Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 Campbell J 16 September 2016

The story begins with a “quite intoxicated” Thomas Hamilton returning with two others to an apartments in Sydney’s Rocks district in December 2009. All in high spirits, they had been guests aboard a private harbour cruise.

An argument was sparked by the trio’s banter over the route chosen by the taxi driver that soon followed, according to the driver in the form of repeated deeply offensive racist taunts from a person with a Scottish accent.

The incident has been the source of litigation by Hamilton, a Gold Coast property developer, against NSW police for assault and wrongful arrest. In 20 pages of written reasons following a 10 day trial, the court concluded that because Hamilton was a Queenslander, it was unlikely that he had been part of the argument with the driver over the chosen route.

Although found by the judge not to be “possessed of a broad Glaswegian accent”, Hamilton’s “intoxicated disinhibition” and a “memorable holiday in the land of his birth some months earlier” likely caused the 61-year-old to emulate a highland brogue in a taunt of the driver. It was he too who the driver alleged had repeatedly pushed him in the back of his head with an open palm.

Spotting two police officers as the taxi came along George Street, the driver quickly pulled over and ran to them for assistance.

In just as quick time Hamilton exited the vehicle, allegedly with a guilty purpose to evade arrest at Grosvenor Place near the Brooklyn Hotel to make his way to his co-reveller’s apartment on foot. The quicker of the two officers approached Hamilton from behind, who was already on the opposite sidewalk and without warning, rammed him into a concrete wall and then with a leg swing and the help of a “burly” colleague, downed him onto the pavement.

That violent episode saw the arresting police escort Hamilton to St Vincent’s Hospital for treatment for cuts to his face and broken ribs after which he was released without charge.

He was later prosecuted for resisting arrest and assaulting the taxi driver but both charges were withdrawn at the latest possible moment. Constable Middenhall was charged with assaulting Hamilton but acquitted.

In deciding Hamilton’s wrongful arrest claim, the New South Wales Supreme Court criticised both officers for not attempting to detain their suspect in a peaceful manner to obtain his version of events and to form an opinion if he was a person of danger. “Grabbing a person from behind is calculated to extract a startle response introducing tension or even fear to the encounter,” ruled Justice Stephen Campbell. Rejecting the evidence of the policemen, the arrest was ruled unlawful because “the force used was unnecessary and done out of indifference to Hamilton’s right to be at liberty with neither officer genuinely believing him to be dangerous”.

The court also ruled after the 16 day trial, that being held against his will from 11:45pm until 3:30am the following morning was an “unlawful imprisonment”. His prosecution was “malicious” in that Constable Middenhall put forward false material to support charges that were eventually dismissed.

How should compensation be assessed

Although not actively developing in December 2009, Hamilton had resumed his work with the assistance of his daughter.

Accepting “that successful capitalism depends upon entrepreneurial flair, the ability to think quickly and creatively” and that he was the “engine driving” the business, a global sum of $120k was allowed for future loss of earning attributable to his significant PTSD condition making up part of a wrongful arrest damages of $541k. A further $8k was allowed for the 3 hours 45 minutes of unlawful imprisonment including at St Vincent’s Hospital most of which time he had been kept in handcuffs. Finally a further $20k compensatory and $10k exemplary damages were awarded for the malicious prosecution.

Total award $582k for a night out that Mr Hamilton would surely prefer to have ended in a much different way.

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