The Beverley Mine Protest – You can trust Nukers to be Nukers.

Beverley uranium protesters win legal costs in fight with South Australian Government
A court has ordered the South Australian Government to pay the legal bills of nine people who were assaulted and unlawfully detained during an anti-uranium protest. The Supreme Court had already awarded more than $700,000 in damages. Back in April, it found eight protesters, a news cameraman and a girl were unlawfully detained and assaulted during a protest at the Beverley mine in South Australia’s far north-east, a decade ago. Police locked some of the group in a shipping container and the girl, who was 11, had capsicum spray used on her. The judge awarded extra damages over comments by the South Australian treasurer and police minister that they would not negotiate. Justice Timothy Anderson said video footage should have prompted the state to compromise. Now the government has been ordered to pay the group’s legal bills after the judge was told the protesters had offered to settle before the trial. Seven protesters who were awarded more by the court than their settlement offers will get extra money for their legal bills. (ABC June 30, 2010)

Beverley uranium mine protesters awarded compensation
Uranium mine protesters who were beaten, capsicum-sprayed and locked in a shipping container by police have been awarded compensation by a South Australian judge, who criticised the state’s Deputy Premier and Police Minister for provocative comments they made about the case. The South Australian Supreme Court yesterday (April 9) awarded $724,560 to eight protesters, a television cameraman and a then 11-year-old girl involved in a protest at the Beverley uranium mine about 600km north of Adelaide, on May 9, 2000. Judge Timothy Anderson found some of the force used by police was unwarranted: “Some of those arrested, some being plaintiffs, were mere passive observers, several of whom were taking video footage.” And he said the use of the shipping container as a holding cell was “ill-conceived and resulted in fundamental breaches of human rights”. (The Australian April 10, 2010)

http://www.austlii.edu.au/au/cases/sa/SASC/2010/95.html

Supreme Court of South Australia

(Civil)

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

WHITE & ORS v STATE OF SOUTH AUSTRALIA

[2010] SASC 95

Judgment of The Honourable Justice Anderson

9 April 2010

CRIMINAL LAW – PARTICULAR OFFENCES – PROPERTY OFFENCES – TRESPASS TO LAND

Plaintiffs entered onto private property being leased land – defendant claims that plaintiffs trespassed onto the leased land – police attempted to remove plaintiffs for trespassing – whether police authorised to remove plaintiffs – cause of action in trespass requires knowledge on the part of the trespasser that they are trespassing, a request to the trespasser to leave the land and a refusal by the trespasser to leave – not established that any plaintiff arrested for trespass entered in the knowledge they were trespassing – whether police conduct constituted a request to leave – held police did not or did not properly make requests to the plaintiffs to leave and therefore plaintiffs did not trespass.

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR – CAUSING, INTENT TO PROVOKE, A BREACH OF THE PEACE

Where plaintiffs were detained for breach of the peace – whether common law powers to detain for breach of the peace were properly exercised – held none of the plaintiffs found to have committed any breach of the peace – not established that there was any reasonable apprehension of any breach – held plaintiffs detained were wrongfully detained.

TORTS – TRESPASS – TRESPASS TO THE PERSON – WHAT CONSTITUTES AND DEFENCES THERETO – ASSAULT

Where plaintiffs arrested or detained after force used to apprehend the plaintiffs – police use of batons, OC spray and physical force generally – cause of action requires plaintiff to be in fear or apprehension of imminent battery – all plaintiffs were in fear or apprehension of imminent battery – held police assaulted all plaintiffs and defendant vicariously liable.

POLICE – ACTIONS FOR WRONGFUL ARREST, TRESPASS AND OTHER WRONGS – GENERALLY

Where plaintiffs were arrested for trespass – trespass not made out on the facts – held that where arrested, the plaintiffs were wrongfully arrested.

TORTS – MALICIOUS PROCEDURE AND FALSE IMPRISONMENT – FALSE IMPRISONMENT

Where plaintiffs were imprisoned after arrest for trespass or detained for breach of the peace – eight of the ten plaintiffs were physically deprived of liberty for approximately seven hours – one plaintiff was deprived of liberty for five hours – defendant’s allegations of trespass or breach of the peace were not made out on the facts – plaintiffs were unlawfully arrested or unlawfully detained – held plaintiffs were falsely imprisoned, and defendant vicariously liable.

DAMAGES – GENERAL PRINCIPLES – EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES

Plaintiffs claimed aggravated damages for the treatment they received on 9 May 2000 in conjunction with their false imprisonment, wrongful arrest, unlawful detention and for being assaulted by police – whether treatment humiliated and insulted the plaintiffs – plaintiffs claimed exemplary damages for the unreasonable and insulting conduct of the defendant on and after 9 May 2000 – comments made by government ministers – whether defendant’s conduct constituted a contumelious disregard for the plaintiffs’ rights – held that plaintiffs were humiliated and insulted, and that defendant’s conduct did constitute a contumelious disregard for the plaintiffs’ rights – all plaintiffs awarded aggravated damages – nine of the ten plaintiffs awarded exemplary damages.

TORTS – TRESPASS – TRESPASS TO GOODS

Plaintiffs claimed special damages for loss pertaining to items of personal property – some items of personal property of the plaintiffs were damaged during the course of their arrest or detention and some items were confiscated by police and never recovered – held plaintiffs to be awarded special damages where claims made out.

Supreme Court Act 1935 (SA) s 30C(3); Summary Offences Act 1953 (SA) s 17A(1), referred to.

Macpherson v Beath (1975) 12 SASR 174; Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) [2002] NSWCA 265; Walker v Hamm [2008] VSC 596; Barker v R [1983] HCA 18; (1983) 153 CLR 338; Semple v Mant; Cargill v Semple (1985) 39 SASR 282; Margarula v Rose [1999] NTSC 22; (1999) 149 FLR 444; R v Conley (1982) 30 SASR 226; Police v Slobodian [2008] SASC 79; 254 LSJS 117; R v Howell (1981) 3 All ER 383; Brander v Lovegrove (No 2) 103 LSJS 304; Jordan v Gibbon (1863) 8 LT 391; Forbutt v Blake (1981) 51 FLR 465; R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; Murray v Ministry of Defence [1988] UKHL 13; [1988] 1 WLR 692; Maine v Townsend (1883) 4 LR (NSW); R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58; Bird v Jones (1845) 7 QB 742; Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597; Dallison v Caffery [1965] 1 QB 348; Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118; Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027; State of NSW v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125; McDnald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 (NSWCA); Whitefield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71; NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638; Andary v Burford (1994) Aust Torts Reports 81-302; Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 (HL); Johnstone v Stewart [1968] SASR 142; Walker v Hamm (No 2) [2009] VSC 290; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied.

WHITE & ORS v STATE OF SOUTH AUSTRALIA
[2010] SASC 95

Civil

ANDERSON J.

1. Introduction

There are ten plaintiffs in this matter who sue the State of South Australia for damages as a result of events which occurred at a protest in May 2000. The causes of action are principally for assault, false imprisonment and trespass to goods.
The original defendants were the State of South Australia, Superintendent Kym Boxall, Sergeant David Miller, Sergeant Les Riekie, Andrew Thiele, Kevin Brown, Richard Miller, Ben Spencer, Kym Husdell, Paul Mitchell, Paul Clonan, Philip Emmett, Gavin Stone, Troy Kaesler, Dale Oates, Neil Wilson, Terry Paynter, Martin Gornall, Brendon Irrgang, Joseph McDonald, Sean Bell, Peter Thomas, Allan Dawson, Andrew Mogg, Tina-Marie Hewkin, and Anna Thomas. The State of South Australia, by letter dated 18 May 2009 accepted vicarious liability for each of the other defendants and the other actions were discontinued. The plaintiffs were protesters and other individuals.
A few days before Tuesday 9 May 2000, a group of protesters, including the plaintiffs, assembled at the entrance gate, or main gate, to the Beverley uranium mine which is situated just north of the Flinders Ranges in the far north of South Australia. The mine was run by Heathgate Resources Pty Ltd (“Heathgate”).
Heathgate held and continues to hold a 21-year mining lease from the South Australian government, commencing 16 April 1999. Heathgate also has agreements with the Aboriginal people who are the traditional owners of the land. They are the Adnyamathanha people. Three native title agreements were made between Adnyamathanha elders as registered native title claimants and Heathgate. The agreements were made on behalf of all the Adnyamathanha people. A similar access agreement between registered native title claimant for the Kuyani people and Heathgate was made on 16 April 1998.
The three agreements were made on 27 February 1998, 22 April 1998 and 27 July 1998 (Agreements 1, 2, and 3). Relevant clauses are:

C1 3.7 “except where Heathgate is obliged to restrict access to the Site pursuant to its obligations in respect of relevant laws relating to health and safety, Heathgate shall not otherwise unreasonably restrict access by the Native Title Claimants and/or Adnyamathanha people to the Site (numbered cl 3.8 in Agreement 2)

Cl 4.1 “… Heathgate, its servants, agents and contractors shall have quiet enjoyment of the site and shall be entitled to undertake mining operations on the Site unhindered”

The agreements were to be operational for the term of the mining lease granted and any terms of renewal.
The lease is situated on Wooltana Station, about 40 kilometres north-east of Balcanoona National Park. It covers about 25 square kilometres. Balcanoona is about 100 kilometres east of Leigh Creek and about 30 kilometres south of Arkaroola Village. Road access to the mine is by way of dirt roads.
At the time of the protest, the mine site was under construction. On the site there was a processing plant, rig, storage areas, trenches, and a retention pond. Various buildings had been constructed to support the mining operation. The entire site was surrounded by a barbed wire fence. A core area of the mine was fenced by a 6 foot high security fence. This area was referred to as the FLT site.
The uranium mining at Beverley involves an in situ leaching process. This is opposed to traditional mining by closed or open-cut methods. It was explained by Mr David Brunt of Heathgate. He said that instead of sinking shafts and mining from underground or removing overburden in an open-cut capacity, it involves drilling patterns of wells where groundwater has reagents added to it. The groundwater is then circulated between the wells and the aquifer which contains the uranium deposit and uranium is recovered at the surface so it carries a number of environmental and health and safety positives with it, as compared with conventional mining.
By 9 May 2000 the assembled protesters at the main gate of the mine numbered about 150. The protesters were quite a disparate group. Most of them were opposed to uranium mining generally, some of them to the particular leaching process that was used and others were concerned in relation to the intrusion of the mining venture onto Aboriginal land. The traditional owners of the land and supporters of the traditional owners were represented, and finally there were some protesters who had just come along for the ride.
The May protest had been planned for sometime. Some public meetings had been held at earlier points of time and flyers had been distributed advertising the fact that there was to be a protest at Beverley. The plaintiff Lucinda White was involved in discussions with the Aboriginal elders and organising the flyers and arranging the meetings.
The protesters were aware that there was likely to be media coverage of this event and it was their way of attracting public attention to the fact of the uranium mining at Beverley. There were two representatives of Channel Seven present on 9 May 2000, one, the plaintiff Mr Jamie Holland, who was a cameraman and he was accompanied by Mr Peter Caldicott, a reporter.
At the same time, the South Australian Police Department had assembled a squad under the command of Superintendent Kym Boxall of approximately 24 police officers. This squad was assembled following police intelligence that a large group of protesters was heading towards the mine site. The police kept an active intelligence on the actions of the protesters in the weeks and days leading up to the protest. Police officers had been summoned from centres in the north of the State, including Port Augusta, Port Pirie and surrounding areas, in the days preceding 7 and 8 May in case there was any was trouble. Five Star Force or Star Division officers were then summoned to the site on Sunday 7 May by Superintendent Boxall to assist the uniformed police in relation to the control of the protesters. They arrived late on the Sunday evening.
The protesters had set up a camp site outside the main gate to the mine. The police had set up a control point just inside the main gate. In the two or three days prior to 9 May 2000 several incidents between the police and protesters had occurred but generally the police and the protesters understood each other and appeared to relate well to each others requirements. Despite that, in the days prior to 9 May, some protesters went onto the mine site and were detained, held for sometime and then released outside the main gate.
As mentioned earlier, the police had envisaged a protest sometime before May, and in fact prepared a detailed report known as Operation Beverley (SAPOL, 1999) which is part of exhibit P1. This document was well-thought through and detailed in the approach advocated in the event that there was a protest at the mine site. It was prepared in 1998 and finalised and approved by a Chief Superintendent on 21 June 1999. It covered particularly the attitude that the police should adopt in the event of a protest, and laid out procedures to be followed both in relation to arrest and detention, should that become necessary. It concentrated on the way in which police powers should be used in relation to the apprehension and caution of protesters as preferred to their arrest and detention. It canvassed the way in which breach of the peace powers could be utilised.
On 9 May 2000, protesters crossed over a fence onto the mine site, and the police attempted to remove them. There were several incidents which I will describe later in these reasons. These incidents include one general scuffle between police and a group of about 30 protesters, some arrests of protesters by police officers and some rock throwing by a few protesters. The rocks actually caused damage to one police vehicle, and were thrown at and near to police officers nearby. A couple of police officers were struck by rocks.
It is alleged by the protesters that in the course of the police action that day they were beaten and sprayed with Oleoresin capsicum spray, or OC spray, even though they were in the course of exiting the mine site at that time. The State of South Australia alleges that malicious damage to mine equipment caused by the protesters in the days preceding had put them “on notice”. The police were concerned on 9 May 2000 that further damage might be caused. In the course of confrontations earlier described between the protesters and the police, rocks were thrown at the police who then took steps to protect themselves.
On 9 May 2000 approximately 30 protesters were detained. Some were detained for trespass or breach of the peace, some were not given a reason. They were taken to a central area in the administration section of the mine site by police cars and placed in a makeshift cell which was in fact a disused shipping container. The dimensions of the container were about 6 metres long, 2.3 metres wide and 2.4 metres high. Whilst the protesters were inside the shipping container, a wire cage was welded to the outside of the container. Most of the protesters apprehended were held in the container for about three hours and then a further similar amount of time in the wire cage.
Later that same day the protesters who were detained were taken to a separate location and released. Most of the plaintiffs had spent approximately seven hours in custody. The plaintiffs claim they were falsely imprisoned throughout that time.
At the trial Mr Walters SC, Mr Mueller and Mr Collett represented the plaintiffs and Miss Nelson QC and Mr Goodall represented the defendant.

Issues

Generally, the plaintiffs are claiming damages against the State for assault and for false imprisonment, for the injuries which they suffered, both physical and mental, as a result of the police action. They allege that they sustained these injuries as a result of unreasonable force used by the police, including the use of batons and capsicum spray, verbal insults, and humiliation as a result of their false imprisonment. Some of the plaintiffs were arrested, and some were only detained.
The issues to be decided are:

(a) Did any of the plaintiffs commit the offence of trespass when they entered the mine lease, or while they were on the land?

(b) Were the detentions for breach of the peace lawful?

(c) Were the plaintiffs or any of them falsely imprisoned?

(d) Were the plaintiffs or any of them assaulted?

(e) Are the plaintiffs entitled to damages? If so, what is the measure of those damages?

2. Summary of reasons

For the reasons which follow, I have decided:

(a) The plaintiffs who were arrested for trespass did not commit the offence of trespass when they entered the mine lease, nor at any time while they were on the land. Therefore the arrests for trespass were not lawful.

(b) In all other cases the detention of the plaintiffs for breach of the peace was unlawful.

(c) Each of the plaintiffs except Helen Gowans was falsely imprisoned.

(d) Each of the plaintiffs was assaulted.

(e) The plaintiffs are all entitled to damages, which I later assess.

