Coleman v Greenland & Ors [2004] QSC 37

SUPREME COURT OF QUEENSLAND CITATION: Coleman v Greenland, Donaldson, Powers etc & The State of Queensland [2004] QSC 037 PARTIES: PATRICK JOHN COLEMAN (Plaintiff) v BRADLEY MICHAEL GREENLAND (First Defendant) and PAUL GAYLEN DONALDSON (Second Defendant) and BRENDAN JASON POWER (Third Defendant) and CONSTABLE BRADLEY ADAM BARDELL (Forth Defendant) and STATE OF QUEENSLAND (Fifth Defendant) FILE NO/S: 809/2001 DIVISION: Trial PROCEEDING: Claim for Damages ORIGINATING COURT: SUPREME COURT DELIVERED ON: 5 March 2004 DELIVERED AT: TOWNSVILLE HEARING DATE: 3-5 February 2004 JUDGES: CULLINANE J. ORDER: I give judgment for the plaintiff against the first defendant in the sum of $6,000 together with interest on $2,000 at nine percent for 2.2. years producing a figure of $396 and interest on $4,000 at nine percent for 2 years producing a figure of $792 a total of damages and interest of $7,188. I give judgment for the plaintiff against the second -- 1 of 21 -- 2 defendant in the sum of $500 together with interest at nine percent for 2 years producing a figure of $94.50 and a total of damages and interest of $594.50. I give judgment for the plaintiff against the fifth defendant in the sum of $7782.50 including interest calculated as above. I order the first and fifth defendants to pay the plaintiff’s costs of and incidental to the cause of action of 8 December 1998 to be assessed, such costs to be limited to the costs which would be recoverable if an action had been instituted in the Magistrates Court. I order the first, second and fifth defendants to pay the plaintiff’s costs of and incidental to the cause of action of 22 January 1999 to be assessed such costs to be limited to the costs which would have been recoverable if the action had been instituted in the Magistrates Court. In respect to the cause of action of the 14 November 1999 I give judgment for the third, fourth and fifth defendants against the plaintiff with costs to be assessed. CATCHWORDS: POLICE – WRONGFUL ARREST – LIABILITY OF CROWN – arrest without a warrant - where plaintiff arrested for failure to comply with directions given by officer – whether employer vicariously liable for acts of employees - where claims for assault and false imprisonment – whether excessive force used by police officers - where plaintiff claims injuries, mental suffering, disgrace and humiliation or loss of social status. DAMAGES – GENERAL PRINCIPLES – EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES – whether plaintiff is entitled to aggravated damages due to conduct of arresting police officers – whether plaintiff is entitled to exemplary damages. Criminal Code Act 1899 (Qld) s. 254, 255. Local Government Act 1993 (Qld) s. 1074 Police Powers and Responsibilities Act 1997 (Qld) s.35, 38(2), 113(1). Police Powers and Responsibilities Act 2000 (Qld) s. 198 Townsville City Council By-Laws Chapter XXXIX Vagrants Gaming and Other Offences Act 1931 (Qld) Cassell and Co Ltd v Bruin (1972) AC1027 at 1124-1126 Coleman v Kinbacher & Marinov (2003) QCA 575 Henry v Thompson (1989) 2Qd.R. 412 -- 2 of 21 -- 3 Melser v Police (1967) NZLR 437 Neal v The Queen (1982) 149 CLR 305 at 317 O’Connor v Police (1972) NZLR 379 Watson v Trenerry (1998) 100 I. Criminal Reports R. Wornes v Rankine (1976) Qd.R.85 COUNSEL: The plaintiff represented himself Mr Morzone acted for all defendants SOLICITORS: The plaintiff represented himself Crown Solicitor for all defendants [1] The plaintiff has instituted proceedings against five defendants claiming damages for unlawful assault and wrongful arrest. [2] The first four defendants are police officers and the State of Queensland is sued as a defendant liable for any award of damages against the first four defendants in the nature of compensatory damages. [3] The action is concerned with events which occurred on three days namely 8th December 1998, 22nd January 1999 and the 14th December 1999. [4] The plaintiff was arrested on each of those days in the pedestrian Mall situated at Flinders Street, Townsville. [5] The plaintiff in a case of this kind makes out his cause of action in assault by proof of the application of force by a defendant and makes out his cause of action for wrongful imprisonment by proof of being detained. The onus then moves to the defence to satisfy the Court that the actions were justified. Here reliance is placed upon the provisions of what was then s. 35 of the Police Powers and Responsibilities Act which counsel for the defendant considered provided greater protection than the relevant common law principles. [6] Section 35(1) provides (so far as is relevant) as follows: “Arrest without warrant 35.(1) It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons - (a) to prevent the continuation or repetition of an offence or the commission of another offence;” (d) to ensure the person’s appearance before a court; (h) to preserve the safety or welfare of any person, including the person arrested; -- 3 of 21 -- 4 (k) because of the nature and seriousness of the offence. (2) Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence under part 8 or investigating the offence. (3) Subsection (1) does not apply to a child.” [7] Reliance was primarily placed by the defendants upon (a). [8] It is desirable if I also set out the provisions of s. 38(2) and s. 113(1) of the Act which provide respectively as follows: “38(2) Also, for an arrested person who is not a child, it is the duty of a police officer to release the person at the earliest reasonable opportunity if - (a) the reason for arresting the person no longer exists or is unlikely to happen again if the person is released; and (b) it is more appropriate to take the person before a court by notice to appear or summons and the notice to appear or summons has been served on the person. and 113.(1) A police officer who arrests a person without warrant must, as soon as is reasonably practicable after the arrest, inform the person that the person is under arrest and of the nature of the offence for which the person is arrested.” [9] Section 255 of the Criminal Code is also relevant: “255.