Daniel Waine By His Next Friend Rhonda Brown v Colin Broekhuyse [1997] ACTSC 51 (11 July 1997)

SUPREME COURT OF THE ACT

DANIEL WAINE by his next friend RHONDA BROWN v. COLIN BROEKHUYSE
No.
SC 695 of 1995
Number of pages - 15
False imprisonment - Police

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

GALLOP J

CATCHWORDS

False imprisonment - Plaintiff accompanied defendant police officer to police station - whether he did so voluntarily - he did.

Police - Interview of a child aged 14 years - necessity for compliance with provisions of Children's Services Act 1986.

Jervis Bay Territory Acceptance Act 1915 (Cth)

Crimes Act 1914

Children's Services Act 1986

R v Inwood (1973) 2 All ER 645

McDonald v Coles Myer Limited (trading as "K-Mart Chatswood", (unreported) New South Wales Court of Appeal)

Myer Stores Ltd v Soo [1991] 2 VR 597

Symes v Mahon [1922] SASR 447

Bird v Jones [1845] EWHC J64 (QB); (1845) 7 QB 742

Balmain Ferry v Robertson [1906] HCA 83; (1906-1907) 4 CLR 379

HEARING

CANBERRA, 3-4 June 1997 (hearing), 11 July 1997 (decision)

11:7:1997

Counsel for the Plaintiff: Mr C Everson

Instructing solicitors: South Coast Aboriginal Legal Service

by their agents Deacons Graham & James

Counsel for the Respondent: Mr G Stretton

Instructing solicitors: Australian Government Solicitors Office

ORDER

THE COURT ORDERS THAT:

There be judgment for the defendant.

DECISION

GALLOP J

This is an action for false imprisonment. The plaintiff is a minor (17 years old at the date of hearing) and sues by his next friend (his mother). The defendant is a police officer. The action which the plaintiff has brought against the defendant is for damages and aggravated and exemplary damages.

The events giving rise to the action occurred in the Jervis Bay Territory and both parties resided in the Territory. Pursuant to the Jervis Bay Territory Acceptance Act 1915 (Cth), the laws of the ACT apply to Jervis Bay:

Laws of Australian Capital Territory to be in force 4A. (1) Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.

The Supreme Court of the Australian Capital Territory has jurisdiction in the Jervis Bay Territory by virtue of s4D of that Act:

4D(1) Each court of the Australian Capital Territory has jurisdiction in and in relation to the Territory, and the Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of each such court for the time being in force apply in the Territory as if the Territory formed part of the Australian Capital Territory.

The false imprisonment as pleaded is that on 23 September 1994 the defendant wrongfully and without reasonable cause arrested the plaintiff and took him into custody whereby he was detained at the Jervis Bay Police Station for approximately three hours until he was released. The plaintiff alleges that while he was in custody the defendant interrogated the plaintiff but failed to cause another adult or independent police officer to be present during the interrogation and further failed to administer any caution to the plaintiff, whereupon the interrogation was or became illegal and unauthorised.

Further, the plaintiff claims that he was wrongfully imprisoned and deprived of his liberty and that the defendant is liable to him in respect of the imprisonment. By reason of the foregoing, the plaintiff claims that he sustained injuries and has suffered loss and damage.

The defendant by his defence pleads that the plaintiff had not been falsely imprisoned by him on 23 September 1994.

The writ of summons issued on 9 October 1995. The action was heard on 3 and 4 June 1997, at which time I reserved my decision.

The tort of false imprisonment

The elements of the tort of false imprisonment are -

"The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is." [Fleming, The Law of Torts (5th ed) at p27]

In R v Inwood (1973) 2 All ER 645 at 649 Stephensons J said that in the case of an arrest by a police officer,

"There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. However, what we think is clear is that it is a question of fact, not of law..."

In McDonald v Coles Myer Limited (trading as "K-Mart Chatswood"), (unreported decision of the New South Wales Court of Appeal) said (at page 8) Powell J A:

"Whether or not an arrest has been effected is a question of fact, so that, while voluntary compliance with a police request to "come along and clear himself" may not necessarily amount to imprisonment (Alderson v Booth (1) (1969) 2QB 216) an actual, or implied threat of force which leads to a person's involuntary submission is sufficient (Bird v Jones (2) [1845] EWHC J64 (QB); (1845) 7 QB 742, 748 per Williams J, Warner v Riddiford (3) (1858) 4 CB (NS) 180; Myer Stores Limited v Soo (4) (1991) 2 V R 597)."