There is no question that the right to protest in a sensible, organised and orderly fashion is part of the Australian culture and way of life. One would generally have expected the police to be accommodating in their attitude to the protesters and prepared to bend the rules, provided that there was no real harm to life or property. Operation Beverley recognised the right to protest and required the police to “display an attitude of tolerance and good humour consistent with maintaining the peace and recognising the democratic right of citizens to protest without interfering with the lawful activities of others”.
Wherever the truth of the matter lies, the whole incident or series of incidents observed on various video exhibits from footage taken at the time show that at times there was a most unpleasant and volatile situation. I will find that some police did not act with tolerance and good humour. Some used unreasonable force and did not act in a conciliatory fashion.
During the trial almost every witness was shown video footage of the events of 9 May 2000, both in examination in chief and during cross-examination. Some of the video footage demonstrated, as you would expect with such a long delay, that witnesses’ recollections were not always accurate. I was able to form a picture of how these events developed from about 9.00 am on 9 May 2000 from watching the video footage many times during the trial.
Whilst the video footage cannot be a substitute for direct evidence from witnesses because it is not continuous, it is nevertheless both supportive, and in some cases destructive, of the evidence given by the witnesses. I have been careful to remind myself that it was a dynamic situation which developed on 9 May. It was very fluid and ever-changing and therefore I am cautious when considering what witnesses have told me. It may be unfair to penalise a witness whose account of events might not necessarily have been captured by the cameras that were operating at the time. I have certainly called in aid the footage of events in my attempts to resolve differences between the oral testimony of the witnesses.
Because the events occurred almost ten years prior to the witnesses giving evidence in court, there are many difficulties associated with assessing the evidence. The motives of those who gave evidence, which naturally tended to be self-serving and to place a gloss on the events as they occurred, have been examined carefully. However, with a few exceptions, I thought the witnesses each did their best to give an honest recollection of the events they recalled from May 2000.
Having said that, there are many discrepancies in the overall evidence. Some witnesses had clearly refreshed their memories either from statements which they had made many years before, or by looking at video footage, prior to coming into court. Some clearly could not remember the events in any detail without the ability to refresh their memory from either their statements or the video footage. I thought that some of the plaintiffs and some police officers who gave evidence tended to embellish their respective accounts of the incidents to suit their particular cause. This is natural after such a long time because memories have faded and events have now become more focused on the plaintiffs’ claim for damages. I do not find, with a few notable exceptions, that there was any conscious attempt to mislead the court. I will deal with some witnesses who in my opinion did not give a full and frank account of their involvement at the time later in these reasons. In general, I thought the demeanour of the witnesses was also satisfactory, again with a few notable exceptions.
Of the plaintiffs, I formed the view that all of them, with the exception of the cameraman from Channel Seven (Mr Holland) and the young Aboriginal girl (Helen Gowans) were there because they shared genuine concerns about the mining of uranium and the possible effect on health and various other risks associated with the substance. Mr Holland was there in the course of his work with Channel Seven and Helen Gowans was with her grandfather Mr Ron Coulthard, who was an Adnyamathanha elder, and she had a right to be on the land.
I have found that some of the force used by the police, either by use of capsicum spray or by the use of batons or both, was unwarranted. Some of those arrested, some being plaintiffs, were mere passive observers, several of whom were taking video footage. This group included Mr Holland who was arrested for trespass. Unfortunately no record was kept of the arrests or who the arresting officers were in relation to the individual protesters, and so in respect of a number of arrests there is no police officer accountable. In some cases therefore the plaintiffs’ version of events is unchallenged.
My findings indicate that the chain of command appears to have been transferred from Superintendent Boxall to Sergeant Les Riekie of the Star Division once the Star Division became part of the action. Some uniformed officers, four or five of them, were handed large cans of capsicum spray by the Star Division officers. In the events which followed I have found that the use of capsicum spray by some of the uniformed officers was fairly indiscriminate. Likewise I have found that batons were used indiscriminately in an attempt to move the protesters along.
After their initial detention in police cage vehicles, essentially it seems for alleged breaches of the peace, the protesters were imprisoned in a disused shipping container for periods up to three hours. Whilst between 24 and 30 protesters were inside the shipping container it was decided that a wire mesh cage would be welded and annexed to the container. That welding took place while the protesters were within the container. I have found it to be a potentially dangerous and unnecessary decision in the circumstances. Most were held in that cage for a further three hours or thereabouts. Overall the protesters were deprived of their liberty for periods of up to seven or eight hours from the time of their initial detention on the land. This included sometime in the rear of police cage vehicles, time in the container, time in the cage annexed to the container and then in transit to their release destination at Balcanoona National Park.
I have found that Superintendent Boxall appeared to have no definite plan regarding how he would deal with those detained. He made a decision more or less on the spur of the moment on 9 May to use the disused shipping container, despite his having rejected it as totally unsatisfactory on the previous day. The police officers on the day, despite the clear statement of objectives and procedures to be followed in Operation Beverley, did not act in accordance with the stated intentions of Operation Beverley. This particularly relates to the procedures to be adopted in the event that protesters entered the mine site. I have concluded that many protesters, including nine of the ten plaintiffs in this matter, were unlawfully detained, and that the police misused their common law powers to detain for breach of the peace. There was a lack of understanding amongst most police officers as to the difference between arrest for trespass and detention for breach of the peace. Most thought there was no real difference.
It is my view that the use of the shipping container as a holding cell was ill conceived and resulted in fundamental breaches of human rights. I find that it was not necessary in any event for the protesters to be held in custody, with possibly two or three exceptions, one of whom was the plaintiff Isabella Brown.
I have held the State of South Australia liable for damages as a result of the arrests and detention of the plaintiffs. I have not acceded to the plaintiffs’ requests to compensate them in the amounts which were nominated by Mr Walters in his closing address. I have found that there was an area of exaggeration in the plaintiffs’ claims, even though I do not doubt that they were traumatised by some of the actions of the police force. I find that generally the effects of the traumatisation passed reasonably quickly in most cases. I find that some of the accounts given by the plaintiffs as to alleged long term effects are exaggerated, especially where there is no medical evidence in support. I find, however, that all were traumatised by the detention and treatment whilst held in custody.
One difficulty encountered as the case for the plaintiffs proceeded was that it seemed to me that most of the plaintiffs were particularly interested in being part of some type of inquiry or quasi royal commission into the events that occurred on 9 May 2000. This is understandable in view of their involvement but it is not necessarily the best atmosphere in which to conduct a claim for damages in a civil court.
I have found that the plaintiffs are entitled to general damages for their arrest and detention and I have also found in each case that they are entitled to aggravated damages. I have also awarded exemplary damages to all plaintiffs, except Helen Gowans. The awards for exemplary damages are not high because of the award of aggravated damages and because there is an overlap of relevant factors in those two heads of damage.
The plaintiffs had each claimed substantial amounts for exemplary damages. The award for exemplary damages in each case covers the fact of and associated problems with the shipping container being used, the welding which took place and the remarks of two Ministers of the State regarding the motives and attitudes of the plaintiffs. Those remarks were made in the context of justifying the cancellation of a planned mediation.
The State of South Australia fought the case essentially on the premise that what was done in the circumstances was reasonable. This was based on the remoteness of the mine site, the lack of proper facilities, the need to improvise and cut corners and the fact that when the protesters came onto the land in large numbers, split-second decisions had to be made to ensure the continued safety of the public and to protect the mine property. It was submitted that these difficulties were compounded when a few protesters decided to throw rocks at police and police vehicles.
This submission loses some of its force by virtue of the fact that such a protest was anticipated and there was advance planning in considerable detail with the preparation of the well thought out and detailed Operation Beverley. When the trouble began on 9 May 2000 it is my view that much of Operation Beverley was ignored, to the extent that individual police officers misused their general powers. Superintendent Boxall, as the officer in charge, appeared to lose control.
I have had to guard against being wise in retrospect in my criticism of the police operation, and Superintendent Boxall in particular, but I do feel that once the Star Force entered into the equation, because of their particular training, of necessity the exercise became a de facto military exercise which then had an influence on some of the uniformed officers in causing them to use unnecessary force. It is my view that most, if not all, of the force used was unnecessary because, in general, once the Star Force officers appeared, kitted out in helmets, and with shields and batons raised, the general body of the protesters naturally retreated and had no desire to remain on the mine site. The emergence of the Star Division officers in full riot gear was an imposing sight which had the desired effect.
The plaintiffs submitted that the police officers colluded amongst themselves with a plan to use force and violence on the protesters. Miss Nelson submitted that this theme remained throughout the trial. My comments as to the actions of the various police officers are not related to any collusive plan. In my view there was none.
What followed was an unnecessary use of force by the Star Force and undisciplined use of capsicum spray and batons by uniformed officers. The arrests which were made were random and those detained had been singled out without being involved in any breach of the peace or the commission of any substantive offence. Most of the plaintiffs were isolated from the main group of protesters when apprehended.

3. Days preceding 9 May 2000

The main group of protesters had come via Wilpena Pound where they had camped on 5 May 2000. There were police officers in attendance at Wilpena, following the progress of the protesters. Wilpena Pound is about 150 kilometres south of the mine.
On Saturday 6 May, 24 officers, including Superintendent Boxall, arrived at the mine site. A briefing took place and there were no incidents with the protesters.
On the morning of Sunday 7 May a further briefing took place. The police intelligence was that there were 25 to 30 vehicles heading for the mine site on the way from Balcanoona. Later in the day about 100 persons were noted camped at a creek bed just east of the main gate to the mine.
Some protesters went onto the mine lease that afternoon. Those persons were detained and removed from the lease. The Beverley running sheet records details of nine persons detained for trespass or breach of the peace. When apprehended, they were detained in a disused toilet and ablutions block and then later released at the main gate. The running sheet shows that they were detained for about three to four hours.
Five officers from the Star Division of the police force arrived at about 11.00 pm. They then performed night shift duties. They had been summoned to attend when Superintendent Boxall decided he needed additional resources.
On Monday 8 May a meeting was held in the morning between Superintendent Boxall, the Star Division and Heathgate management. The running sheet shows that one protester was arrested for various offences, which are not listed.
Some replacement police officers arrived in the afternoon by police aircraft. They replaced those who returned to their country stations. The running sheet shows at 18.04 hours, “Breach of peace by some protesters by entering land inside main gate. Persons requested to leave. They were compliant but appear to be testing police action”.
The running sheet for Monday 8 May also records negotiations between Mr Coulthard, and others. By and large, Monday was an uneventful day for the police.

4. The events of 9 May 2000

The Channel Seven crew of Mr Holland and Mr Caldicott conducted interviews with Mr Coulthard and Mr Kevin Buzzacott at about 8.20 am on the morning of 9 May 2000. Mr Buzzacott was an elder from another Aboriginal community nearby. These interviews are captured in various video footage. It was after the interviews concluded that Mr Coulthard and his grandson Weylon crossed onto the land, followed closely by the first protesters. Weylon is plaintiff Helen Gowans’ brother. From the various video footage and times recorded on that footage, this entry took place sometime just prior to 9.00 am. Therefore it can be safely assumed that the first protesters had crossed over the fence onto the mine lease just prior to 9.00 am. By about 9.15 am a number of people had crossed the fence. The protesters did different things; some continued to walk north following the fence line and others spread out onto the mine lease.
The first arrest on that day was most likely the arrest of the person known as “Mohawk Man” identified on the video by his distinct haircut. He was arrested for no apparent reason other than the fact that he was on the land and was apparently clowning around. At around the same time the incident involving the alleged spraying of Jeni Gonzalez and Helen Gowans took place.
The Kaesler/Gornall incident then took place, followed by the arrest of both Ms Gonzalez and Matthew Bonner within a fairly short time.

(i) Kaesler/Gornall incident

On 9 May 2000 police officer Mr Martin Gornall was paired with police officer Mr Troy Kaesler. In his evidence Mr Kaesler said that they travelled in their police vehicle towards a group of about 20 to 30 protesters, stopped and got out of the police vehicle. I estimate this to have occurred just before 9.25 am. He said he then yelled to the protesters that they were trespassing and were required to leave or they would be arrested. Mr Kaesler then described how the protesters were walking in two lines. He approached a female who was walking past and told her that she was under arrest for trespassing. Why he did that is not certain. He said that she struggled and resisted his hold and it was at that stage that other protesters came to her assistance in trying to pull her free of his grasp.
He then says that he and Mr Gornall were completely surrounded by protesters and that he received numerous blows to his upper body, head and facial area. He said that when he was able to move backwards, he commenced using his OC spray from the container held on his belt, which was the standard police issue. He said he used the spray to move the protesters away from him and to keep them from coming towards him. He said he continued to use it to ensure that they moved away from himself and Mr Gornall.
He then described the circumstances of the arrest of Ms Gonzalez and the transporting of her across the ground to the police vehicle.
In relation to this particular incident Mr Gornall said that prior to the group walking towards them, they appeared to be passive but then they surrounded him. He said he was pulled and shaken and hit when surrounded and he was also kneed in the groin. He said he lost the epaulette from his jumper and the radio cord and hand piece that attaches to the radio on his person was ripped from the actual unit. In cross-examination he agrees that he was only surrounded for a few seconds. He says it was extremely frightening. He was shown the footage of the incident and agreed that there were protesters in front of him but he was not in the middle of the group. He identified one part of the video where he says he is surrounded. He says he was pulled out from the group by his jumper by Mr Kaesler. He says there was no way he could have got out of there without being pulled out.
Miss Nelson submitted that it was in response to the officers’ request to leave the land that the protesters surrounded the officers. She then submitted that the protesters resorted to violence against the two police officers.
In the overall scheme of things, Miss Nelson places the actions of the protesters as the precipitating event. She says this showed an intention by the protesters to resort to violence rather than comply with the police directions. Miss Nelson points to audio in which the protesters accuse the police of trespassing as evidence that they were told by Messrs Kaesler and Gornall to leave the land.
I have seen the video footage of this incident many times during the course of evidence and again during final addresses. I have also seen the slow-motion version of the same incident. In my view the incident as described by Mr Kaesler and Mr Gornall has been exaggerated by them. I appreciate that the whole of the incident might not be captured on the footage but it certainly shows for a considerable time, that although there was clearly a skirmish, and although there was some pushing and shoving, the circumstances as described by both Mr Kaesler and Mr Gornall are in my view over dramatic. When Mr Kaesler is backing out of the group he is not being pursued by anyone or being pushed or pulled. The protesters seem to be attracted towards something or someone lower down, possibly a protester on the ground, rather than concentrating their efforts on either of the police officers. They might have been concentrating on Helen Gowans, who was pulled into that group. That would explain why they appeared to be looking down.
I have observed in most video footage on the day, including that incident, that it is unlikely that any requests made generally to leave would have been communicated to the protesters. There was just too much background noise of yelling and shouting, and vehicle noise, for anything in the nature of a request to leave would have had any impact at all. I am not prepared to find that, if requests were made, they were adequately communicated to the protesters.
It was as a result of the Kaesler/Gornall incident that police officer Mr Terence Paynter says that he drove into a group of protesters, because he believed he saw the police officer Mr Dale Oates being endangered. Mr Paynter’s memory is clearly wrong in this because Mr Oates was not involved in that incident, nor was he involved in any similar incident which could have been mistaken for this one.

(ii) Driving into the protesters

This event occurred at around 9.25 am and the footage clearly shows Mr Paynter’s vehicle driving into the protesters. On the video you can hear the horn sounding continuously. I deal with this incident again when considering the individual plaintiffs who were involved. The video footage clearly shows Mr Paynter’s vehicle either coming into contact or very near contact with the protesters. On such rough terrain the driving of a vehicle in that fashion was, as I have said elsewhere, fraught with danger and unwarranted. The initial reason advanced by Mr Paynter was that it was because he thought Mr Oates was in the middle of the group but that was, as I have indicated, quite wrong and, in any event, would not have justified the action.
After this incident, Ms Brown, who says she was threatened by the driving because she was part of that group, was isolated at some stage and then arrested. It was following her arrest and Mr Paynter driving into the protesters that some rock throwing which can be observed on the video took place. This was within a minute or so, according to the times on the video, of the cars having been driven at the protesters.
The driving in close to the protesters in such a manner was not necessary. It was clearly a catalyst to the events which followed, including the almost contemporaneous rock throwing by the protesters.

(iii) The rock throwing incident

Clearly there were rocks thrown both at police and at police vehicles. The video footage shows several protesters involved in the rock throwing. The whole incident of rock throwing lasted probably about a minute or two. It has not been established that any plaintiff was involved in the rock throwing. The rock throwing by the protesters cannot be justified. It was dangerous and stupid.
It seems, however, that the rock throwing did follow closely upon the incident where police vehicles, including those driven by Mr Paynter and police officer Mr Neil Wilson, drove into or close to the group of protesters. It was also contemporaneous with the arrest of Ms Brown. Airborne rocks can be seen on the video footage at the time she is being taken into the police vehicle.
Police officer Mr Brendon Irrgang says rocks were thrown at him but did not hit him. Mr Oates says he saw rocks thrown and that some four or five connected with his body. Mr Paynter says that the rocks were tennis ball size. Both police officers Mr Wilson and Mr Paul Clonan confirmed the rock throwing as being about the time Ms Brown was being arrested. Police officer Mr Philip Emmett was hit by a rock in his abdomen.
Mr Kaesler says he was hit by rocks. He indicated on the video footage where he says one rock was aimed at him, and that appears to be so. Mr Gornall says rocks were thrown for about five minutes and says there was a lot of rock throwing.
I will separately analyse the evidence of alleged subsequent rock throwing once the Star Force became involved, but at the present time that is a sufficient description of the rock throwing before the involvement of the Star Force.
I have indicated that the rock throwing by the protesters was dangerous and unnecessary but the reaction to it by Superintendent Boxall needs examination. He ordered the immediate retreat of his officers and at the same time summoned the Star Division and held a briefing. The officers withdrew to the drill site. The briefing on the drill site took place at about 9.45 am or thereabouts. The note of the briefing contained in the police running sheet shows that the intention was that protesters were only to be detained using breach of the peace powers, unless a substantive offence was involved. I would interpret that as meaning that unless someone was caught red-handed throwing rocks or committing any other offence, then the rest of the group would be asked to leave and then arrested if they refused. A number of protesters had started to leave at the time of and subsequent to the rock throwing. At the time of the retreat, the protesters that remained were either sitting or standing and not creating any problems.

(iv) Briefing

The briefing can be seen on the video footage. No audio is available of who said what at that time and no notes were made by anyone as to what was said. Obviously some police officers remember parts of the briefing and who gave the briefing but a lot of detail is lacking.
It seems that Superintendent Boxall, Sergeant David Miller and Sergeant Riekie all addressed the officers during that briefing. The impression I gain from the evidence overall is that Sergeant Riekie was the most dominant of the speakers at the briefing.
Sergeant Miller was more concerned, it appears, with the logistics of the arrest teams, and some officers indicated that what Superintendent Boxall said was merely a repeat of what Sergeant Riekie said. It is clear that Sergeant Riekie issued general instructions. He was to command his own officers as well as the uniformed officers in the attempt to move the protesters from the mine lease.
It is my view that Superintendent Boxall, whether by design or not, handed over control of the operation either directly or impliedly to Sergeant Riekie at that stage. This meant that the uniformed officers were placed into a quasi military operation. It seems to me that they did not have any real understanding or knowledge of the Star Force methodology. There was clearly confusion, from the evidence of the uniformed officers, as to how and in what circumstances they were to use the large cans of capsicum spray which were allocated to them by the members of the Star Force. Sergeant Riekie said that the officers were told to use it in conformity with the general rules relating to the use of capsicum spray. Mr Kaesler, Mr Wilson and Mr Gornall said that Sergeant Riekie told them they were to spray on his command. Sergeant Riekie says he did not give any such order.
There is also confusion as to the purpose in the task assigned to those officers who were allocated capsicum spray. There is confusion in the evidence as to whether they were to use the spray in protection of the Star Force officers or in conjunction with the arrests, or both.
It is my view that the scenes which followed, and as depicted in the video footage, show that once the Star Force “split the pack” of protesters, there was considerable confusion. It is my view that the exercise showed a lack of planning and consultation, and lack of cohesion as to what methodology was to be used with a lack of any specific directions from Superintendent Boxall. His officers were in a situation of both using their own discretion and at the same time following the commands of Sergeant Riekie. In relation to the exercise of their discretion, clearly some officers overreacted in their use of capsicum spray and batons. As I say, I suspect this is because once the Star Force became involved the whole operation took on a military connotation. Force was applied by the Star Force to the group of protesters, which force I consider was unwarranted at the time. It is difficult to see, in retrospect, what was achieved by “splitting the pack” other than confusion. In my view a simple and loud command to leave, over a vehicle loudspeaker or speaker system, would have been much more effective and less confronting.

(v) The Star Force involvement

At about 10.00 am after the briefing the Star Force officers were mobilised and proceeded to approach the protesters on foot. This can be seen clearly on the video footage. When confronted by the sight of the Star Force officers with helmets, face shields, full body shields and batons, the protest group naturally walked in the opposite direction. Whilst they initially walked in a north-westerly direction which was toward the mine infrastructure, they then turned in an easterly, south-easterly direction, that is, towards the fence and away from the mine. On the video footage they appeared to be moving in an orderly fashion in a group towards the fence.
At that stage there is a dispute about what the protesters were doing. Star Force officers maintain that some rocks were being thrown, although accounts of this vary considerably. It is not apparent on any video footage that I have seen that rocks were thrown at this stage. Because there is quite an extensive video coverage of the Star Force involvement and from various different perspectives, I have formed the view that the evidence given by some police officers regarding the throwing of rocks at this stage has been exaggerated. There were some incidents on video where it was suggested rocks were thrown but it appeared to me that these were really only one or two at the most where someone was clearly throwing rocks as the protesters retreated.
Miss Nelson submitted that there were clear examples of protesters shown bending down. She asked one to infer they were picking up rocks. One person, described as an Ian Fairweather “look-alike”, clearly threw a rock. That is obvious from the video footage. Another protester at a later stage, nearer to the eastern fence, appears to throw a rock. Miss Nelson suggested there were several other such incidents, but I have not been able to find that from the video.
Miss Nelson submitted that the wedge operation by the Star Force with the use of shields only occurred after what appears to be a rock throwing incident. I do not agree that the video shows that to be the case.
As I have said, Sergeant Riekie, the officer in charge of the Star force, decided to split the group. He said this was an attempt to split off the alleged rock throwers from the rest of the group. On my observation, the group was moving towards the fence line in any event. Sergeant Riekie then ordered what he termed the “wedge type” formation to be used to split the group. This involved of necessity some physical contact between the officers and the group. This was done by way of forcing shields onto the protesters and forcing some of them to the ground, with the purpose of enabling the arrest team to arrest those persons. It seems to me from watching the footage that the arrests that took place were random and had no relation to any person actually causing a particular problem. In particular the arrests were not related to any alleged rock throwers. Many of the people who were arrested, it is apparent, were peaceful protesters who were not taking any action other than being on the land. These persons were not placed in police vehicles but merely asked to sit on the ground, which they did. No alleged rock throwers were arrested at that time and no-one was charged with any substantive offence relating to rock throwing. At this stage the object of the exercise, the subject of the earlier briefing, had not been followed.
The actions of the Star Force were then complicated by the unilateral decision of Mr Wilson to run to the outside of the group of protesters and release large bursts of spray into the group. This had the effect of further splitting the group with further arrests being made, again, apparently on a random basis.
I have criticised this operation elsewhere as being a quasi military exercise of necessity because of the training and discipline of the Star Force in carrying out such manoeuvres. Because it took on that complexion, it is my view that it influenced other officers, in particular Mr Wilson, Mr Gornall and Mr Kaesler to act unreasonably in the circumstances. None of the arrests made were for substantive offences as discussed in the briefing, as recommended in the strategies set out in Operation Beverley.
As I have said, apart from an initial north-westerly movement, from the time the Star Force encountered the protester group, the group generally was moving towards the fence. Some people split from the group and actually ran towards the fence. All that was necessary was to ensure that they kept moving in that direction. The actual tactics engaged in were to jog and require the protesters to move at a brisk pace over a large portion of uneven ground. The Star Force officers from time to time jogged quickly to ensure the rapid movement of the protesters towards the fence. This movement took place over several hundred metres and probably took the best part of ten minutes until they reached the fence. Some further arrests were made, again on what appears to be a random basis. Most of the retreat of the protesters at the urging of the Star Force and other officers is captured on video.
Whilst I can understand that the objective was to get the protesters to the fence as quickly as possible, it seems to me that that is what the protesters were doing in any event, and indeed they can be heard claiming that on the audio in several passages. They claimed they were peacefully leaving and asked why could they not be allowed to leave in peace.
The whole exercise engaged in by the Star Force and uniformed officers was quasi military and more appropriate for riot conditions. It was quite inappropriate for the situation on 9 May 2000.
After the arrests that were made on the land from the time the Star Force met with the group, the arrested protesters, including some of the plaintiffs, were placed in cage vehicles. Some of the plaintiffs had been detained prior to the Star Force involvement. They were Matthew Bonner, Isabella Brown and Emily Johnston.
When the remaining protester group got to the fence, followed by Star Force and other officers, the events surrounding the arrests of Lucinda White and Stephanie Conway took place. I will not deal with those arrests separately here other than to say that the entire sequence at the fence occurred at about 10.15 am. I deal with those events in some detail in discussing the evidence of Ms White and Ms Conway and of the various police officers involved at that time. Suffice to say, I have concluded that the police officers who gave evidence that Ms White and Ms Conway were observed on the lease throwing rocks earlier and were then followed and observed from that point until the time they reached the fence were incorrect.

