Citation: Allen v State of NSW [2012] NSWDC 119
Court: District Court of New South Wales
Date: 22 August 2012
Judge: Levy SC DCJ
Background
The plaintiff was arrested outside a hotel in Bowral in the early hours of 23 March 2008, after a day of heavy drinking. He was taken to Bowral Police Station and held in custody. He claimed that, during the course of his arrest and detention, he was subjected to three separate unlawful assaults by police officers.
The three alleged incidents were: his face being pushed or rammed into the closed door of a police wagon during a frisk search; being punched by the arresting officer inside a perspex dock enclosure in the charge room, triggering a broader melee involving two other officers; and being pushed hard into a wall while being transferred from the dock to a holding cell.
The State of New South Wales was sued as defendant, on the basis of vicarious liability for the conduct of the officers involved. All officers disputed the assault allegations.
Legal Issues
- Whether the plaintiff was subjected to three unlawful assaults by police officers while in lawful custody
- Whether the plaintiff's account, given that he was significantly intoxicated at the time, was sufficiently credible and reliable to be accepted over the officers' evidence
- If assaults were established, what damages would have been appropriate (assessed on a notional basis)
Decision
The central question was one of fact, turning almost entirely on an assessment of the credibility and reliability of competing witness accounts. The plaintiff was accepted to have been severely intoxicated throughout the relevant period, which the court found significantly undermined the reliability of his recollection of events.
On all three alleged incidents, the court preferred the evidence of the police officers over that of the plaintiff and his supporting witnesses. The court undertook a detailed analysis of each witness, including the plaintiff, his friend Mr Brown, his former partner Ms Hughes, his mother, and each of the officers involved. CCTV footage of the charge room dock was also considered in relation to the second alleged incident.
The court was not satisfied on the balance of probabilities that any of the three alleged assaults occurred. The plaintiff's evidence was found to lack the credibility and reliability necessary to displace the officers' accounts. A notional damages assessment was conducted but, given the finding that no assault was established, it did not affect the outcome.
Orders Made
- Verdict and judgment for the defendant
- The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis unless otherwise ordered
- Exhibits may be returned
- Liberty to apply on 7 days' notice if further orders are required
Key Takeaways
- Where an assault claim against police turns entirely on conflicting oral evidence, the court's assessment of witness credibility and reliability is the determinative exercise.
- Significant intoxication at the time of the alleged events was treated as a material factor weighing against the reliability of the plaintiff's recollection.
- CCTV footage formed part of the evidentiary assessment for incidents occurring within the police station, illustrating the importance of contemporaneous visual records in custody-related disputes.
- A notional damages assessment was conducted even though liability was not established, preserving the analytical structure of the judgment without affecting the final outcome.
- In dismissing all three assault claims, the District Court applied the standard civil balance of probabilities test, and found the plaintiff had not discharged the burden of proof on any of the alleged incidents.
Legislation and Cases Referenced
Legislation:
- Civil Liability Act 2002 (NSW), ss 3B(1)(a), 16, 52(1)(a)
- Crown Proceedings Act 1988 (NSW)
- Evidence Act 1995 (NSW), ss 128, 135
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 14, s 199(1)
- Law Reform (Vicarious Liability) Act 1983 (NSW)
- Summary Offences Act 1988 (NSW), s 4A(1)
- Surveillance Devices Act 2007 (NSW)
Cases cited: No cases were cited in the judgment.