(1) It is the duty of a person executing any process or warrant to have it with him or her, if reasonably practicable, and to produce it if required. (2) It is the duty of a person arresting another, whether with or without warrant, to give notice, if practicable, of the process or warrant under which the person is acting or of the cause of the arrest. (3) A failure to fulfil either of the aforesaid duties does not of itself make the execution of the process or warrant or the arrest unlawful, but is relevant to the inquiry whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.” [10] In Wornes v Rankine (1976) Qd.R.85 a majority of the Full Court held that s. 255 applied to arrest for simple offences. [11] Section 254 of the Criminal Code provides that it is lawful for any person effecting an arrest and for any person lawfully assisting that person to use such force as may be reasonably necessary to overcome any force used in resisting such arrest. -- 4 of 21 -- 5 [12] In Coleman v Kinbacher & Marinov (2003) QCA 575 a case involving the present plaintiff, Chesterman J (with whom the other members of the Court of Appeal agreed) when faced with a submission by the plaintiff that his acquittal on a charge meant that his arrest on that charge was unlawful, had this to say about what fell for consideration when the question of the lawfulness of an arrest was in issue: 28. “The submissions by the applicant fundamentally misunderstand the law. It is not the law that an arrest is only lawful if ultimately the person arrested is found to be guilty of the alleged offence which was the basis of the arrest. 29. Section 198 of the Police Powers and Responsibilities Act 2000 (Qld) provides: 198 Arrest without warrant (1) It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons – (a) to prevent the continuation or repetition of an offence or the commission of another offence; … (g) to preserve the safety or welfare of any person including the person arrested; … 30. That section: (a) Gives a power to arrest dependent upon a police officer forming the belief prescribed by the section; (b) The existence of the power to arrest is distinct and independent from any ultimate determination of guilt; (c) Provided the police officer holds the requisite belief and the power of arrest therefore arises, the arrest is lawful notwithstanding that there is ultimately an acquittal of the defendant of the offence for which he was arrested and the arrest is lawful even if the police officer’s belief was founded upon some mistakes of fact or law.” [13] Section 198 is in the same terms as section 35 set out above. [14] Before turning to the factual details of each of the relevant dates it is desirable if I say at the outset something about the plaintiff and his activities as they provide a relevant background to and context for a consideration of the events the subject of these proceedings. -- 5 of 21 -- 6 [15] The plaintiff has for some time campaigned in support of or against various things but particularly has, according to his evidence, campaigned against what he sees as unreasonable restrictions upon the right of free speech. What has especially attracted his opposition are restrictions contained in Chapter XXXIX of the Townsville City Council’s by-laws in relation to the use of the Mall by people wishing to speak on particular subjects or to advance particular causes by generally drawing to the attention of the public the arguments which they seek to propound. [16] The plaintiff can properly be described as an agitator. He would not I think cavil with this description. He is, of course, entitled, as Murphy J said of another litigant in Neal v The Queen (1982) 149 CLR 305 at 317 to be an agitator and is, as was pointed out by that judge, as such in good company since many of the great religious and political figures of history have been agitators. [17] His right to be an agitator and to propound the causes that he seeks to propound is, of course subject to his obedience to the law. [18] It can, I think, be questioned whether the plaintiff accepts this limitation as a general proposition. In a pamphlet which forms part of Exhibit 43 and which appears to have been prepared during the period covered by the three dates whose events I am concerned with, he said: “I announce a new campaign aimed at the government’s budget bottom line, I will break any and all anti dissent laws that I find and now I will use the whole Mall to speak on Sundays and not just the speakers stone, and I will do this non-stop. I will refuse to obey police directions, and when arrested I will obstruct them peacefully they will have to carry me, they will have to use a van and place me in the watch house. They will take me to court and I will plead not guilty and go on trial, when the magistrate finds me guilty I will appeal to a higher court and then go out and do it again.” [19] He has been convicted of many offences against the by-law relating to the use of the Speaker’s Stone in the Mall which requires a person using it to obtain a permit first. The details of these offences are contained in Exhibit 41 and it appears that a number of other such offences were dismissed because the relevant officer of the local authority did not have the necessary authority. [20] The plaintiff claims to have been instrumental in having the Speaker’s Stone established in the Mall and generally in bringing to the attention of the wider community the restrictions of which he complains. [21] I think it can be fairly said that he sees himself as a warrior in an ongoing battle for the removal of restrictions on the right of free speech and I think it fair to say from my assessment of him and his evidence that he sees the battle as one not merely to be conducted passively by waiting for those who he perceives to be on the opposite side of this battle to come to him but believes that the battle should be taken to them. [22] It is reasonable to infer that those who are charged with the enforcement of the relevant bylaws and legislation regulating conduct of people in the Mall have a different perception of the plaintiff. -- 6 of 21 -- 7 [23] Before me the plaintiff gave evidence in a highly polemical manner and notwithstanding being rebuked on many occasions for doing so was inclined to resort to making assertions constantly throughout his evidence. 8th December 1998 [24] There is a good deal of common ground about the account given by the plaintiff and the first defendant as to what occurred on this occasion. [25] The plaintiff was arrested for failing to comply with a direction given to him by the first defendant pursuant to s.1074 of the Local Government Act 1993 as amended. This provides as follows:- “Direction power of police officers about Malls 1074.