(vi) Arrests

Of the plaintiffs arrested, Mr Holland, Mr Bonner, Ms Johnston and Mr Ian Foster were arrested for trespass and the remainder for breach of the peace. I comment elsewhere that the officers appeared not to distinguish between an arrest for the offence of trespass and the use of their common law powers to detain for breach of the peace. This is demonstrated best by the cross-examination of Star Force officer Mr Andrew Thiele who at the time he gave evidence was an inspector of police. His evidence on the topic shows a basic lack of understanding of the differences.
Mr Walters suggested that because protesters had been arrested for trespass, they were required to be unarrested when told they were only being detained for breach of the peace. My understanding is that an unarrest form would only be required where persons were apprehended and processed and then the charges were dropped. That was not the case here. Despite the confusion as to powers of arrest for trespass and for detention for breach of the peace, I do not consider there was any unarresting required.

(vii) Events at the main gate

Following the arrests of Ms White and Ms Conway, the Star Force and the other police officers moved in a southerly direction along the eastern fence line to the main gate. A lot of time was taken up in the trial of video evidence with footage of what happened at the main gate, which was essentially a stand-off between Mr Buzzacott and the Star Force followed by some discussions between Mr Coulthard and Superintendent Boxall. A “cease loiter” direction was given by Superintendent Boxall at about 11.40 am. He gave the group one hour to leave.
Then followed the arrests of two persons, one known as “Guitar Man” and one Andrew Ross. It was suggested by the plaintiffs that these arrests were staged in view of the general group of protesters to show the rest of the group that the police meant business. Some violence was used, in particular in the arrest of Mr Ross, and both arrests were in full view of the rest of the group. Whether by design or not, the arrests had the desired effect, and within the hour nominated by Superintendent Boxall for the time to cease loiter, the group had completely disappeared from the main gate and headed back to Balcanoona. Superintendent Boxall gave evidence that all protesters had cleared the main gate area by 12.30 pm.
As it turns out, the arrest of Guitar Man was completely unjustified and unlawful. He had been singled out by Mr Kaesler as the person who threw rocks at him on the mine site. Mr Kaesler was wrong in that regard. Guitar Man was never on the mine site. Mr Kaesler also wrongly identified Ms White as a rock thrower.
Mr Ross was arrested for offences to which he later pleaded guilty, thus indicating that his earlier actions warranted his arrest. The means of his arrest were fairly brutal, including being repeatedly hit with a baton, probably by Mr Thiele and being sprayed in the face from very close range by Mr Wilson.
Much has been made by the plaintiffs of the arrest of Mr Ross in particular to show the alleged brutality with which the police acted on that occasion. Other than fitting into the time sequence there is not much relevance in the arrests of either Guitar Man or Mr Ross. I cannot draw any conclusions based on propensity evidence to conclude that the violence exhibited towards Mr Ross was therefore also applied by other officers on the mine lease. I am not prepared to do that. It does show, however, that for the officers involved in that arrest – and there were many of them – Mr Ross was clearly targeted for some reason, and in later video footage he appears very distressed by the whole experience. Much of that would no doubt be due to the spraying of capsicum into his face at very close range. There were at least four or five officers involved in his apprehension and it is hard to see how the use of spray was warranted on that occasion. In my view it shows that the police used excessive force on that occasion.

5. Detention of individual plaintiffs

(i) Lucinda White

Ms White had been an active environmentalist for some years before May 2000 and had moved to Copley near Leigh Creek where she started a group called the Flinders Ranges Environment Action Collective. She experienced some contact with the local police at that time, who were aware of her presence within the community. In particular Sergeant Miller and Ms White were acquainted with each other.
She wished to engage in a peaceful demonstration at the Beverley uranium mine and was involved in the preparation of flyers to advertise the fact and also to hold meetings prior to going to Beverley. She had a particular interest in the Adnyamathanha people and had spent some time living and working with them and knew their culture. She was involved in informing the local indigenous community about their rights and she had some specific concerns with the use of ground water in the mining process. She was opposed to uranium mining at Beverley because of her concern that the grant of the mining lease was in breach of native title.
Ms White travelled to the camp at Beverley in convoy and took up a role which involved overseeing the more practical aspects of the protesters’ camp, including the cooking of food, the gathering of wood and looking after the Aboriginal people that attended.
On the morning of 9 May 2000 she said that she did not go onto the mine land. She knew some people had gone onto the land and about a half an hour or so after people had crossed over the fence she was aware that they were returning stressed, apparently as a result of the police using capsicum spray. She said she was handed a camera by one person who was coming back off the mine site and who asked her whether she would take over the filming because that person was affected by capsicum spray.
Ms White then travelled in a 4WD vehicle in a northerly direction along the eastern boundary fence for about a kilometre where she said she then stood on the bonnet of the vehicle in order to take film. Exhibit P2 contains a film from the camera which she operated at the time. The film shows a large group of protesters retreating from the mine site to the eastern boundary fence. This follows the engagement of the protesters by the Star Force, which is also part of her film. In particular it shows the witness Mr Caldicott from Channel Seven running off the land carrying the camera which he had taken from his colleague, the plaintiff Mr Holland. Mr Caldicott and his camera were placed in the 4WD vehicle and the vehicle left. Ms White’s film then shows the police contingent, including Star Force, walking or running behind the protesters to move them in the direction of the boundary fence.
Ms White says that whilst outside the mine lease, she was tackled from behind and flattened to the ground, the camera was taken from her and she found herself lying face down on the ground. Her voice can be heard on the audio of the footage calling out “shame” several times at some point. She said that she was sat on by what she thought were two policemen who held her arms behind her back and pushed her face into the dirt and pulled her hair. She also says she was capsicum sprayed at close range in the eyes and up the nose. She also says she was insulted and sworn at.
She identified two police officers who then dragged her upwards as wearing a blue uniform. That means of course that they were Star Force officers. She says she was then marched towards the fence, which was nearby, asked whether she was going to get over it. When she refused she said she was picked up and thrown over the fence onto the ground on the mine side of the fence. She was then placed in a waiting police vehicle. She said that she was with Ms Conway who was also arrested at about the same time and placed in the vehicle. So too was plaintiff Sam Hoffmann.
Ms White said that in the incident her sunglasses were broken, her necklace was broken and a vest she was wearing was damaged. Later she was taken in the vehicle to what she described as a compound area and told to spread-eagle herself with her arms and legs where she was searched or patted down by a male police officer. She said she was offended by this. After that she was placed in the shipping container, where she remained for close to three hours. She said that water was eventually provided but not before many requests were made and probably for an hour and a half or two hours after being placed in the container.
She gave evidence similar to the other protesters in relation to the subsequent welding of the wire cage which occurred, namely that it created fumes and sparks. She said no warning was given prior to the welding and she did not see a police officer inside the container while the welding took place.
Sergeant Miller was the officer in charge of Leigh Creek and knew Ms White, and when he recognised her after she was released from the container she said that he said to her, “This is as far as you’re going to get, Lou”. She was told at that stage she was being detained for a breach of the peace. She was then moved into the cage area which had been welded to the container. Later she was transported by police vehicle to Balcanoona National Park; she says it was evening time when she arrived. When the camera was returned to her it was empty and she next saw the film during her involvement in giving evidence to the Police Complaints Authority. I will deal with her case for damages separately but generally she said that apart from some cuts and scratches she had a difficult time mentally for the few months following the incident and she was very stressed and worried during those months.
It is noteworthy that she was not cross-examined on her description of the alleged assault or on being tackled and knocked to the ground. She was not cross-examined about having her face pushed into the dirt, having her hair pulled or being sprayed with capsicum. That is probably because the defendant was uncertain as to exactly who was involved in her detention and removal at the fence area. No-one actually owned up to arresting her.
Significantly some of the witnesses for the defendant described her as a rock thrower, whom they themselves had observed throwing rocks on site and then subsequently moving from the site to the position she occupied outside the fence. She was apparently arrested because it was believed she was a rock thrower. There was never any charge laid which related to rock throwing. She was challenged in court regarding the presence of the 4WD vehicle in the first place and further challenged regarding her statement that she stood on the bonnet of that 4WD vehicle taking film. There was a discrepancy in her statement to the Police Complaints Authority regarding the time she was handed the camera that she used to take the film. She said in examination-in-chief that she was handed the camera at around the camp area and maintained in cross-examination that that was the correct version. Her earlier statement given on 17 November 2000 was that the camera was handed to her by someone when they left the mine site. Ms White said in court that after being given the camera, the 4WD vehicle, supplied with water and first aid, headed to locate the protesters coming off the mine site.
Ms White said that she filmed continuously until she was tackled to the ground, although she may have stopped filming at one stage when she climbed down from the bonnet of the vehicle. She thinks she was filming for probably a total of less than ten minutes. She maintained under cross-examination that she never went onto the mining lease until she was taken over the fence by the police officers. She said that when she can be heard on the footage saying “Shame on you, shame on you”, she was at that stage being pushed into the ground and cradling the camera.
Ms White maintained that she was definitely thrown over the fence and that the officers who put her over the fence were not in khaki uniform. She then said she was not absolutely clear but it was her memory that Star Force officers were involved in her arrest. She was cross-examined as to why she did not tell anyone in authority that she had not been on the mine lease and her answer was that she was reasonably strung out and did not say anything to the arresting officers. She said she was just trying to cope with having been sprayed with capsicum.
Most significantly it was not put to her at the time of her arrest that she was a person who was on the land earlier throwing rocks. This is quite surprising in view of the fact that several officers, including Sergeant Riekie actually picked her out and followed and observed her, according to the evidence, from early in the piece before the main group commenced its retreat to the eastern fence.
As I have indicated, there is some mystery surrounding which officers were involved in her arrest. Whilst Mr Kaesler seemed reluctant to admit to any role in the arrest, I think it is likely that he was the arresting officer. He was pointed out as such by some members of Star Force. He was also identified by those members of Star Force as the person who on the day had identified Lucinda White as throwing rocks whilst on the mine site. Mr Kaesler was liberal in his use of capsicum spray at an earlier point of time and still had the large canister when he was with Lucinda White at the boundary fence. I accept her evidence that she was sprayed and I believe that either Mr Kaesler or Mr Wilson were the likely culprits. The Star Force officers did not have capsicum spray on that day.
Mr Kaesler’s version of events is that the Star Group officers had crossed over the fence and apprehended two females. He says he then assisted one of the Star group members in grabbing hold of one of the females who had a video camera and taking her to the fence. That was clearly Ms White. He says he was then requested by one of the Star Group officers to assist in getting her to her feet and walking her to the boundary and that when they attempted to lift her he grabbed her left side. The pattern of arrests up until that point of time had been that although protesters were isolated by Star Force officers, the arrests were actually conducted by an arrest team which included Mr Kaesler. I think it likely that he in fact was the arresting officer, and probably was one of the officers who tackled Ms White to the ground. He identified the other persons in the general area as the five Star Group members, police officer Mr Gavin Stone, Mr Wilson and Mr Gornall.
I will later deal with his evidence generally. One particular point of interest is that he said he was unable to recall an incident shown on video footage in which he sprayed someone who was lying on the ground. He said he had no memory of that incident at all. By contrast, he was specifically able to exclude the fact that he sprayed Ms White. He had also made quite a serious mistake in identifying another person, referred to in the evidence as Guitar Man, as a rock thrower on the land at a time when it was proved that Guitar Man had never entered onto the land. His observations on the day have been shown to be inaccurate. I regard him as an unsatisfactory witness.
In relation to Ms White, Mr Kaesler said he had seen her with the main group as they proceeded to move towards the eastern fence. This is not possible if I accept her evidence that she was standing on the bonnet of the 4WD vehicle taking film as the group proceeded towards the fence. He said he first saw her when she was with the main group of protesters, and again that could not be right. He does agree that he took the camera from her but then gave a rather unsatisfactory series of answers in cross-examination as to how it was that she was taken over the fence. He maintained under cross-examination, and despite the video footage, that Ms White was part of the group involved in the earlier incident when the Star Force first engaged the group and that she continued with the group up to the fence. As I have indicated, he says he has a specific memory regarding not spraying Ms White but, strangely, he has no memory at all of spraying someone lying on the ground when the video footage clearly shows the sprayer to be him.
As mentioned earlier, Mr Gornall was Mr Kaesler’s partner on the day in question. If two uniformed officers were involved in the arrest of Lucinda White then the most likely person to have assisted Mr Kaesler was Mr Gornall. He said that as he approached the fence line he was with the Star Force members. He remembers arrests at that area of the fence line but cannot recall if those arrested were male or female. He says, however, there was one person he saw being lifted over the fence. He says there were two police officers actually lifting, in what he described as a passive lift. He said there was no fighting or anything like that, it was a passive lift over the fence and that is the last he saw of it. This is in contrast to other evidence that Ms White was kicking and making life difficult generally for those trying to move her towards the fence. Ms White says that she was kicking and making life difficult. Mr Gornall’s evidence is not convincing.
In cross-examination he was unable to say whether the police officers involved in lifting her over the fence were Star Force or uniformed officers.
Mr Wilson was also in the area where the arrest took place but he says that he has no memory of it. Once again he was an officer who had earlier been liberal in his use of capsicum spray. On the video footage a voice can be heard, which remains unidentified, saying hello to Neil, which is Mr Wilson’s given name. He does not know how far away he was and says he did not spray anyone at that time as far as he was aware. He said he did not have a recollection one way or the other. It was either he or Mr Wilson who sprayed Ms White in my assessment of the evidence.
I now turn to the evidence of the Star Force officers who were involved or potentially involved at the fence line in the detention of Lucinda White. The first of these officers called was Mr Kevin Brown. He said that as they got to the fence he saw someone being arrested. He said he knows it was a female and he saw that person struggling violently. He says he saw two uniformed officers trying to effect the arrest. He repeated that description in cross-examination and could not say whether the female was lying face down or face up. He says he was probably 10 to 15 metres away. He says he was not aware of any Star Force officers assisting in relation to that incident.
Mr Ben Spencer was another member of the Star Force. He says that as they approached the eastern fence line he did not observe anyone standing outside the fence. He was aware of the arrest of two people at the fence line. He said they were both wearing head scarves which were removed so that it could be ascertained whether they were male or female and it was acknowledged they were female. He says he did not see any discharge of capsicum spray. Likewise he says he did not observe anyone kick either of these protesters. That is relevant because Ms Conway alleges that she was kicked by a police officer. He says he cannot identify any of the police officers who were standing nearby but that his recollection is that they were uniformed police from the far north. He says significantly that there was no vehicle outside the fence line as they approached the fence line. This is clearly wrong because the video footage of protesters and police approaching the fence line was taken, as I find, by Ms White whilst standing on the bonnet of the 4WD vehicle. He says he did not see Ms White on the ground at any stage and does not recall how many officers were around her. He believes the first female was screaming the words “shame, shame”. He does not know whether the second female was detained by Star Group or uniformed officers. He says all of the five Star Force officers were in the area close by. He puts the two arrests, that is, of Ms White and Ms Conway, as one incident because that is how he recalled it.
In an earlier statement Mr Spencer had indicated that the people arrested were not thrown over the fence but carried over the fence. In his evidence he said he had no idea as to how they got across the fence.
Mr Thiele was also potentially involved in Ms White’s arrest. In another part of these reasons I am critical of his evidence generally. I thought he was a very poor witness. I thought his demeanour was very poor. In relation to this incident he says that Sergeant Riekie had earlier identified the rock throwers (allegedly Lucinda White and Stephanie Conway) and that they were wearing scarves. Mr Thiele said that he saw the rock throwers get over the fence as they approached and he says there was no vehicle there as they came towards the fence. He said that the Star Force officers did not knock these people to the ground. He said one of them was a “dead weight” so he saw her get picked up and lifted over the fence. I consider his evidence smacks of reconstruction.
Generally in cross-examination Mr Thiele was argumentative and his evidence was inconsistent with other versions he had given in earlier statements and interviews. He reiterated in cross-examination that he saw the two rock throwers on the mine lease earlier when they were identified by Sergeant Riekie. He said that he kept them under observation until they reached the fence line. He says they preceded the officers to the fence line and were just standing there. He says the women fell to the ground without any contact from Star Force officers. He does not recall either of them having a camera and he does not recall hearing the words “shame” or “shame on you” uttered at that time.
Mr Richard Miller was a member of Star Force who I thought had probably the best recall of the Star Force officers relating to this incident. He said Mr Kaesler came up and had a conversation with Sergeant Riekie after they approached the fence line but while they were still on the mine lease. He said Mr Kaesler pointed out two people standing outside of the mine lease about four or five metres away. One of them had a video camera. He said that at some point after that the Star Force became involved in the arrest of the two people that Mr Kaesler had pointed out. He said that one of the people that Mr Kaesler was trying to arrest was thrashing around and swinging her legs in an attempt to kick him. He says he took hold of the female and tried to assist by lifting her over the fence with one hand. He said he did not see any capsicum spray discharged. He said that, once passed over the fence, uniformed members took control of her. He said, as Ms White says, that she was not offering any assistance and making the job of getting her over the fence quite difficult. When cross-examined he said that two Star Force officers actually assisted Mr Kaesler in difficulties he was having getting Ms White over the fence. He described it as a low-level violent altercation. From the record of interview it is clear that at an earlier point of time he believed that both persons arrested outside the fence line were male.
It seems to me that Mr Kaesler was the arresting officer and took Ms White to the ground. Ms White’s recollection of two Star Force officers probably relates to the time when they were assisting Mr Kaesler, and not to the time she was taken to the ground.
Sergeant Riekie was the sergeant in charge of the Star Force on 9 May 2000. He says that as they approached the fence he saw the two people get over the fence off the site and instructed two uniformed officers to go and make the arrest. He remembers one of the protesters calling out “shame, shame”. He says he assisted another officer using his right hand to pick up the leg of one of the protesters around the knee and lifted that person with the assistance of the uniformed officer. He says that took place about five metres from the fence, and when they reached the fence the protester put her foot into the barbed wire to make the exercise more difficult. He said that she was not thrown over the fence. He said he saw no-one kick her or punch her, and likewise he said he saw no-one spray her or grab her by the hair.
In cross-examination he said that earlier he had seen both persons (allegedly Lucinda White and Stephanie Conway) throw rocks when they were on the mine lease. He said he looked at them from time to time from that point and followed them effectively to the boundary where they got over the fence before the Star Force caught up with them. He said it was a minor struggle, not violent. He said that the uniformed officers had one female each and they were struggling to lift them over the fence. He said he believed that one of the uniformed officers was carrying a large canister of gas. He said the first protester, obviously Ms Conway, went across the fence without too many problems but the one with dreadlocks and the camera, therefore Ms White, went completely limp and that is when he then assisted in lifting her over the fence. There were some inconsistencies in his oral evidence in relation to the observations he had made compared with statements which he had made at an earlier point of time. He said he has now had access to material which refreshed his memory and he has obviously made some errors in his earlier statements. He said it was he that directed that the two persons be arrested. He was forced to agree that his earlier statement about seeing the incident from inside the mine site was incorrect. That is obvious from the video footage. He conceded that the person taking the film must have been in that position for sometime because of the distance that the group, followed by the Star Force, had travelled.
The video footage taken from Mr Caldicott’s camera, while he was running towards the eastern fence, clearly shows a 4WD vehicle in position at the fence line. Until that film was slowed down it was not apparent that there was anyone standing on the bonnet but the slowed down version illustrates that to be likely. More particularly the still photographs taken from that video footage show a person standing on the bonnet, in my view.
I find that Ms White was standing on the bonnet as she says and was filming the protesters, followed by the Star Group and other police officers, when they began exiting the land some few hundred metres from the eastern fence. She was clearly not one of the rock throwers identified. The Star Force officers who say she was a rock thrower are wrong. Mr Kaesler likewise is wrong in identifying her as a rock thrower.
As to the circumstances of her detention, it appears from all of the evidence that Mr Kaesler and one other uniformed officer, probably Mr Gornall, were the arrest team for both Ms White and Ms Conway. It is likely that Ms White is incorrect when she says that a member of the Star Force was sitting on her. She may remember their uniforms because they were involved in assisting to get her over the fence but the most likely scenario is that her evidence, which I accept, namely as to the circumstances of her being taken to the ground, having her face pushed in the dirt, her hair pulled and being sprayed with capsicum, was carried out by one of the uniformed officers. It is not possible to say definitely, but it is likely that officer was Mr Kaesler. It is then apparent that Sergeant Riekie and Mr Miller were the two Star Force officers who assisted the uniformed officers in getting Ms White and Ms Conway across the fence. They were probably not thrown as they described but it probably felt like it. Ms White at least did not make life any easier for herself by her attempts to resist but, in fairness, she was being taken against her will onto the mine site for the first time by police officers who had wrongly identified her as throwing rocks, although she was not told that at the time. Sergeant Miller was also nearby. He knew Ms White and rather strangely says she was not one of the two females arrested at the fence line. I will later comment on his evidence.
Ms Conway’s evidence as to this incident is summarised shortly. It generally supports that of Ms White and confirms the use of force by the arresting officers.
I have found that Ms White never went on the land on 9 May 2000. Her purpose for being at Beverley was to peacefully protest against the uranium mining. She found herself filming at a later stage, outside the fence on the bonnet of a 4WD vehicle. She was not trespassing nor did she throw rocks. Ms White was assaulted in the course of her arrest. Her arrest was unlawful and she was falsely imprisoned for approximately seven hours. Items of her personal property were damaged during her arrest.