In Myer Stores Ltd v Soo [1991] 2 VR 597 at 625-626. Mr Donald J on the subject of imprisonment said -

"The restraint may be constituted by a person having a justified apprehension that if he did not submit to what he was asked to do he would be compelled to do it by force. In Watson v Marshall [1971] HCA 33; (1971) 124 CLR 621, Walsh J found that it had been made clear to the plaintiff that he had to go to the hospital and that after protesting he went to a police car which was nearby and then went in it with the defendant to the hospital, no physical force was used at any time by the defendant. At p.626, Walsh J stated: "I find that in the circumstances the plaintiff had a justified apprehension that, if he did not submit to do what was asked of him, he would be compelled by force to go to the hospital. Therefore a restraint was imposed upon the plaintiff which amounted to an 'imprisonment' of him by the defendant: see Fleming, The Law of Torts, 4th ed., (1971), pp. 28-29; Winfield on Tort, 7th ed., (1963), p. 155 and Symes v Mahon [1922] SASR 447."

In Symes v Mahon [1922] SASR 447 Murray CJ had said (at 453) -

"In a case of this description, where there has been no application of physical force to the person alleging imprisonment, there must be evidence of complete submission by him to the control of the other party, for it is obvious that if he evaded or refused to go with the latter, it could not be said that he had been deprived of his freedom (Grainger v Hill (1838) 4 Bing NC 212)."

Thus, for the plaintiff's claim to succeed he must establish that there was a complete deprivation of liberty caused by the defendant's direct acts without lawful cause or excuse. Such a deprivation must consist of a comprehensive limitation of freedom, that is, escape must not be available to him at all, otherwise there can be no imprisonment (Bird v Jones [1845] EWHC J64 (QB); (1845) 7 QB 742). Threats of force used to procure control can also constitute a commission of the tort (Symes v Mahon [1992] SASR 447). The plaintiff must establish that the assertion of authority by the defendant, even though no actual restraint was used, amounted to not allowing the plaintiff to leave if he wished to do so. The plaintiff must establish that he believed and was induced by the defendant to believe, that if he attempted to leave he would be restrained.

It is fundamental to the issue of imprisonment in this matter that there was an arrest. It is common ground that at no stage did the defendant expressly put the plaintiff under arrest or take hold of him so as to effect an arrest.

The provisions of s23B(2) of the Crimes Act 1914 were referred to as relevant to the issue of arrest:

Subject to subsections (3) and (4), a reference in this Part to a person who is arrested includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if: (a) the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or (b) the official would not allow the person to leave if the person wished to do so; or (c) the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so;

but a person is not treated as being arrested only because of this subsection if: (d) the official is performing functions in relation to persons or goods entering Australia and the official does not believe that the person has committed a Commonwealth offence; or (e) the official is exercising a power under a law of the Commonwealth to: (i) detain and search the person; or (ii) to require the person to provide information or to answer questions.

In my opinion, s23B(2) has no application to the circumstances of this case. Those provisions of the Crimes Act only apply to Commonwealth offences and the investigation thereof. The offence which the defendant wished to investigate with the plaintiff was an offence of stealing a motor vehicle in New South Wales; Vincentia is in the state of New South Wales. Accordingly, at no stage was the defendant investigating a Commonwealth offence.

However, the provisions of the Children's Services Act 1986 about interviewing children were relevant. Section 30 is in the following terms:

(1) Where a police officer- (a) suspects that a child may have committed a serious offence or an offence against the person or property; (b) believes, on reasonable grounds, that a child may be implicated in the commission of such an offence; or (c) is holding a child under restraint,

the police officer shall not interview the child in respect of an offence or cause the child to do anything in connection with the investigation of an offence- (d) unless a person who is not a child or a police officer but is- (i) a parent of the child; (ii) a relative of the child acceptable to the child; or (iii) a barrister and solicitor acting for the child or some other appropriate person acceptable to the child,

is present; or (e) unless- (i) the police officer has taken reasonable steps to secure the presence of a person referred to in paragraph (d); (ii) it was not practicable for such a person to be present within 2 hours after the person was requested to be present; and (iii) another person (who may be a police officer) who has not been concerned in the investigation of the offence is present.

