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Hemelaar & Red v Walsh, Gough & State of Queensland[2017] QDC 151

Hemelaar & Red v Walsh, Gough & State of Queensland[2017] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

Hemelaar & Red v Walsh, Gough & State of Queensland [2017] QDC 151

PARTIES:

RYAN NICHOLAS HEMELAAR

First Appellant

AND

KEVIN MICHAEL RED

Second Appellant

v

PETER JAMES WALSH

First Respondent

AND

RENEE ANN GOUGH

Second Respondent

AND

STATE OF QUEENSLAND

Third Respondent

FILE NO’S:

5012/16 (appeal) and 149/17 (cross-appeal)

DIVISION:

Civil

PROCEEDING:

Appeal

DELIVERED ON:

9 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2017

JUDGE:

Bowskill QC DCJ

ORDER:

(1) The appeal is allowed.

(2) Set aside the orders made by the Magistrate on 5 December 2016, and make the following orders instead:

  1. Judgment for the first plaintiff (Mr Hemelaar) against the first defendant (Senior Constable Walsh) and the third defendant (State of Queensland) for $4,000.
  2. Judgment for the second plaintiff (Mr Red) against the first defendant (Senior Constable Walsh) and the third defendant (State of Queensland) for $8,000.
  1. The proceedings are otherwise dismissed as against the second defendant (Constable Gough).
  1. Interest on the damages awarded, at the rate of 8.5%, from 10 September 2013 on $3,000 (Mr Red) and from 17 September 2013 on $4,000 (Mr Hemelaar) and $5,000 (Mr Red).

(3) Direct the parties within 7 days to provide a proposed form of order, including as to costs, if agreed. If not agreed, the parties are directed to provide submissions (no more than 3 pages) in relation to the order as to costs sought, with the matter to be decided on the papers.

CATCHWORDS:

TORTS – FALSE IMPRISONMENT – appellants arrested for failure to comply with a move on direction, in circumstances where they were participating in a deemed authorised public assembly under the Peaceful Assembly Act 1992 – arrests found to be unlawful, as police did not have power to issue a move on direction – whether the Magistrate erred in rejecting claims based on the tort of assault and malicious (wrongful) arrest – whether damages awarded for battery and false imprisonment inadequate – whether the appellants were entitled to aggravated damages

Magistrates Court of Queensland Act 1921, ss 45, 47

Peaceful Assembly Act 1992, ss 2, 5, 7, 10, 11, 12, 13, 14

Police Powers and Responsibilities Act 2000, ss 45, 48

Police Service Administration Act 1990, s 10.5

A v New South Wales (2007) 230 CLR 500

Bayliss v Cassidy [1998] QSC 186

Cassell & Co Ltd v Broome [1972]  AC 1027

Coleman v Greenland & Ors [2004] QSC 37

Coleman v Watson & Ors [2007] QSC 343

Commissioner of Police v Rintoul [2003] NSWSC 662

Croucher v Cachia [2016] NSWCA 132

Eaves v Donelly [2011] QDC 207

Fox v Percy (2003) 214 CLR 118

Lehmann v Warren [2017] QDC 69

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98

Ruddock v Taylor (2005) 222 CLR 612

Spautz v Butterworth (1996) 41 NSWLR 1

Wotton v State of Queensland (No 5) [2016] FCA 1457

COUNSEL:

S Fisher directly briefed by the Appellants

P Rashleigh for the Respondents

SOLICITORS:

Crown Solicitor for the Respondents

Introduction

  1. [1]
    Kevin Red and Ryan Hemelaar are both part of an organisation called Operation 513, which Mr Red describes as an “evangelistic action group”.[1]  They were, on each of 10 and 17 September 2013, engaged in religious preaching on the corner of Ann and Lowe Streets, in Nambour.  They were issued with a direction to move on by Senior Constable Walsh (the first defendant/respondent), and when they failed to comply, were arrested by him and taken into custody.  On 10 September, Senior Constable Walsh was being assisted by Constable Gough (the second defendant/respondent).
  2. [2]
    They subsequently brought proceedings in the Magistrates Court against Senior Constable Walsh, Constable Gough and the State of Queensland, on the basis that their arrests were unlawful because the police had no power to issue a move on direction, and:
    1. (a)
      for Mr Hemelaar, seeking $35,000 in compensatory damages for wrongful arrest (on 17 September only), unlawful imprisonment, assault and battery, plus $20,000 in aggravated damages for injured feelings and $10,000 in exemplary damages, plus interest;
    2. (b)
      for Mr Red, seeking $45,000 in compensatory damages for “two times of wrongful arrest” (on 10 and 17 September), wrongful imprisonment, assault and battery; plus $20,000 in aggravated damages for injured feelings and $10,000 in exemplary damages, plus interest.
  3. [3]
    In each case, claims for malicious prosecution were abandoned at the end of the trial.
  4. [4]
    Their claim was tried before a Magistrate in Brisbane between 14 and 17 November 2016.  The Magistrate found that, because the activities of the plaintiffs on each occasion were deemed to be an “authorised public assembly” under the Peaceful Assembly Act 1992, the police did not have power to issue a move on direction (by force of s 45 of the Police Powers and Responsibilities Act 2000) and accordingly the arrest of each of Mr Hemelaar and Mr Red, on 10 and 17 September, was unlawful. For reasons delivered on 5 December 2016 the Magistrate:
    1. (a)
      gave judgment for Mr Red and Mr Hemelaar against Senior Constable Walsh, but awarded no damages;
    2. (b)
      dismissed the claim against Constable Gough; and
    3. (c)
      gave judgment for Mr Red and Mr Hemelaar against the State of Queensland, for the following amounts:
      1. (i)
        Mr Hemelaar - $2,500 (comprising $500 for battery (being handcuffed on 10 September) plus $2,000 for his false imprisonment;
      2. (ii)
        Mr Red - $3,000 (comprising $1000 for battery (being handcuffed on 10 and 17 September) plus $2,000 for his false imprisonment.
  5. [5]
    Mr Hemelaar and Mr Red have appealed this decision, under s 45 of the Magistrates Court of Queensland Act 1921. 
  6. [6]
    I gratefully adopt the analysis of Devereaux SC DCJ in Lehmann v Warren [2017] QDC 69 at [3]-[11], in turn referring to the decision of McGill SC DCJ in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, that an appeal under s 45 is an appeal by way of rehearing.
  7. [7]
    As such, the appeal involves a “rehearing” in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.[2] This Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[3]  Nevertheless, in order to succeed on such an appeal, the appellants must establish some legal, factual or discretionary error.[4]
  8. [8]
    Because of the nature of many of the grounds of appeal (which invite this court to find that the Magistrate erred by failing to draw the proper inference of fact) it is appropriate to make further reference to the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at [23] and [25], as follows:

“23 … On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’.  On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share…

25 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.  In Warren v Coombes, the majority of this Court reiterated the rule that:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’

As this Court there said, that approach was ‘not only sound in law, but beneficial in… operation’.”

  1. [9]
    Under s 47 of the Magistrates Courts Act 1921, on the hearing of an appeal, this court may, relevantly, do any of the following:
    1. (a)
      draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;
    2. (b)
      order a new trial on such terms as it thinks just;
    3. (c)
      order judgment to be entered for any party;
    4. (d)
      make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; or
  1. (f)
    make such order with respect to the costs of the appeal as it thinks proper.
  1. [10]
    The notice of appeal raised 26 grounds of appeal, challenging many aspects of the Magistrate’s decision.  Three of those grounds (grounds 20, 21 and 22, in relation to the Magistrate’s refusal to award exemplary damages) were abandoned.  Four of the grounds (grounds 23, 24, 25 and 26) were conceded by the respondents to the appeal.  Of those, the first three are concerned with the Magistrate’s decision, notwithstanding his finding of unlawful arrest and detention, to award no damages against the two police officers, but award damages only against the State of Queensland.  On the basis of s 10.5 of the Police Service Administration Act 1990 as it was in September 2013, it was accepted by the respondents that this was incorrect.  The last ground related to the Magistrate’s failure to award any interest on the damages, which the respondents also accepted was an error.
  2. [11]
    The respondents also cross-appealed, on the basis that the Magistrate erred in awarding Mr Hemelaar $500 for the tort of battery for being handcuffed on 10 September 2013, because Mr Hemelaar made no claim in respect of his arrest on 10 September.  Mr Hemelaar agreed that this was an error.
  3. [12]
    Having considered all of the evidence at the trial, including the video recordings made of the relevant events on 10 and 17 September 2013 and the transcript of the trial, it is understandable that the Magistrate erred in this regard, because it is apparent that:
    1. (a)
      on 10 September both Mr Hemelaar and Mr Red were arrested, and that handcuffs were applied to them both for this purpose; and
    2. (b)
      on 17 September, both Mr Hemelaar and Mr Red were arrested, but handcuffs were only applied to Mr Red.
  4. [13]
    Nevertheless, it is also clear from the statement of claim that Mr Hemelaar made no claim in respect of his arrest (or handcuffing) on 10 September (cf paragraphs 14 and 15 of the statement of claim, in relation to Mr Red’s arrest on 10 September).   In relation to the arrest of each of them on 17 September, the statement of claim pleads that both Mr Red and Mr Hemelaar were handcuffed (paragraphs 9(c) and 9(f)).  But this is not borne out by the evidence – which only shows Mr Red being handcuffed on 17 September, not Mr Hemelaar.
  5. [14]
    In any event, because of the matters in respect of which the parties agreed the Magistrate was in error, the appeal must be allowed to some extent at least.  Before addressing the remaining contentious grounds of appeal, I propose to set out the factual background, as it appears from the evidence before the Magistrate.