(1) A police officer may give a person who is in a Mall a direction to do or stop doing something if the police officer believes, on reasonable grounds, that it is necessary to give the direction to protect- (a) public safety or order; or (b) the rights of members of the public to enjoy the Mall; or (c) the rights of persons to carry on lawful business in or in association with the Mall. (2) When giving the direction, the police officer must warn the person it is an offence not to comply with the direction. (3) The person must comply with the direction, unless the person has a reasonable excuse for not complying with it. Maximum penalty - 35 penalty units. (4) This section has effect subject to the Peaceful Assembly Act 1992.” [26] The plaintiff was soliciting signatures to petitions which he had with him (see Exhibit 1). He was standing in the Mall and as people approached would approach them with the petition in his hand. The evidence of Detective Senior Constable Graham who walked through the Mall at the time was that in doing this the plaintiff did not appear to be interfering with the passage of people through the Mall and was not intrusive in his approach to people. [27] The first defendant when asked what he had observed of the plaintiff’s conduct (on a video within the Police Beat - a centre where the police have a presence in the Mall) said; “He appeared to be as Karen had told me, just soliciting signatures from passers by.” This is a reference to what he had been told by Karen Millican, an administration officer. [28] The first defendant said that he formed the opinion that he was infringing upon the freedom of people to enjoy the Mall and to walk about it by his soliciting signatures. -- 7 of 21 -- 8 [29] The first defendant had arrested the plaintiff for an offence against s.1074 approximately a month earlier and on that occasion it appears there had been some complaints about the plaintiff’s behaviour. [30] After referring to this the first defendant was again asked by his counsel about the opinion he formed on 8th December 1998 and he said: “The opinion I formed on 8th December was when my admin officer Karen came and spoke to me because she had had information given to her by a police officer that – another police officer, Detective Graham, that Mr Coleman was soliciting signatures in the Mall and – and public weren’t able to go about their business in the Mall.” [31] When he was asked if he could say precisely what Millican had said, he said that he could not. [32] Millican, when asked by the plaintiff in cross-examination, said that he was handing out pamphlets “peacefully.” She did not give evidence of anything she said to the first defendant. [33] It is apparent from Graham’s evidence that he believed that the plaintiff was not entitled to be in the Mall at all and that his soliciting signatures for petitions was in itself prohibited and it can be inferred from the evidence he gave that this is what he told Millican. [34] The plaintiff’s account of what occurred at the time of his arrest appears at page 15 of the transcript. “He came up and gave me a direction to leave the Flinders Mall for a period of 24 hours. I had a copy of chapter 39 of the Townsville City Council by- laws with me and I showed it to him. I tried to show it to him. I – I asked him, you know, “What for?” – you know? “Can you point out to me what I’m doing wrong and point to this law and – and tell me.” And he – he said to me, you know, it’s – in part that “It’s obvious to me that you’re not going to leave” and he’s – he’s grabbed by the arm and he said, “You’re under arrest for disobeying my direction for you to leave” in those – which I knew to be under the Local Government Act, ‘cause he’s arrested me previously at exactly the same spot on exactly the same seat in exactly the same circumstances a month before, sitting down talking to someone.” [35] The first defendant’s account appears in Exhibit 4. According to the first defendant he approached the plaintiff: “Q. Patrick as you know I am Senior Constable Brad Greenland from the mall police shopfront. Same scenario as before. I’m giving you a direction to leave the mall for a period of 24 hours. A. Under what section. I’ve got a copy. He showed me a copy of the Mall Act. Q. Mr Coleman are you going or not? -- 8 of 21 -- 9 The defendant then ignored me, turned toward the female and recommenced talking to her. A. Take these to … Q. Stand up Mr Coleman, you’re under arrest for disobeying my direction to leave the mall.” [36] The reference to “same scenario as before” is, according to the first defendant a reference to what occurred at the time the plaintiff was arrested by him a month earlier for failing to obey a direction to leave the Mall. On that occasion the evidence is that the first defendant told the plaintiff that if he failed to comply with the direction he would be arrested. [37] The first defendant was aware of his obligation to warn the plaintiff under s.1047(2). It was contended on behalf of the first defendant that the reference to the earlier occasion amounted to a warning for the purposes of s.1074(2) or at least constituted a basis for a reasonable suspicion that this element of the offence had been satisfied. [38] The plaintiff agreed that the first defendant said this to him and also gave evidence that he was aware that if he failed to comply with the direction that he had been given by the first defendant he would be arrested. [39] It seems to me that there are two reasons why the justification relied upon by the first defendant cannot be accepted. [40] Firstly, the evidence, as it emerged does not in my view justify the conclusion that there was a reasonable basis for a belief that the giving of such a direction was necessary to effect any of the protections for which subsection 1 of section 1074 provides. The approach by the plaintiff in the manner described by Graham and Millican could not in my view constitute a basis upon which an opinion could be reasonably formed that a direction to the plaintiff to leave the Mall was necessary to protect public safety or order, or the rights of members of the public to enjoy the Mall or the rights of persons to carry on lawful business in or in association with the Mall. In the absence of evidence of what Millican said I am not prepared to accept that the first defendant’s evidence that the “public weren’t able to go about their business in the Mall” was based upon anything he saw or was told. [41] As I have said the inference would appear to be open that Graham believed that the plaintiff’s mere presence in the Mall or at least his presence handing out petitions was unlawful and spoke to Millican because of this. [42] The evidence does not satisfy me that anything either observed by the first defendant or told to him constituted a basis for a reasonable belief of the kind necessary before a direction can be given. [43] I am not satisfied that there were reasonable grounds for the belief that the giving of the direction was necessary. [44] The second basis arises from the fact that the first defendant on any view of the evidence failed to comply with s.1074(2). This requirement is, it seems to me, mandatory and a pre-requisite to the commission of the offence for which the section -- 9 of 21 -- 10 provides, namely non-compliance with a direction. The first defendant was aware of his obligation to warn the plaintiff. [45] I reject the suggestion that the first defendant, by using the words “same scenario as before” as a reference to what had occurred on an earlier occasion can be regarded as having given the necessary warning under s.1074(2). Nor in my view could any suspicion that an offence against section 1074 had been committed be regarded as reasonable in these circumstances. [46] I am satisfied then that the plaintiff has made out his causes of action and assault and wrongful imprisonment on 8th December 1998. [47] The evidence shows that he was placed in the watch house at 2.15 p.m. and released at 3.10 p.m. (Exhibit 2A) 22nd January 1999 [48] The plaintiff’s account of what occurred this day appears at p. 43 of the record. Yes?