(2) Subsection (1) does not require a police officer- (a) to permit a person whom the police officer believes, on reasonable grounds, to be an accomplice of the child in respect of the offence to be present while the child is being interviewed, or is doing anything, in connection with the investigation of the offence; or (b) to take steps to procure the presence of a person referred to in paragraph (1) (d) whom the police officer believes, on reasonable grounds, to be an accomplice of the child in respect of the offence.

(3) .....

(4) Subsection (1) does not prevent a police officer from interviewing a child, or asking or causing a child to do a particular thing, where the police officer has reasonable grounds for believing that it is necessary to do so without delay in order to avoid danger of the death of, or serious injury to, any person or serious damage to property.

It is common ground that the defendant in seeking to interview the plaintiff, an Aboriginal person under the age of 18 years, was endeavouring to comply with s30 of the Children's Services Act 1986.

The Plaintiff's case

The plaintiff's case as given in evidence was that on 23 September 1994 when he was 14 years old, he, in the company of two other males, was approached by the defendant, a constable of the Australian Federal Police, at approximately 1.30pm. The place of the interaction was Wreck Bay in Jervis Bay.

The plaintiff claimed that the defendant asked him if he knew anything about a car stolen from Vincentia High School, Jervis Bay, to which the plaintiff replied that he did not. At the time, the plaintiff was a student of Vincentia High School and on this day he had come home early at lunch time.

The defendant then asked where the plaintiff's parents were. The plaintiff's father was working at the Wreck Bay Community Council on that day, which was directly behind a hall approximately 50 metres away. Both parties went to the hall looking for the plaintiff's father, but could not find him. The plaintiff's mother was in Sydney, but was due to arrive home later that day. The defendant then asked both of the other males with the plaintiff at the time whether they would come to the station with the plaintiff. Both declined for legitimate reasons.

The defendant then began to approach his police vehicle and told the plaintiff that he had to come to the Jervis Bay police station to answer a few questions. The plaintiff did so after expressing some resistance.

At the police station the plaintiff was shown into an interview room and told to sit and wait. At no time did the defendant touch the plaintiff. The plaintiff claimed that he did not know what he was waiting for.

The defendant came back to the room and asked the plaintiff to take off his right shoe. He duly complied with this request and the defendant left the room with the shoe. A short time later the defendant returned with a photograph of a footprint and the plaintiff's shoe. He asked the plaintiff whether he thought the two matched. The plaintiff replied that he did not and the defendant agreed.

The plaintiff then heard his aunt's voice in the police station and shortly after this he was shown to the door by a policeman (his evidence was not clear as to whether it was the defendant who did this or another police officer) and he left the police station with his aunt.

At the time of the incident the plaintiff was residing with his mother in Wreck Bay. He arrived home from the police station at approximately 2.30pm. His mother arrived home approximately 3 or 4 hours after that.

The plaintiff's evidence in chief about going to the police station was -

Right. And what happened?--- He said - he said, "You'd better come over to the station and answer a few questions.

And did you reply?--- Yes

What did you say?--- I said, "You can't do this, mate."

Did he say anything back to you?--- Yes

What did he say?--- He said, "You can't tell me what to do. What not to do and what can I do. You're coming with me now. You've got - you're coming up to the station now to answer a few questions."

How did you feel when those words were said to you by the constable?---I felt powerless, intimidated. I felt like I couldn't do anything. If I would have walked away I thought, you know, he would have cuffed me and put me in the car.

His evidence about the shoe was-

And what happened at the end of that three minutes, did someone come in?---Yes.

Who was that?---Broekhuyse.

And did he have anything in his hands?---No. No.

Did he speak to you?---Yes.

What did he say?--- He asked me to take off my shoe - my right shoe.

And did you comply with that?---Yes.

....

Why did you - why did you comply with the constable's request?---I don't know, because I just felt like I couldn't do anything, I was just powerless, you know.