(ii) Matthew Bonner

At the time of the protest in May 2000 Mr Bonner was a television cameraman and was travelling with an organisation known as Earthdream. It was a group comprised of actors, singers and performers who travelled around Australia to draw attention to environmental issues. He was making a documentary in which he concentrated on particular characters he had selected as good subjects for his film. He met Sergeant Miller at Wilpena Pound shortly prior to the protest, where he said he told him that he was making a documentary and in fact asked to interview him, who declined. In the days preceding 9 May 2000 he filmed generally around the area of the main gate and had conversations with some of the police officers there, including one who was likely to have been Mr Paynter.
On 9 May 2000, Mr Bonner filmed the interview between Mr Buzzacott, Mr Coulthard and Channel Seven, then he realised that people were going onto the mine site. He entered the site and saw people spread out for a couple of hundred metres ahead of him. He commenced filming the protesters walking on the land and a scuffle between police and protesters.
The footage taken by Mr Bonner is an exhibit in the trial. He says that he was targeted by a police car driving at him when he was apart from the group filming the action. That is supported by footage taken by Channel Seven. He said the vehicle came close to him, within a couple of feet, and that scared him. A police officer got out of the car. That police officer was Mr Oates. Mr Bonner said that he was requested in fairly basic terms to hand over the camera. In the defence it is alleged that he in fact hindered the police because he prevented Mr Oates from opening the passenger door of his vehicle. This was the evidence given by Mr Oates. The video taken by Channel Seven clearly shows Mr Oates to be in error, as the door of the vehicle was being opened and was partly ajar as the vehicle was coming to a halt when Mr Bonner can clearly be seen some metres away from the car. Mr Oates could not have been impeded as he says.
Mr Bonner says that he was knocked to the ground by Mr Oates and then pulled up again in a rough fashion. He said that he was held by the throat. When these events occurred he said he had been on the mine site for between three to five minutes. He said he had not involved himself in the activities of any of the protesters and had in fact stayed clear of the group the entire time he was filming.
He was taken to a cage van and placed in the van by Mr Oates, with Mr Paynter holding the door open. He initially said that four police officers came into the rear of the van. He said that they were rough and took his video camera and went through his pockets and that he received a knee in the back which he later explained as a mistake because he said it was a knee in the stomach.
He overheard conversations between the police officers and said that they had claimed to have got a cameraperson. He also heard a call on the police radio saying “get the people with cameras”. He was referred to by the police when they saw him on the site taking film as “Camera Boy”.
He then gave evidence of the arrival of the Star Force officers, which he described as like being at a rodeo. He said that the police officers were whooping and generally “geeing” the Star Force up. He stayed in the back of the van for a while and then was transferred to another van and then later driven to the shipping container. It was probably about 9.20 am when he was first detained and placed in the back of the cage van. He said that when he got to the container, the majority of protesters detained were already in there. That means he was in the cage vehicle for some considerable time, probably three-quarters of an hour or so. He was not released at Balcanoona until late in the day or early evening.
The scuffle he was filming initially was the Kaesler/Gornall incident. He then turned his attention to the arrest of Jeni Gonzalez when he heard someone call out the word “bitch”. He then panned his camera to that incident and captured officers Kaesler and Gornall taking Ms Gonzalez to the police van.
It was put to him in cross-examination that he fell over because he was walking backwards on rough ground and stumbled. He rejected this and reiterated that he was knocked down by Mr Oates. He maintained that Mr Oates had his arm around his neck or near his neck at the time just before he went to open the door of the police van.
In cross-examination he said he believed it was two officers that got into the van. He said that there were four in the area at the rear of the van but not all came in. He said two officers took the camera away from him. He claimed that he was violently thrown into the back of the van. He said there was nothing nice about the way he was put into the van, with an officer’s hand on his throat. When he was placed in the second van, Ms Gonzalez was inside and he gave her the tape from his camera for safekeeping.
In his evidence he said that he had seen police officers jumping onto the side of the vehicles and riding along on the running boards. He was challenged several times on this and it was put to him that he was wrong. He was shown footage in which he was asked to identify any officers hanging onto the side of any vehicles. He was unable to do so. The challenge remained and it was suggested that he was not telling the truth. Later video footage shows him to be correct and that there were officers riding, for whatever reason, on the side of vehicles. This may be related to the situation in which he described the officers whooping it up.
Mr Oates has shown by his evidence that he is a most unreliable historian. He made many mistakes and was forced to back down on many of his statements when tested in cross-examination. I can really place no confidence in his reliability as a witness. He recalled arresting the person who had been called Camera Boy (Mr Bonner). He said that he went to open the door of his police vehicle and the door got slammed shut from the outside and that Mr Bonner then ran away and fell over. At that stage Mr Oates said he picked him up and then, with Mr Paynter, dragged him to the cage van. He said he had to drag him because he was uncompliant. Mr Oates said that he asked Mr Bonner politely to hand over the camera and that he would not and therefore he got Mr Bonner’s arm and forced the camera out of his hand. Mr Oates said he did not get into the van. He repeated his version of the incident where he alleged Mr Bonner pushed the vehicle door back and said that happened approximately 30 seconds before he arrested Mr Bonner. As I have indicated, the video footage shows that to be impossible.
Mr Oates arrested Mr Bonner for trespass and said he told him that. He said in his evidence that Mr Bonner just stepped into the van and did not need any force to assist him to get into the van. He said in a statement, which he prepared shortly after the event, that Mr Bonner was in the crowd of protesters that surrounded the two police officers. He agreed that was incorrect. He then said he was not sure whether he saw him in the crowd. From the video footage available it is clear that Mr Bonner was never in that group, and from Mr Bonner’s film it is apparent that he was concentrating on taking film of the group from a distance.
Mr Oates said that he did not grab Mr Bonner by the throat. However, in his answers to interrogatories he admitted that he took hold of Mr Bonner by grabbing him around the throat and by the seat of his pants. He then tried to justify the discrepancy by saying he was indicating close to the shoulder or close to the neck but not around the throat. He said that for him it was the same because he was so tall. He agreed that he used sufficient force to get Mr Bonner into the cage van. He denied throwing him into the van. Mr Oates also admitted saying he had to forcibly take the camera from Mr Bonner, in his answer to interrogatories. When asked to explain this evidence, he said that the answer to interrogatories was incorrect.
As I have indicated, Mr Paynter was involved in driving one of the vehicles close to or into the group of protesters. He was clearly shown in the video at the time that Mr Bonner was placed in the rear of the cage van. He had originally been accompanied by Mr Irrgang but after the arrest of Mohawk Man he and Mr Oates drove together, chasing the person they described as Camera Boy.
Mr Paynter said that Camera Boy had separated from the main group of protesters and was still making his way deeper into the mining lease. He said it was a decision to approach and apprehend him to prevent him from going further into the lease. None of this is borne out on the video footage. Mr Paynter conceded as much. He described how Mr Oates got out of the passenger side and physically went after the person called Camera Boy. He said the next time he saw him Mr Oates had Camera Boy in custody. Again none of this confirms Mr Oates’ version of Mr Bonner holding the door of the police vehicle closed.
In relation to the camera, Mr Paynter said both and Mr Oates were demanding that the camera be handed over, and he said that he and Mr Oates leant into the van, there was a bit of a tug-of-war but they prevailed and got the camera and the camera bag from him. He made the point that neither he nor Mr Oates physically entered the rear of the van but did agree that they leaned into it with their upper bodies. Generally Mr Paynter’s version of the arrest and circumstances surrounding the taking of the camera are much more likely than that given by Mr Oates. I have some criticisms of Mr Paynter which I will deal with separately but in relation to this incident he has described it in a way which fits in with the probabilities of what occurred. The exceptions are that he was inconsistent in relation to what Camera boy was doing in relation to going further onto the land, and he was clearly in error when he said he was driving into a crowd where Mr Oates had been surrounded by protesters.
In some aspects relating to the arrest and detention of Mr Bonner, Mr Bonner’s version of events can be regarded as fairly accurate, with a few exceptions. There clearly were not four police officers in the back of the divisional van and there probably were not two. But two of them probably did lean in and they certainly took the camera from him forcibly. As I have said, there is some embellishment by most of the witnesses and Mr Bonner is no exception. Generally, however, his account is supported by the objective evidence of what he himself was doing, as shown by his video and the other footage, showing him separated from the group.
I have found that Mr Bonner went on the land on 9 May 2000 for the purpose of filming a documentary after hearing there had been an invitation to walk with Mr Coulthard. He was not asked to leave the mine site prior to his arrest for trespass. Mr Bonner was assaulted in the course of his arrest. His arrest was unlawful and he was falsely imprisoned for at least 7 hours. He said that he lost his wallet in the course of the arrest.

(iii) Isabella Brown

This witness had an unfortunate childhood and has been involved in many protest actions since her teenage years. She was described by the defendant’s counsel as a serial protester. That is probably a correct description, given her background of protesting both before and after the events of May 2000. She had a previous history involving some of the police in this matter, notably Sergeant Miller and Superintendent Boxall, and was in fact on bail for a previous offence regarding a protest at Beverley. It was a condition of her bail that she not attend at the Beverley uranium mine. She clearly knew that her attendance on this occasion would be in breach of her bail and went to protest, notwithstanding that. She entered the land after being told that Mr Coulthard had walked on with other protesters, and indeed she could see him on the land.
She had a video camera which she used on the site, and some of her footage is one of the exhibits tendered on behalf of the plaintiffs. In particular Ms Brown was involved in filming when she saw police cars driving towards the group of protesters. She said that it looked like they made contact with the protesters and there was the sound of a car horn tooting. She said that she saw cars running into people and while she was trying to film what was happening a police vehicle also ran into her. She described it as “pushing people along at a human moving speed”.
She said that she was nudged out of the way by the vehicle and fell over and got up and came into contact with two police officers. She said that they grabbed her camera from her and threw it on the ground and that while she was on the ground she was hit with a baton. She says she was hit across the shins and put in a cage van. She says when she was on the ground they pushed her face in the dirt and held her on the ground. She says in total she was hit two or three times with a baton on the legs. In the vehicle in which she was placed were Mr Bonner and Ms Gonzalez. Ms Brown said the police abused her when they put her in the vehicle. Shortly after her apprehension rocks were thrown at the police vehicles, including the one in which she was detained.
In its submission the defendant states that Mr Oates, Mr Clonan and Mr Irrgang were involved in the arrest of Isabella Brown. Mr Irrgang gave no evidence regarding the event. Mr Oates said he went to assist another police officer and helped a protester up off the ground. He had no idea whether the protester was male or female. Mr Clonan said he saw Mr Oates attempting to arrest a female and he assisted him.
Ms Brown’s version of events is really uncontradicted in relation to her initial detention. It is clear from her own footage that she was filming at the time police vehicles drove into or towards the protesters and that she was not part of any rock throwing, which in fact occurred after her detention.
She was of course in breach of her bail but she was not initially apprehended for this. She was allegedly apprehended for a breach of the peace but no breach is made out on the whole of the evidence.
While she was in the cage van she said she saw a police officer jump on the back of a vehicle and ride it “like he was surfing, crying “yi ha” and words like that, and that all the police officers were shouting and cheering each other. This supports what Mr Bonner said. She gave evidence of what she observed whilst housed in the rear of the police vehicle.
Ms Brown was then put in the container along with the others, and at some point after the welding on the container commenced she attempted to escape. She said that she got a few metres and was then kneed in the chest and crash-tackled to the ground. She said that was done by both Sergeant Miller and a female police officer, Ms Tina-Marie Hewkin. She said that when she was on the ground she was dragged by her arms, sustained cuts to her back, and she was also hit with a baton and handcuffed. She said that Sergeant Miller threatened her by saying “I’m going to hit you” several times while raising his baton over his head. She said that she was left lying on her stomach in the dirt for about half an hour. She later changed this to more like 20 minutes.
Ms Brown requested water and was offered water but had difficulty drinking it because she was handcuffed. There seems no rational reason why she was handcuffed while locked in the back of the police van. That was in breach of the protocol set down in Operation Beverley. She says that she was taken by another police car to a place on the mine site about 15 minutes drive away and then handcuffed to the front of the police car. No-one disputes this evidence. However, no-one gave evidence of transporting her to that place. She says that the police were sitting around and laughing because she had difficulty drinking when she was given some more water to drink and had difficulty eating a sandwich which she could not eat because of the handcuffing. No-one disputed her evidence on this.
In cross-examination it emerged that she had left home when she was 16 years of age and spent a lot of time living on the street. She got herself involved with all sorts of characters and got into trouble. She was charged with shoplifting at an early age. She said she often slept on the street or in squats. She spent a lot of her time hitchhiking around and sleeping and staying wherever she could.
I thought her description of the protester group at Beverley was a good one. She said, “Everyone wanted to do something but the something wasn’t really defined”. She said there was no particular theme and she was following the others. She said she did not know where they were going and she was a bit behind the group. She said it was the bull bar of the police vehicle that contacted the back part of her lower body and that she stumbled when that contact was made.
Ms Brown was cross-examined about the statement she made to the Police Complaints Authority where she described people bouncing off the bull bar. When asked about this she said that is what it looked like. She confirmed in cross-examination that she was struck on the legs with a baton in the shin area. She confirmed that she was making life difficult at the time of her apprehension by putting her feet on the doorframe of the vehicle. She said she thought it was the female officer who kneed her when she attempted to escape from the container. It was put to her that she did not tell the Police Complaints Authority that she was hit with a baton whilst on the ground but only that she was threatened. She agreed with that proposition and agreed that her statement at that stage differed from her description in evidence. She ended up saying she believed she was hit with a baton while she was on the ground. She said she felt a lot of pain and certainly felt like she was hit with something. She was cross-examined about whether a police officer sat on her after she attempted to escape. The statement she gave to the Police Complaints Authority was different from her evidence and she rationalised that by saying that whether she was being sat on or just being held on the ground, she was conscious of the weight of a person keeping her on the ground. Ms Brown said that she was referring to being held on the ground by the weight of another human. I find that she was embellishing, to some extent, the treatment she received but that, by and large, she was treated unfairly because she was well known as a potential troublemaker. Sergeant Miller knew this to be the case.
I have already dealt with some of the evidence of Mr Oates. In cross-examination he said there was a person being arrested who was on the ground, probably face down, but he could not remember whether it was a male or a female. Given the timing, it is likely that he was one of the officers involved but whether he actually formally arrested Ms Brown is far from clear.
Mr Clonan said that he saw Mr Oates attempting to arrest a female. He said the crowd that had gathered around Mr Oates were behaving in quite an angry manner. Mr Clonan said that he got out of his police vehicle and assisted Mr Oates in restraining the female. He said that as they were doing that protesters were yelling abuse and then started throwing rocks at them. This makes it more likely that it was Mr Oates who arrested Ms Brown. The timing of the arrest and the rock throwing and the circumstances of the arrest make that likely, at least on the balance of probabilities.
Mr Paynter was probably also in the general area and indicated that he drew his baton when rocks were thrown. It is unlikely that he was involved in the actual arrest of Ms Brown. In relation to her escape from the shipping container, he gave evidence that the welding was not going on when she and two other people escaped from the container, being Emily Johnston and another. As I will later find, he is wrong in this regard. He had nothing to do with the actual apprehension of Ms Brown or any of the people who escaped.
Sergeant Miller knew Ms Brown from previous encounters. He recognised her when she escaped, and she was then arrested for breaching her bail conditions. He said he could not remember handcuffing her to the front of a vehicle at any stage but agreed that she was given a bottle of water to put up to her mouth to let her drink while she was handcuffed. When shown the footage of the container and the apprehension of Ms Brown he agreed that there was a period of at least 12 minutes between the time of her escaping and when she was filmed being handcuffed. No explanation is offered for that delay.
Surprisingly, in his interview of 11 July 2001 Sergeant Miller said that he remembered three people escaping but could not remember names and he was sure that if one had been Ms Brown he would remember her. When cross-examined he said he had no recollection of her being one of the people who escaped. He also believed that she was handcuffed to her front whereas the video footage clearly shows her handcuffed to the rear. He said he could not support or deny the evidence of Emily Johnston or Ms Brown in relation to what happened when they escaped from the container. Ms Johnston gave evidence corroborative, more or less, of the version given by Ms Brown. Sergeant Miller said he did not knock Ms Brown to the ground and that he is not a vindictive person and he would not do it in the presence of other police officers. He agreed later that the welding was taking place when the three persons attempted to escape.
As mentioned earlier, Ms Hewkin was a police officer in attendance at Beverley. In relation to the escapes from the shipping container, she says that one of the females that escaped would not get on the ground when requested, so she put her leg out and tripped the female so she was on the ground and then proceeded to handcuff her to the rear. She said that Sergeant Miller came over to assist her with this and placed the female’s hands behind her back. That was clearly Ms Brown. Ms Hewkin also confirmed that the escape took place during the welding. She says she did not recall Ms Brown being on the ground for any considerable time.
As I indicated earlier, Ms Brown’s version of both her original detention on the land and then in relation to her attempted escape from the container are not seriously contradicted except for Sergeant Miller’s denial of his treatment of her. She was clearly a person of interest to the police at the time and was treated harshly when recognised after her attempt to escape. There was no need for her to remain handcuffed once she had been placed inside the police vehicle. There does not seem to be any logical explanation for her to have been taken to another area and there handcuffed to the front of a vehicle, which I find she was. Whilst it was appropriate to place her in custody because she had been arrested for breach of her bail condition, the treatment that she was given when placed in custody was inappropriate.
I have found that Isabella Brown went on the land on 9 May 2000 for the purpose of joining in the protest. Ms Brown was under bail conditions not to attend the protest, however her arrest was not for breach of her bail conditions. She was not asked the leave the mine site prior to her arrest, nor was she a rock thrower. Ms Brown was assaulted in the course of her arrest. Her initial arrest was unlawful and she was falsely imprisoned for three hours. After being recognised, she was then lawfully detained for breach of bail. In the course of her arrest, Ms Brown’s video camera was damaged as was a necklace of sentimental value.

