A further chapter in the extraordinary consequences flowing from the violent death of Cameron Doomadgee at the Palm Island police compound in November 2004 has closed after the state’s highest court awarded substantial compensation to two residents caught up in recriminatory police raids that followed community protests.
David Bulsey was dragged from his bed shortly before 6 am on 27 November, handcuffed and then dragged partly-clothed out onto the street and bundled into the back of police van and thence an aircraft to the Townsville lock up. He was remanded in custody until the charges of “unlawful assembly” against him were dropped two days later.
His lawsuit and that of partner Yvette Lenoy – for police assault and wrongful imprisonment – was heard over 11 days in March 2012 but the judgement dismissing both claims was not given until three years later in February 2015. Even then, written reasons were not published until a further month later.
The pair contended that their arrest was unlawful because it was not for any of the special purposes that permit arrest without warrant as referred to in Police Powers and Responsibility Act s 198 (1) for example “to prevent the continuation repetition of an offence”.
Nor was it made upon by an officer who “reasonably suspected” that they had in fact committed an indictable offence, for the purpose of questioning about the offence or investigating it, as permitted in s 198 (2).
Rather, Detective Miles in Townsville had – the night before – examined police “running sheets” and a video of protests over Doomadgee’s tragic death in the custody of Sgt Hurley seven days earlier; and of the Palm Island police station blaze. He added Bulsey’s name to a list of those he wanted picked up in the raids scheduled early the following morning.
The appeal judges rejected the State’s contention that Detective Miles – who may have had the “reasonable suspicion” – could delegate his arrest-without-warrant power to the swat team because to do so would entirely circumvent the statutory protections afforded by arrest warrant processes.
The police officer who in fact arrested Bulsey had no “reasonable suspicion” and hence the arrest-without-warrant was unlawful. As a result, all the police action against him constituted an assault, battery and false imprisonment for which the State bore responsibility.
Just before Bulsey was dragged from his bed, Lenoy was making herself a cup of tea when the six heavily armed, helmeted and masked “special response” officers appeared on their verandah.
With commands shouted and automatic weapons pointed at her head she was “frightened, in shock, crying and shaking, her children were crying and screaming” while being led through the house and “totally overborne” by the officers.
Attributing the “extraordinary” delay in delivery of his judgement” as a possible cause for some “unpersuasive” conclusions, the appeal judges rejected the trial judge’s finding that Lenoy’s evidence of the raid was “unreliable”.
Their examination of the evidence established that her recollection was entirely consistent with that of the police officers and was not contradicted or even challenged in cross-examination.
Her treatment was indeed precisely what police evidence revealed the surprise operation was intended to achieve i.e. “to shock and awe so that those in the house were shocked and frightened”.
She too was therefore the victim of an unlawful arrest, assault and unlawful imprisonment.
Damages were awarded in favour of Bulsey at $165k comprising $60k for assault, battery and false imprisonment (including aggravated damages) and $100k for false imprisonment the two days following arrest. He was also awarded $5k for psychological injury.
Lenoy was awarded $70k.
“A very substantial award of damages is required to compensate for the wrong done by the wrongful exercise of executive power over a citizen,” said Justice High Fraser who delivered the lead judgment of the court. “The award should properly and fully compensate to take into account the violence and the particularly distressing and humiliating circumstances”.
The court noted that humiliation, deprivation of liberty, outrage and emotional responses to indignity and insult as well as mental suffering: grief, anxiety, apprehension of personal violence and distress not involving a recognised psychological condition, are not “personal injuries”.
For that reason, Civil liability Act s 62 has no application in the assessment of damages in such cases.
CLA s 52 only applies to preclude an award of aggravated damages in relation to the death or personal injury to a person, not where the loss claimed is in the nature of wrongful imprisonment. To conclude otherwise would “add injury to insult”.
The appeal judges also noted that “it may be arguable that the CLA does not apply at all to a claim for personal injuries based upon intentional torts” by reason inter alia, of the operation of s 4 (on or after specified times); or s 5 (harm not involving any breach of duty). Mention was made of those grounds so as “not to foreclose the points” but no arguments to that effect were advanced in the appeal.