Factual background

  1. [15]
    On 16 August 2013, Mr Red, as the organiser for Operation 513, prepared notices of intention to hold a public assembly on, among other dates, each of 10 and 17 September 2013, on the corner of Lowe and Ann Streets, on the “footpath by closed shop” between 10am and 3pm, for a purpose described as “to preach the gospel of Jesus Christ”.[5]
  2. [16]
    It was not in issue that these notices were served on the Sunshine Coast Council and the Queensland Police Service.[6]
  3. [17]
    In relation to the notice concerning 10 September, the Council responded with a “temporary event approval”, indicating that Operation 513 (Mr Red) could hold the proposed assembly at another location, the Nambour Town Square, on the corner of Short and Lowe Streets, Nambour, between 10am and 2pm; that they were not to hand out tracks/leaflets; and not to use an amplifier.[7] 
  4. [18]
    No other step was taken by the Council; and no step was taken by the police in relation to the notices of intention.  Consequently (and for reasons that will be addressed further below) it was also not in issue, at the trial, that on each of 10 and 17 September, the assembly of Mr Red, Mr Hemelaar and their companions was deemed to be an “authorised public assembly” under ss 7 and 10 of the Peaceful Assembly Act 1992.[8]
  5. [19]
    On 10 September Mr Red, Mr Hemelaar and a third person, Mr Justin Kelly, were at the corner of Ann and Lowe Streets, preaching.  In response to complaints from the managers of the shoe shop on that corner (which had just opened the day before) and a café on the opposite corner, an officer of the Council attended and tried to get them to move to the place approved in the Council’s temporary event approval.  Having no success, the police were called.  Senior Constable Walsh (the first defendant) and Constable Gough (the second defendant) attended.  Each of Mr Red, Mr Hemelaar and Mr Kelly were arrested by Senior Constable Walsh after they failed to comply with a move on direction issued by him.  They were all placed in handcuffs.  Mr Kelly is not a party to this proceeding, and gave no evidence at the trial.
  6. [20]
    It was not disputed that, on 10 September, Mr Red was taken to Nambour Police station and kept in custody for just over 2 hours.  As already noted, Mr Hemelaar made no complaint in this proceeding about his arrest on 10 September.
  7. [21]
    One week later, on 17 September 2013, Mr Red, Mr Hemelaar and Mr Kelly (as well as a fourth person, Gavin) were again at the corner of Ann and Lowe Streets, preaching.  Complaints were again made, both to the Council and police.  Senior Constable Walsh again attended, this time with Senior Constable Hughes as his partner, but also accompanied by a number of other officers, including Constable Gough, and the senior officer at Nambour, Senior Sergeant Brayley.  Once again, Senior Constable Walsh issued directions to move on.  Gavin complied, but Mr Red, Mr Hemelaar and Mr Kelly refused, and all of them were arrested:  Mr Red was arrested with handcuffs; Mr Hemelaar and Mr Kelly were arrested without handcuffs.  It was not disputed that on 17 September Mr Red and Mr Hemelaar were taken to the Nambour police station, and then to the Maroochydore Watch house, being kept in custody for just over 5 hours.
  8. [22]
    Although they were both charged with contravening a move on direction from a police officer, those charges were later dropped.
  9. [23]
    The events on 10 and 17 September 2013 were recorded by the police, and also by a member of Mr Red and Mr Hemelaar’s group (on 10 September, Mr Hemelaar was holding the camera; on 17 September, Mr Kelly was holding the camera).  There is also some brief footage from 10 September recorded by the Council officer in attendance. This is all part of exhibit 1 from the trial.  The recordings total about 85 minutes on 10 September and 96 minutes on 17 September.  Both the appellants and the respondents urged me to watch exhibit 1 in determining this appeal, which I did after the hearing adjourned on 2 June 2016.

The video recording of 10 and 17 September 2013

  1. [24]
    I make the following observations, about what is depicted in the video recordings of the events on 10 and 17 September, before referring to the evidence given at the trial. 
  2. [25]
    On 10 September, the video recording shows Senior Constable Walsh accompanied by Constable Gough (who is recording the video) arriving at the scene, and Senior Constable Walsh speaking to a lady in the shoe shop as well as to the council officer, Mr Bell.  The appellants/plaintiffs’ recording of this day also shows the earlier engagement with the Council officer, when he tries to tell Mr Red and Mr Hemelaar that they do not have permission to be in that location, using an amplifier, and handing out leaflets, by reference to the Council’s “temporary event approval”. 
  3. [26]
    Senior Constable Walsh starts to speak to Mr Red just after 11am.  Mr Hemelaar is called over by Mr Red to record what is taking place.  Mr Red explains why he does not agree that the Council has the power to issue a “temporary event approval”.  Senior Constable Walsh explains that police have received complaints from business owners, that they are impeding their business, and that a move on order will be given. It is apparent from the video that Walsh speaks to someone on the phone, and from what he later says that it is Senior Sergeant Gary Brayley.  From this, and from his evidence at the trial, it is apparent he spoke to his senior officer, on a couple of occasions, about how to deal with the situation.  He then asks for all three (Red, Hemelaar and Kelly) to come together so that he can speak to them at the same time. 
  4. [27]
    The recording by police shows that Mr Red is uncooperative with Senior Constable Walsh, refusing to give his name and address until asked numerous times.  Mr Hemelaar is also initially uncooperative when asked for his name and address.  Senior Constable Walsh remains polite, despite the difficulties in dealing with, in particular, Mr Red.  At 11.20 Senior Constable Walsh gives all three a direction to move on from the location for 12 hours.  The direction is in clear terms.  Walsh is told in no uncertain terms by Mr Red that “it’s not going to happen”.  Mr Red says to Senior Constable Walsh, “you will have to arrest me”.  There is a debate about seizure of the amplification equipment, which resolves with it being agreed the police will seize the equipment and store it until the matter is resolved. 
  5. [28]
    The move on direction is repeated at 11.29, and Senior Constable Walsh says he will give them 5 minutes to comply.   Mr Red straight away starts handing his cards out – deliberately defying the police officer.  Around 11.31, Senior Constable Walsh again directs each of Hemelaar, Red and Kelly to move on, or they will be arrested.  Mr Red immediately starts to preach loudly, including complaining about the police and saying “please watch the press, we will be in it”.  Senior Constable Walsh asks Constable Gough to get another car down there.  He has his handcuffs in his hands.  Walsh continues to repeat the direction.  Mr Kelly can be heard to say “are you willing to take the risk of where your actions are going to lead” to Senior Constable Walsh.  At this point Mr Kelly is arrested.  
  6. [29]
    Senior Constable Walsh then approaches Mr Hemelaar, and says he will give him one last chance (more than once); Mr Hemelaar continues to argue with Walsh; Walsh tries again, but when Hemelaar continues to refuse to move on, arrests him and puts handcuffs on him.  I do not accept that Mr Hemelaar can be seen to be fearful at this point.[9] 
  7. [30]
    All the while, Mr Red is preaching loudly in the background.   After the other two have been arrested, and the police approach Mr Red, he says “I’m going to go freely now”.   The handcuffs are applied by Senior Constable Walsh.  Constable Gough briefly has her hand on Mr Red’s upper arm, as the handcuffs are applied by Walsh (11.35).  Mr Red says they are too tight and hurting his wrist, and the officers immediately loosen them.  Mr Red says “I’m happy to come quietly actually.  Now you’ve arrested me.  That’s all I wanted, to be arrested and be heard in court”.    I could see no fear, anxiety or anything of that kind on his face in the video.[10]  On the contrary, his behaviour was accurately described by Senior Constable Walsh, in his evidence at trial, as belligerent and argumentative.
  8. [31]
    Turning to the event a week later, on 17 September 2013.  On this occasion, Mr Hemelaar can be seen and heard in the background, standing on a step ladder, preaching, throughout the whole event.  Mr Red and Mr Kelly are present, handing out cards to people passing by.  Mr Kelly is video recording the events.  There is also a fourth person present, called Gavin.  
  9. [32]
    The recording shows Senior Constable Walsh issuing the move on direction to Mr Red – against the background of Mr Hemelaar preaching, Mr Red lecturing him about the law and Mr Kelly also providing commentary as he records the events.  Mr Red says to Senior Constable Walsh “I will prosecute you personally for arresting me today” and “I’m not going to move”.  He continues to argue with Walsh; Walsh continues to ask him to move on; Mr Red continues to threaten to take him to court.  Senior Constable Walsh makes a number of attempts to try to resolve the matter, as does Senior Sergeant Brayley, who is also present.  After many efforts, and about 25 minutes (from 11.37 when Walsh first speaks to Mr Red, to 12.04, just prior to which Mr Red says they are going to “keep going with our peaceful assembly today”), Senior Constable Walsh issues a further direction to move on to Mr Red.  Mr Red smirks/smiles at him, and puts his hands out, as if for the handcuffs.  He says “I will not move on”.  He continues to argue with the police, and again to threaten to take action against Walsh; he puts his hands out, and is arrested, with the use of handcuffs (at 12.06).  There is no way to interpret Mr Red’s emotional state on this occasion as involving fear, as was submitted on his behalf.[11]
  10. [33]
    Senior Constable Walsh then moves to Gavin, and gives him the same direction.  After seeking some clarification, and speaking politely to Senior Constable Walsh, Gavin says he will move on.  Senior Constable Walsh then issues the same direction to Mr Kelly, who continues to argue, and is eventually arrested.  
  11. [34]
    Senior Constable Walsh then approaches Mr Hemelaar (at 12.12), who is still on the step ladder, preaching loudly.  He asks Mr Hemelaar repeatedly to step down so that he can speak to him; Hemelaar ignores him, then argues with him and refuses to come down.  Senior Constable Walsh tries to give the direction.  Senior Constable Walsh repeats the move on direction, more than once.  As Mr Hemelaar continues to refuse to comply, he is also arrested.  Walsh goes to put the handcuffs on him, but the senior officer says there is no need for that, so he does not.  Likewise, I do not accept the submission that Mr Hemelaar was experiencing fear.  His behaviour evident in the video is not consistent with that.   He argues at length with Senior Constable Walsh, before being arrested, and continues after he is arrested.
  12. [35]
    Having watched the recordings on exhibit 1, I endorse the observation by the Magistrate that the video demonstrates that Senior Constable Walsh acted at all times in a calm, reasonable and patient manner towards the appellants/plaintiffs, and was met with argumentation and truculence, particularly by Mr Red.[12]

