Recent intriguing judgments from the NSW District Court … Copper in sexual relationship with a vulnerable witness … Lismore copper behaving badly … Teenagers and tabloid rag … Peta Leigh is courtside
Last week HH delivered her reasons in Auditore v State of New South Wales – a vexed matter involving a woman’s claim in negligence for psychiatric injury.
The plaintiff, Laura Auditore, had been a witness in criminal proceedings involving her former boyfriend, when she entered into a consensual, though “inappropriate”, sexual relationship with a NSW copper who was investigating the crime.
The former boyfriend was convicted for a series of offences related to filming sexual encounters with other women. The plaintiff’s role as a witness was confined to the evidence about the location of the boyfriend’s criminal conduct.
She claims that she was a “vulnerable” person, having disclosed her history of anxiety and depression to the police officer, and owing to the officer’s significant role in the investigation.
The plaintiff’s attempts to formulate the novel duty were fraught with difficulties. Most obviously, according to Judge Gibson, Australian courts have historically denied that police officers owe a duty of care to witnesses, no matter how vulnerable.
HH was open to the notion that while the police have traditionally enjoyed immunity from actions in negligence, contentious case law allows this question to remain open.
However, she pointed to UK case law that denies the existence of a duty of care to witnesses and victims, saying this represents “a formidable barrier” to the plaintiff’s novel claim.
There were conceptual difficulties in applying typical aspects of negligence claims, such as vicarious liability, to intentional actions like sexual relationships, especially where those actions could have a statutory cause of action.
The judgment also referred to the 2015 report of Victoria’s Independent Broad Based Anti-Corruption Commission on predatory behavior by police officers.
It found that betwen 2004 and 2014 there were over 140 complaints in relation to vulnerable people where police allegedly made lewd, suggestive and unwanted remarks of a sexual nature; used their position to commence or attempt to commence an intimate relationship; or engaged in criminal offences such as rape, indecent assault and sexual acts with minors.
For now, the judge has struck out the pleadings, holding that the plaintiff has not appropriately formulated this novel duty, with leave to remould the particulars of her pleading to the specific demands of tortious negligence.
Judge Len Levy also had to grapple with allegations against the police in Costello v State of NSW.
A Lismore woman, Rhani Costello, sued the state, claiming it should be held vicariously liable for the actions of two experienced police officers, Sgt Craig Ahrens and Snr Const Megan Cook.
In 2011, police attended the woman’s home following a call from her ex-de facto partner, Ronald Staff, who alleged he was the victim of domestic violence.
This involved slapping Staff in the face after an altercation during which he had grabbed her mobile and portable phones.
The court heard that police used force to arrest the 32-year-old woman, and transported her roughly to the station in spite of her obvious physical and cognitive disabilities – resulting in serious bruising. She was detained in a police cell for over three hours in a state of great distress.
The plaintiff satisfied Levy DCJ that the police officers’ actions amounted to common law assault, wrongful arrest and false imprisonment.
The judge was critical of the actions and attitudes displayed by the officers, with particular objection at the way in which Sgt Ahrens relied instinctively upon the male ex-partner’s version of events.
The court heard that the officer took a written statement from Staff, which referred to him as the “victim”. Levy found the statement contained two references to Staff committing the assault against the plaintiff, as well as evidence that he took the plaintiff’s phones without her consent, which could have been addressed by the officer.
Yet, the officer took no written statement from the plaintiff. With no regard to her distress and protestation, the arrest was made on the basis that she had allegedly scuffed the man’s car, and his claim that she had stolen his car keys.
The keys turned up in a field later that day while the woman was detained in custody – having been accidentally dropped by Staff.
The plaintiff had an acquired brain injury with related cerebral palsy. This has resulted from a head injury in an accidental fall that she suffered in infancy.
In awarding damages, HH was critical of defendant’s treatment of the plaintiff, including cross-examination that made little to no allowance for the plaintiff’s disability, and that the defendant sought to unfairly impugn the plaintiff’s credit in relation to her mental health and former relationship.
In addition to the award of general compensatory damages for assault and battery and wrongful arrest and false imprisonment, the judge found that the “high-handedness” of the police behaviour justified the award of $25,000.00 in exemplary damages.
The total damages arising from the actions of the coppers was $70,549.
Amy, the “NEET” (not in employment, education or training) interviewed and photographed with her friend Ashleigh for the article, reportedly told the newspaper that she was unable, and had no desire, to hold down a job.
She was reported saying that she preferred to spend time “chilling at Maccas” and taking a Holden Barina off-road, than finding a job.
Following publication of the story, it emerged that Amy was in fact enrolled in year 12, engaged in part-time work, and was due to commence a training program in the following year.
The newspaper sought orders striking out various parts of the plaintiff’s reply, as it relied on the common law defence of consent.
Judge Judy Gibson was in action again and in relation to the teenager’s apparently false statements to the journalist, HH found that the defence of consent need not only apply to true statements, but could also apply to false statements made by plaintiffs.
As such, the crucial facts to be established in these proceedings were not whether the contents of the plaintiff’s statements were true, but rather whether she did in fact make the statements, and pose for the photographs that were attributed to her.
The judge found that neither the plaintiff’s age at the time of consenting, nor the fact that the plaintiff did not see the material before it was published, were barriers to invoking the defence of consent.
She considered that the allegation that the plaintiff had been photographed without her knowledge, and the potential argument that she was never actually interviewed, are serious issues for trial.
The judge cautioned that the amended reply should be verified to ensure the serious consequences of these allegations have been considered.
The plaintiff was chastised in relation to aspects of her reply, for “opprobrious” comments about the journalist in question, and its inappropriate reference to unrelated and incomplete proceedings. Those portions were struck out.
Proceedings will continue in September.