—I went into the Flinders Mall. By – by this stage I was – I was very annoyed at everything that was happening and I had to reassert the right to free speech in the mall in a peaceful manner. And I had with me a three metre long wooden pole – flag pole, with a two metre by one metre bright red flag. And on my front and on my back I was wearing a – a cut out piece of cardboard with an A3 paper stuck on each side and it said, “You have the right to free speech in this town and then the right to remain silent.” I walked around the – around and ‘round the mall to get this – this across for probably 10 minutes, 15 minutes, and then I went and I stood outside the police beat, about four to five metres away from the door. Admittedly I banged the pole on the ground three times, bang like…and I stood there. I stood there. Constable Greenland came outside and he’s basically – he’s saying to me, “Do you” – you know, “do you want to come inside so” – “so we can talk about this?” I said, “What, am I being questioned am I?” And he goes, “Yes” and I said, “Well, I don’t want to be questioned.” ‘Cause he can’t arrest you for questioning – oh, unless you’ve done something really wrong. Anyway, he goes, “Well, right, you’re under arrest.” And I said, “What for?” He said, “Obstruct police too, if you’re not careful.” And he’s grabbed the flagpole, which was in my right hand. All right? And he’s starting to twist it. Constable Paul Donaldson, who is in the mall, Police Beat, at the same time- I didn’t even know Greenland was going to be there on that day. I was just asserting my rights to be there. Constable Paul Donaldson came out of the Police Beat. Greenland had a hold of the flagpole and my hand on the – on the right hand. Donaldson came and took hold of my left arm. Greenland was smiling at me like he was really enjoying it, and he’s struggling with me. I would not let go of his pole, and eventually he got it and threw it to the ground. Then they placed my hands behind my back and handcuffed me – handcuffed me. and I thought, “No.” At that stage there – I was still not very impressed with the arrest, in fact -- 10 of 21 -- 11 I was very offended by it. You know, here I was coming out to reassert the right of free speech.” [49] The plaintiff sat down on the ground after being handcuffed. He says that at this time he was abusing the police and accusing the first defendant of corruption. A number of people were in the vicinity and were showing an interest in what was occurring. The first defendant, according to the plaintiff, grabbed the plaintiff’s handcuffs and pulled him by the chain into the Police Beat and told the second defendant, then a constable, to get the police vehicle. [50] There is a video, Exhibit 27 which shows some of these events. The video is divided into a number of different segments with various parts of the Mall being able to be seen at the one time. There is what is described as some time lapse in what is shown. (Unfortunately, on my viewing of it, it does not help in resolving any of the matters in dispute here). [51] The second defendant went and got the police vehicle and the plaintiff was placed in it. [52] According to the plaintiff, just before he was placed in it, he was searched and the second defendant found a pair of toy handcuffs in his left trouser pocket. The plaintiff said he had these for possible use in some form of demonstration. [53] It is the plaintiff’s case then that he was not given any reason for his arrest by the first defendant. [54] The first defendant’s evidence is largely contained in his statement (exhibit 30) and in his notebook (exhibit 48). He says that he wrote the notebook up until the start of page 155 in the Police Beat. [55] His account is that he heard the plaintiff calling out his name from inside the Police Beat and walked to the front area of the office and saw the plaintiff with a long pole with a red cloth attached to the top portion. [56] He says that he could see the outline of what he believed to be a pair of handcuffs in the left shorts pocket of the plaintiff. There were a number of people around at the time and he asked the plaintiff to come into the office. The plaintiff asked him why and when he repeated the request the plaintiff asked if he was being questioned. According to the first defendant he said, “I’d just like to speak to you about what you’re doing here and those handcuffs” and that the plaintiff refused. He says that he then told him that he was under arrest and when the plaintiff asked him why he said, “Well, for possession of handcuffs and for obstruct as well if you’re not careful.” [57] According to the first defendant the plaintiff commenced to make allegations against him accusing him of being a liar and a perjurer and claimed that his arrest was unlawful. [58] The first defendant and the second defendant say that the plaintiff was then walked into the Police Beat and Millican, the administrative officer was told to lock the front doors. [59] It was at this time that the first defendant says that the plaintiff was handcuffed. -- 11 of 21 -- 12 [60] The plaintiff was continuing to call out in a loud voice that he had been unlawfully arrested. He was then walked by the first defendant out of the doorway where he sat down on the pavement. [61] The plaintiff continued to protest and refused to stand up. The first defendant says that he took him under the armpits and dragged him backwards into the Police Beat where the door was again locked by Millican. The Plaintiff denies that he was taken into the Police Beat twice. [62] The first defendant’s statement (exhibit 30) relates: “We then searched the defendant’s pockets for weapons and Donaldson located one pair of steel handcuffs in his left pants pocket. I then removed the placards from his person---“ [63] The account of the second defendant is contained in Exhibit 31. He gives an account of what the first defendant said up until the time he left the Police Beat. He did not hear anything the first defendant said after he left the Police Beat. [64] He says that he saw the first defendant struggling with the plaintiff over the flagpole and that he joined the first defendant and took hold of the plaintiff. At this time the plaintiff was abusing the