The evidence of Mr Red and Mr Hemelaar at trial

  1. [36]
    When giving evidence at the trial, in relation to his arrest on 10 September, Mr Red said that it was “quite stressful” being held in handcuffs, and said he “felt shame at people walking past” him; that he felt intimidated and fearful of what was going to happen to him, and that he was quite shocked that he was arrested; he also described feeling anxious and nervous being surrounded by so many policemen; but the “biggest one” was “stinging injustice” because he considered he was acting lawfully.[13]
  2. [37]
    Mr Red was also arrested on 17 September.  He said on both occasions when the handcuffs were placed on him he felt pain, due to having had an injury to his wrist, but as he also noted, and as is borne out by the video, the handcuffs were loosened by the police officers as soon as he mentioned this to them.[14]  He said his feelings on the second occasion were the same, referring to “ongoing anguish”.
  3. [38]
    The Magistrate said he did not find Mr Red to be a credible witness.  He described his evidence, specifically with respect to his assertions in relation to his feelings and apprehensions, as “manufactured and exaggerated”.[15]  He rejected his evidence of asserted injured feelings as a consequence of these events. As the Magistrate said “his conduct, argumentativeness and the threats made against police personally render his assertions of injured feelings unbelievable”.[16]  I defer to the Magistrate’s assessment of Mr Red’s credibility at the trial; however, I was able to see Mr Red’s conduct on each of 10 and 17 September for myself in exhibit 1, and I see no reason to disagree with the Magistrate’s assessment of it.
  4. [39]
    It was Senior Constable Walsh who arrested Mr Red on both occasions.  In terms of Constable Gough’s involvement on 10 September, all that Mr Red really said in his evidence was “she was there”.[17]  The video shows Constable Gough putting her hand on Mr Red’s right upper arm, while Walsh applied the handcuffs.  It is apparent she also assists Walsh to loosen the handcuffs. The Magistrate found that “any involvement of [Constable Gough] was minimal, incidental, and in the case of her adjustment of [Mr Red’s] handcuffs, at his request”.[18]  His Honour concluded that Constable Gough “had so little interaction with the plaintiffs on 10 September 2013, having merely been present for almost the entire episode and not having taking (sic) any step in relation to the plaintiffs, that the plaintiffs’ claim against her was without foundation”.[19]  I will return to this when dealing with ground 6 below.
  5. [40]
    Mr Hemelaar gave evidence that when he was arrested on 17 September, he was feeling fear, and was feeling ashamed because it was quite a public area with lots of people looking on and he was there, as he considered it, lawfully.  He gave evidence that he was in custody just over five hours.[20]  He said he felt his reputation was tarnished, and he was stressed as a result of the arrest.[21]  Mr Hemelaar had been preaching on this same corner on 6 and 13 August 2013, and on each occasion a move on direction had been given.  It was after that, he said, that Mr Red arranged for notices of intention to hold a public assembly to be given.[22]  Mr Hemelaar also gave evidence, in cross-examination, about being involved in a number of similar public assemblies, almost weekly, since 17 September, albeit in other locations, and of a private prosecution he had brought against another police officer, which was dismissed.[23]
  6. [41]
    The Magistrate was also unimpressed by Mr Hemelaar as a witness.  His evidence of injured feelings was also rejected by the Magistrate, having regard to Mr Hemelaar’s conduct subsequent to September 2013, of pursuing police officers personally, in this and other matters, and the Magistrate’s finding that he has “willingly and persistently engaged in identical conduct to these episodes on an on-going basis since September 2013”.[24]   Although on the appeal it was argued that it was irrelevant to take into account these subsequent events, in my view it was open for the Magistrate to have regard to this evidence of subsequent conduct in considering the emotional effect of the events on 10 and 17 September on Mr Hemelaar.  But in any event, the video evidence of Mr Hemelaar’s conduct on 10 and 17 September is not consistent with his description of fear, or injured feelings.  He, like Mr Red, although perhaps not as aggressively, presented as openly argumentative and defiant of the police officers; not fearful of them.
  7. [42]
    As already noted, Mr Hemelaar brought no claim in respect of his arrest on 10 September.

The other evidence at the trial

  1. [43]
    Evidence was led at the trial from people who had complained about the preaching activities of Mr Red and Mr Hemelaar and their companions.
  2. [44]
    Beverley Lange, the store manager of Shannons Shoes, the shop located on the corner of Ann and Lowe Streets in Nambour, outside of which Mr Red and Mr Hemelaar and others were preaching on 10 and 17 September gave evidence.  The shop had only just opened the day before 10 September.   She described the preachers, on 10 September, using an amplifier, and talking very loudly with it, enough that she couldn’t hear anybody on the telephone, and had difficulty hearing her customers.  She described people putting their heads down and walking, rather than stopping at the shop window or coming in.  She also described people coming into the shop and complaining to her about what was going on.  She made a complaint to the Council, and also spoke to the police.   She also described what occurred on 17 September, with the younger member of the group (Mr Hemelaar) standing on a stepladder and yelling out readings from the book he had; and the other members of the group, including Mr Red, handing out “notes”.  Once again, she described disruption caused by the noise, difficulty hearing people on the phone and in person, and upset people coming in to the shop. 
  3. [45]
    Jacqueline Mott, the owner the Central Express Café on the corner of Ann and Lowe Street in Nambour (opposite where the preaching was taking place) gave evidence of the disruption to her business on 10 September, as a result of noise being created by the preachers using an amplification device, making it difficult to hear customers; customers not wanting to spend time in the café; customers complaining to her that “you’ve got to do something about this”; and her takings being down about 20% on that day, as “no one wanted to sit there or be in that area of the street really”.    She described a similar situation on 17 September, when a ladder was used, and a person making loud noise, with difficulty hearing her customers, people not wanting to stay in the shop because it was not a relaxing situation, and her takings again down 20%.[25]
  4. [46]
    Samantha Moy, who was the manager of the coffee shop at the time, similarly described the loud noise created by the preachers on 10 and 17 September, and the effect it had on her regular customers.[26]
  5. [47]
    Sean Bachmann, the branch manager of Suncorp Bank in Nambour, which was located near where the appellants were preaching, described, on 17 September, receiving a few customer complaints that people preaching on the corner, and handing out cards, were blocking their way to come through to the bank.   He went outside to see what was going on.  He then called the police to complain, because it was “impacting people”, and “people were avoiding going across this side of the road rather than coming into the branch”.[27]
  6. [48]
    The Magistrate described the evidence of these business operators as sensible, clear and consistent and he accepted their evidence in full.[28]  The Magistrate made the following findings, by reference to the evidence of the business operators and what is depicted in exhibit 1, that:

“… I find, that on 10 September 2013 the activities of the plaintiffs caused a significant disturbance to the operations of Central Express Café and Shannon’s Shoes and therefore impeded the rights of those business owners to lawfully carry on their businesses.  I find that the activities of the plaintiffs had the same effect on 17 September 2013 with respect to Central Express Café, Shannon’s Shoes and Suncorp Bank, and again, impeded the rights of those business operators to lawfully carry on their respective businesses.”[29] 

  1. [49]
    There was no challenge on this appeal to these findings.
  2. [50]
    There was also evidence at the trial from others, including:
    1. (a)
      Peter Threapleton, who was working in an office overlooking the corner on 17 September, gave evidence of the loud religious preaching taking place.[30]
    2. (b)
      Megan Ashbrook-Thomas, a passer-by who made a complaint to the council on 17 September, described the preachers “yelling at everyone” and “being quite rude”.[31]
    3. (c)
      Nicole Doyle, also a passer-by, made a complaint to the council on 17 September, as she was upset with “the noise, the yelling, the fact that somebody thought that they should tell me what I should think”.[32]
    4. (d)
      Nicole Williams, another passer-by, described feeling frustrated, annoyed and intimidated as a result of her experience on 17 September of being approached by members of the preaching group, trying to hand her a bible, saying things to her, and videoing their interaction with her.[33]
  3. [51]
    The Magistrate observed, however, that having made the findings that he did, in relation to the plaintiffs’ activities impeding the rights of business operators, that it was not necessary for him to consider whether the activities of the plaintiffs interfered with the right of other persons to enjoy the natural environment.[34]
  4. [52]
    There was also evidence from Matthew Bell, who at the relevant time was a response service officer with the Sunshine Coast Council, with responsibility to investigate complaints that come into the Council in relation to the local laws.  He was involved in investigating complaints received from the shoe shop manager on one corner, and the coffee shop manager on the opposite corner, of Ann and Lowe Streets in Nambour, of troubles conducting their business due to the noise that was coming from people preaching on that corner.  On 10 September, when he had no success trying to speak to Mr Red about the “temporary event approval” given by the Council (exhibit 4) he called the police.  He was also present on 17 September, after further complaints were made to the council.[35]  Part of the footage included in exhibit 1 is video footage recorded by Mr Bell on 10 September. 
  5. [53]
    Turning then to the evidence from the police officers.
  6. [54]
    As already noted above, it was Senior Constable Walsh who arrested Mr Red (and Mr Hemelaar) on 10 September, after he failed to comply with a move on direction that Senior Constable Walsh had given him.  In his evidence at the trial, Senior Constable Walsh explained that he gave that direction as a result of being aware of a situation that had been occurring at Lowe and Ann Street in the previous weeks (involving Mr Red and Mr Hemelaar’s group preaching) from station briefings; and his understanding, including as a result of his discussions with his senior officer, Senior Sergeant Brayley, that if their actions impeded businesses, a move on direction was lawful.  Senior Constable Walsh described, on 10 September, arriving at the corner and speaking to the manager of the shoe shop, who informed him she had received a number of complaints.  As to why he gave the move on direction, he said that he believed s 48(2) of the Police Powers and Responsibilities Act applied, because two businesses had made a complaint, and the plaintiffs’ activities were interfering with those businesses.  He also explained that, having formed that view himself, he also spoke to Senior Sergeant Brayley, who also informed him that a move on direction was an appropriate course of action in the circumstances.[36]   
  7. [55]
    Senior Constable Walsh again attended this corner on 17 September, after a complaint was received from the manager of the Suncorp Bank.  He gave a move on direction on this day as well, which is evidenced in the recordings which are part of exhibit 1.     On this occasion, the direction was given to Mr Red, Mr Hemelaar, Mr Kelly and another man called Gavin.  It was again Senior Constable Walsh who arrested each of Mr Red, Mr Hemelaar and Mr Kelly on this occasion, after they failed to comply with the direction.  Senior Constable Walsh said he did not have any understanding or knowledge of the Peaceful Assemblies Act prior to these events, but in the course of his involvement in these events, read the Act, and spoke with his superior officer, Senior Sergeant Brayley, and acted on the advice he was given by him.  In particular, Senior Constable Walsh articulated his belief, based on his reading of the Act, that the object and the spirit of the Act is to allow peaceful public assemblies, but that a public assembly “is not there to do whatever you like” but for “there to be a peaceful assembly… and not to interfere with public order, public safety or the rights of another, namely, to operate a business”.[37]
  8. [56]
    Senior Constable Walsh arrested Mr Red on 10 September, and put handcuffs on him.   He explained in his evidence his reasons for using handcuffs, namely that Mr Red’s behaviour “was that of a person who kept moving around.  There was only me and Constable Gough.  There was three of them.  There was only two of us until the other two officers turned up.  We were outnumbered and under the OPMs – because of the number of people arrested and because of their – their behaviour that they had shown previously that they were not going to comply with any direction we gave, I felt that for the safety of everyone I had to – I had to handcuff”.  As Senior Constable Walsh also said, the handcuffs were not put on aggressively, they were put on carefully, and when Mr Red said his wrist was hurting, they were adjusted.[38]  That is borne out by the video.  Although he agreed Mr Red was not being violent, he described him as “being belligerent” and “constantly arguing”[39] and that he “was yelling and he was moving around and I didn’t know what he was capable of”.[40]  
  9. [57]
    Senior Constable Walsh was again the officer who issued the move on directions on 17 September, and who arrested Mr Red (using handcuffs) and Mr Hemelaar (without handcuffs) when they failed to comply.  On this occasion, he was working with Senior Constable Hughes; although a number of other officers were also present.
  10. [58]
    In relation to the arrests on 10 and 17 September, in which handcuffs were used, Senior Constable Walsh rejected the assertion put to him in cross-examination, that it was an excessive use of his powers as an arresting officer.[41]
  11. [59]
    Senior Constable Walsh also gave evidence that arresting Mr Red and Mr Hemelaar was “an absolute last resort, after I had tried every single thing to find a win-win solution”.[42]   The Magistrate found that on both 10 and 17 September Walsh “went out of his way in attempting to take the plaintiffs’ rights into account by attempting to negotiate an agreement with the plaintiffs as to where they should ‘preach’ that would satisfy them, the council and the complaining business operators, without progressing to the need to give the plaintiffs a direction”.[43] I have no difficulty accepting Senior Constable Walsh’s evidence in this regard, and the correctness of the Magistrate’s finding, as it is patently borne out by the video recording of the events on both 10 and 17 September.
  12. [60]
    Constable Gough was working with Senior Constable Walsh on 10 September.  The events were recorded by Constable Gough, and that recording forms part of exhibit 1.   She agreed that, in the course of Senior Constable Walsh arresting Mr Red, she put her hand on his shoulder; but denied that was her effecting an arrest, and said she did so because he stated his wrist was injured and she assisted in loosening the handcuff to support that.  That is apparent from the recording in exhibit 1.  She was also present on 17 September,[44] but played no role in arresting either Mr Red or Mr Hemelaar on that occasion.
  13. [61]
    Senior Sergeant Brayley, the officer in charge at Nambour police station also gave evidence.  He is the senior officer that Senior Constable Walsh spoke to on 10 September; and was present on 17 September.  He confirmed that he had received the notices of intention to hold a public assembly (for example, exhibit 2), but said it was decided there was no need to do anything in relation to them because the local government had jurisdiction to deal with the issue.[45]
  14. [62]
    I turn now to address the grounds of appeal.

