 36 [2011] QDC 207. 37 [2017] QDC 151. -- 18 of 23 -- 19 act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages’. (3) Punishment of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin calls ‘exemplary damages’ to emphasise the fact that their object is not to compensate the plaintiff but to punish the defendant and to deter him, and perhaps others from committing similar torts.”66 [119] In Wotton v State of Queensland (No 5) [2016] FCA 1457 at [1732], after referring to Lord Diplock’s description of aggravated damages in Cassell v Broome, Mortimer J said: “Another description of the function of aggravated damages was given by Windeyer J in Uren at 149, where his Honour said that aggravated damages ‘compensate the plaintiff where the harm done to him by a wrongful act was aggravated by the manner in which the act was done’. This passage was cited with apparent approval in Gray v Motor Accident Commission at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ)… The character of the conduct necessary for an award of aggravated damages was described by the High Court in Triggell v Pheeney [1951] HCA 23; 82 CLR 497 at 514 as lacking bona fides, or being improper or unjustifiable,” (emphasis added). [81] In summary, an assessment is required for compensatory damages for harm caused to the plaintiff by the wrongful physical act in respect of which the action is brought which involves putting a value upon the physical hurt, curtailment of liberty, false imprisonment and/or malicious prosecution; aggravated damages for injury to the plaintiff’s feeling caused by insult, humiliation and the like; and exemplary damages as punishment to the guilty to deter from any such proceedings to the future. [82] Each head of compensation constitutes damages at large. Two cases were submitted to be of some of assistance in the assessment of damages here. They were Eaves v Donnelly and State of Queensland38 and Hemelaar & Ors v Walsh & Ors39. [83] In Eaves, the plaintiff was unlawfully detained for approximately two and half hours following her unlawful arrest. Compensatory damages of $30,000 were awarded. In that case, the award made no allowance for pain and discomfort because then the Personal Injuries Proceedings Act 2002 (Qld) process hadn’t been followed. Here, the plaintiff’s claim is similarly limited because his claim for personal injury is statute barred by operation of s 11 Limitation of Actions Act 1974 (Qld). [84] Although a helpful decision, in my view it represents a much more egregious instance of misconduct which itself had its genesis in a longstanding animus between policing authorities and the plaintiff. [85] If I were wrong on my findings concerning liability then the conduct complained of here falls much closer to that considered in Hemelaar & Ors v Walsh & Ors. [86] In this case the plaintiff was lawfully under arrest. He was held as a matter of common practice in the watchhouse for four hours following his arrest for his own safety and 38 [2011] QDC 207. 39 [2017] QDC 151. -- 19 of 23 -- 20 I expect in accordance with the duty of care owed by the State to someone who’s level of intoxication reasonably represented a risk to both himself and the community. The plaintiff disputes he was intoxicated. However, in my view, the Queensland Police Service acted responsibly in assuming he was intoxicated because he had refused to submit to a alcohol breath analysis test. That is, the deemed position under Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’). Respectfully it would be a nonsense to apply a different standard between that which applies at the time at which a person refuses to supply a breath for testing (that is when the arrestable offence occurs) and the standard to be applied when processing that same person minutes later at the watchhouse counter. [87] Only a short time after processing commenced and following the intervention of the event complained of, the plaintiff was rendered unconscious by causes unknown. Irrespective of the cause, I do not consider any application of excessive force was a relevant factor. Following the plaintiff’s collapse, police immediately summoned Queensland Ambulance Service and the plaintiff was in turn assessed and taken to the Toowoomba Hospital for further assessment. Relevant to these events, the plaintiff made no direct complaint of injury save from minor discomfort. [88] In particular, in his submissions he stated that: “… I wasn’t going to take issue with the over seven hours I was forced to stay in custody but I will as it fits a pattern of unaccountable behaviour by police where they know they are untouchable & forever unaccountable as they break these laws every single day so I do take issue with being paraded around Toowoomba Hospital with handcuffs behind my back & shackles on for the entire seven hours which is equal to assault & battery so please can explain why they kept me in the cells at the watchhouse on return from the hospital when they were only entitled to hold me for four hours because police are in the habit of breaking rules because no one polices the police.” [89] Further like statements were made by the plaintiff in his submissions. [90] First, it is important to correct a number of matters. The evidence is that upon his return from the hospital to the watchhouse at approximately 6:30am the plaintiff was processed and subsequently released upon him entering into an undertaking as to bail at approximately 7am. If he was placed in a holding cell it would have been momentary. As more than four hours had lapsed from the time when he had refused to provide his specimen of breath for testing and his return to hospital there was no further need to detain him and it was upon that basis that he was granted watchhouse bail. The plaintiff’s submissions appear to be conflate these facts. [91] The plaintiff did not give evidence concerning the application of handcuffs to him at the time he was detained as the hospital. While I accept he may have been paraded through the outpatient’s section of the hospital in handcuffs as a matter of common experience he would have been placed in a bed partitioned at the very least by curtains from others and accordingly for the better part of the time he was at the hospital, should he have been handcuffed, then the indignity would have been confined to him and the treating staff. -- 20 of 23 -- 21 [92] The plaintiff