....

The following day, how did you feel about yourself as a result of what had happened to you?---I just felt intimidated, just so intimidated and had no confidence in myself, you know.

The plaintiff gave evidence in cross-examination that he arrived at the police station at approximately 2.00pm and remained there for approximately 10 minutes before he became aware of his aunt's presence in the station. He admitted that the allegation detailed in his statement of claim that he was detained at the police station "for approximately three hours until he was released" was not true and that he did not recall telling this to his legal advisers. Later he denied ever telling his legal adviser or his mother that he was at the police station for three hours.

Further in cross-examination the plaintiff said that when the defendant left him in the interview room, the door to the room was open and remained that way for the entire time the plaintiff was in there. He repeated that at no time did the defendant touch him. When the defendant requested the plaintiff to give him his right shoe, the plaintiff did not ask why the defendant wanted it. The period of time he was in the room was "ten minutes, or so".

The plaintiff said that the defendant did not tell him that he was making inquiries about a stolen car, rather he told the plaintiff a car was stolen from Vincentia High School.

The defendant then asked him where his parents were and he told him his father was down in the office working.

The plaintiff said in cross-examination that when he and the defendant walked off to find the plaintiff's father, he was not happy at that stage to go with the defendant because he did not like being accused of stealing the car. The plaintiff claimed that the defendant accused him of this at the start of their conversation when the defendant approached him and the two other males. It was after this accusation was made by the defendant that the plaintiff left with him to find his father. He claimed that he did not do so voluntarily, that he told the defendant he was not going with him to the police station and that this statement was made in the presence of his two friends, Mr Williams and Mr Ardler. To this the defendant told him that he had no choice.

After failing to locate the plaintiff's father and arriving back at the police car, the defendant made a radio call to the effect that he could not find the father and that he was going to look for the plaintiff's mother. The plaintiff "pulled him up .... and said my mother was in Sydney". Then the defendant asked him if he had "any uncles or aunties at Wreck Bay who might come back to the police station to assist", to which the plaintiff said "No". In evidence he denied that he had any aunts or uncles there that day. He agreed that the defendant said, "Surely there is someone who can accompany you, come with us" and the plaintiff said there was no one. He agreed that the defendant then asked his companions to come over and both declined.

The plaintiff acknowledged that the doors at the police station were at all times unlocked and that at no stage was he told that he was under arrest.

It was elicited in cross-examination that prior to 23 September 1994, namely on 13 June 1994 the defendant had apprehended the plaintiff breaking into a car. The plaintiff had been handcuffed, taken back to the Jervis Bay Police Station and placed in the same interview room. He gave a false name and date of birth, namely 18th April 1975 which would have made him 19 years of age at the time. He did that because he was scared of facing his parents.

On 30 January 1994 he was involved in another theft and was taken to the interview room at the Jervis Bay Police Station. He said that on neither occasion did he feel intimidated which makes it difficult to believe that he felt intimidated on 23 September 1994, as he claimed.

He had said in evidence that he had not been to the Police Station since 23 September 1994. But he admitted in cross-examination that he had been charged with damaging property on 11 November 1995, went to court on 1 February 1996, the offence was found proven and at the same time he was dealt with for breach of a good behaviour bond. He had been to the police station in connection with those matters. He said he had made a mistake in his evidence. H then admitted that he had also made a mistake in his evidence when he said that the defendant said that he had to go to the police station.

On the plaintiff's evidence above, it is apparent that the defendant was exploring every possible means of having a parent or responsible adult present when the plaintiff was to be interviewed about the stolen car. He tried to locate the father, then contemplated locating the mother, then asked about uncles and aunts in the Wreck Bay area, then asked the two adults the plaintiff was with to make themselves available. All those avenues having failed, he asked the plaintiff to accompany him to the police station. All that tends to support the defendant's evidence that his purpose in doing so was to make arrangements with the Aboriginal Legal Service at Nowra to make someone available.