Ground 1 (construction of the Peaceful Assembly Act)

  1. [63]
    Ground 1 contends that the Magistrate erred in law in ruling that s 5 of the Peaceful Assembly Act 1992 applies to an authorised public assembly under sections 6-16 of that Act.  The reliance on this ground of appeal by the appellants is illogical because:
    1. (a)
      the Magistrate did not make such a ruling; and
    2. (b)
      in fact, in reaching the conclusion that because the activities of the plaintiffs on 10 and 17 September were deemed to be an authorised public assembly, the move on direction given by Senior Constable Walsh on each occasion was unlawful, and therefore the arrests were unlawful,[46] his Honour has, it would seem, reached the opposite conclusion (the one contended for by the plaintiffs).[47]
  2. [64]
    There was no appeal by the respondents from that finding of the Magistrate.  However, the point having been raised by the appellants, and because it is relevant, in my view, to an assessment of the reasonableness of the police officers’ conduct on 10 and 17 September 2013, I make the following observations about this issue.
  3. [65]
    Before the Magistrate, the defendants argued that, although the assemblies on each of 10 and 17 September 2013 were deemed to be “authorised public assemblies” under ss 7 and 10 of the Peaceful Assembly Act 1992, because the procedural requirements for the giving of notice had been met, reading the Act as a whole (including taking into account the objects of the Act in s 2 and the limits placed on the right of peaceful assembly under s 5) and adopting a purposive approach to construction, “an assembly is not an authorised public assembly if it, inter alia, interferes with the rights of members of the public to enjoy the natural environment and the rights of persons to carry on business”.  Therefore, given the evidence at the trial, including of the interference with the business of the shoe shop, the café and the bank, the assembly, as it was conducted, was not an authorised public assembly.[48]
  4. [66]
    The significance of this emerges when regard is had to chapter 2, part 5 of the Police Powers and Responsibilities Act 2000, which contains the provisions dealing with directions to move on.   Section 45 provides that “this part does not apply to an authorised public assembly under the Peaceful Assembly Act 1992”.  Section 48(1) confers power on a police officer to give to a person or group of persons doing a relevant act[49] any direction that is reasonable in the circumstances.  Section 48(2) provides, however, that a police officer must not give such a direction that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of public safety; or public order; or the protection of the rights and freedoms of other persons (an example of which is the right to carry on business).
  5. [67]
    In considering the respondents’ construction, it is appropriate to have regard to the whole of the Peaceful Assembly Act 1992.
  6. [68]
    The long title of the Act describes it as “an Act to provide for the recognition, exercise and any necessary and reasonable restrictions of the right of peaceful assembly, and for related purposes”.  It is permissible to have regard to this, as an aid to construction of the Act.[50]  It indicates that the subject matter of the Act is not assemblies generally, but peaceful assemblies.
  7. [69]
    This is reflected also in the objects of the Act which are set out in s 2, as follows:

“(1)  The objects of this Act are –

  1. (a)
    to recognise the right of peaceful assembly; and
  1. (b)
    to ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies; and
  1. (c)
    to ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of –
  1. (i)
    public safety; or
  1. (ii)
    public order; or
  1. (iii)
    the protection of the rights and freedoms of other persons; and
  1. (d)
    to ensure that the right of persons to participate in public assemblies may be exercised without payment of a fee, charge or other amount for a licence, permit or other authorisation.”[51]
  1. [70]
    Reflecting the first three of these objects, s 5 of the Act provides:

“Right of peaceful assembly

  1. (1)
    A person has the right to assemble peacefully with others in a public place.
  1. (2)
    The right is subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of –
  1. (a)
    public safety; or
  1. (b)
    public order; or
  1. (c)
    the protection of the rights and freedoms of other persons.
  1. (3)
    In subsection (2)(c), a reference to the rights of persons includes a reference to –
  1. (a)
    the rights of members of the public to enjoy the natural environment; and
  1. (b)
    the rights of persons to carry on business.
  1. (4)
    Nothing in this section limits the power of a local authority to regulate pedestrian malls, but the power is subject to the right mentioned in subsection (1).”[52]
  1. [71]
    I adopt the following observations made by Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662 at [5] and [6], in relation to similar legislation:

“It is apparent that the Act is intended to strike a balance between competing rights – the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights…  besides the right of free movement, there are also rights of privacy and day to day activities on the part of persons who will not be involved in the proposed assembly…

When these competing rights collide one must give way to the other…” 

  1. [72]
    The Act confers and protects a right of peaceful assembly, by s 5, in respect of which no formal step needs to be taken. 
  2. [73]
    However, the Act also provides for a procedure in order for such an assembly to become an “an authorised public assembly”.
  3. [74]
    Section 7 of the Act provides that:

“A public assembly is an authorised public assembly if –

  1. (a)
    notice of intention to hold the assembly (assembly notice) has been given under section 8; and
  1. (b)
    the notice complies with section 9; and
  1. (c)
    the assembly is taken to have been approved under section 10.”[53]
  1. [75]
    Relevantly, under section 10(1), the assembly is taken to have been approved if, after the giving of the assembly notice –
    1. (a)
      the relevant authority (police or the council) has given a notice of permission for the assembly to the organiser of the assembly; or
    2. (b)
      if the assembly notice was given 5 or more business days before the day on which the assembly is held – a Magistrates Court has not made an order under section 12 refusing to authorise the holding of the assembly; or
    3. (c)
      if the assembly notice was given less than 5 business days before the day on which the assembly is held – a Magistrates Court has made an order under section 14 authorising the holding of the assembly.
  2. [76]
    As to the first of these options, under s 11, the relevant authority may, in a notice of permission given under s 10(2)(a) or (b), specify conditions to which the giving of the notice is subject (s 11(1)).  A condition may not be specified unless the relevant authority has had regard to the objects of the Act, the organiser has agreed, in writing, to the condition and the consultations required by s 11(4) have taken place (s 11(2)).  Reflecting the objects of the Act, and s 5, under s 11(3), a condition must relate to:
    1. (a)
      a matter concerning –
      1. (i)
        public safety; or
      2. (ii)
        the maintenance of public order; or
      3. (iii)
        the protection of the rights and freedoms of persons; or
    2. (b)
      the payment of clean up costs arising out of the holding of the assembly; or
    3. (c)
      the recognition of any inherent environmental or cultural sensitivity of the place of assembly; or
    4. (d)
      the application to the place of assembly of any resource management practice of a delicate nature.
  3. [77]
    But it seems what the relevant authority cannot do, by such a notice, is give permission for the assembly to be held somewhere else – which was the effect of the council’s temporary event approval in this case (exhibit 4).  If the relevant authority wants to prevent the assembly occurring in the place indicated in the assembly notice, the situation depends on how far in advance the assembly notice is given.
  4. [78]
    Where the assembly notice is given 5 or more business days before the day of the proposed assembly – the effect of s 10(1)(b) and ss 12 and 13 is that the onus is placed on the relevant authority, to apply to the Magistrates Court for an order refusing to authorise the holding of the assembly.  The Magistrate may, by order, refuse to authorise the holding of the assembly, or specify conditions that are to apply to it (s 12(3)).
  5. [79]
    Where the assembly notice is given to the relevant authority less than 5 business days before the day of the proposed public assembly, the onus is on the organiser to apply to the Magistrates Court for an order authorising the holding of the assembly (s 14).
  6. [80]
    In practical terms then, if an assembly notice is given 5 or more days in advance and the relevant authority does not take steps to obtain an order from a Magistrate, the assembly will be deemed to be an authorised public assembly.  That is what occurred here.
  7. [81]
    Although there is a right to peaceful assembly conferred and protected by the Act, the benefits of becoming an “authorised public assembly” include (there may be others) the availability of the immunity conferred by s 6(1) of the Act, which provides that:

“If a public assembly –

  1. (a)
    is an authorised public assembly; and
  1. (b)
    is peaceful; and
  1. (c)
    is held substantially in accordance with –
  1. (i)
    the relevant particulars;[54] and
  1. (ii)
    any relevant conditions;[55]

a person who participates in the assembly does not, merely because of the participation, incur any civil or criminal liability because of the obstruction of a public place.”

  1. [82]
    Another benefit is the operation of s 45 of the Police Powers and Responsibilities Act, referred to above.
  2. [83]
    So the question is, in any case where an assembly is an “authorised public assembly”, whether that is because of:
    1. (a)
      permission being given by the relevant authority, under s 10;
    2. (b)
      a Magistrate making an order, whether on the application of the relevant authority or the organiser; or
    3. (c)
      the deeming effect of s 10, where no action is taken by the relevant authority in response to an assembly notice – which is what occurred here,

what if in fact the conduct of the assembly does affect public order, public safety or the rights of others?  What can be done?