first defendant. [65] He gives a similar account to the first defendant of the plaintiff being taken into the Police Beat twice, and on the second occasion, the second defendant went to get the police vehicle. [66] He said in his statement that before the plaintiff was placed in the police vehicle he searched the plaintiff and found the steel handcuffs in his left pocket. He repeated this in his evidence. [67] Millican gives an account which has the plaintiff abusing the first defendant prior to the struggle over the flagpole or the plaintiff being arrested. [68] She said that she thought she had seen the handcuffs as the plaintiff was brought through the front doors. She said: “I believe they’d just come out of his pocket from I believe. At that stage he wasn’t handcuffed.” [69] When the first defendant was asked by his counsel how it was he saw the handcuffs at the time he claimed to and where they were, he said: “Well just inside a pocket. If they’re not sheathed in a – in a container – in a – in a carry pouch, if you like it’s very distinctful. I carry mine the same way, sometimes. I believe they were in his left pocket but I – I can’t be sure of that. Okay. So they were in his pocket and you saw the outline of them through his shorts?—That’s right. Yeah.” [70] He was then asked: -- 12 of 21 -- 13 “Okay. And why didn’t you take them from him beforehand, given that that was the purpose for your arresting him?—Well, he wasn’t a threat at that time. He wasn’t going anywhere. That’s the opinion I formed. I had him secure. He was in secure custody so – when the car was brought into the Mall – because the car’s left outside the centre, I guess it would be 30 or more metres away – I searched him with a second person there and placed him in the car.” [71] The case for the defendants depends upon an acceptance that the plaintiff was arrested by the first defendant for possession of handcuffs. His evidence was, as will have been seen, that he saw the handcuffs in the plaintiff’s shirt and was aware that possession of such an item constituted an offence against the Weapons Act and arrested him for this. The relevant provision is section 67(1). [72] The evidence does not satisfy me that the plaintiff was lawfully arrested. It is, I think, quite implausible that the plaintiff would have been allowed to remain in possession of the handcuffs until he was searched by Donaldson prior to being placed in the police vehicle if this was the cause of his arrest. I also find implausible the suggestion that the handcuffs were visible to the first defendant inside the pocket of the plaintiff’s shorts. The second defendant, did not see them and it seems was not told about the handcuffs. [73] The second defendant’s evidence also raises, at the very least, serious doubts as to whether either defendant was aware of the possession of the handcuffs prior to them being found by the second defendant. The second defendant’s account is of finding them as the result of a search of the plaintiff’s body. [74] I prefer the second defendant’s account to the account of Millican who thought that the handcuffs may have appeared at an earlier stage. I think she is mistaken about this. I also think she is mistaken in her evidence that the plaintiff was abusing the first defendant by calling out allegations about him prior to his arrest. [75] The first defendant gave evidence, as I have said, that he wrote to the top of page 155 in his notebook when the plaintiff was brought into the Police Beat. This includes two references to the handcuffs and would be inconsistent with a scenario in which Donaldson found a hitherto unknown set of handcuffs when searching the plaintiff prior to placing him in the car. No other witness gives evidence of the first defendant writing in his notebook at that time and it is at least doubtful in the light of his evidence of what was occurring between him and the plaintiff whether the opportunity to write what he says he wrote existed. I do not find this evidence convincing. [76] The result is that the evidence of the first defendant does not convince me that the plaintiff was seen by the first defendant to be in possession of a pair of handcuffs and that he was informed that he was being arrested for possession of those. [77] The result is that the plaintiff has made out a cause of action of unlawful assault and also of wrongful imprisonment against the first defendant and unlawful assault against the second defendant. -- 13 of 21 -- 14 [78] On this occasion he claims to have been dragged roughly by the chain of the handcuffs but I accept the first defendant’s evidence on this subject and also that of Millican that he was in fact pulled by the arms. He claims to have suffered some bruising to the wrists and gives an account of being denied the opportunity to set out in detail in the watch house the injuries which he said he was suffering from. I accept that he may have suffered some bruising as a result of his resistance to the two defendants. He was on the findings I have made entitled to resist. [79] On this occasion he was in the watch house for approximately six hours. See Exhibit 2B. [80] He has given evidence of the privations of the watch house, the lack of privacy when using the toilet and being under surveillance at all times. These matters are all undisputed and are in accordance with practices that have been adopted at watch houses as a result of recommendations made following national inquiries. 14th November 1999 [81] The plaintiff says that on this day he went to the Mall carrying a flag and a number of placards. [82] He says that he sat outside the Police Beat away from the door leaning with his back against the window. It was a Sunday when a market is conducted in the Mall and there were quite large numbers of people moving through the Mall. There are a number of stalls opposite the Police Beat as well as stalls in other parts of the Mall with people moving between them. [83] He said that the third defendant who he did not previously know came to where he was and gave him a direction to move on. The plaintiff had spread his flag upon the ground in front of the Police Beat. [84] The plaintiff says that he told the third defendant that he didn’t have the power to give him a direction to move on and the third defendant showed the plaintiff a yellow piece of paper on which provisions of the bylaws had been written. One of the things that he says that he saw written on it was a reference to a provision with the number 8(2)(g) which he understood to relate to an offence of being in possession of a thing in connection with an unlawful demonstration or an unlawful public address. He said that after he told the third defendant that he didn’t have the power to give him any direction, the third defendant then went back inside. [85] The