I am satisfied that was the defendant's purpose, that he communicated that purpose to the plaintiff and that the plaintiff got in the police car and accompanied the defendant to the police station voluntarily

Mr Glen Williams a neighbour of the plaintiff gave evidence on behalf of the plaintiff. He said that he did not hear any conversation between the plaintiff and the defendant about looking for the plaintiff's father or see the plaintiff and the defendant go to the hall where the father was supposed to be working. That had all taken place, according to Mr Williams, before he arrived. The only conversation he heard commenced with a demand by the defendant to the plaintiff that he come to the police station. He said the plaintiff was reluctant to go to the police station but the defendant told him that he had to do so. He conceded that the defendant had asked him whether he could accompany the plaintiff and the defendant to the police station, but he was unable to do so because he was looking after his 5 months old child. The effect of his evidence was that the plaintiff went with the defendant in the police car reluctantly. He further conceded in cross-examination that when he himself declined to accompany the plaintiff and the defendant to the police station, the defendant said to the plaintiff words to the effect "Daniel, surely there's someone that can accompany us to the station" and the plaintiff said that there was no-one who could come. At the very end of his cross-examination he further conceded that the defendant said to the plaintiff that they would go the police station and work something out. Then at the end appears the following question and answer:

And as far as you were concerned when he said "Well come over to the police station and we'll sort something out" it was, Daniel didn't have to go, it was a matter of choice. Isn't that right?----Yes.

Kevin John Brown also known as Kevin Ardler, a resident of Wreck Bay also gave evidence on behalf of the plaintiff. He was a bit more informative; he said he was there when the defendant drove up and spoke to the plaintiff. First, he spoke to the plaintiff about a person who had been killed in a motor car accident and then started talking to the plaintiff about a stolen car and asked him if he had any connection with it. The plaintiff denied knowing anything about the stolen car. The defendant wanted to look for the plaintiff's father. They walked to the hall, could not find him and came back. There was then some conversation about going to the police station. The plaintiff refused to go without a parent and the defendant told the plaintiff not to tell him what he could or could not do. They then went together in the car to the police station. He added that the defendant had asked him whether he could accompany the plaintiff to the police station and Brown told the defendant that he was not old enough.

It is unnecessary to recite all the evidence given by Brown except his last answer in cross-examination:

The situation was that Daniel could go or not go as he chose.---I don't know. I think it was - it wasn't my decision. It was up to Daniel, I suppose.

The last witness on behalf of the plaintiff was Mrs Annette Brown, the mother of the previous witness Kevin Brown. She said that on 23 September 1994 she went to the police station as a result of what she was told by her son. When she got to the police station she saw Constable Hammond. She approached the bench in the police station and inquired whether Daniel Waine was being held. Hammond opened the side door and allowed her to enter the back of the counter. She walked through one hallway and around the other and as she approached the door the defendant actually walked out of the room. She had a quick look behind the door and saw the plaintiff sitting inside the room. She asked the defendant why he had actually picked the plaintiff up without his parent, to which the plaintiff replied that he had tried to locate his parents. She told the defendant that she was the plaintiff's aunt and the defendant replied that he did not know that. She and the plaintiff walked out the side door.

The plaintiff's mother also gave evidence which did not add anything to the events of the afternoon of 23 September 1994, except that in cross-examination she said that she had six brothers and six sisters and nine of them were living in the Wreck Bay area on that day, although she did not know whether they were at home at the relevant time.

The defendant gave evidence to the following effect:

Upon returning from two weeks annual leave on 23 September 1994, he perused certain files that detailed incidents that had occurred while he was away. One such incident was the alleged theft of a motor vehicle from Vincentia High School.

At 1.50pm that day, he went out on his own in the police vehicle, having commenced his shift at 1.00pm. Whilst on patrol he radioed back to the police station to advise of his whereabouts.

He saw the plaintiff at 2.30pm on the day in question. This evidence is supported by the log sheet tendered in evidence where it was noted that the defendant radioed in when he alighted from the vehicle to speak to the plaintiff. A conversation ensued between the plaintiff and the defendant. The defendant told the plaintiff that he wanted to "make some inquiries in relation to a vehicle that was stolen, had been reported stolen two days previously from the Vincentia High School". He then asked the plaintiff where his parents were and suggested they seek out the plaintiff's father. The plaintiff said to the defendant that he did not have to accompany him to do this, and the defendant agreed and said,

"No, you don't have to but it would make things easier if you were with me when I approached your Dad..."