  1. [84]
    On the construction contended for by the respondents at the trial, any public assembly – even an authorised public assembly – must be “peaceful”, in the sense explained in s 5.[56]   If it is not it is no longer an “authorised public assembly”.
  2. [85]
    There is considerable attraction to that argument, because of the clear scope of the Peaceful Assembly Act, informed by the long title, the objects of the Act and the terms of s 5 – which is that in all respects what is conferred and protected (whether in authorised or non-authorised form) is a right of peaceful assembly, connoting as that does a balance of the competing interests reflected in s 5. 
  3. [86]
    However, the difficulty with that construction is the grey area it leaves, for police and for those assembling, which is not presently addressed by ss 45 and 48 of the PPRA; and the responsibility that it places on police to decide, when an assembly is otherwise an “authorised public assembly”, whether it is “peaceful”.
  4. [87]
    On my analysis, the scheme of the Peaceful Assembly Act endeavours to strike the balance between the competing interests, and address this grey area, by putting in place a process under which it is a judicial officer – a Magistrate – who is to decide, whether a controversial assembly can take place as requested.  Other than where short notice is given (less than 5 days), that process places the onus on the relevant authority, when a notice of intention to conduct an assembly is received, to take appropriate steps if there is an objection to the place, time or any other aspect of the assembly.
  5. [88]
    If the assembly becomes authorised – whether by virtue of a permission notice issued by the relevant authority, an order of a Magistrate, or by default – and is in fact conducted in a way that does impact on the rights of others, it may be that there are other laws that may apply to prevent or regulate that conduct, for example (again, there are likely others):
    1. (a)
      the power of police to deal with a breach of the peace (s 50 of the Police Powers and Responsibilities Act);
    2. (b)
      the summary offence of public nuisance (under s 6 of the Summary Offences Act 2005);
    3. (c)
      the summary offence of unlawful assembly (under s 10A of the Summary Offences Act 2005); and
    4. (d)
      under local laws regulating conduct in, for example, pedestrian malls (as expressly contemplated by s 5(4) of the Peaceful Assembly Act).
  6. [89]
    But otherwise, in a practical sense, it seems the potential for impact on others’ rights remains. That police should have no power to do anything about that may be considered to sit uncomfortably with the underlying policy of the Peaceful Assemblies Act, but for the reasons articulated, I consider that the balance is attempted to be fairly struck by the process provided for authorisation under the Act.    In a practical sense, if this occurs on the first occasion of what is sought to be a repeated assembly, there is the opportunity for the relevant authority to obtain an order from a Magistrate to prevent a subsequent assembly, and so to curtail the impact on the rights of others in that way.
  7. [90]
    I have recorded the observations above, because of ground 1 raised by the appellants, but also because it is relevant to the other matters challenged on this appeal, and because of the Magistrate’s finding that the police believed they were acting lawfully in the execution of their duties, and reasonably believed they had a power under s 48(2) of the Police Powers and Responsibilities Act to issue the move on directions (even though his Honour ultimately concluded they did not have that power, because these were deemed “authorised public assemblies”).  Having reviewed the evidence, and on my analysis of the legislation, I can see no error in the Magistrate’s conclusion as to the genuineness or reasonableness, at the time, of the police officer’s belief.

Grounds 2 to 5 (tort of assault)

  1. [91]
    Grounds 2 to 5 all deal with the Magistrate’s finding in relation to the plaintiffs’ claims for damages for the tort of assault, contending that the Magistrate erred by “failing to draw the proper inference of fact that”:
    1. (a)
      Senior Constable Walsh had an intention to create in Mr Hemelaar “an apprehension of imminent harm or offensive contact in the tort of assault on 17 September 2013” (ground 2);
    2. (b)
      Senior Constable Walsh had an intention to create in Mr Red “an apprehension of imminent harm or offensive contact in the tort of assault on 10 September 2013” (ground 3);
    3. (c)
      Senior Constable Walsh had an intention to create in Mr Red “an apprehension of imminent harm or offensive contact in the tort of assault on 17 September 2013” (ground 4); and
    4. (d)
      Constable Gough had an intention to create in Mr Red “an apprehension of imminent harm or offensive contact in the tort of assault on 10 September 2013” (ground 5).
  2. [92]
    The elements of the tort of assault were not controversial before the Magistrate.[57]  In relation to this part of the claim, the Magistrate said (at [26]):

“I am not satisfied that the plaintiffs have proved, on the balance of probabilities, that either the first or second defendant had an intention to create in either plaintiff an apprehension of imminent harm or offensive contact.  On the contrary, the video evidence contained within exhibit 1 demonstrates that the first defendant [Senior Constable Walsh] acted at all times in a calm, reasonable and patient manner towards the [plaintiffs], and was met with argumentation and truculence, particularly by the second plaintiff [Mr Red].  I find that both the first and second defendants [Walsh and Constable Gough] believed at all times that they were acting lawfully, in the lawful execution of their duties, and had a reasonable belief that s 48 PPRA empowered them to do what they did.  I find that neither the first nor the second defendant manifested the intention required to be proved by the plaintiffs to prove the tort of assault.”

  1. [93]
    On this appeal, the appellants submit that the Magistrate erred in not making a finding that “the plaintiffs did have an apprehension of imminent harm or offensive conduct” (sic, contact).  It is submitted this is evident from the video evidence in exhibit 1.
  2. [94]
    Having viewed exhibit 1, I am not persuaded that is the case at all.  But even if I had accepted that, it remains necessary, in order to establish the tort of assault, to prove the requisite intention on the part of the police officers, not to actually inflict harm, but to create in Mr Red and Mr Hemelaar an apprehension of imminent harm.  In my view, on the evidence before the Magistrate, the finding that his Honour made, that this was lacking, was plainly open.  There was nothing put forward on this appeal to demonstrate error in the Magistrate’s finding in that regard.
  3. [95]
    These grounds of appeal are therefore rejected.

Ground 6 (battery – Constable Gough)

  1. [96]
    Ground 6 contends that the Magistrate erred by failing to draw the proper inference of fact that Constable Gough “touched the arms of [Mr Red] on 10 September 2013 and so committed the tort of battery” on that day.  Ground 6 references the Magistrate’s Reasons at [26], which is set out at paragraph [92] above, but which does not deal with this issue.
  2. [97]
    The Magistrate does make a finding, in [25] of the Reasons, that “any involvement of [Constable Gough] was minimal, incidental, and in the case of her adjustment of [Mr Red’s] handcuffs, at his request”.   His Honour also finds, at [47] of the Reasons, that Constable Gough “had so little interaction with the plaintiffs on 10 September 2013, having merely been present for almost the entire episode and not having [taken] any step in relation to the plaintiffs, that the plaintiffs’ claim against her was without foundation”.
  3. [98]
    As noted above, Mr Red’s evidence at trial was simply that Constable Gough “was there”.  In the video recording, at the time that Senior Constable Walsh arrests Mr Red, Constable Gough can be seen to have one of her hands on Mr Red’s right upper arm.
  4. [99]
    As recently articulated by the New South Wales Court of Appeal, “a defendant who directly causes physical contact with a plaintiff will commit a battery unless the defendant proves that the defendant was ‘utterly without fault’”.[58]  In the circumstances, given the finding that Mr Red was unlawfully arrested on 10 September 2013, despite the minimal involvement of Constable Gough in that process, as a matter of law it does seem to be the case that the intentional placing of her hand on Mr Red’s arm constitutes a battery.
  5. [100]
    However, in circumstances where Mr Red will otherwise be compensated for his unlawful arrest and false imprisonment, I am unable to see that it is necessary or appropriate to attribute some nominal figure by way of damages for this minor act, which is incidental only to the arrest effected by Senior Constable Walsh.  I would not make any award of damages as against Constable Gough.  Had I been inclined to do so, I would have awarded no more than $500, and refer in this regard to Coleman v Greenland & Ors [2004] QSC 37 at [139].  I have taken this amount into account, in reaching the conclusion I have about the damages to be awarded to Mr Red for his arrest and detention on 10 September.  Had I formed a different view, and awarded $500 against Constable Gough, I would have reduced the amount awarded against Senior Constable Walsh by that amount.  The submission on behalf of Mr Red that compensatory damages of $15,000 and aggravated damages of $10,000 ought to be awarded for this act is, quite frankly, unsupportable.
  6. [101]
    In the circumstances, it is appropriate that the proceedings be dismissed as against Constable Gough, as the Magistrate ordered.

Grounds 10, 11 and 12 (malicious arrest)

  1. [102]
    Grounds 10, 11 and 12 contend that the Magistrate “erred in law by failing to draw the proper inference of fact” that the first defendant, Senior Constable Walsh, “maliciously and without reasonable and probable cause” arrested:
    1. (a)
      Mr Hemelaar on 17 September (ground 10); and
    2. (b)
      Mr Red on 10 and 17 September (grounds 11 and 12).
  2. [103]
    These grounds relate to the plaintiffs’ claims for damages for wrongful (malicious) arrest, which the Magistrate found was not established, because his Honour was not satisfied the plaintiffs had proved on the balance of probabilities that either of the police officers acted maliciously when the plaintiffs were arrested on 10 and 17 September.  On the contrary, his Honour found that both officers Walsh and Gough at all times believed that they were acting lawfully in the execution of their duties, and found that at all times they behaved towards the plaintiffs with patience, tolerance and forbearance.[59]
  3. [104]
    In Bayliss v Cassidy [1998] QSC 186 (a decision cited by the appellants at trial and on this appeal) Muir J said:

“Malice in this context was said [in] Gibbs v Rea [1998] 3 WLR 72 at 80 to have the special meaning common to other torts and covers not only spite and ill-will but also improper motive. Similarly, in Arbrath v North Eastern Railway Co (1883) 11 QBD 440 Bowen LJ equated malice with the initiation of a prosecution ‘from an indirect and improper motive, and not in furtherance of justice’”.[60]

  1. [105]
    The context was discussion of the elements of the tort of malicious prosecution; however, later in his Honour’s reasons, when dealing with the elements of the tort of malicious arrest, he observed that malice had the same meaning.
  2. [106]
    On this appeal, the appellants seemed to argue that the finding that the arrests were unlawful necessitated a finding that the arrests were “wrongful” (malicious).[61]  I do not accept that as correct.  It is a necessary element of the tort of malicious arrest that the plaintiff prove malice.   Having reviewed the whole of the evidence I can see no error in the Magistrate’s finding that this element was not proved.
  3. [107]
    It is correct to say that the appellants were at pains – to put it mildly – to point out that they were present, on both occasions, as part of an authorised public assembly, and that the police powers to issue a move on direction did not apply.  However, the police were of a different view at the time.   Their belief, that s 48(2) of the Police Powers and Responsibilities Act permitted them to issue a move on direction in the circumstances, was accepted by the Magistrate as being reasonable,[62] even if ultimately, as a matter of construction of the legislation, incorrect.  I am not persuaded that was an erroneous finding, particularly given the issues of construction discussed above.   Rather than complying with what the police were asking them to do, in circumstances where complaints of disturbance had been made, and sorting the matter out in a quiet and calm manner, Mr Red and Mr Hemelaar persisted in their deliberate actions, behaving in a disrespectful, argumentative and defiant manner.  The subsequent finding, as a matter of law, that their arrest was not lawful does not support a conclusion that Senior Constable acted with malice, in the sense of spite, ill-will or improper motive.    The Magistrate’s finding that he did not was clearly open on the evidence.
  4. [108]
    These grounds of appeal are rejected.