plaintiff then commenced to talk to a number of people in the vicinity and was talking to an elderly lady for approximately 20 minutes when the third defendant appeared and grabbed the plaintiff and dragged him into the Police Beat and also grabbed various items that he had with him. He says he was not told he was under arrest or given any reasons for being seized. [86] The plaintiff acknowledged that he yelled at the third defendant and abused him. The fourth defendant who the plaintiff also did not know came and assisted the third defendant. The plaintiff says he was thrown onto the floor of the Police Beat on his stomach very violently and was then handcuffed and the doors were locked. At this time the plaintiff says he was allowed to stand up. -- 14 of 21 -- 15 [87] The plaintiff said that when he was grabbed by the third defendant whilst talking to the elderly lady he struggled against him trying to stop him and grabbed the first defendant by the legs. [88] When the plaintiff was inside the Police Beat handcuffed he says he saw the fourth and fifth defendants looking at an item which he described as being like a photo album. The defendants were looking at slides containing regulations and laws. He says that he asked the third defendant what he was going to be charged with and that the third defendant said something like, “Well, something that will go to warrant.” [89] The plaintiff was placed in the police vehicle which had been driven into the Mall and says that this was done in front of “thousands of people” and he was then taken whilst sitting in what he describes as a cage to the watchhouse. [90] The account of the third defendant (a senior constable) appears in the statement which is Exhibit 49 and in the notes in his notebook which is Exhibit 50. The fourth defendant was then a constable. [91] According to the third defendant he saw the plaintiff at approximately 9.55 a.m. on the morning of 14th November via a closed circuit TV which had been set up within the Townsville Mall. He was watching the monitor in the Police Beat and says that he saw the plaintiff walking through the Mall waving around a long pole which had a number of multi coloured rags attached to the end of it. He says he saw a number of people duck to avoid being struck by the pole and its attachments. The passage of the plaintiff through the Mall is shown in a map (exhibit 51). [92] The defendant reached the Police Beat station and the third defendant approached him and said to him “Mate, that’s enough of that. You’re not doing that here.” [93] The plaintiff asked him what he was talking about and the third defendant said, “Waving that flag around and creating a disturbance.” [94] The plaintiff said, “I can do what I like. Your laws protect me.” and the third defendant said that he did not think so. [95] He saw the plaintiff sit down outside the Police Beat to the right side of the doorway. [96] In evidence he said that the plaintiff had placed the flagpole so that it was running perpendicular to the doorway of the Police Beat thus interfering with access to the Police Beat and past it and that where the flag and the placards were placed meant that people’s free access through this area was being interfered with. He said that the position of the plaintiff’s body alone would not interfere with such pedestrian traffic through the mall unless a large group of persons came through. [97] According to his evidence after he came back from speaking to the plaintiff the fourth defendant told him that he had seen an elderly lady trip on the cloth portion of the flag. The third defendant says that having been told this and given what he had observed, both of the plaintiff’s passage through the Mall and given where he had placed the flag and the various placards, he formed the suspicion that the plaintiff had committed the offence of disorderly conduct. He says that he informed the plaintiff when he arrested him that he was being arrested for disorderly conduct. -- 15 of 21 -- 16 [98] When asked in examination-in-chief, what elements constituted to his mind the disorderly behaviour he said: “It was the whole incident that I – basically the first time I went out and spoke to him it was more of a warning that his behaviour wasn’t going to be tolerated. And it – then I went back in and I – and I rang – I’d rung – I’d made some calls to find out a little bit more, I hadn’t really got the answers that I’d hoped for. I called out to Brad and told him that we had a problem and I asked him to come out.” [99] This was a reference to the fourth defendant. [100] The third defendant was, it would seem, looking for some provision in the bylaws or elsewhere which might provide for some specific offence against the plaintiff rather than the more general disorderly conduct charge. [101] He was asked why he arrested the plaintiff rather than giving him a summons and said at page 266: “Basically I’d given him - given him a warning that - that his behaviour wasn’t - wasn’t suitable for the area at - at the time. And then with - with the subsequent action of - of the elderly lady that Brad advised me about that I knew that he wasn’t going to desist, that he was going to continue with the behaviour so I had - basically I had no other option. A notice to - a notice to appear wasn’t going to be effective, which is the other method that we use these days.” [102] It appears that what, on his account, motivated him to act was when he was told by the fourth defendant of the elderly lady tripping on the flag. [103] The fourth defendant gave evidence of seeing the elderly lady trip on the flag but did not appear to have a clear recollection at the time of telling the third defendant that. [104] However it is clear that he gave an account in the Magistrates Court proceedings against the plaintiff of speaking to the third defendant immediately after seeing the elderly lady trip and the third defendant is clear that he was told this immediately before going out and arresting the plaintiff. [105] Bardell also seemed to be a little confused in evidence as to when he saw this occur in relation to the third defendant leaving the Police Beat to arrest the plaintiff. [106] It should be mentioned that both the third and fourth defendants say that during the whole time that the plaintiff was in front of the Police Beat he was calling out derogatory statements against police officers, largely in the same vein as what was written on the placards. [107] Once arrested he acknowledges he abused the third and fourth defendants. [108] I accept the evidence of the third defendant and the fourth defendant as to what occurred. I am satisfied that the third defendant arrested the plaintiff and told him he was being arrested for disorderly behaviour. There was cross-examination of both defendants as to what were said to