With this, the plaintiff accompanied the defendant approximately 50 metres to the Wreck Bay Hall to look for his father. This conversation was witnessed by Kevin Brown.

Being unable to locate the plaintiffs' father, both parties returned to where they had originally met, approximately 50 metres from the hall. Whilst the parties were walking back to this spot, the defendant again radioed the police station and instructed that an attempt should be made to contact the plaintiff's mother at the Jervis Bay Administration. When the plaintiff heard the defendant giving these instructions he informed the defendant that his mother was in Sydney.

As they approached the police vehicle, Glenn Williams walked towards them. The defendant asked him if he could attend at the police station with the plaintiff and he replied that he was unable to do so. The same request was made of Kevin Brown and he also declined because he was under 18 years of age.

The defendant then suggested to the plaintiff that they go back to the police station and organise a representative from the Nowra Aboriginal Legal Service to attend with the plaintiff. The plaintiff did not reply. The defendant's evidence was that the plaintiff walked to the passenger side of the front of the vehicle, opened the door and got in. When the defendant got into the driver's side of the vehicle he again radioed the police station to advise he was "mobile". This fact is confirmed by the log sheet. The time recorded was 2.40pm. The defendant's evidence was that he drove to the Jervis Bay police station and that the journey took approximately five minutes.

During the trip back to the police station the parties discussed the rugby league grand final to be played in two days' time. The defendant arrived at the police station with the plaintiff at 2.45pm. This is confirmed by the log sheet that notes the defendant radioing in at this time when he was leaving his vehicle at the police station.

The plaintiff got out of the vehicle and the defendant opened the front door for him. The defendant then opened the next door and they walked into the interview room. The door to the interview room remained open and the defendant left the plaintiff in that room.

When the defendant returned to the interview room he asked the plaintiff for his shoe. The plaintiff handed him the shoe, and the defendant left the interview room with it. When he returned to the interview room, he was accompanied by Constable Hammond and he brought the plaintiff's shoe and a photograph with him. Constable Hammond asked the plaintiff what he thought of the print on the photograph and the shoe. The plaintiff said they did not look the same. Constable Hammond agreed with him.

Lynn Mitchell, the person on the desk at the police station, then called out to the defendant and Constable Hammond. The defendant walked out of the interview room to the front counter where he saw the plaintiff's aunt, Mrs Annette Brown, and another person.

Mrs Brown inquired whether the plaintiff was there, to which the defendant replied that he was. Mrs Brown asked if he had been charged with anything and the defendant said that he had not, and that he was assisting the police with their inquiries in relation to a stolen motor vehicle. Mrs Brown was irate and yelling uncontrollably. She said that the defendant could not do this and that there had to be an adult present. The defendant said that he was trying to organise that. The defendant let Mrs Brown and the other person into the station behind the desk and asked the plaintiff whether he would like to leave with Mrs Brown. The plaintiff replied that he would. The defendant thanked him for his help. The plaintiff left the station with Mrs Brown.

The defendant said that at no time did he say anything to the plaintiff that suggested that he had no option but to go to the police station, nor did he touch the plaintiff. The defendant denied that it was his intention to seek out the plaintiff on that day, rather he was conducting normal patrols when he came upon the plaintiff.

On the basis of the information he had read on the police file regarding the theft of the motor vehicle, the defendant said that he wanted to bring the plaintiff to the police station in order to question him. He did not at any stage caution the plaintiff. The defendant said that he did not have enough evidence to arrest the plaintiff. Despite the fact that the defendant showed the plaintiff into the interview room and asked him to remove his shoes and compared the shoe to a photograph, he stated in cross-examination that he intended to interview the plaintiff in the presence of a representative from the Nowra Aboriginal Legal Service.

The defendant's case was that the plaintiff accompanied him to the station voluntarily. His evidence in cross-examination was -

I take you to your original exchange with Daniel Waine at Wreck Bay. You heard Daniel Waine say that you told him to stop getting smart. What do you say about that?---That's not true.

Did you ever use those words?---Not to my knowledge.