(iv) Stephanie Conway

I have already dealt to some extent with the situation of Ms Conway’s arrest when I was dealing with Ms White. They were together at the fence when arrested under similar circumstances. She admits to being on the mine site earlier as part of the protest but significantly neither was it alleged in the defence against her that she was involved in throwing rocks nor was any allegation put to her in cross-examination regarding the throwing of rocks. Given that several police officers claimed to have identified her as a rock thrower and given that that was the reason put forward for her arrest outside the mine lease, it is a clear weakness in the defence case. She gave evidence that she ran off after the rock throwing incident and was pursued and hit on the back of the legs with a baton. She says that after she got over the fence a police officer grabbed her and shoved her to the ground and one police officer knelt on her from behind.
Ms Conway says that she was asked if she was male or female and was kicked in the ribs when she did not respond. She said the question was repeated and again she was kicked in the ribs. She was never told why she was under arrest or why she was being detained. She says she was thrown over the fence, as Ms White was.
I will deal with this aspect later in relation to damages, but Ms Conway produced hospital notes to confirm her attendance at Leigh Creek Hospital the following day. She saw Dr Hobbs. His notes indicate that he found bruising in the area of the right costal margin and a large bruise on her right thigh. This note supports her complaint.
Ms Conway said that she and Ms White were described by one police officer to another as “a couple of whores”. She also says she was sprayed with capsicum spray. She says that she believed that she was forced to the ground by a Star Force officer. The defendant submitted that no Star Force officers carried capsicum spray on the day and on the evidence that appears to be the case.
In relation to Ms Conway’s evidence, including that regarding officers kneeling on her back, pushing her head into the dirt and kicking her in the ribs, together with spraying her in the face, no contrary version was put to her in cross-examination. The defendant maintains that given the seriousness of the allegations there is a requirement for a higher standard of proof according to the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Latham CJ at 347. I find that the onus, even if it is at that higher level, has been discharged and I find the events occurred as described by Ms Conway. She was generally a good witness, in my estimation.
Ms Conway was not cross-examined at all about rock throwing and she was not told that the reason for her detention was because of rock throwing. No-one has claimed to be her arresting officer.
I have found that Stephanie Conway went on the land on 9 May 2000 as part of the protest, but had left the land by the time of her detention. Allegations of her throwing rocks are not made out. She was assaulted in the course of her arrest. Her detention was unlawful and she was falsely imprisoned for about seven hours. Items of her personal property were damaged during her arrest.

(v) Marcel de Bie

In May 2000 Mr Marcel de Bie was taking medication for depression, which he had suffered for some years as a result of a traumatic relationship breakdown. He went alone to the Beverley uranium protest on 7 May 2000. When the group moved onto the land on 9 May he says he crossed the fence and was on his own about five or ten metres from the nearest group. He saw police cars approach from the rear of the group to within about three metres of the group. When he turned around, he was sprayed with capsicum spray by a police officer about two metres away from him. He identified the person who sprayed him as Mr Wilson. As a result he said he could not see properly and some people had to help him and guide him because he was stumbling.
He is observed on the footage taken by Channel Seven and in fact is interviewed by Mr Caldicott after the time when he was sprayed. He was cross-examined as to the fact that he did not appear on the video footage to be affected but he disputed that and said he was.
Mr de Bie said it was after he was sprayed that he heard the sound of horns tooting when the police vehicles approached at what he described as a fast walking pace. He said he moved some distance to get out of the way. He estimates that the police vehicles came within 30 centimetres of him. Mr de Bie said they appeared to be closer to other people. The interview with Mr Caldicott took place after what can be described as the first skirmish, and he indicated that at the time of the interview the group had re-formed and linked arms. He can be observed as part of that group on the video footage. He describes the Star Force officers as moving about a metre behind the group. He said they were growling and hissing and snarling like dogs. He said he was terrified and started to run. He said at that stage he was sprayed by the same officer, Mr Wilson. Somehow or other he went to the ground and was sprayed again. As a result, he ran away from the mine towards the fence and was struck on the right knee and fell to the ground. Mr de Bie said his hands were tied behind his back and his leg was tied to another person’s leg. He was later placed in a cage van. He said there were other people in the van, including Lucinda White. In this he is likely mistaken because of the other evidence which I have referred to.
In cross-examination when referred to the allegations in the statement of claim filed on his behalf, Mr de Bie agreed that there was no mention of anyone hitting him as he was on the ground or falling to the ground. He was also cross-examined about the fact that he told the Police Complaints Authority that he did not see the officer that sprayed him. Mr de Bie said that his memory of events had been assisted by his review of video evidence and that he was able to identify the officer. When asked again about whether he was sure he was hit, he said that he was not sure and he does not remember saying that at an earlier stage. He told the Police Complaints Authority that he had a sore leg after the Beverley incident but was not sure whether he had actually been hit or not as there was no bruise. I cannot find that he was hit.
Mr de Bie was never told that he was under arrest or the reason why he was detained, and this evidence is unchallenged. The defence actually asserts that he was arrested for being unlawfully on the mine site and for breach of the peace but no details have ever been provided and no evidence was led because no officer is accountable for his arrest. I am left therefore in the position that the defendant has not been able to lead any evidence as to the reason for his detention.
Although there are some discrepancies, and although I suspect there may be some embellishment in some of his descriptive evidence, I accept that he was never told that he was under arrest or the reason for it. The defendant submits that Mr de Bie’s whole version of events is unreliable and inconsistent with other evidence. The defendant relies on the fact that Mr Wilson said he did not discharge any spray until after the Star Force was engaged. Even accepting that to be correct and that Mr de Bie has made a mistake in relation to that first spraying, there is no reason not to accept his version of having been sprayed probably as a result of Mr Wilson’s general and concentrated spraying after the Star Force was involved. I consider that the defendant is correct in its submission that perhaps the first spraying of Mr de Bie was tied up in the Kaesler/Gornall incident.
I have found that Marcel de Bie did not breach the peace on 9 May 2000. Even if he was unlawfully on the mine site, he was not asked to leave and was therefore not trespassing. He was assaulted by being sprayed. His arrest was unlawful and he was falsely imprisoned for about seven hours.

(vi) Ian Foster

I thought that the plaintiff Mr Ian Foster was a good witness who presented his evidence objectively. He appeared to have a good recall of detail and, with a couple of minor exceptions, his account is borne out by the independent evidence shown on the various video footage in the exhibits tendered. He was reasonably distinctive and easy to identify in the video footage because he was wearing a bright red shirt. He said that he was in favour of a peaceful demonstration and did not want to put either himself or his property at risk. I believe him in that.
Mr Foster described the incident in which the police vehicles came close to the protesters. As mentioned earlier, this was right after the Kaesler/Gornall incident. He said the horn was beeping constantly and the police drove the vehicle like it was herding the protesters. He was at the rear of the group and said that the vehicle actually drove into his back and shoulders, travelling at about walking pace. He said the impact was not very hard. It nudged him but he was extremely concerned at the time because they were on uneven ground and he did not believe that the driver could see if anyone fell down in front of the vehicle.
I agree with Mr Foster’s concerns in that regard. As I indicated to counsel during final addresses, it does not matter much, in my view, whether there was actual contact made between the police vehicle, driven by Mr Paynter, and the protesters. Even if contact was not made, on all versions and on my viewing of the video footage, the vehicle probably came within millimetres of the group and that exercise, in my view, was fraught with danger.
The protesters reacted accordingly because at the same time, or shortly thereafter, rocks were thrown at one of the vehicles. Ms Brown was also being arrested at about this time. The rock throwing, as I have said earlier, may have been a reaction to the combination of the police driving into the group and the arrest of Isabella Brown. As I have said earlier, it is my view that the use of police vehicles driving into or near protesters, following after the Kaesler/Gornall incident, was the likely catalyst to the rock throwing by some protesters.
After the police vehicle incident, Mr Foster said that the protesters linked arms and walked in a north-westerly direction, and when vehicles started to approach, the group stopped because they saw that the Star Force was coming. He said they then started to walk back towards the fence with their arms linked. The video footage confirms his evidence.
When the Star Force officers approached, Mr Foster was right at the rear and closest to those officers. He says they got to within two or three metres of him. He says he remembers people calling out words to the effect that they were leaving and that again is borne out by the video footage. Mr Foster described two members of the Star Force as growling or grimacing, which is similar to the description given by Mr de Bie. He said officers in khaki uniform started spraying capsicum generally. Mr Foster was retreating when he ran through a large amount of spray and suffered the effects immediately. He said he continued to run until he was clear and then turned around and looked back and saw there was a lot of commotion. He saw the spray still in the air and he saw police officers wielding batons. Mr Foster then went back and stood with two or three females and then felt a baton blow across the back of his legs. When on the ground, he felt a shield from a Star Force officer and heard that officer say “stay down”. He said he was then asked to stay down by a khaki-clad policeman.
A minibus was then brought to the scene and he and the rest of the detained group, mainly women, were then driven to and placed in the shipping container.
I will detail his evidence relating to the shipping container later but it is of significance that he was a fitter and turner trained in welding and was considerably affected in his apprehension of what could happen when the welding commenced on the outside of the container. Again, I thought his evidence in this regard was completely reasonable.
Mr Foster was shown video footage in cross-examination and whereas he had indicated that he was not actually part of the group during the Kaesler/Gornall incident but was separated from them by a few metres, he conceded after watching the footage that he was in the group. He described his action in joining the group, after the first movement by the police cars into the group, as a safety measure. He said that he did not think he would make it back to the fence by himself without getting sprayed or driven at. He said he thought there was safety in numbers. This was a view expressed by other witnesses.
When cross-examined concerning the contact made between the bull bar of the police vehicle and himself, he confirmed on watching the video footage the time when he was contacted by the vehicle. He said at that time the video showed the vehicle which looked like it was right behind him. He said you could actually hear the engine rev noises change at the time contact was made and this is how he identified the particular timing. Certainly on the audio such a change can be heard. He said he was not mistaken about being contacted by the vehicle, despite the lack of definite visual evidence, and that he felt the antenna and bull bar on his back and shoulders.
In relation to the incident when rocks were thrown, he said, after being cross-examined about the video footage, that he went over to where he believed Ms Brown was arrested because everyone else was going over there. He clearly can be seen going in that direction on the video.
Mr Foster said that after the Star Force became involved, the group moved off towards the fence and that people did not start throwing rocks again. He said he was sure of that. He said he did not see anyone stop to pick up rocks and he did not see people with rocks in their hands. He identified himself on the footage filmed by Lucinda White.
I will deal with this in another context but he said that he did see a police officer come into the shipping container where they were all housed prior to the welding starting. Most of the plaintiffs did not see any police officer. In my view this makes this witness more reliable because he is more observant. I will find that the police officer did go into the container, albeit for not as long as he says.
The plaintiffs’ counsel submitted that Mr Foster’s evidence was cogent and I have already indicated that I agree with that. He was not told to leave the land before he was struck with a baton or given any warning, nor was he warned in relation to the spray. Mr Miller of the Star Force did admit to taking people to the ground or “shielding”, as he called it, which again fits in with Mr Foster’s description of what happened to him. Once again, no police officer admits to having detained Mr Foster. There is no reason before me to indicate the reason for his detention. It is claimed in the pleadings that he was detained for being unlawfully on the mine site and for breach of the peace. This is not made out on the evidence. It was not put to him at the time of his detention when he was sat down with what the police described as the peaceful protesters that he was unlawfully on the premises, and again nothing was put to him in that regard in the course of cross-examination.
The defendant claims that Mr Foster was in the middle of the group that assaulted Kaesler/Gornall. As I have said, he was certainly in the group but as I have also said elsewhere, I think the descriptions of the skirmish given by both Mr Kaesler and Mr Gornall is considerably exaggerated. The defendant criticises Mr Foster for putting himself back into the action by rejoining the group on a couple of occasions. I have already indicated that his answer was that he believed there was safety in numbers. The defendant said this was not convincing. In view of what I have seen on the video evidence I think it was a reasonable attitude and one which incidentally was explained by a number of other protesters as well.
I have found that Ian Foster went to Beverley to peacefully protest against the mine. He did not breach the peace on 9 May 2000. He was not told to leave the site. He was assaulted in the course of police action and his detention. His arrest was unlawful and he was falsely imprisoned for about seven hours.

(vii) Samuel Hoffmann

This plaintiff was generally concerned about the environment and environmental issues, and was particularly concerned about uranium mining and the way uranium was extracted. He had joined Greenpeace the previous year. Mr Hoffmann had a video camera which he took with him onto the land on 9 May 2000. He said that that morning he saw a group of people walking along the fence line outside the mine site and he ran and followed the group for some distance but kept well behind the group. After entering the mine site and filming a bit, he saw two friends, Tristan Dewey and Vanessa Frank, walking towards him and they had tears in their eyes and told him that they had been pepper-sprayed. Mr Hoffmann gave evidence that he thought he was entitled to go onto the land that day as he was told Mr Coulthard had walked on, and that if he had been asked to leave he would have left. He also said he saw a young girl, Helen Gowans, walking towards him being led by an older girl. He said she was crying and looking incredibly distraught and upset.
Mr Hoffmann did not see the Kaesler/Gornall incident but he did see people start to run. He was still quite a distance away from the group and thought he was in a “sitting duck” position because of his isolation. He said he turned his camera off to save videotape and started to run in a south-easterly direction when he estimates he was about 300 to 400 metres from the fence. He said he ran very quickly towards the fence line. He had a camera bag on his back and his camera in his hand. Mr Hoffmann can be seen on some of the video footage.
Mr Hoffmann stated that when he was about 50 metres away from the fence on the mine site a police 4WD vehicle drove incredibly quickly down the line of the fence. It drove to where he was heading so he changed direction and ran in a north-easterly direction towards the fence line to get away from the vehicle. He said he made it to the fence line and threw himself in between two lines of fence wire and ducked down to push himself through but got caught in the barbed wire. He said at that point a police officer ran over to him.
Mr Hoffmann said the police officer punched his right hand that was holding the camera and the camera fell to the ground and the battery broke off it. He said with his left hand he grabbed the camera and threw it to a friend, Scotty, who ended up catching the camera. He told Scotty to run. He said the police officer had his hands on him and that the officer then punched him on the right shoulder. Mr Hoffmann was then pulled up by the hair and dragged into the back of a police van. During this time he was held by the hair.
At the van Mr Hoffmann asked if he was arrested and received no answer. When told to get into the back of the van, he said no. Mr Hoffmann was then told “if you do not get into the back of the van I will pepper spray you” so he got in. He says later Ms White and Ms Conway were placed in the van with him. He said Ms White was quite hysterical and was struggling. He said she had wide eyes. He said Ms Conway was not struggling.
When cross-examined Mr Hoffmann said that another reason for going to the Beverley uranium mine was his passion regarding indigenous rights. He had spent some time discussing the history of the area with elders Mr Coulthard and Mr Kelvin Johnston at Nepabunna on 6 May 2000.
Mr Hoffmann was cross-examined about the circumstances of reaching the fence line. The cross-examination of necessity was very general and vague because once again no police officer has indicated that they were responsible for his arrest. Mr Hoffmann made the point during cross-examination that he was involved in the litigation because he felt that police should be held accountable for their actions. The plaintiffs’ counsel paints him as an earnest young man whereas the defendant concentrates on some inconsistencies and suggests that he had a tendency to exaggerate. I find him to be an earnest young man who gave the best account he could of what happened to him. The fact is that there was no basis available to the police to apprehend him when he had reached the fence line. He had been separate from the main group at the outset and had not been involved in the Kaesler/Gornall incident. He had not been involved in any incident at all. In fact he had made his own decision that it was time to get out and he had in fact made it to the fence line and was part way through. For some unknown reason he was then arrested. His account of what happened is not disputed. It cannot be disputed because no-one claims responsibility for his arrest.
Mr Hoffmann said that he felt he had a duty as a camera person to go onto the land and record events. After the protest he was involved with Lucinda White in preparing a media release. He said he did not check the wording but he made his tapes available for the media release. He said that he believed at the time, and still maintained in oral evidence, that he suffered what he considered to be human rights abuse. From my findings it is apparent that I agree with him.
He said he saw the incident in which Mr Holland was arrested. He said that prior to that time from his vantage point he had not seen anyone being violent. He was a fair distance from the main action which of course is indicative of the fact that he was not really causing any trouble. He was merely taking video footage. He was cross-examined about his evidence regarding being caught in the fence but in my view it is to no avail because no contrary version could be put to him. He was merely cross-examined as to the various possibilities of where various parts of his body were at different stages when he became entangled in the barbed wire. One way or another, I have no difficulty in finding that he was entangled in the fence and was hit by a police officer on the hand and on the shoulder. He agreed that he had made a mistake in his affidavit of loss where he had said it was his left shoulder where in fact it was his right shoulder.
I have found that Sam Hoffmann went on the land on 9 May 2000 to participate in and film the protest from a distance, but was in the process of exiting the site at the time of his arrest. He was halfway through the barbed wire fence. He was at all times a reasonable distance from the earlier rock throwing incident. He was assaulted in the course of his arrest. His arrest was unlawful and he was falsely imprisoned for about seven hours. His video camera/battery pack was damaged during his arrest and he did not recover his jacket.