be inconsistent accounts given in the Magistrates -- 16 of 21 -- 17 Court proceedings. Nothing that was said in these proceedings leads me to reject their evidence. I prefer it to that of the plaintiff. [109] The first question which arises is whether on the evidence it can be said that any suspicion on the part of the third defendant that the plaintiff committed the offence of disorderly behaviour was reasonable and secondly whether if it was it was reasonably necessary to arrest him, to prevent the continuation or repetition of an offence or the commission of another offence. [110] As to the latter it seems clear that the plaintiff intended to continue sitting where he was and with the placards and flag where they were. [111] The offence of disorderly behaviour is provided for in section 7 of the Vagrants Gaming and Other Offences Act 1931 as amended.. [112] In Melser v Police (1967) NZLR 437 Napier J, when speaking of this offence said: “I have no doubt that these words ‘disorderly behaviour’ refer to any substantial breach of decorum which tends to disturb or interfere with the comfort of other people who may be in, or in the vicinity of, the street, or public place.” [113] In O’Connor v Police (1972) NZLR 379 Richmond J said: “The Court has to apply an objective test to the conduct in question and determine as a matter of time, place and circumstances whether it was of a kind likely to cause serious annoyance or disturbance to some person or persons present.” [114] In this case the conduct of the plaintiff which is said to have, in the belief of the third defendant, constituted disorderly behaviour, was non-verbal conduct. The plaintiff says that he was engaging in a political protest in support of free speech and against certain conduct that he complained of, of police officers. The fact that this is the character of his conduct will not necessarily however prevent the conduct from amounting to disorderly behaviour although it is a relevant factor. See Watson v Trenerry (1998) 100 I. Criminal Reports R. [115] In my view the plaintiff’s conduct as described by the third defendant was capable of supporting a reasonable suspicion that his behaviour was disorderly. The matter has to be viewed against his earlier behaviour as he passed through the Mall with the flag causing people, as it was swung around behind him, to have to take evasive action. He then seated himself in a position which whilst not making it impossible for people passing through the Mall to avoid him, nonetheless would have created difficulties if as might be anticipated, significant numbers of people were walking at the same time through the area. Importantly he placed placards in a position where it could be expected that people would be impeded or inconvenienced and placed the flag in a position which created something in the nature of an obstacle to the entrance to the Police Beat. These actions have to be looked at in the light of the plaintiff’s conduct overall. It is plain from the contents of the placards and from his evidence generally that he was seeking in effect to challenge the police officers and was doing so by taking up a position which it can be assumed was one in which the placement -- 17 of 21 -- 18 of the flag and the consequent interference with access to the Police Beat were intentional. The fourth defendant saw one of the persons using the Mall, an elderly lady, actually impaired in her movements through the Mall. [116] The matter might arguably be towards the margin of what constitutes disorderly behaviour but in my view it was open to the third defendant to form a reasonable suspicion that the plaintiff had engaged in disorderly behaviour on the totality of the conduct that I have just described. There can be little doubt that the Plaintiff would have continued to act in the same way. [117] I am satisfied that the force which was used by the third defendant with the assistance of the fourth defendant did not exceed what was reasonably necessary to effect the arrest given the plaintiff’s resistance. [118] In these circumstances the plaintiff’s claim against the third and fourth defendants fails. DAMAGES [119] The plaintiff claims damages by way of compensatory damages, aggravated damages and exemplary damages. [120] The first two of these two categories of damages are compensatory. I take the explanation of Lord Diplock in Cassell and Co Ltd v Bruin (1972) AC1027 at 1124- 1126 as summarising the relevant principles: “The three heads under which damages are recoverable for those torts which damages are ‘at large’ are classified under three heads: (1) Compensation for 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 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 act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls ‘aggravated damages.’ (3) Punishment of the defendant for his antisocial behaviour to the plaintiff. This is what Devlin calls ‘exemplary damages’---” [121] This is not a case in which any pecuniary damages are claimed but the plaintiff claims actual injury in the form of bruising to his wrists in relation to the second incident. [122] Primarily what is involved in cases of this kind is compensation for injury to feelings, indignity, mental suffering, disgrace and humiliation or loss of social status. Damages -- 18 of 21 -- 19 may be aggravated where a defendant wrongly persists in the claim that there was justification for the assault and wrongful imprisonment. [123] Where exemplary damages are to be awarded, these should be awarded separately from compensatory including aggravated damages. See Henry v Thompson (1989) 2Qd.R. 412. [124] In this case the matter has to be assessed against the general background of the dealings between the plaintiff and police officers in the Mall including the defendants, against whom I have found a cause of action has been established. [125] As I have said the plaintiff was engaged in a long standing campaign in which his main theatre of operations was the Mall and in which his primary cause was what he saw as restrictions on free speech contained in the by-laws. [126] As I have also said the plaintiff did not simply wait for those whose job it was to enforce the law to come to him but sought to take his protest to them. It can be said that he sought engagement with the police officers concerned on the second of the two occasions in respect of which he has established a cause of action. [127] When I asked him why it was on the second occasion he went to the Police Beat and, as he said in evidence, banged the pole of the flag on the ground three times loudly he said, “It was a place where I wanted to protest. There’s nothing wrong with that. The protest was directed not just at highlighting the need to protect the human right of free speech, which is a political right, and that was