Grounds 7, 8 and 9 (damages for battery); grounds 13 and 14 (damages for false imprisonment); grounds 15 and 16 (injured feelings); and grounds 17, 18 and 19 (aggravated damages).

  1. [109]
    I am dealing with all of these grounds under the one heading, as they all relate to the amount of damages awarded to the plaintiffs in respect of what has been found to be their unlawful arrest on 17 September in the case of Mr Hemelaar and on 10 and 17 September in the case of Mr Red.  As is apparent from the cases to which reference was made, by both the appellants and the respondents, although separate awards (where found appropriate) are sometimes made for aggravated damages, and certainly for exemplary damages, it does not appear necessary to make separate compensatory awards for the handcuffing (battery) and false imprisonment on a particular occasion. 
  2. [110]
    Grounds 7, 8 and 9 contend that the Magistrate erred by inadequately assessing damages for the tort of battery (by the first defendant, Senior Constable Walsh) in the amount of $500 on the occasion of Mr Hemelaar’s arrest on 17 September and Mr Red’s arrest on each of 10 and 17 September.
  3. [111]
    There is no appeal from the finding that it was the handcuffing, relevantly, that constituted the battery, involving as that did “necessary and incidental touching of the plaintiffs’ arms” (Magistrate’s Reasons at [29] and [30]).  The appeal is on the basis that the amount of money awarded by way of damages was manifestly inadequate – the appellants contending that they ought to have been awarded $15,000 by way of compensatory damages and $10,000 by way of aggravated (on each occasion) – for the “battery” alone.
  4. [112]
    As already discussed above, there is a factual error in the Magistrate’s decision, because the first plaintiff, Mr Hemelaar, made no claim in respect of his arrest (with handcuffs) on 10 September 2013.   There is also a factual error in the appellants’ submissions in relation to these grounds, because it is asserted that Mr Hemelaar was arrested and handcuffed on 17 September.[63]  I am satisfied, having watched the video recording of the arrests on 17 September, that he was not – he was arrested, but no handcuffs were applied.   The cross-appeal, which the appellants concede ought to be allowed, recognises this.
  5. [113]
    So what remains to be considered is whether the damages awarded to Mr Red, for being handcuffed on 10 and 17 September, in the amount of $500 on each occasion, was inadequate.  I propose to deal with this, at the same time as dealing with the damages for false imprisonment.
  6. [114]
    However, for present purposes, I make the observation that the reasons given by Senior Constable Walsh for using handcuffs on 10 September are rational and reasonable.  On 17 September, there were a greater number of officers present, and perhaps it could be said that handcuffs were not necessary to arrest Mr Red (just as they were not used on either Mr Hemelaar or Mr Kelly on that occasion).  But it must also be noted that Mr Red, in openly defying the police on that occasion also, smirked/smiled at Walsh, and put his hands out as though to be handcuffed. The finding that the arrests were unlawful stands, and the plaintiffs/appellants are to be compensated for that, but I do not accept the submission that the fact of handcuffing Mr Red on 10 or 17 September provides a basis for awarding not only compensatory damages but also aggravated damages.[64]
  7. [115]
    Grounds 13 and 14 contend that the Magistrate erred in law by inadequately assessing damages for:
    1. (a)
      Mr Hemelaar for the tort of false imprisonment on 17 September (in the amount of $2,000); and
    2. (b)
      Mr Red for the tort of false imprisonment on 10 and 17 September (in the amount of $2,000).
  8. [116]
    Grounds 15 and 16 contend that the Magistrate “erred in law by failing to draw the proper inference of fact that” Mr Hemelaar suffered injured feelings on 17 September and Mr Red suffered injured feelings on 10 and 17 September.  This is related to grounds 17 and 18, which contend the Magistrate erred in failing to award either Mr Hemelaar or Mr Red aggravated damages.
  9. [117]
    As noted at the outset, grounds 20, 21 and 22, in relation to exemplary damages were not pressed.
  10. [118]
    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:[65] 

“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 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]

  1. [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.”[67]

  1. [120]
    In so far as the tort of battery is concerned, the Magistrate made the following findings:

“… In the application of handcuffs on each of [10 and 17 September] there was necessary and incidental touching of the plaintiffs’ arms [as already noted, this ought to be a reference only to Mr Red, as no claim was made by Mr Hemelaar in relation to his arrest on 10 September].  In my view, this is battery at the lowest level.  No injury was done to either plaintiff, no pain was suffered by either of them, and the most that can be said is that each plaintiff suffered the mildest discomfort whilst they were each handcuffed.  The time during which the plaintiffs were handcuffed was short; and in fact, as the video evidence in exhibit 1 shows, the police took steps to ensure that the handcuffs did not cause unnecessary discomfort to either plaintiff.  In my view, having regard to the minor nature of the batteries, the commission of the tort would be appropriately recognised by an award of damages in the sum of $500 for each occasion that each plaintiff was handcuffed…”[68]

  1. [121]
    In so far as the false imprisonment is concerned, the Magistrate said:

“On neither 10 September nor 17 September 2013 was the detention of the plaintiffs lengthy, being under 2 hours on 10 September and just over 5½ hours on 17 September.  In my view the quantum of damages being sought by the plaintiffs in relation to this cause of action is grossly excessive.  I am not assisted by the cases referred to by Mr Fisher in his submissions as a guide to an appropriate quantum of damages.

I intend to, and in my view it is appropriate to, make a global order for damages in respect of each plaintiff that recognises the total duration of their detention in police custody on both 10 and 17 September 2013.

Having regard to the short duration of the custody of the plaintiffs on each occasion, in my view the quantum of damages sought by the plaintiffs in relation to this cause of action are exaggerated and out of proportion to the nature and duration of the detention.  An award of damages is not intended to enrich a plaintiff, but to place them in the position they would have been in but for the commission of the tort.  There is no evidence that either plaintiff suffered any financial loss on either occasion as a consequence of their arrests; in fact but for the arrests, the whole of the evidence satisfies me that both plaintiffs would have remained at Lowe and Ann Streets and continued what they were doing.  In respect of each plaintiff I award damages of $2,000 for false imprisonment.”[69]

  1. [122]
    Once again, it is clear that the Magistrate was proceeding upon the basis that he was compensating both plaintiffs, for being arrested on each of 10 and 17 September; when in fact the first plaintiff, Mr Hemelaar did not claim in respect of his arrest on 10 September.  Although the appellants submitted that the making of the same award for Mr Hemelaar and Mr Red reflects an error of principle,[70] it is apparent it is a factual error, that has affected a number of aspects of the Magistrate’s decision – quite understandably, given the facts of the matter (apparent from exhibit 1), as opposed to the claims made by the parties.
  2. [123]
    The first point to make is that, apart from the challenge to the finding that neither Mr Hemelaar nor Mr Red suffered any hurt or injured feelings as a result of their arrests, there is no challenge to the factual findings reflected in the parts of the reasons just quoted, including:  that no physical injury was done to either plaintiff; the time that, relevantly, Mr Red was handcuffed (on both occasions) was short; Mr Red was in custody for just under 2 hours on 10 September; both Mr Red and Mr Hemelaar were in custody for just over 5½ hours on 17 September;[71] there was no evidence that either of them suffered any financial loss on either occasion of their arrest.
  3. [124]
    I am not persuaded that any error was made by the Magistrate in failing to award any amount for aggravated damages.  Having regard to the relevant principles, on the evidence before the Magistrate, there was no conduct on the part of, relevantly, Senior Constable Walsh that could be said to “justifiably heighten” either plaintiffs’ sense of injury.   The police officers’ belief as to the existence of a power to direct the plaintiffs to move on has been found to be mistaken – leading to the conclusion that the consequent arrests were unlawful – but no basis has been shown, on this appeal, to call into question the Magistrate’s conclusion that at all times the police officers, Walsh and Gough, reasonably believed they were lawfully acting in the execution of their duty, and that they dealt with the plaintiffs courteously, fairly and patiently.   Further, I am not persuaded that any error was made by the Magistrate in reaching the conclusion that neither Mr Hemelaar nor Mr Red suffered any injured feelings as a result of the events on 10 or 17 September.  They were not intimidated by the police – arguing repeatedly and robustly with the police on both occasions; they knew they would be arrested, if they did not move on as directed; indeed, as noted, on 10 September Mr Red declared, once he was arrested, “that’s all I wanted, to be arrested and heard in court”.   
  4. [125]
    I am not persuaded that the damages awarded in the case of Mr Hemelaar or Mr Red ought to include any component for aggravated damages.
  5. [126]
    As Cullinane J observed in Coleman v Greenland & Ors [2004] QSC 37 at [136], none of this is to in any way diminish the seriousness of the infringement of their rights in being unlawfully arrested and detained on 10 and 17 September; it is simply to make the point that this is not a case of the kind courts have on other occasions been concerned with, when dealing with unlawful arrest and imprisonment.
  6. [127]
    In so far as compensation for their unlawful arrest and consequent imprisonment is concerned, the appellants cited a large number of cases, which were said to support their contention for substantial damages.  In response to me asking which of the authorities the appellants said was the most comparable, counsel for the appellants submitted Eaves v Donelly [2011] QDC 207 is the “closest one”, having “factual similarities” to this case.   The respondents submitted that Cullinane J’s decision in Coleman v Greenland & Ors [2004] QSC 37 was the most comparable.
  7. [128]
    In Eaves v Donelly [2011] QDC 207 Samios DCJ awarded $60,000 damages (comprising $30,000 for compensatory damages, $20,000 for aggravated damages and $10,000 for exemplary damages) to a woman wrongfully arrested and falsely imprisoned by police.  The circumstances of her arrest were that late in the afternoon, two police officers came to Ms Eaves’ home unit, alleged that she had been seen driving a car 20 minutes earlier, in circumstances where she was disqualified from holding a licence (the latter not being in dispute).  Ms Eaves told police she had not been driving.  She was arrested anyway.  She told the arresting officer she was pregnant and was feeling sick. Her evidence of this, and the fact that she was four months pregnant at the time, was accepted.  She was handcuffed with her hands behind her back, and then walked through her unit building, down the lift, past cafes, shops, people and neighbours.  In the police car on the way to the police station she was dry retching and the car had to be pulled over so she could vomit.  The Judge accepted the plaintiff’s evidence that the arresting officer laughed at her when she was vomiting.  She became very upset when arrested and handcuffed, feeling scared and concerned because she could not put her hands on her belly to protect her child.  She described feeling degraded, having to walk handcuffed in front of people from her unit building.  She was detained in custody for two and a half hours.  The Judge found that the arresting officer “was not even handed about the plaintiff” and “appeared to be adverse to the plaintiff”, for example that he did not believe Ms Eaves when she said she was pregnant.  The Judge made a number of adverse findings against the arresting officer, not accepting his evidence in a number of respects, including finding that the officer did not make an honest mistake when he identified the plaintiff as the driver of the vehicle, because the Judge considered the officer “behaved in a way towards the plaintiff that showed he did not like the plaintiff”, and that this affected his judgment.  The Judge did not accept the arresting officer had a reasonable belief in the necessity to arrest Ms Eaves.
  8. [129]
    Eaves is in no way comparable to the present case.  There is no comparison between a woman arrested, in her own home, handcuffed and walked past her neighbours, on an allegation of driving whilst disqualified, being disbelieved when telling the arresting officer she is pregnant and sick, being laughed at when she vomits, and where adverse findings are made against the arresting officer, not only in relation to the honesty and reasonableness of his belief in the need to arrest her, but also in relation to an improper purpose – and this case.  
  9. [130]
    The decision of Cullinane J in Coleman v Greenland & Ors [2004] QSC 37 is much closer to the circumstances of this case.  Mr Coleman was described by Cullinane J as an agitator, it being said that he sees himself as a “warrior in an ongoing battle for the removal of restrictions on the right of free speech”.  It was said that Mr Coleman had for some time campaigned in support of or against various things but particularly against what he saw as unreasonable restrictions on the right of free speech (at [15]).  He brought a claim for damages against police, in respect of his arrest on three occasions in the pedestrian Mall in Flinders Street, Townsville.  Cullinane J found that on two of these, Mr Coleman was unlawfully arrested.
  10. [131]
    In relation to the first occasion, 8 December 1998, Mr Coleman was arrested for failing to comply with a direction to stop doing what he was doing (soliciting signatures on a petition).  Cullinane J did not accept the police officer’s reasons justifying the issuing of the direction, finding that he was not satisfied there were reasonable grounds for a belief that the direction was necessary; and also that there was a failure to comply with the requirement to first give the person a warning.   On this occasion, it does not appear Mr Coleman was handcuffed.  He was in custody for almost an hour. 
  11. [132]
    In relation to the second occasion, 22 January 1999, Mr Coleman was arrested for possession of handcuffs and obstructing police.  There was a factual dispute as to when Mr Coleman was seen to be in possession of handcuffs.   Cullinane J was not satisfied on the evidence that he was seen by the arresting officer to be in possession of a pair of handcuffs and that he was informed that he was being arrested for possession of those.   On this occasion, Mr Coleman was handcuffed when arrested.  He claimed to have been dragged roughly by the chain of the handcuffs, but Cullinane J accepted the police evidence that he was in fact pulled by the arms.  Cullinane J did accept that he suffered some bruising as a result of his resistance to the two police officers.  He spent approximately six hours in custody.
  12. [133]
    In relation to damages, Cullinane J said:

“[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.  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 was in fact 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 [arresting officer] 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.

[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.”

  1. [134]
    There was a later case concerning Mr Coleman, Coleman v Watson & Ors [2007] QSC 343, in which a significantly higher amount was awarded by way of damages, for what was found to be his unlawful arrest at an historical sitting of the Queensland Parliament in Townsville, and his subsequent imprisonment for about 5 hours.   It was not disputed that the police officers involved in that case had been instructed to take action to prevent Mr Coleman from entering the place where parliament was sitting; and that Mr Coleman was approached by police as we has waiting at the entrance, and told that he could not go in because he was “a possible … breach of the peace”.  After a number of exchanges between Mr Coleman and the police, he was arrested, with each of the police officers taking one of his arms.  The press were gathered around and photos were taken.  Mr Coleman sat on the ground, and had to be carried to the waiting police vehicle.  He was charged with obstructing police, but later acquitted of the charges.  There were articles in local and State wide newspapers subsequently, including describing him as a “northern nuisance and serial pest”.   Cullinane J found that when first approached by police Mr Coleman was not acting in a way that might have suggested a possible breach of the peace, nor was he courting the attention of police or the media, nor was he taking part in any form of protest.  He was simply walking, with other members of the public towards the entrance to the place where parliament was to be sitting.  Cullinane J said that “[t]he right he was seeking to exercise was an important, indeed fundamental one.  I have already referred to the historically unique character of the occasion.  It is unlikely that the plaintiff as a resident of Townsville would have such an opportunity again or at least for a long time in his home city” (at [67]).  “Making full allowance for the seriousness of the loss of liberty involved and the infringement of his rights as a citizen as a free person” Cullinane J considered an appropriate award of compensatory damages to be $20,000 (at [68]).  No award for exemplary damages was made.
  2. [135]
    This second case is distinguishable from the present one, because of the circumstances in which Mr Coleman came to be arrested on this occasion.
  3. [136]
    The damages awarded to Mr Red and Mr Hemelaar were below the award to Mr Coleman in relation to his arrests in the Townsville Mall.  Although the determination of the level of damages to be awarded is a discretionary matter, it is appropriate to have regard to comparable cases for similar claims;[72] although care should be taken in awarding damages “not to be overborne by what other minds have judged right and proper for other situations”.[73]  I infer, from his Honour’s reasons, a view on the part of the Magistrate that the plaintiffs’/appellants’ behaviour was not such as to warrant more than a fairly nominal award of damages.  But no reasons were articulated, as to why, for example, Coleman was regarded as distinguishable.  Whilst I have some sympathy for the Magistrate’s view, on the basis of my own assessment of exhibit 1, it is necessary that the exercise of the discretion occur by reference to reasons and principle.  In this regard, it is appropriate to observe that the principal focus of the tort of false imprisonment, and therefore of the award of damages, is to vindicate personal liberty, rather than to signify fault on the part of the defendant.[74] 
  4. [137]
    The damages contended for by the appellants are far in excess of what I would regard as appropriate compensation in the circumstances of this case.  Eaves does not support the award they contend for.
  5. [138]
    However, having regard to Coleman, I am of the view that the Magistrate has erred, in the exercise of his discretion in terms of the amount of damages awarded.   Given the powers conferred on this court on an appeal, by s 47 of the Magistrates Courts Act I propose to make the following orders, in relation to damages:
    1. (a)
      For Mr Red, in respect of his arrest on 10 September, where he was handcuffed, and held in custody for just over 2 hours, but where there was no physical injury, and given the overall circumstances of the arrest, that he be awarded $3,000 as against Senior Constable Walsh and the State of Queensland.
    2. (b)
      For Mr Red, in respect of his arrest on 17 September, where he was handcuffed, and held in custody for about 5 hours, but where again there was no physical injury, and given the overall circumstances of the arrest, that he be awarded $5,000 as against Senior Constable Walsh and the State of Queensland.
    3. (c)
      For Mr Hemelaar, in respect of his arrest on 17 September, where he was not handcuffed, and was held in custody for about 5 hours, that he be awarded $4,000 in damages, as against Senior Constable Walsh and the State of Queensland.
  6. [139]
    I expressly record that in both cases, the damages are awarded on the basis of compensation for their curtailment of liberty, inconvenience and sense of injustice for being unlawfully arrested; and in Mr Red’s case, an additional amount reflective of the additional discomfort from the use of the handcuffs.   There has been no pecuniary loss established, and no physical hurt.   This award includes no amount for aggravated damages.

Grounds 23, 24 and 25

  1. [140]
    Grounds 23, 24 and 25 contend that the Magistrate erred in law in assessing damages against the first defendant, Senior Constable Walsh, at nil (despite finding that liability for the tort of battery and false imprisonment had been made out).
  2. [141]
    The respondents concede that the Magistrate did err in this regard.
  3. [142]
    The liability of the police officer personally, as distinct from the vicarious liability of the State of Queensland, is addressed in s 10.5 of the Police Service Administration Act 1990.
  4. [143]
    In its current form, it protects police officers from civil liability which may arise as a result of engaging in conduct in their official capacity (s 10.5(2)), and instead attaches liability only to the Crown (s 10.5(3)).
  5. [144]
    However, as at September 2013, the provision did not provide such protection for police officers.  The Magistrate was cognisant of this, observing at [23] of his Honour’s Reasons, that the previous position was unsatisfactory and, further, after referring to Mr Red threatening to bring proceedings against Senior Constable Walsh, saying at [45] of the Reasons:

“It is a highly unsatisfactory state of affairs, and contrary to the public interest generally, that police officers should be subject to such threats for merely executing their public duties to the best of their ability.  There is no public interest in a situation existing in which police officers are reticent to make decision or take steps to perform what they genuinely believe to be their duty, because of a constantly present threat of being made personally liability for damages (or, at the least, being made to endure the stress of having been made a defendant to a civil action), if and when an officer, like all human beings, makes a mistake in the execution of those public duties.  Thankfully, that position is now remedied by parliament.  However it had not been remedied at the time these incidents occurred.”

  1. [145]
    Perhaps with these considerations in mind, his Honour considered that the plaintiffs were properly compensated by the damages awarded as against the State of Queensland only, and so assessed the damages against Senior Constable Walsh at nil (at [46]).
  2. [146]
    It would of course have been open to the plaintiffs to only sue the State of Queensland – there was no need for them to personally join the two police officers.  However, having done so, whilst in a practical sense, any damages are to be expected to be paid by the State of Queensland, given the state of the law at the relevant time, as a matter of law once liability in tort was made out against Senior Constable Walsh, the damages ought to have been awarded as against him and as against the State of Queensland.

Ground 26 (interest)

  1. [147]
    Ground 26 contends that the Magistrate erred in law by not awarding the plaintiffs interest on the damages at 8.5%.  The respondents also concede this was an error on the part of the Magistrate.
  2. [148]
    An award of interest on damages is a discretionary matter:  see s 58(3) of the Civil Proceedings Act 2011.
  3. [149]
    The matter of whether or not to award interest is not addressed in the Magistrate’s Reasons; nor does it appear to have been raised when judgment was handed down on 5 December 2016.  It appears therefore that the Magistrate has simply overlooked this.
  4. [150]
    The defendants at trial did not contend that there was any reason why interest should not be awarded, and referred to the rate of 8.5%, by reference to Supreme Court Practice Direction No. 7 of 2013 (which applies also to the Magistrates Courts, by virtue of Magistrates Courts Practice Direction no. 15 of 2013)
  5. [151]
    In the circumstances, it is appropriate that interest be added to the awards of damages in this case.