(viii) Jamie Holland

Mr Holland was sent to the Beverley uranium mine by his employer, Channel Seven, along with a news reporter Mr Caldicott. At the time he did not have his current employee identification, which was being replaced, but he had a Channel Seven temporary identification pass on his person. He described the camera he used as a Sony beta cam SP. He said it was approximately 60 centimetres long by 20 centimetres high by 15 centimetres wide and weighed between 12 and 15 kilograms. To any outside observer it would have been clearly a large and obviously commercial camera of the type we see regularly being used by television news crews.
Mr Holland and Mr Caldicott were involved in filming and interviewing Mr Coulthard and Mr Buzzacott on the morning of 9 May 2000. This interview must have been observed by police because it was within a short distance of the main gate where police were stationed the whole time. Some police officers indicated that they saw the interview take place and other police officers indicated that they were aware of the presence of Channel Seven because they had seen Mr Caldicott as a reporter on the television news where he had been the crime reporter on Channel Seven for several years.
When the protesters went onto the land, Mr Holland and Mr Caldicott followed. Mr Holland began filming when he saw a police vehicle coming towards the protesters. He said he saw the vehicle appear to nudge into the group of protesters. At this point he was carrying the camera on his shoulder. He thinks that the group had come forward approximately 100 metres from where he had first started filming. He changed the tape at some stage and gave it to Mr Caldicott. He said a police officer came up behind him when he had the camera on his shoulder. He said both he and Mr Caldicott told the police officer, who was Mr Irrgang, that they were from Channel Seven. Mr Holland said that Mr Irrgang responded that he did not care. Mr Holland said that Mr Irrgang then placed him in a headlock which was tight. So much can be seen from the video footage because at that point Mr Caldicott took the camera, filmed Mr Holland in the headlock and then retreated by running off the land with the camera, leaving it recording. Mr Holland said he was still in a headlock when he was marched by the police officer towards a police van. He said another officer had come along and grabbed him by the arm.
When they got to the van, Mr Holland was asked to empty his pockets. There was a cigarette lighter, some eye drops and his temporary Channel Seven pass. He again indicated that he was from Channel Seven and said that the temporary pass was proof of the fact that he was from Channel Seven and Mr Irrgang again told him that he did not care. He had with him a camera battery which he said belonged to Channel Seven and which he claimed was further proof of the fact that he was from Channel Seven. Mr Holland said the battery was thrown on the ground after it was taken out of his pocket. He said he was kept in the cage van for about an hour and from there observed two women being separately dragged along the ground, one of whom was likely to be Jeni Gonzalez. He also saw someone thrown over the bonnet of the vehicle he was in, which is also clear from other video footage. He said that he also saw the use of capsicum spray and batons by the police during this period. All of this is captured on video footage taken by others.
Mr Holland was then taken to the shipping container and detained there. He had earlier asked for water to drink and to wash his eyes out but was told there was none. His eyes had become contaminated with capsicum spray which he ran into in the course of being taken to the police vehicle. He was later released from the container when Sergeant Riekie recognised him as being from Channel Seven. He was given the opportunity of making a telephone call, which he made to his news director. He said later that he was taken by Sergeant Riekie and another Star Force officer back to Balcanoona, and during the course of that journey they stopped along the way in a creek bed where the Star Force officers asked him to walk with them up the creek bed so that they could view the scene of an earlier drug bust. He and Mr Caldicott were able to make a live broadcast of the day’s events to the Channel Seven news bulletin that evening.
The defendant maintains that Mr Holland’s recounting of the walk up the creek bed is bizarre and a reason why Mr Holland’s version of events should not be accepted at face value. The criticism is that it was not put to Sergeant Riekie by the plaintiffs’ counsel. The fact is it was not led by the defendant’s counsel in Sergeant Riekie’s evidence in chief. It was a bizarre incident as described by Mr Holland and clearly, if the defendant wanted to make anything of it, it had to be put to Sergeant Riekie. The defendant can gain no comfort from the fact Sergeant Riekie was not cross-examined on the topic by the plaintiffs. Sergeant Riekie in his evidence-in-chief said, somewhat surprisingly, that he could not remember leaving the mine site on that day. Maybe that is why he was not asked anything by his counsel, but the fact remains that it was within the power of the defence team to counter the evidence of Mr Holland and they did not do so.
The other matter mentioned by Mr Holland was that in the course of the journey to Balcanoona the other Star Force officer, not Sergeant Riekie, said to him that the Star Force had handed out to the country police large cans of capsicum spray to use in extreme conditions but the country police had just gone crazy with them. This was not pursued by the defendant’s counsel with any of the Star Force officers. As it turns out, it is probably a reasonably accurate description of what happened. Again the evidence remains unrebutted. It is a hollow submission that the description of the event is bizarre and a reason to not accept Mr Holland’s evidence.
In cross-examination Mr Holland agreed that the vehicle in which he and Mr Caldicott arrived at Beverley was unmarked, so too was the camera. Neither of them was wearing any identifiably Channel Seven clothing. He had worn a Channel Seven jacket earlier that morning but did not wear it onto the land. He said that the main group of protesters was about 20 metres away when he was arrested. That appears to be so from the video footage. He was told by Mr Irrgang that he was under arrest for trespass. Mr Irrgang agrees that he gave him no warning to leave the land before arresting him. Mr Holland can be heard on the audio of the video footage saying that he was impartial. He was obviously complaining about the circumstances of his apprehension. I accept, from both his evidence and that of Mr Caldicott, that they both said to police that they were from Channel Seven. It would not have been much use complaining about the circumstances of the arrest and indicating that they were impartial at the time if they indeed did not already say that they were from Channel Seven. A witness, Mr William Taylor, says he was nearby and heard both of the Channel Seven men say that they were from Channel Seven.
Mr Irrgang’s evidence was quite strange. He said it made no difference to him whether Mr Holland and Mr Caldicott were from Channel Seven. They were not detained for breach of the peace and Mr Holland was arrested for trespass. None of this makes any sense in relation to the actions which Mr Irrgang took. His actions were completely contrary to the guidelines set out in Operation Beverley and indeed general police practice.
The plaintiffs complain that the defendant’s counsel made an unwarranted attack on Mr Holland’s character when it was put to him fairly and squarely that he was sacked from his job at Channel Seven because of something to do with an unauthorised use of company motor vehicles. That is a very specific suggestion and Mr Holland denied it. It was abandoned and not followed up in any sense. It was clearly made on instructions. It will be relevant to the question of damages.
Apart from his actual arrest and being held around the neck in a headlock, Mr Holland was also threatened with capsicum spray if he did not comply. The plaintiffs have submitted that there is really no logical explanation for the approach taken by Mr Irrgang unless it relates to a specific instruction that anyone with cameras should be a target. The evidence I have referred to from Mr Bonner suggests that this may be the case. Mr Holland clearly was an obvious target because of the size and nature of his camera. Although he was released from the shipping container earlier than others because he was recognised by Sergeant Riekie, the fact is that by the time he was finally released at Balcanoona about 3.00 pm Mr Holland had been imprisoned for a total of five hours. I include the time in which he was being transported in the police vehicle to Balcanoona as part of his imprisonment.
Mr Irrgang’s evidence was that part of the instructions he was given in the briefing by Superintendent Boxall was that protesters should be asked to leave the mine site and that if they did not, they would then be arrested. He said they were given instructions that it was undesirable to formally charge people in respect of minor offences.
After being involved in some of the earlier confrontations when the Star Force arrived, Mr Irrgang said he started following the group of protesters. He said he saw two people, one with a video camera and one a little bit away. Mr Irrgang confirms that he grabbed the shorter one (Mr Holland) and told him he was under arrest. He said the reason he did not give any warning was the fact that it was so far onto the land together with the problems they had earlier with all the rock throwing. He said he believed that these two men were associated with the protesters. He denies that they identified themselves as being from Channel Seven but I accept their evidence and reject his.
Mr Irrgang confirms that as they walked towards the cage vehicle after he arrested Mr Holland they went through a mist of capsicum spray. He further confirms that he found a temporary staff ID for Channel Seven and confirms that he said it did not make any difference to him when that was produced. He says he does not recall seeing a camera battery. Likewise he does not recall seeing any eye drops. He said the identification he saw did not satisfy him about the claims of this person being from Channel Seven. I would have thought that even if, of itself, the ID was not sufficient, the fact that Mr Holland had a large commercial camera, that he was accompanied by an interviewer holding a microphone, and the style of their dress, it should have been fairly obvious that both persons probably were from Channel Seven, as they claimed and not protesters. For some reason, however, Mr Irrgang maintained that it did not make any difference to him where Mr Holland was from. That is a strange answer and his actions were completely contrary to the instructions he was given, both in Operation Beverly and at the briefing by Superintendent Boxall.
Mr Irrgang’s attitude becomes even more incomprehensible when in cross-examination he said he knew that Mr Caldicott was the police and crime reporter for Channel Seven and that he had seen him frequently on television. He said he just did not recognise him on the day. Mr Irrgang said he did not take any notice of whether he was dressed in a different way from the other protesters. I find that evidence difficult to accept, and I reject it.
Earlier Mr Irrgang had answered interrogatories in which he stated that Mr Holland was moving towards the drill site. He also said that he had arrested Mr Holland for being unlawfully on the premises. Mr Irrgang said he never had any intention of telling Mr Holland to leave, despite his instructions from Superintendent Boxall.
Mr Stone was the other officer involved in transporting Mr Holland from the point where he was arrested to the police vehicle. He said he saw Mr Irrgang with one person and there was another male standing nearby. He said he helped by taking hold of the male held by Mr Irrgang. Mr Stone thinks the other male ran off. He says he believes there was a media card or something along those lines in Mr Holland’s possession when they reached the rear of the cage van. Mr Stone said he did not believe Mr Holland was struggling at the time he first saw him being held by Mr Irrgang. He said in relation to the media card that there was a discussion about it but he was not sure and did not think it would make any difference. He confirmed helping Mr Irrgang take Mr Holland back to the police vehicle.
The circumstances of Mr Holland’s arrest are a mystery. On Mr Irrgang’s own admission there was no warning to leave given, yet Mr Holland was arrested for trespass. Mr Holland was not in breach of the peace and had not committed any other offence. It was patently obvious that he and Mr Caldicott formed a team of cameraman and reporter and the most likely conclusion was that it was a commercial operation. Moreover, they both said they were from Channel Seven and, later, a temporary ID from Channel Seven was produced by Mr Holland. Mr Irrgang maintained that the employment by Channel Seven was irrelevant. For whatever reason, Mr Irrgang decided he would arrest both Mr Holland and Mr Caldicott, probably because they were separate from the group and possibly because they had a camera. There is no other logical explanation. Whatever the explanation, the arrest of Mr Holland was not justified.
I have found that Jamie Holland went on the land as part of his job with Channel Seven as a cameraman. He believed he had a right to be there as a member of the media and an objective observer. He was not asked to leave the land prior to his arrest for trespass. He was assaulted in the course of his arrest. His arrest was unlawful and he was falsely imprisoned for about five hours. A Channel Seven camera battery was lost in the course of his arrest, and he may have lost eye drops of little monetary value.

(ix) Emily Johnston

Ms Johnston is the second youngest of the plaintiffs, having not quite reached the age of 20 years at the time of the protest. She was on a camping trip with friends when she met up with the Earthdream group at Wilpena Pound and decided to go to Beverley. She had an interest at the time in performing as an acrobat.
On the morning of 9 May 2000, when she saw others go onto the land and before she had any breakfast, she went onto the land, it seems in somewhat of a rush because she did not put any shoes on. She had head there had been some negotiations the night before between Mr Coulthard and Mr Kelvin Johnston and police. She was under the impression thee was an arrangement where they were allowed to walk on. She believes she was about 150 metres onto the mine site when a police car approached her group, comprising herself, her boyfriend Pip and a woman named Sophia. She said three officers got out of the car and one of them came towards her and said that she was under arrest for trespass. She said to the police officer that she was not trespassing and tried to sit down and then she was taken by the left arm. She said one of the other officers had taken hold of Sophia. Pip had departed at this stage.
There is some uncertainty in relation to who it was that actually arrested Ms Johnston but it was probably police officer Mr Sean Bell. It was clearly Mr Wilson who arrested Sophia. Police officer Mr Joseph McDonald was the other member of the contingent that occupied the police car involved at this stage.
Ms Johnston gave evidence that Mr Wilson said to Sophia, “Just because you’re a woman, don’t think I won’t hit you”, and then sprayed her in the face with capsicum spray. Ms Johnston described the officer who arrested her as being in a blue jumper with a moustache. On the face of it this may indicate that it was Mr Irrgang, who had a moustache. There was no evidence that any other officer had a moustache. However, on the balance of probabilities, I find that it was not Mr Irrgang. Again on the balance of probabilities it was either Mr Bell or Mr McDonald and most likely Mr Bell. Ms Johnston’s recollection about the moustache is probably incorrect.
Ms Johnston said that she was taken to the back of a police vehicle, and when the vehicle door was opened, the woman already inside tried to jump out. She said that person’s name was Ruth. She said that Sophia was put into the vehicle and was crying and distressed because she had just been sprayed with capsicum. She said that Mr Wilson came over to her and both officers, that is, Mr Wilson and the one arresting her, took her to the vehicle. She said they each had one of her arms and lifted her slightly over to the vehicle. She said she was threatened with capsicum spray by Mr Wilson. He said, “If you don’t get in I’ll spray you”. She decided at that stage to get in. She said at that stage Mr Wilson said, “I wonder what would happen if some of this got in here”, referring to the capsicum spray. She said he then sprayed into the back of the vehicle in two short bursts of a few seconds each. She said it filled the entire vehicle and it became difficult to breathe.
Ms Johnston said of herself, Ruth and Sophia that all three of them were distressed and there was no ventilation through the back of the van. She said they were not provided with water and not decontaminated.
She said that she heard Mr Wilson as he walked around the side of the vehicle say, “What’s that burning smell? It smells like mettwurst. Oh, it must be them”. Mr Wilson admits to making a comment at the time to the effect that he said to one of the other officers that “they stink”, meaning the three occupants of the vehicle. It is a strange recollection by Ms Johnston to recall the actual words, including mettwurst, if those words were not used. I think it is much more likely that that is what Mr Wilson said and that Ms Johnston is to be believed on that score.
She says they were then driven off at high speed (to the shipping container) and the manner of driving was reckless. Mr Wilson was seen on video driving that vehicle across reasonably rough terrain at a rapid pace when approaching a group of protesters. She says they were in the back of the van for about an hour.
At some stage when she was placed in the shipping container she became scared and panicked and tried to get out. She escaped through the door, following Isabella Brown, and says she was immediately taken to the ground by a police officer. She says her arm was pushed behind her back and she was pushed to the ground very aggressively. She says she was handcuffed with her hands behind her back. Ms Johnston says she was hit on the right leg three times. She says that her arm was hurting and she complained but the police officer said, “I don’t give a fuck”. He repeated that. She was then placed in a different vehicle on her own for roughly 30 to 40 minutes during which time she was still handcuffed. She was not provided with any water during that time. She confirms that she saw a police officer take Isabella Brown to the ground and confirms that Ms Brown was lying on her stomach with her face on the ground and a police officer had her by the hair with her face on the ground.
When cross-examined Ms Johnston said she went to sit down on the ground when the police officers approached her because she had never been arrested before and she thought it was a passive thing to do and that she stated she was not trespassing. She says she was never told that she was being detained for breach of the peace. She confirms that she was approached by the police officer who arrested her as soon as he got out of the vehicle.
Mr Wilson said that the group of three persons had separated from the initial group, or had not entered the land with the initial group, and were heading towards the FLT plant when they were intercepted. He said that he asked them to leave and when they did not respond he grabbed one of them and told her she was under arrest. As I have said that was Sophia. He said he had trouble controlling her because she was throwing her head around, shaking her body and trying to scratch him and kick him. He said the other two officers, Mr McDonald and Mr Bell, were occupied with the two others. He said that he warned Sophia that if she did not go into the van he would spray her, and then sprayed her. He said it contaminated both of them because they were close together. He said he used the spray he had been issued in his normal kit, that is, the smaller canister of spray which officers could carry on their belts. He said that after getting Sophia into the van he was aware that he was affected mildly by the spray which he had in his eyes and he had a peppery sensation down his throat.
In relation to Ms Johnston, he said she would not get up from the ground, and when lifted she would not walk properly and had to be lifted and pulled. He said she would drop and try to dig her heels in. He stated that he said to her, “Look, this is silly. I don’t want to spray you but I’ve already sprayed the other female”. He said when he opened the door to get her into the back of the van he found himself dealing with the other two females already inside (Ruth and Sophia). He said they were trying to get out. He said he subsequently sprayed a burst of spray which came back over himself and also Mr Bell, so he sprayed again and he said he believed he sprayed in the cage rear section doorway.
Mr Wilson said in examination-in-chief that he said to the other police officers that the protesters in the van stank but he did not agree that he said they smelt like mettwurst. He specifically denied using the word mettwurst. He repeated that the words he used were, “They stink”. Mr Wilson said the purpose of that remark was not to demean them. It was hardly complimentary and one wonders why it was said.
In cross-examination Mr Wilson said that when the three females were arrested he believed they were somewhere at the northern end of the FLT plant. This is unlikely from all of the evidence as to where everyone was positioned at the time. In relation to his spraying he said in cross-examination that he was part out of the cage, part in when he sprayed them. He said he thought there were three people in the back of the van but that on seeing video he said he thought there was a fourth. This is a common mistake made also by Messrs Bell and McDonald.
Mr McDonald said that when they approached the three females he individually approached one and asked her to leave. He said the one that he approached refused and dropped onto the ground like a “dead weight”. He said he arrested her for breach of the peace and with the assistance of Mr Wilson she was then lifted and taken around to the back of the van. That sounds like the description of the arrest of Ms Johnston. But as I will indicate shortly, it also matches the description of the arrest of Ms Johnston by Mr Bell. Mr McDonald said that when Mr Wilson went to spray, he stepped back from the van with the female he had arrested. He said the spray was used and then the door was closed, and then his prisoner was placed in the van. He says soon afterwards they were singing. As I have said, I find this unlikely.
Mr McDonald was cross-examined about the number of people in the vehicle and said he made a mistake and that there was in fact a fourth person put in the vehicle. It is noteworthy that he witnessed Mr Bell signing the statement which he made to the Police Complaints Authority and was familiar with its contents.
Mr Bell said that there were three in the group that were arrested for continuing to walk after being warned to leave the mine lease. He said he apprehended one of the women. He said he walked past her, told her she was under arrest for breach of the peace, she sat on the ground and then he picked her up and took her to the police vehicle. He confirms Mr Wilson warning the protesters hem and then spraying them. He says they were singing in the vehicle. He agrees that none of them were decontaminated.
He said it was a result of viewing the videos just before he gave evidence that he decided there was a fourth protester. The three officers all gave evidence positively that there were three people but when cross-examined and asked to examine the video evidence, they all agreed that there were four.
As I have said, Ms Johnston is wrong if she suggested that Mr Irrgang is the officer who arrested her. She may have made a mistake regarding the moustache or there may have been other officers with a moustache. Mr Emmett gave evidence that he had a moustache at the time of the protest. Neither counsel actually put to any of the officers, apart from Mr Irrgang, that they had a moustache at the time. The defence in its closing submission maintains that it was Mr Bell who arrested Ms Johnston for breach of the peace. If it was Mr Bell, he gave no evidence as to what the basis was for an arrest for breach of the peace. As I have indicated, each of the officers said that three women were arrested at the one spot and that the arrest of Ruth must have been a fourth arrest which occurred after that event. The video footage shows both officers Bell and McDonald putting Ruth into the rear of the car.
I have formed the view that each of Messrs Wilson, McDonald and Bell have reconstructed their evidence and that their accounts of what occurred are unreliable.
The defendant correctly submits that Mr Irrgang was not involved in the initial arrest, despite Ms Johnston’s description of the officer with the moustache. The defendant criticises the plaintiffs for not calling any evidence in support of Ms Johnston, in particular Sophia or Ruth. As it happens, I accept Ms Johnston’s account of what followed, apart from her description of the officer, in which she may be mistaken.
At the shipping container, after Ms Johnston attempted to escape, there is no police officer accountable for intercepting her and no-one seems to know who it was. As a result there is an uncontradicted account by Ms Johnston of what happened when she attempted to escape.
I have found that Emily Johnston went on the land on 9 May 2000 in the belief that an arrangement between the police and Adnyamathanha elders, allowing protesters to walk on the land, was in existence. She was not asked to leave before her arrest for trespass. She was assaulted in the course of her arrest and during her detention. Her arrest was not lawful and she was falsely imprisoned for about seven hours. The effect of the capsicum spray in the cage vehicle, the lack of water and the lack of any decontamination are relevant to her entitlement to damages.