a political message in itself, my protest was also against the police, and there’s nothing wrong with that. If I want to protest against the police I’ll protest against the police. No offence to Your Honour. That’s what – that’s what I was thinking.” [128] I have already referred to the contents of one of the pamphlets he distributed. [129] In another pamphlet in the same exhibit which refers to each of the incidents the subject of these proceedings and contains a good deal of abuse of the police officers involved he concludes: “I declare that I don’t give a stuff if anybody is offended by this leaflet - I’m having fun- the time of my life and you know what - they will do nothing about this leaflet because, it’s all true: And if they initiate defamation proceedings, all that will happen is they will be saving me money by bring what I want to court for me, free of charge - all I have to do is prove that its true. As usual any body who feels defamed or otherwise insulted by this leaflet can get stuffed and kiss my butt. Signed, Pat Coleman of an address known to police.” [130] When he was asked about this in evidence he said: “I’ve obviously a proud person, and when you’re engaged in a public and political campaign where, for instance, at any stage a reporter might turn up to get some really nice titbits you take a position – you have a public – I -- 19 of 21 -- 20 believe the word is – I’m looking for it – it’s a stance. It’s a posture, a public posture, all right, where I do say that I will resist and I do resist. But you need to – say if you’ve got a posture that you’re going to sue somebody for defamation if they say certain things about you, you’re giving them a warning. What I’m saying I’m having the time of my life try say to them: You’re intimidating me, but I’m not intimidated by you.” [131] Whilst the passage referring to the plaintiff having the time of his life was something which was published by him after the events that I have been concerned as well as his acquittal on a number of the charges that he has faced I do not think it an unfair description on my assessment of him of how he viewed the campaign he was engaged in during the whole of this time. [132] The plaintiff is, not to put too fine a point on it, a robust character and it is clear that he is not intimidated by the police or those in authority. [133] The plaintiff when arrested used abusive language to the police officers concerned and if there were people present, he raised his voice so those in the vicinity could hear him. Far from being in any way ashamed of having been arrested and taken into custody, he made this as public as it was possible for him to do through his pamphlets. [134] The case does not in my view involve the elements of indignity, mental suffering, disgrace and humiliation which the authorities suggest are the general ingredients of damages for these causes of action including aggravated damages. [135] The plaintiff it is true, exhibited indignation on both occasions particularly the second in the presence of the members of the public who observed what occurred but I do not accept that this represented a genuine state of indignation as opposed to part of the theatrics adopted by him in the course of waging his campaign. [136] None of this is to in any way diminish the seriousness of the infringement of his rights which occurred on each of those two occasions. It is simply to make the point that this is not a case of the kind with which the courts have frequently been concerned when dealing with unlawful assault and wrongful imprisonment. It is in fact far from it. [137] So far as damages are concerned it seems to me that on the first occasion the plaintiff spent a relatively short time in the watch house where he was of course subjected to certain privations and indignities. He did not suffer any injury of any kind. He was aware that he would be arrested if he did not comply with the direction. I assess his damages in respect of this cause of action in the sum of $2,000. [138] So far as the second cause of action is concerned, the plaintiff was detained for a significantly longer period (6 hours). I am satisfied he suffered some bruising of his wrists although I do not accept that it occurred as he suggested. It is not without relevance that the plaintiff in fact was in possession of a pair of handcuffs on this occasion and would seem prima facie to have committed the offence he was charged with. (It seems he was acquitted because the Magistrate exercised his discretion to exclude evidence of the search which revealed the handcuffs.) The first defendant persisted in an account which I have not accepted. I assess the plaintiff’s damages in respect of this cause of action so far as the first defendant is concerned in the sum of $4,000. -- 20 of 21 -- 21 [139] The role played by the second defendant was a relatively minor one being limited to assisting the first defendant to subdue the plaintiff and assisting in placing him in the police vehicle. I assess the plaintiff’s damages against him in the sum of $500. [140] I am not, given the circumstances in which the plaintiff’s causes of actions have arisen and the matters set out in paras. 166-184 convinced that this is a case in which exemplary damages should be awarded. The considerations which the High Court said in Lamb v Cotogno (1987) 164 CLR 1 called for an award of exemplary damages are not present in this case. [141] I give judgment for the plaintiff against the first defendant in the sum of $6,000 together with interest on $2,000 at nine percent for 2.2. years producing a figure of $396 and interest on $4,000 at nine percent for 2 years producing a figure of $792 a total of damages and interest of $7,188. [142] I give judgment for the plaintiff against the second defendant in the sum of $500 together with interest at nine percent for 2 years producing a figure of $94.50 and a total of damages and interest of $594.50. [143] I give judgment for the plaintiff against the fifth defendant in the sum of $7782.50 including interest calculated as above. [144] I order the first and fifth defendants to pay the plaintiff’s costs of and incidental to the cause of action of 8 December 1998 to be assessed, such costs to be limited to the costs which would be recoverable if an action had been instituted in the Magistrates Court. [145] I order the first, second and fifth defendants to pay the plaintiff’s costs of and incidental to the cause of action of 22 January 1999 to be assessed such costs to be limited to the costs which would have been recoverable if the action had been instituted in the Magistrates Court. [146] In respect to the cause of action of the 14 November 1999 I give judgment for the third, fourth and fifth defendants against the plaintiff with costs to be assessed. -- 21 of 21 --