Orders

  1. [152]
    The orders of the court will therefore be:
    1. (a)
      Appeal allowed.
    2. (b)
      Set aside the orders made by the Magistrate on 5 December 2016, and make the following orders instead:
      1. (i)
        Judgment for the first plaintiff (Mr Hemelaar) as against the first defendant (Senior Constable Walsh) and the third defendant (State of Queensland) for $4,000.
      2. (ii)
        Judgment for the second plaintiff (Mr Red) as against the first defendant (Senior Constable Walsh) and the third defendant (State of Queensland) for $8,000.
      3. (iii)
        The proceedings are otherwise dismissed as against the second defendant (Constable Gough).
      4. (iv)
        Interest on the damages awarded, at the rate of 8.5%, from 10 September 2013 on $3,000 (Mr Red) and from 17 September 2013 on $4,000 (Mr Hemelaar) and $5,000 (Mr Red).
    3. (c)
      The parties are directed to provide a proposed form of order to my Associate, within 7 days, reflecting these orders, and including the appropriate amount for interest, and also including an order as to costs of the appeal, if the parties are agreed.
  2. [153]
    If the parties are not agreed as to costs, I direct that, also within 7 days, each party provide to my Associate brief submissions (no more than 3 pages) in support of the order as to costs sought by that party, and I will decide the matter on the papers.

Footnotes

[1] Exhibit 1, recording made by police on 10 September 2013, at 11.03 am.

[2] Fox v Percy (2003) 214 CLR 118 at [22]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at [3].

[3] Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper [2009] 1 Qd R 247 at 253-4; White v Commissioner of Police [2014] QCA 121 at [6].

[4] Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7], [65]; White v Commissioner of Police [2014] QCA 121 at [8].

[5] Exhibits 2 and 3.

[6] Magistrate’s Reasons at [6].

[7] Exhibits 4 and 5.

[8] Magistrate’s Reasons at [6].

[9] Cf the submission at transcript of the appeal (TA) 1-12.41.

[10] Again, cf the submission TA 1-12.41 and at TA 1-21.19-.20.

[11] TA 1-21.19.

[12] Magistrate’s Reasons at [26] and also at [42].

[13] Transcript of the trial (TT) 2-5.

[14] TT 2-7.

[15] Magistrate’s Reasons at [15].

[16] Magistrate’s Reasons at [15] and [40].

[17] TT 2-17.

[18] Magistrate’s Reasons at [25].

[19] Magistrate’s Reasons at [46].

[20] TT 1-10.

[21] TT 1-16.

[22] TT 1-19.

[23] TT 1-22 to 1-23.

[24] Magistrate’s Reasons at [16] and [39].

[25] TT 2-21 to 2-28.

[26] TT 2-53 to 2-59.

[27] TT 2-31 to 2-33.

[28] Magistrate’s Reasons at [13] and [14].

[29] Magistrate’s Reasons at [17].

[30] TT 2-92 to 2-93.

[31] TT 2-28 to 2-31.

[32] TT 2-46 to 2-49.

[33] TT 2-59 to 2-63.

[34] Magistrate’s Reasons at [17]; this distinction being by reference to s 5(2)(c) (the protection of the rights and freedoms of other persons) and s 5(3) (that this includes reference to the rights of members of the public to enjoy the natural environment and to the rights of persons to carry on business) of the Peaceful Assembly Act 1992.

[35] TT 2-34 to 2-40.

[36] TT 2-69.

[37] TT 2-76.

[38] TT 2-79 and 2-80.

[39] TT 2-79.

[40] TT 2-81.

[41] TT 2-79 to 2-82.

[42] TT 2-83; also at 2-85

[43] Magistrate’s Reasons at [42].

[44] TT 2-63 to 2-66.

[45] TT 2-41 to 2-46.

[46] Magistrate’s Reasons at [22].

[47] Also illogical is the Appellant’s Submissions at [50] where it is submitted that the Magistrate erred in holding that the defendants could rely on s 48(2) of the Police Powers and Responsibilities Act 2000.  His Honour did not find that.  He found the opposite - that the issuing of a move on direction was not authorised under that provision, and therefore the arrests were unlawful:  Magistrate’s Reasons at [22].

[48] Defendants’ written submissions at trial at [14]-[21].

[49] As to which, see ss 46 and 47.

[50] Pearce and Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014, at [4.48]).

[51] Underlining added.

[52] Underlining added.

[53] Underlining added.

[54] “relevant particulars” means the particulars given in the assembly notice for the assembly (except so far as any of the particulars are inconsistent with a relevant condition).

[55] “relevant condition” means a condition specified in relation to the assembly in a notice under s 10(2)(a) or (b) of the Act, or an order of a Magistrates Court under section 12 or 14;

[56] I note that this was part of the reasoning of Everson DCJ in Hemelaar v Brisbane City Council [2017] QDC 17 at [33]-[35].  That case, however, involved quite different issues to those presented by this case, because the question was whether the Peaceful Assembly Act prevailed over the Public Land and Council Assets Local Law 2014, which inter alia regulated certain conduct in the Queen Street Mall.   It was accepted in that case, by reference to s 5(4), that the power of the Council to regulate the Queensland Street Mall, under the Local Law, was not limited by the provisions concerning “authorised public assemblies” under the Peaceful Assembly Act.

[57] Magistrate’s Reasons at [24], referring to the plaintiffs’ submissions at trial at [38].  There, reference was made, inter alia, to Rixon v Star City Pty Ltd [2001] NSWCA 265 (reported in (2001) 53 NSWLR 98) at [58] per Sheller JA.  I would also refer to Croucher v Cachia [2016] NSWCA 132 at [99].

[58] Croucher v Cachia [2016] NSWCA 132 at [21].

[59] Magistrate’s Reasons at [32].

[60] See also A v New South Wales (2007) 230 CLR 500 at [2], [55] and [88]-[95].

[61] Appellants’ submissions at [79].

[62] Magistrate’s Reasons at [26]; see also at [32].

[63] Appellants’ submissions at [62].

[64] Appellants’ submissions at [66].

[65] Referred to and applied by Cullinane J in Coleman v Donaldson & Ors [2004] QSC 37 at [120] and [123]; and Coleman v Watson & Ors [2007] QSC 343 at [55] and [56]; see also Henry v Thompson [1989] 2 Qd R 412 at 415 and 417.

[66] Emphasis added.

[67] Emphasis added.

[68] Magistrate’s Reasons at [30].

[69] Magistrate’s Reasons at [35]-[37].

[70] Appellants’ submissions at [90].

[71] For completeness I note that although no challenge is made to this finding, the agreed facts seem to indicate the period of custody on 10 September was just over 2 hours; and on 17 September was about 5 hours:  see [8] of the appellants’ submissions and TA 1-5.21.

[72] See, for example, Spautz v Butterworth (1996) 41 NSWLR 1 at 31.

[73] Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125.

[74] Ruddock v Taylor (2005) 222 CLR 612 at [140]-[141].

Close

Editorial Notes

  • Published Case Name:

    Hemelaar & Red v Walsh, Gough & State of Queensland

  • Shortened Case Name:

    Hemelaar & Red v Walsh, Gough & State of Queensland

  • MNC:

    [2017] QDC 151

  • Court:

    QDC

  • Judge(s):

    Bowskill QC DCJ

  • Date:

    09 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
A v New South Wales (2007) 230 CLR 500
2 citations
Jump To
Cite 1 - (2007) 230 CLR 500
Cite 2 - (2007) 230 CLR 500
Abrath v North Eastern Railway Co. (1883) 11 QBD 440
1 citation
Jump To
Cite 1 - (1883) 11 QBD 440
Bayliss v Cassidy & Ors [1998] QSC 186
2 citations
Jump To
Cite 1 - [1998] QSC 186
Cite 2 - [1998] QSC 186
Cassell & Co. Ltd v Broome (1972) AC 1027
2 citations
Jump To
Cite 1 - (1972) AC 1027
Cite 2 - (1972) AC 1027
Coleman v Greenland [2004] QSC 37
6 citations
Jump To
Cite 1 - [2004] QSC 37
Cite 2 - [2004] QSC 37
Cite 3 - [2004] QSC 37
Cite 4 - [2004] QSC 37
Cite 5 - [2004] QSC 37
Cite 6 - [2004] QSC 37
Coleman v Watson [2007] QSC 343
3 citations
Jump To
Cite 1 - [2007] QSC 343
Cite 2 - [2007] QSC 343
Cite 3 - [2007] QSC 343
Commissioner of Police v Al Shakarji [2013] QCA 319
1 citation
Jump To
Cite 1 - [2013] QCA 319
Commissioner of Police v Rintoul [2003] NSWSC 662
2 citations
Jump To
Cite 1 - [2003] NSWSC 662
Cite 2 - [2003] NSWSC 662
Croucher v Cachia [2016] NSWCA 132
3 citations
Jump To
Cite 1 - [2016] NSWCA 132
Cite 2 - [2016] NSWCA 132
Cite 3 - [2016] NSWCA 132
Eaves v Donelly [2011] QDC 207
3 citations
Jump To
Cite 1 - [2011] QDC 207
Cite 2 - [2011] QDC 207
Cite 3 - [2011] QDC 207
Fox v Percy (2003) 214 CLR 118
4 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Gibbs v Rea (1998) 3 WLR 72
1 citation
Jump To
Cite 1 - (1998) 3 WLR 72
Hemelaar v Brisbane City Council [2017] QDC 17
1 citation
Jump To
Cite 1 - [2017] QDC 17
Henry v Thompson [1989] 2 Qd R 412
1 citation
Jump To
Cite 1 - [1989] 2 Qd R 412
JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272
1 citation
Jump To
Cite 1 - [2010] QDC 272
Lehmann v Warren [2017] QDC 69
2 citations
Jump To
Cite 1 - [2017] QDC 69
Cite 2 - [2017] QDC 69
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
2 citations
Jump To
Cite 1 - (1968) 119 CLR 118
Cite 2 - (1968) 119 CLR 118
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
2 citations
Jump To
Cite 1 - (2001) 53 NSWLR 98
Cite 2 - (2001) 53 NSWLR 98
Rixon v Star City Pty Ltd [2001] NSWCA 265
1 citation
Jump To
Cite 1 - [2001] NSWCA 265
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 247
Ruddock v Taylor (2005) 222 CLR 612
2 citations
Jump To
Cite 1 - (2005) 222 CLR 612
Cite 2 - (2005) 222 CLR 612
Spautz v Butterworth (1996) 41 NSWLR 1
2 citations
Jump To
Cite 1 - (1996) 41 NSWLR 1
Cite 2 - (1996) 41 NSWLR 1
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
Triggell v Pheeney (1951) 82 CLR 497
1 citation
Jump To
Cite 1 - (1951) 82 CLR 497
Triggell v Pheeney [1951] HCA 23
1 citation
Jump To
Cite 1 - [1951] HCA 23
White v Commissioner of Police [2014] QCA 121
2 citations
Jump To
Cite 1 - [2014] QCA 121
Cite 2 - [2014] QCA 121
Wotton v State of Queensland (No 5) [2016] FCA 1457
2 citations
Jump To
Cite 1 - [2016] FCA 1457
Cite 2 - [2016] FCA 1457

Cases Citing

Case NameFull CitationFrequency
Berge v Thanarattanabodee [2018] QDC 1212 citations
Burke v The State of QLD [2022] QDC 1282 citations
Walker v State of Queensland(2020) 5 QR 98; [2020] QCA 1371 citation
1

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