was strictly in police custody for approximately seven hours, but the better part of that was spent as a patient under observation at the hospital. That said, regard is had to the matter of his presentation at the hospital as he says. In recognition, especially of the requirement for damages to vindicate the loss of personal liberty, rather than to signify fault on the part of the defendant,40 I assess compensatory damages at $7500. [93] Concerning aggravated damages I accept the plaintiff was embarrassed to walk in hand cuffs at the hospital, albeit that he probably knew no one who was then present, notwithstanding he may have felt degraded and anxious, particularly because he felt his ongoing detention was unfair and unreasonable. I allow $3000 for his feelings of the plaintiff by way of aggravated damages. [94] Finally, if I am wrong on my findings as to liability, the event has its origin in a momentary loss of composure by Senior Constable Winnett. The conduct of each other officer involved was lawfully in aid of what they believed to be a proper response by Senior Constable Winnett. Neither the watchhouse sergeant nor Constable Burrell can be criticised. Only a short time after this event unfolded, the plaintiff suffered a seizure which in turn lead to the intervention of the QAS and his ongoing detention. That conduct was entirely reasonable and appropriate. At no later time did any other officer including any member of the QAS or the hospital have any reason to believe that the initiating event was unlawful. It cannot be overlooked that this event was preceded by the most provocative conduct by the plaintiff directed toward Senior Constable Winnett. [95] Although as as a professional and experienced police office he would be practised at addressing gratuitous insults there is a limit. An award recognises his conduct falling below the standard expected warranting some punitive allowance. However the provocation was egregious and the loss of composure momentary. That factor mitigates the moral culpability warranting sanction. I assess exemplary damages in the amount of $1000. Economic loss [96] the plaintiff claims for past and future economic loss. The claim for past loss is founded in his detention between 6 May 2016 and 20 October 2016. As noted when addressing the agreed facts, the plaintiff was released from custody following the events of 5 April on his own undertaking as to bail. His subsequent loss of liberty approximately one month later had its genesis in later offending which included, among other things, a breach of his bail obligations in respect of the subject offending. If my findings on liability were in error, the causal link between that offending and his subsequent incarceration on other offences was broken and it follows no damages for past economic loss are recoverable in any event. Nonetheless, the plaintiff gave evidence that he lost an opportunity of employment, the opportunity appears to relate to an unskilled role for an unspecified period of time, including an inability to specify a start and an end date. The employment was described as a job opportunity with a cousin. The evidence was so scant as to render an assessment almost speculative. Nonetheless, doing the best I can, I assess past economic loss at $10,000. 40 Ruddock v Tyler (2005) 222 CLR 612, [140]-[114]. -- 21 of 23 -- 22 [97] He also claims an unspecified amount for future economic loss. However, there is, in my view, no evidence to demonstrate that any cause of action founded upon the events at the watchhouse would support any claim for future economic loss. By his own admission, the plaintiff is a man who suffers from significant psychiatric and/or psychological difficulties. When asked at the watchhouse what he did for a living, he provided an answer which was indecipherable. No evidence was lead concerning his employment history, and none was led of any efforts he has made to seek employment, nor any medical evidence to support any causal link between ongoing employment difficulty and the consequences of any ongoing effect of his imprisonment. I am not satisfied that he will suffer any future economic loss and reject the claim. [98] He further claims $50,000 account of future medical expenses. That claim appears to have its basis in an assertion that he suffered a psychological injury for which ongoing treatment is required. Again, there is no evidence from the plaintiff to demonstrate that he suffered or continues to suffer from a psychological injury, and in the absence of such evidence it is impossible to assess that loss. In any event, notwithstanding that matter, there is reason to think that he does have a pre-existing condition which complicates the process of assessment even further.41 A further difficulty confronting the plaintiff is to the extent that the first injury was suffered before the 27 October 2016. The claim is statute barred. [99] Finally, he claims $5,500 on account of damage to a tooth in gaol. In his submission he states that a prison officer pulled a chocolate bar from his mouth at some point, and that sometime later he noticed his tooth had blackened and that the nerve was damaged or dead, resulting in a deadened tooth. If that was indeed the case, the injury is too remote to the incident to be compensable by the defendant in respect of any successful claim for it. Summary [100] In conclusion, the plaintiff has not established on the balance of probabilities: (a) That he was unlawfully assaulted or trespassed upon by Senior Constable Winnett; (b) The Queensland Police Service was negligent in respect of the incident; (c) The plaintiff was falsely imprisoned for any period alleged; (d) The plaintiff was maliciously prosecuted in respect of the offence of bodily harm and/or serious assault; or (e) That the pursuit of the plaintiff involved misfeasance in public office by the commissioner. [101] It follows the plaintiff’s claim is dismissed. [102] Notwithstanding my dismissing his claim, I would assess damages as follows: general damages at $7500; aggravated damages at $3000; exemplary damages $1000. Orders 41 See Bird v State of Queensland & Ors (2013) QDC 186, [29]. -- 22 of 23 -- 23 1. The plaintiff’s claim is dismissed. 2. Subject to any other order or agreement, the plaintiff pay the defendant’s costs of and incidental to the proceeding, to be assessed on the standard basis. -- 23 of 23 --