(x) Helen Gowans

Helen Gowans was only 11 years old at the time of hen the events on 9 May 2000. When she gave evidence she was 20 years of age. Some of her descriptions of the events which occurred cannot be taken at face value due to her age and her unrealistic estimates as to distances and times. She is clearly very inaccurate in some of those estimates. However, I find that she was able to recall specific incidents. It was a significant event for her and some details must be imprinted on her memory.
There seems no doubt that she was affected by capsicum spray, the question being whether she was intentionally sprayed or coincidentally sprayed as part of a group. I am not prepared to find on the balance of probabilities that she was directly sprayed intentionally but probably indirectly when Ms Gonzalez was sprayed. I think that she was also sprayed indirectly when dragged into the group during the Kaesler/Gornall incident when Mr Kaesler liberally discharged capsicum spray into the group.
The claim by Helen Gowans of direct spraying relies to some extent on Jeni Gonzalez, a witness I will deal with later, but about whom I have reservations in relation to her reliability. I find, however, that Ms Gonzalez was sprayed, that Helen Gowans was nearby and therefore probably indirectly sprayed as a result.
On the day, Helen Gowans had gone onto the land, following her grandfather Mr Ron Coulthard and then lost contact with him when she stopped to go to the toilet. She was then looked after by Ms Gonzalez who says that after they were sprayed she then decided to ask someone else to take control of Helen and that is when Ms Gonzalez last saw her. Ms Gonzalez knew Helen from having spent time with her family in their community.
Helen must have been terrified by the events and clearly should not have been there. She should have been taken off the land when she could not find her grandfather. Be that as it may, the fact is she was affected by spray and Ms Gonzalez says that Helen was also grabbed on the wrists by a police officer.
Helen was decontaminated by a police officer when it was realised that she had been affected by capsicum spray. After that she joined the group of protesters who then walked with their arms linked. She obviously had no say in that because of her age and just went along with the adults. I have already said that I have treated her evidence generally and some of her recollections with considerable reserve. The video clearly shows that she was pulled into the group of protesters at the time of the Kaesler/Gornall incident. She eventually made her way back to the camp and was never detained.
Miss Nelson submitted that I should not accept Helen Gowan’s evidence about being sprayed because it relied upon Ms Gonzalez for corroboration. She submitted that their respective accounts were at odds and therefore I could not be satisfied as to what happened. She further submitted that Helen Gowans would remember if she was grabbed on the arm by a police officer as alleged by Ms Gonzalez.
Helen Gowans described the use of a large black can of spray which she said was used on Ms Gonzalez. As Miss Nelson pointed out, those cans had not been issued by the Star Force at that time. Helen Gowans is therefore mistaken. The officers did have ordinary spray canisters on their belts. They used them on other occasions and therefore it is likely that Helen Gowans’ evidence on that aspect is reconstruction from what she was told or heard after the event.
Helen had a right to be on the land as an Adnyamathanha person. I find that she was recklessly sprayed when alongside of Ms Gonzalez. Although the spray may not have been intended for her, it was always likely that she would be affected. That spraying constituted an assault, if for no other reason than that Helen Gowans must have apprehended the spray hitting her from such close range. She was probably again the recipient of spray when dragged into the Kaesler/Gornall skirmish. She was never detained, either in a police vehicle or in the shipping container.

6. Evidence of non-parties

(i) For the plaintiffs

Mr William Taylor was called as a witness for the plaintiffs. He had been involved in working with the indigenous community in the general area and had camped at Nepabunna with some of the elders of the Adnyamathanha community. He took footage of the events which occurred on 9 May 2000 and that has been made an exhibit in the case. He said he saw the incident in which the police car drove into the protesters. He said it was quite a long way from where he was but he saw it occur. When he got closer he saw that the group were trying to reorganise themselves. He interviewed people leaving the site. He said some had bloodshot eyes and were distressed.
Mr Taylor saw the Star Force officers arrive on the scene. He says that a group of protesters that were originally travelling in a northerly direction changed direction at that stage and headed east towards the fence line, back towards the camp. He saw the arrest of Mr Holland. He says he was only six metres away and he heard both Mr Holland and Mr Caldicott identify themselves as Channel Seven. He says that in addition he heard them say they were not there as part of the protest.
After that he left the site quickly. He says that as he ran towards the fence he saw Ms White. He said she was standing on the bonnet of a vehicle filming the action. He says he could see her for pretty much the entire time that he was running off the site. He then took up his filming at the front gate and that film is also in evidence. He saw the arrest of Guitar Man and then he saw the arrest of “Aros” (Mr Ross), which he recorded. He says he was about 10 metres away. He says Aros was surrounded by several police officers at the back of a van and that one uniformed police officer sprayed him at what he describes as almost point blank range. He said when the officer did this Aros was being restrained by several officers. He described what he saw as a Star Force officer using an uphand stroke with his baton and hitting Aros with considerable force. He says there were about four blows. His description accords with what can be seen on the video.
Mr Taylor gave evidence that after 9 May 2000 he got to know the plaintiff Emily Johnston and he had a relationship with her for about nine months. He said that they have remained close friends. He saw her when she was in Coober Pedy after the protest and said she looked very stressed out. He said that she felt isolated.
When cross-examined about the car driving into the protesters, he said people did jolt forward and it looked to him as if the car had made impact with the protesters. He obviously could not see any contact because he was such a long way away. He said that when he left the land Mr Caldicott from Channel Seven was close behind him. He said he ran pretty much all of the way to the fence. He travelled back with Mr Caldicott in the car. He cannot recall who else was in the vehicle.
I found Mr Taylor to be a reasonable and reliable witness who gave accounts of the incidents he saw consistent with what I have observed in the various video footage comprising the exhibits.
Mr Robert Sola was also called by the plaintiffs. On the day in question he went down the fence line and crossed over. He said he could see police vehicles moving towards protesters. He says that as they got closer he could see the vehicles driving into groups of people. He says he was at that stage about 100 metres away. He says he saw some people arrested. He said there was some pushing and shoving and a bit of rock throwing. He said the group then came closer together and the police went and regrouped. He saw the Star Force officers arrive by minivan.
Mr Sola said that after getting out of the van, the Star Force closed the gap and made contact with the group of protesters. The group of protesters then started to run from the Star Force towards the fence. He also began to run towards the fence. He said when he reached the fence he was with a group of people towards the back of that main group. He then walked back to the camp site and saw the events which unfolded at the front gate. He described himself as wearing a red T-shirt and a red cap. He was quite obvious on the footage which was shown. He described how the Star Force approached Mr Ross and encircled him with their shields, pushed him down the side of one vehicle and struck him with batons. He said he was four or five metres away and he saw Mr Ross being taken away.
Mr Sola said he was helping place a large food pot in the bus because the protesters were packing up to go. He was holding a large pot of stew, when most police officers were walking away. One police officer in a khaki uniform approached him, walked directly up to him and sprayed capsicum into his face while he was holding the food pot. He said the officer was grinning. He identified the police officer as Mr Wilson. He was cross-examined about approaching near Mr Wilson when the arrest of Guitar Man was taking place. He said he does not think he was threatened with capsicum spray at that point. The footage shows Mr Wilson with his baton raised and holding the capsicum spray at that time.
I found Mr Sola to be a credible witness. He was shown on the video as being very close to Mr Wilson when the latter was standing with his baton raised. Mr Wilson’s actions on the day leave a lot to be desired and I believe Mr Sola when he says he was sprayed in the face.
Jeni Gonzalez, who I have discussed in examining other evidence, was also called by the plaintiffs. She was walking with Helen Gowans when she alleges they were both sprayed. She was then part of the protester group involved in the Kaesler/Gornall incident and was arrested and taken to a police vehicle by Mr Kaesler and Mr Gornall. The footage shows her being dragged to the vehicle.
I have expressed doubts earlier in these reasons regarding her accuracy and reliability. I have decided that I cannot rely on her independent evidence unless it is corroborated. Her evidence regarding the spraying of Helen is corroborated by Helen. I am prepared to accept her evidence on that aspect because I do not believe that Helen, despite her age at the time, could forget being confronted by a police officer spraying capsicum.
Ms Gonzalez gave evidence that she was an asthmatic and was in severe difficulties when released from the shipping container, because of her condition. She was cross-examined about wanting a cigarette, despite her condition, and having a cigarette in her possession on the video footage taken when she was in the cage. I was not impressed with her answers to that series of questions and thought that she was deliberately misleading the court by her answers which were evasive and nonsensical. She even got to the point of saying that she might have been getting a cigarette for someone else. If she had been suffering from asthma to the extent that she alleges then one has difficulty in imagining why she would be involved in getting a cigarette for anyone. I have discounted her evidence in relation to the way in which she was dragged to the police car. I think it more likely that she was dragged because she was not co-operating, but of course that does not explain why she was arrested in the first place.
Emily Johnston’s mother, Mrs Sheryle Delaney, gave evidence in support of her daughter’s claim as to post traumatic stress disorder and the changes which have taken place in her daughter following this incident. She was an impressive witness who I thought, even allowing for her natural sympathy for her daughter, did not embellish and gave a factual account of what differences she had observed in her daughter. She of course was not to know of the other matters which had been troubling Ms Johnston in the years between the May protest and the present time. Even allowing for the fact that she was not fully informed as to all of that information, I think her evidence is important, when combined with that of Dr Michael Epstein, to show that Ms Johnston certainly suffered from a psychiatric condition which was caused by or contributed to by the treatment which she received on 9 May 2000 at the hands of the police.
Dr Epstein was an expert witness called by the plaintiffs. He examined six of the plaintiffs and diagnosed some of them as having a recognisable psychiatric disease. He suffered the inconvenience and professional difficulty of having only examined them once and at a point some time removed from the actual incident itself. This is not uncommon with psychiatrists who have to retrospectively place things in perspective. When they do that they are of course required to assess the truthfulness of the information given to them by the patient.
Miss Nelson submitted that Dr Epstein “was concerned to dismiss anything that didn’t fit with his diagnosis”. She explained that Dr Epstein had to rely on the truthfulness of the statements made to him by the plaintiffs. I find that those criticisms are not justified and that Dr Epstein properly made allowances for the disadvantages he had in examining the plaintiffs only once and sometime after the events.
I formed the view that Dr Epstein was a particularly experienced psychiatrist who was good at his job and particularly good at assessing the situation, given the difficulties, which he recognised. He was free to concede, as he did on several occasions, the difficulties with the diagnoses but nevertheless he maintained his diagnoses and I thought his professional opinions were properly and coherently expressed. The evidence contained in his medical reports was not diluted by cross-examination.
I have already mentioned in the various relevant aspects of Jamie Holland’s evidence the account given by Mr Caldicott from Channel Seven. I found him to be an impressive witness. I do not believe he embellished but gave the facts as he remembered them. His evidence is important in corroborating that of Mr Holland regarding their identification as being from Channel Seven. His footage is also important in showing Lucinda White on the bonnet of a vehicle as he ran off, and generally I have no difficulty in accepting his version of events as he related them in evidence.
Miss Nelson submitted that he did not tell the whole truth. She put it that his report that went to air showed a bias and was based on a journalistic theme rather than an objective assessment of the evidence. Miss Nelson further criticised him for talking-over the filming when Mr Holland was arrested and running away with the camera rather than producing his Channel Seven photograph ID.
Some of that criticism is justified but the fact remains that his job was to get a story to air and protect the film for that purpose. I do not consider any of his actions mean that I should not consider his evidence to be reliable and truthful.

(ii) For the defendant

Mr David Brunt is a geologist by profession and in May 2000 he was employed by Heathgate as vice-president of the company. He had been involved with the Beverley uranium mine project since its inception. His description of in situ leach mining is helpful. I have set that out earlier in my reasons.
Mr Brunt confirmed that drilling was actually taking place during the time of the protest in May 2000 despite the mine being under construction. He was present when Superintendent Boxall gave his briefings to the police. He heard Superintendent Boxall say that the approach was to be a conciliatory sort of approach and there was to be no aggressive behaviour towards the protesters.
Mr Brunt confirmed that in May 2000 Heathgate had a 10-seater minibus on site which was made available to the police if they wanted to use it. He gave evidence that he told Superintendent Boxall that the Deputy Premier was coming to visit the mine on 9 May. He said Heathgate’s attitude was that any facilities which they had on site would be made available to the police during their stay for whatever purpose they required. That included buildings and vehicles.
The only other witness called by the defendant, apart from police officers, was Mr Steven Talbot. He was doing security work for Chubb Security at the time of the protest. He said there were about ten Chubb personnel present at the time. On the day, Mr Talbot had a video camera and took various footage which has become part of the evidence in this case. He took footage both on the mine lease and at the front gate. Later in the day he was called to the area of the shipping container, due to his First Aid experience, to treat someone with an injured leg. That person was a male protester. He had a first aid kit and assisted. He says he also decontaminated a protester with an atomiser. He said he got a bottle of water out of his 4WD vehicle and gave it to a female protester inside the shipping container in response to a request for a drink.
When he was present at the container area he observed the welding. His evidence is that he observed the inside of the container after the welding and made the comment that no-one seemed to be in any distress at all. He then filmed the protesters when they were giving their names and addresses to the police at the time when they were released from the container.

7. Police witnesses generally

I have already dealt in the course of these reasons with the involvement of individual police officers when I have discussed the circumstances in which each plaintiff was detained and which officers were involved. The comments which follow are to provide an overview of the police witnesses in the way that I saw them give their evidence in relation to both their reliability and credibility. I will therefore deal with each officer in the order in which they were called.
Mr Irrgang was, I thought, a little bit too casual in his approach on the day of the protest. His evidence was a bit similar. His arrest of Mr Holland shows, in my view, a lack of understanding or total disregard of Operation Beverley, and indeed a lack of commonsense. I have found that he was told by both Mr Holland and Mr Caldicott that they were from Channel Seven. He denied this. He also said it would not have made any difference.
Mr Oates was grossly inaccurate in a number of respects in his account of the events as they unfolded on the day. He said he was hit by rocks all over but just after the event a statement he made recorded, “I was not hit during the incident”. His evidence about Mr Bonner pushing the door of his vehicle is wrong, as also was his answer to the allegation of holding Mr Bonner around the throat. These are examples of his inaccuracies. There were several others. I thought he exaggerated in his evidence and displayed a poor demeanour.
Mr Paynter initially appeared to be a good witness. However, his evidence as to his method of driving, and in particular driving into the group of protesters and his reasons for it, were not impressive. He became a little argumentative in cross-examination. I have also indicated that I do not accept that he stayed inside the shipping container as long as he said, although I do accept that he was in there, as against the evidence of some of the plaintiffs.
Mr Wilson’s demeanour on 9 May 2000 as evidenced in many video clips was a contrast to his demeanour in the witness box. It is ten years later on and he has obviously matured. His evidence about being run off the road is either wrong because the protesters had not yet arrived, or at least for him shows an impetuous and imprudent young officer. On the day, as illustrated by the video footage, he was overly enthusiastic to the point that he excessively used force, both with his baton and with his capsicum spray. He was one of those officers who I have mentioned earlier who I think was overcome by the situation and infected by the military-style operation conducted by the Star Force.
Mr McDonald was in my view inaccurate in some of his recall. In cross-examination he failed to answer questions properly. His claim about Mt Franklin bottled water being supplied is not correct.
Mr Bell, by contrast, was in my view a reasonably good witness who acknowledged errors in his earlier statements and was generally trying to be a helpful, objective witness.
Mr Clonan was in my view a good witness. I say this despite the fact that his recollection was poor, and inconsistencies were revealed during cross-examination. When I say he was a good witness, I mean that he did not try and reconstruct but did his best in attempting to recall the events.
Ms Hewkin appeared to be a reasonable witness while giving her account of events until she exaggerated her account of rock throwing which she says occurred after the initial incident of rock throwing. It is significant that none of the officers called prior to her giving evidence, which officers were also involved at the same time on 9 May 2000 and in the same series of events that she was, gave evidence of any rock throwing at the stage when the Star Force entered into the scene. Her evidence on that aspect, for whatever reason, is in my view quite exaggerated, and I suspect reconstructed.
Mr Emmett was generally a careful witness and was not given to glosses or embellishment when he recounted the events of the day. I think he was wrong in what he said about his use of the baton and not all of his use of it is recorded in his baton report. Likewise he erred in mistaking Ms Brown for Ms White.
Mr Andrew Mogg likewise was a careful witness who recalled the events without any attempt to exaggerate. He says he did not see batons or spray used, and I accept that.
Mr Allan Dawson had a reasonably poor memory of some events but was a careful and thorough witness throughout both his examination and cross-examination and certainly gave an objective account.
Mr Kaesler was a very poor witness. His account of events in evidence in chief gave the appearance of being carefully rehearsed. He gave evidence as to the structure of the way the events unfolded as he had reconstructed it. In cross-examination, as is invariably the case with such a witness, he displayed a surprising lack of recall. He made mistakes as to his identification of people accused of rock throwing. This included Guitar Man and also Ms White and Ms Conway. He was reluctant to admit mistakes made in his observations. I have found that he abused his powers when using both his baton and his spray.
Mr Gornall started off as a careful witness. However, when he was cross-examined he became defensive and unco-operative, probably because he was concerned at the allegations relating to his use of capsicum spray. He exaggerated his evidence regarding the impact the crowd had on him in the Kaesler/Gornall incident.
Mr Brown was a taciturn witness. His answers were direct and he only answered in relation to matters he was sure of. His involvement in crucial incidents was not really in issue in the case, although some of his recollections are not borne out by the video footage. He was also wrong about the encirclement of a Star Force officer in the arrest of Ms Brown.
Mr Spencer in my view was also straightforward and gave his evidence in a direct manner. He was careful in thinking before he answered and he made sensible concessions when inconsistencies from earlier statements were put to him. He was wrong in saying there was no vehicle outside the fence but it may not have been there at the time he looked.
Mr Thiele was a very poor witness. He was expansive, to the extent of revealing an over-emotional involvement in some of his evidence. He was defensive in the extreme and unwilling to answer questions directly when cross-examined. He became somewhat belligerent when the cross-examination revealed that he had a lack of understanding of basic police procedures involved in arrest for trespass and detention for breach of the peace. He made errors about his use of the baton, the two alleged rock throwers, the use of spray and the fact there was no vehicle at the fence. His evidence was self-serving but full of errors.
Mr Miller of the Star Force seemed to have a good recall of events as they unfolded on the day in question. He gave his evidence in a sensible manner and retained his poise and co-operation in cross-examination. His answers were prompt and succinct. He made some errors which were not significant. He said he did not see spray used and I accept that he did not.
Sergeant Riekie had a good recall of most events but made errors relating to his observations of both Ms White and Ms Conway as to the rock throwing and as to where they were at the time of their apprehension. I thought he became somewhat abrupt in cross-examination but overall remained a reasonably good witness. Other errors related to the direction of movement towards the fence, he said there was no vehicle at the fence, and there were inconsistencies from his earlier statements, which he conceded.
Sergeant Miller suffered from a lack of recall of significant events. I find it hard to accept that he was unable to identify Ms White, whom he knew from Leigh Creek, at the time of her apprehension at the fence line. He was nearby and actually heard someone call out “shame” but still said it was not Ms White. Likewise he knew Isabella Brown from Leigh Creek but said in his initial statement that he could not remember her escaping from the container. I formed the impression that he was defensive on the topic of both those witnesses because of the previous animosity and his attitude towards them which had been exhibited in unrelated events at and around Leigh Creek. His evidence about Mohawk Man picking up rocks, and the reason for Ms Brown remaining handcuffed whilst in the cage vehicle are examples illustrating the gloss which he was prepared to use to support the defendant’s case. He tried to be an advocate for the cause.
Superintendent Boxall did not embellish when giving his evidence. I thought he gave a good account of the events which he remembered. Likewise I thought his demeanour remained good under cross-examination. My criticisms of Superintendent Boxall relate not to his evidence or his manner of giving it but in relation to the decisions he made on the day. I gain the distinct impression that when giving evidence Superintendent Boxall regretted very much the decisions he made to use the container, authorise welding on it with protesters inside it, and to hold the protesters for between seven and eight hours. He made some errors including the fact that he said Mr Holland was not taken to Balcanoona by the police.
Mr Stone was the final police officer called. I thought he was a good witness. He only gave evidence of what he saw and remembered and he was not involved, in my view, in any attempt to reconstruct or embellish.