Well, when you say not to your knowledge, is that another way of saying you may have done so but you don't have any recollection of saying it?---No, I didn't use those words.

You also heard Daniel Waine say that you told him to come and answer some questions. What do you say about that?---No, I believe my words were, "Can you assist me in this investigation", words to that effect.

And you heard Glenn Williams say, "You'll have to come with me to the police station." Did you say that?---No, I didn't.

You heard Daniel Waine say, "You can't do this." Did you hear him say that?---Yes, I did.

Mr Waine says that after he said that to you, you then said to him, "Don't tell me what you" - "Don't tell me" - - -

HIS HONOUR: "You can't tell me what to do."

MR EVERSON: "You can't tell me what to do", thank you, your Honour. Did you say that?---No, I didn't.

There were some other witnesses that said that you said that as well. In fact, Mr Brown said that when you said that you leaned forward and adopted an aggressive demeanour. Do you agree with that?---No, I don't.

And I suggest to you, Mr Broekhuyse, that you spoke to Daniel Waine in such a way as to create an atmosphere of intimidation. Do you agree with that?---No, I don't.

You spoke and acted towards Daniel Waine in such a way as to make him go along with every request of yours?---No, I didn't.

....

But he did in fact do everything you asked of him, didn't he?---No, he didn't.

Well, what was it that he didn't do that you asked him to do?---I would have like to have had a taped record of interview occur had I had an appropriate person present to conduct that taped record of interview. However, that didn't occur.

When did you ask him to participate in a taped record of interview?---Well, the purpose of going back to the station was to organise someone from Nowra Aboriginal Legal Aid to become present with a view then to conducting a taped record of interview.

I just asked you before whether you agreed with Mr Waine's assertion that you told him to come and answer some questions and you said, no, that's not what you said. Do you recall me asking you that question?---Yes.

And do you recall giving that answer?---I didn't agree with that, that's right.

Well, if I said words to the effect of, "Come and answer some questions at the police station," would you agree that that is what you said?---Yes.

And that's when Daniel Waine said, "You cannot do this"?---No, he didn't say that.

And I am putting it to you that Daniel Waine said to you, "You cannot do this," on 23 September 1994 and Wreck Bay on the hill over the road from the McLeod's house?---No, he didn't.

HIS HONOUR: Constable, you said in evidence that you regarded the plaintiff as a suspect in your investigation of the offence of stealing the motor car from the Vincentia High School?---Yes, your Honour.

When you took him to the police station in the police car, did you believe that you had sufficient evidence to establish that he had committed that offence?---No.

When you had him in the police station, would you have allowed him to leave if he expressed a wish to do so?---Yes, and, in fact, that is what occurred when his aunty arrived.

Did you do anything to give him reasonable grounds for believing that he wouldn't be allowed to leave if he wished to do so?---No.

Lynette Frances Mitchell, an administrative assistant with the Australian Federal Police, gave evidence on behalf of the defendant. On the day in question she was employed at the Jervis Bay Police Station as the branch clerk in the station. She completed the log sheet for 23 September 1994 according to the call-ins she received from the respective police officers. Accordingly she noted the defendant's movements in and out of his police vehicle.

She also saw the plaintiff and the defendant enter the station she said in relation to the plaintiff's demeanour:

Did you observe Daniel Waine?---Yes.

Did you observe how he looked in terms of his demeanour?---Yes.

What did you observe?---He just looked calm and as if he was just going about his every day duties or whatever, he didn't look upset.

Did you hear - - -

HIS HONOUR: I am sorry, I missed what you said?---He didn't look upset.

MR STRETTON: Did you hear Constable Broekhuyse speak to Daniel?---Yes.

....

What did you hear him say?---I heard him open the door for Daniel and say, "Just come through here, Daniel" and they went into an interview room and I heard him say, "Are you right to sit here for a moment, Daniel?"

Did you hear Daniel reply?---Daniel said "yes".

She also attended to Annette Brown, the plaintiff's aunt, when she came to the station:

Right. A short time later did somebody come to the counter of the police station?---Yes.

Tell us what happened, please?--- A short time later Annette Brown and another female came into the station and I went to the counter and I said, "Could I help you?" And Annette said, "Daniel Waine" and I said, "Yes." And I immediately went and got Constable Broekhuyse from the room and he came to the counter.

And did you hear a conversation take place?---Yes, I did.

What did you hear?---Annette said, "Is Daniel here?" And Constable Broekhuyse said, "Yes." And Annette said, "Is he under arrest?" And Constable Broekhuyse said, "No." And then Annette said, "Well, if he's not being charged or under arrest he's coming with me, you've got no right to come into the mission and take children without their adults being present."

Did you hear any further conversation?---Constable Broekhuyse then said to her, "Well, that is what I'm trying to do now, I'm trying to contact his parents or Aboriginal Legal Aid to have them attend."

Did you hear Annette Brown respond at all?---She said, "I don't care what you're trying to do, he's coming with me. If he's not under arrest he's coming with me. You've got no right to come out to the mission and just take kids."

In what sort of tone of voice was this conversation being conducted?---She was very, very agitated and extremely upset and she was shouting at the top of her voice.

Now, what sort of tone of voice was Constable Broekhuyse using?---He was very calm.

Yes. Did you hear then Constable Broekhuyse say something to Daniel Waine?---He said to Daniel, "Would you like to go with Ms Brown?" And Daniel said, "Yes." Then Constable Broekhuyse said, "Okay Daniel, thank you very much for attending the station."

....

Okay. And did Daniel then leave in company of Ms Brown?---Daniel then left, yes.

Another witness called on behalf of the defendant was Constable Neil Edward Hammond. He gave evidence to the following effect:

MR STRETTON: And did you enter the interview room where Daniel Waine was at any time?---Yes, I did.

When you went into that room was the door open or closed?--- It was open.

What conversation did you have, if any, with Daniel Waine?---The only conversation I had was I took a photograph in of a shoe print and showed it to Daniel, compared with a shoe which I believe was Daniel's, and asked him if he thought that the print in the photograph was the same as the sole on his shoe, and he said "No" it wasn't, and I said "Well, it doesn't look like that to me either", and that's all.

....

The interview room that Daniel Waine was located in, the door to the interview room was open?---Yes.

But there was another door beyond that which was closed; is that right?--- There is a door from the foyer area of the police station.

It has a lock on it, doesn't it?---Yes.

What sort of a lock is it?---It's a - has a digital keypad.

So if you looked at it you wouldn't be able to tell whether it was locked or not, would you?---From the outside, no.

From the interview room side would you be able to tell whether it was locked or not? If it was shut would you be able to tell whether it was locked or not from the interview room side of the door?---No.

The plaintiff's credibility and his reliability as a witness were clearly of importance in ascertaining the facts. The plaintiff was mistaken in some of his evidence which he admitted in cross-examination. Indeed, he did not answer some questions from his own counsel truthfully. I was left with the impression that the plaintiff had been rehearsed in his evidence and prompted to make complaint as a result of some sort of hostility generated at least by his aunt. For these reasons, where the plaintiff's evidence differs from that of the defendant and other defence witnesses, I deem it to be unreliable and lacking credibility.

Having considered all of the evidence, I make the following findings of fact:

1. The incident commenced at 2.30pm

2. There was no threat actual or implied that the plaintiff must accompany the defendant to the police station.

3. The defendant was trying to comply with his investigative responsibilities and obligations in relation to interrogating an Aboriginal child, by asking the plaintiff to accompany him to the police station so that a representative from the Aboriginal Legal Service could be obtained.

4. The plaintiff was not prevented from leaving the police station either directly or by implication.

5. There was no apprehension that if the plaintiff did not accompany the defendant to the police station he would be compelled to do so by force. He went voluntarily.

Counsel for the defendant referred to Balmain Ferry v Robertson [1906] HCA 83; (1906-1907) 4 CLR 379 in relation to the impact of available escape routes. However I do not need to consider that case because I am satisfied on the balance of probabilities that the plaintiff went voluntarily to the police station. He remained there voluntarily during the course of what happened there, and was always aware that he was free to leave at any time.

The plaintiff's claim for wrongful imprisonment fails because there was no imprisonment, hence there was nothing wrongful. There will be judgment for the defendant.

I shall hear Counsel on the question of costs.