8. Shipping container and welding

All plaintiffs, with the exception of Helen Gowans and to a lesser extent in the case of Jamie Holland, were confined in the shipping container for periods of about three hours. Each gave evidence of how they reacted to the confinement, the conditions they experienced inside the shipping container and importantly the reaction of others inside the container which clearly affected the mood of those inside. Some people were considerably affected whilst others were not affected to the same extent. However, those badly affected had an impact on the general morale of the rest of the group.
Each plaintiff was subjected to what can only be described as primitive and frightening conditions inside the container, exacerbated to a large extent once welding on the outside of the container commenced. Prior to the welding, the conditions inside the container were dark, smelly, unventilated and oppressive. This was made worse by the number of people crowded into the confined space and by virtue of the fact that some of them carried residue of capsicum spray on their person and clothing. The whole experience from the outset was claustrophobic.
In relation to the confinement in the container, I intend dealing with the evidence as a whole to set the scene for the proper measure of damages to compensate those who were held in the container in what I have found to be an unlawful imprisonment. I intend generally to summarise and paraphrase the words of some of the plaintiffs to describe how they felt.
They each told the Court in their own way how they became particularly apprehensive when the welding commenced and how they were fearful of the smoke, fumes and sparks which were created by the welding process. In my view, it was a foolhardy decision to weld mesh onto the outside of the container with the plaintiffs inside. The defendant claims that the plaintiffs were well warned that welding was to take place. With or without a warning, the fact that they were subjected to those conditions is unacceptable. Three protesters, namely, Isabella Brown, Emily Johnston and one other who is not a plaintiff attempted to escape when the welding started. Mr Brown and Ms Johnston said that they feared for their safety, and I accept their evidence. In those conditions I could understand anyone wanting to escape.
The defendant’s case is that Mr Paynter was inside the container at different periods. He was inside, on the defendant’s submissions, to ensure that the welding did not constitute a danger. He was in one corner only and not for any longer than 10 minutes or so when the welding commenced.
I find that although he did go inside the container to remove rods and probably to check on the welding, it was only very briefly in the time span of what the plaintiffs were enduring.
Whatever assessment he made as to the safety of those inside was wrong. It was potentially dangerous and frightening for those inside despite what he says.
There is a dispute regarding the provision of water whilst the protesters were housed in the container. The protesters generally say that although some water was provided after they had been in the container for sometime, it was not much and they got only a few mouthfuls. I find on the whole of the evidence that water was provided but only later in the duration of the confinement and after repeated requests were made by the protesters and initially ignored. I reject any evidence that they were provided with ordinary bottles of commercial water, as described by some police. I find that water was provided in plastic two-litre containers which can be seen on the video footage, one being carried by Mr Paynter and a couple visible in the welded section outside the container. It must be borne in mind that when the water was provided, it was not only after the considerable time spent in the container without water but included the time previously spent in the rear of cage cars, sometimes for up to periods of one hour.
Although it was not a particularly hot day, the confinement in the cage cars and then in the shipping container would demand that adequate supplies of water be made available. It should have been obvious that this was a priority when the decision was made to house the prisoners in the container. It seems from the evidence of Mr Talbot from Chubb Security that indeed he provided some water to a protester in the container which indicates it was not all that freely available.
The plaintiff Mr Foster was familiar with welding procedures, as I have said, and feared for his life because he knew of the hazardous task that was being performed by welding to the outside of a container with the creation of fumes, sparks and toxic gases which could permeate the inside of the container. Mr Hoffmann was seriously affected by the welding and his related fears. So also was Mr Holland. The welding process also involved loud banging on the outside of the container and some plaintiffs gave evidence that it made their ears ring for sometime afterwards.
I will use the words of Emily Johnston, who described her experience. She said, “I was scared, I was exposed, I didn’t know why I was there. I was concerned about other people in the container and I was very dehydrated”. In my view this statement encapsulates the views expressed by many of the plaintiffs who expressed to me in different ways their concerns and fears. I believe the plaintiffs when they spoke of their fears.
I thought that the witnesses for the defendant tended to play down somewhat the impact which the confinement in the container had on the protesters. They described the group’s mood as reasonably relaxed and calm but that must be looked at in context. They said the protesters acted without any obvious concerns. I do not accept that evidence. Reliance was placed by the defence on the apparent demeanour of the plaintiffs when released from the container for the purpose of having their names and addresses taken and for being transferred to the welded cage. I suspect that by that time their demeanour would reflect their relief at being taken out of the container and the fact that they were resigned to further imprisonment albeit this time with the advantage of fresh air and light.
I queried during the course of the evidence why any imprisonment within the container was necessary. Once the protesters had been detained in the cage cars and taken to the central site there was no suggestion that they needed to be imprisoned. Some of them, in fact a group of nine or ten, had been sitting peacefully on the ground, as shown in video evidence, and there was no reason to think they were any cause for concern. In fact there is no evidence to show any cause for concern in relation to any of the plaintiffs in relation to their earlier conduct. None of the plaintiffs had shown any propensity for violence.
If the procedure in Operation Beverley had been followed, the plaintiffs could have been transported to the gate at this stage and released. If there was a need to keep them longer then there was simply no need to have them imprisoned in the shipping container.
There were also other alternatives. Superintendent Boxall effectively admitted that the container was a last resort but unfortunately, in my judgment, it was a very poor last resort. There were rooms available within the mine complex which, although they involved some operations of the police command, could have been used for protesters who the police regarded as some form of potential risk. The others could all have been asked to sit, as they were asked to sit on the land earlier, and there were adequate numbers of police on hand to act as guards. If anyone disobeyed those directions they could have then been contained in a cage car until removed from the land. After all, the whole object of their detention for breach of the peace was only temporary and should only have been for a relatively short time. Of the plaintiffs, the exception to what I have just said is Isabella Brown. She was clearly able to be held lawfully once it was discovered that she was present on the land and in breach of her previous bail conditions.
Superintendent Boxall had arranged with Heathgate management to use the old ablutions block when he needed a holding area for the arrests which were made on Sunday 7 May. He said he raised with Heathgate the need for a larger area if there were any more arrests. Heathgate suggested to him a number of possibilities, including an old shed. It was also suggested that the compound area generally could be used. The disused shipping container was also suggested at that time.
An on-site manager for Heathgate, Mr Joe Abrahams, showed Superintendent Boxall the disused shipping container. Superintendent Boxall said that he asked that it be cleaned out, even though he had no immediate intention to use it.
Superintendent Boxall explained that he had a total police force at Beverley of 30 people and therefore he had to make provision for an area where he could contain people arrested. As it turned out, when the arrests were completed it was almost a one on one situation as between police and protesters once the majority of protesters had been cleared from the main gate. Clearly some police were involved at the main gate until after the protesters left, but even prior to that many officers were doing nothing in the shipping container area. He said that there was no plan overall to keep anyone longer than was necessary. In the events which occurred, the protesters were detained further after they came out of the shipping container because Superintendent Boxall said that he wanted to obtain their names and addresses and take photographs of them. He said he was surprised by the calmness of the group both when they were in the container and after they came outside. He said they were not complaining. The procedure of taking names and addresses, much less photographs, was not part of the procedure provided for in Operation Beverley. It was no part of any procedure involving temporary detention for breach of the peace.
Superintendent Boxall stated that the presence at the mine site of the Deputy Premier made no difference to his decision to detain the protesters. Although I accept that that may have been so when the arrests were first made, I am not convinced that the Deputy Premier’s presence was not an influencing factor in Superintendent Boxall’s decision to keep the protesters longer than one would expect them to be reasonably detained, and to continue with the welding to the side of the shipping container after all the remaining protesters had left the main gate. My views in this regard are supported by some of the comments made by Sergeant Miller which I will detail shortly. I am sure that, subconsciously at least, the fact that the Deputy Premier was visiting and the fact that Superintendent Boxall envisaged a problem clearing protesters from the main gate, meant that his attention was not properly turned to the plight of the protesters and the length of time they were kept in detention in such primitive conditions.
Superintendent Boxall was examined about the alternative use of the ablutions block and said that overall it measured about 10 metres by 13 metres. However, not all of that space was usable and a considerable portion of it was taken up with toilets. Nevertheless it had been used to house nine people two days beforehand. With nine people in there plus about 12 others held in the minibus, as they were eventually, another cage vehicle or two would have been much more preferable even though it may have split his resources because the ablutions block was some distance removed from the compound where the protesters were detained.
When cross-examined about his discussions with Mr Abrahams regarding the shipping container on the previous day, Superintendent Boxall said that he thought the suggestion made by Mr Abrahams that day to use the container was “totally ridiculous”. Superintendent Boxall said he was concerned with the legal ramifications of using it. He said he rejected the idea of using it at that stage. He said he had no thought as to what facility would be required until after the rock throwing incident on the morning of 9 May.
Superintendent Boxall was cross-examined as to why he did not use the room where police briefings were held. That was certainly large enough to accommodate the protesters, and he said that it was impractical because it was a police operations area. Given that there were no persons operating the command centre from about 9.30 am when Mr Mogg left, I am sure that with a little rearranging and a minimum of fuss the operations room could have been used and certainly would have been a preferable holding area to the shipping container. This is particularly so when it should have only been necessary to detain the protesters for a relatively short time under breach of the peace powers.
It is clear that between 11.30 am, when the protesters were warned to leave, and 12.30 pm when they did leave Superintendent Boxall’s priority was getting rid of those protesters from the main gate rather than considering how long he would hold those in custody who were in the shipping container. He said this was the mindset when he approved the welding, namely, that he did not know how long the protesters would be held.
My view is that, if the container was his only choice, and it clearly was not, then why could not both doors have been opened wide, with police guards placed at the exit? The opening was only just over two metres wide, and three or four guards at that point would clearly have prevented anyone escaping. Then at least the supply of fresh air and light would have been vastly improved. The protesters were not causing trouble, aside from the three escapees, and with a number of officers it is highly unlikely that anyone in those circumstances would have attempted to escape. I hasten to add that I do not believe the shipping container should have been used at all. It was degrading, humiliating and frightening.
Sergeant Miller was second-in-command in relation to the whole of Operation Beverley. He was familiar with the mine and the surrounds and also familiar with Heathgate management. He visited there quite often from his police station at Leigh Creek.
He said that he did not believe that the container was the best of situations. He said he did not know how long it was proposed to keep the protesters in the container. It was Sergeant Miller who made contact with the welders. He said none of the protesters appeared traumatised or over upset, on his observations.
Sergeant Miller kept the charge book from Leigh Creek which would have recorded details of the arrests made and the times of those arrests, including that of Ms Brown, but the book was not produced during the trial.
Sergeant Miller said he knew about the visit of the Deputy Premier. He had known about it from the morning briefing. He said that in his view the mixture of protesters and politicians would be like mixing oil and water. He said it was not a smart thing to do and would not have been beneficial for the politicians to meet the protesters as there could be some violence. It is from those comments that it is fair to conclude, assuming, as I do, that Superintendent Boxall and Sergeant Miller discussed the holding of the prisoners, that it was likely that, at least indirectly, the fact of the visit of the Deputy Premier was something which was going through Superintendent Boxall’s mind.
Sergeant Miller explained that it was not his decision but Superintendent Boxall’s to use the container. He also says that the doors were completely closed at one stage for a period of two to five minutes. He said that when one of the Heathgate workers suggested that the cage be welded to the container, it was then that he contacted Superintendent Boxall.
Sergeant Miller said that the names and addresses of the protesters were taken for intelligence purposes. He said it was a decision that he and Superintendent Boxall made to continue to hold the protesters for breach of the peace. He also said it would have been impractical to use the police vehicles for detention purposes. He conceded that he wanted to discourage further protests at the mine, which was in his local area. That was not an appropriate response in the circumstances, and was an abuse of breach of the peace powers.
I cannot understand why Superintendent Boxall authorised the welding. He knew that these people were being detained for breach of the peace. He knew that they had to be released within a fairly short time. The fact that he authorised the welding meant that he wanted to hold the protesters for some considerable time otherwise there was just no point in doing the welding. The welding was still under way after the protesters had been removed from the main gate. Whether it could have been stopped or not at that stage, it is my view that the use of the cage was quite unnecessary and a further invasion of the plaintiffs’ rights.
A further alternative suggested by the plaintiffs was that the ablutions block, which had been used to house nine prisoners arrested on a previous day, could have been used for those protesters in respect of whom the police held a belief that they were likely to cause trouble. There was no basis for any such belief on the evidence before me but, again, there is no reason why that facility could not have been used. As it was, many of the persons housed originally in the container, after being permitted to come out to go to the toilet, were then allowed to stay in the minibus which housed about a dozen people. In the scheme of things I find the use of the shipping container and the use of the welded cage unnecessary and unlawful. It was an affront to the civil liberties of the protesters.
All the plaintiffs, except Helen Gowans, were subjected to the indignity of imprisonment in the stuffy container without adequate ventilation and light and initially without water. The container was crowded. These factors were compounded when welding was commenced on one side of the outside of the shipping container. It was demeaning to leave the plaintiffs inside whilst welding was carried out.
For all those reasons it is my view that all the plaintiffs, except Helen Gowans, should be awarded an amount for exemplary damages to reflect the attitude of the court. This amount should be over and above the amount to compensate the plaintiffs for their hurt feelings and indignity which will be reflected in an amount for aggravated damages.

9. Release

With the exception of Mr Holland, all other plaintiffs were driven to Balcanoona and arrived there sometime near dusk, probably about 5.00 to 5.30 pm. Mr Holland was taken to Balcanoona separately about two hours earlier.
I am including the time spent in custody in the rear of the police van, whilst being transported to Balcanoona, as part of the total time of imprisonment of each plaintiff simply because the plaintiffs had no choice and were reliant on the police to take them to a point of release.
When the plaintiffs arrived at Balcanoona they had to find and retrieve their personal possessions which had been transported to Balcanoona in a box. Some did not recover all of their possessions and have made claims which I will deal with when I consider what special damage has resulted.

10. Key findings of fact related to Tuesday 9 May 2000

None of the plaintiffs who went onto the mine lease breached the peace or committed any substantive offence.
No specific warnings were given in such a way as to attract the attention of the protesters and make it obvious to them that unless they left the land, they would be arrested for trespass. The normal method of communicating to a large group of people would seem to be by the use of either loud hailers or by the use of the microphones and speakers attached to the police vehicles. Neither was used but would have provided an easy method of drawing attention to the fact that the protesters were required to leave.
Most of the protesters who entered the land were compliant with requests to leave when requests were made. From the video it is apparent that most protesters indicated a willingness to leave the mine site when requested, and it was only a few exceptions that caused trouble.
The protesters, after being arrested, were detained in vehicles without water and in some cases without decontamination. They were detained in vehicles for periods of between half an hour to an hour in fairly uncomfortable conditions. This was all the more so when some of those detained in vehicles had been sprayed and the effect of spray spread through the vehicle.
The procedures followed on the day by the police officers did not accord with the procedures laid down in Operation Beverley. This relates to both the arrest procedures, the use of breach of the peace powers, the time in custody and the use of capsicum spray. It also relates to the use of batons.
There was a lack of co-ordination between Superintendent Boxall and the Star Force. The uniformed officers sent to assist the Star Force were really left to use their own discretion, which unfortunately was misplaced in relation to their over-enthusiastic use of capsicum spray and arrest procedures generally.
The use of the shipping container as a means of housing the protesters who had been arrested or detained was, in my opinion, quite unnecessary and quite inappropriate. It represents, in my view, a fundamental breach of human rights. The conditions were oppressive, degrading and dirty, there was a lack of air, there was the smell from capsicum spray and up to 30 persons were crammed into a very small space.
This problem was compounded when a decision was made to weld a mesh cage to the outside of the container whilst the protesters were inside. This was a most unfortunate decision, without any commonsense, and potentially dangerous. By the time the welding was ordered, there was no reason why the protesters could not have been released and told to leave the mine site and the area. The welding compounded the problems of the deprivation of liberty in the container.
There were sufficient police and vehicles, including at least one minibus and possibly two minibuses, to house the protesters who had been arrested. There were a couple of exceptions when people were arrested for substantive offences and it was appropriate that these persons be conveyed at the earliest possible opportunity to a police station so that they could be brought before a court. With those exceptions, there was no reason to detain the other protesters. Whilst the protesters at the main gate were being asked to leave, it would have been appropriate for the detained protesters to be merely seated on the ground in the area of the compound, surrounded by police officers so that if any were not compliant they could be placed in a police vehicle. That alternative would have been far superior to the method adopted.
The overall time in which protesters were detained was totally unjustified. It is my view that a period of one hour or so after detention, to allow things to settle down and to allow the area to be cleared, would have been more than adequate in the circumstances. There is no justification for imprisonment for up to seven or eight hours, as was the case. Operation Beverley contemplated a holding period of minutes rather than hours.
Some of the action taken by some police officers was heavy handed and unnecessary, as I have said, in particular in relation to the use of capsicum spray and batons. Random arrests were made when protesters were singled out. Those persons in the case of the plaintiffs had not committed any substantive offences.
From the submissions made with reference to video footage and other estimates, the likely order in which the plaintiffs were detained or arrested is as follows. Emily Johnston and Matt Bonner at about 9.26 am. Then Isabella Brown at 9.30 am. Then followed Jamie Holland at 10.04 am, and Marcel de Bie, Ian Foster and Sam Hoffmann at about 10.05 am. Finally Lucinda White and Stephanie Conway at about 10.15 am.
The last of the arrests, therefore, was completed by about 10.15 am. The processing of the protesters did not commence until 1.06 pm. Some had been in custody since shortly before 9.30 am, either in a cage car or in the container – some three and a half hours. That is an inexcusable delay.
The last protesters were taken from the mine site by approximately 4.15 pm and travelled for approximately one hour to Balcanoona where they were released. Therefore their time after release from the container but whilst still in custody, in either the mesh cage or a cage vehicle, was about another four hours. Again that is unacceptable.

11. The law

(i) Assault

To be liable for this offence, there must be a physical act or verbal statement or both by the defendant which directly produces apprehension in the plaintiff that a battery is likely to be committed, whether the defendant intended to put the plaintiff in fear or should have foreseen that result.
Words alone can constitute an assault, or words coupled with gestures. The apprehension of the plaintiff must be the commission of actual physical battery. The plaintiff’s apprehension does not need to be reasonable, as expounded by Bray CJ in Macpherson v Beath (1975) 12 SASR 174 at 177.

[i]f the defendant intentionally puts in fear of immediate violence an exceptionally timid person known to him to be so then the unreasonableness of the fear may not prevent conviction.

The intention element of assault requires an intention to cause apprehension in that plaintiff (my underlining), putting in them the fear or knowledge and expectation that physical contact will occur. No intention to commit the actual battery is required. A defendant who lacks the requisite intent will still be liable if the plaintiff’s apprehension was foreseeable, and recklessness as to causing that apprehension can make the defendant liable.
In Rixon v Star City Pty Ltd (formerly Sydney Harbour Casino Pty Ltd) [2002] NSWCA 265, Sheller JA and Heydon JA referred to Clerk & Lindsell on Torts, M.R. Brazier, gen ed, 17th ed (1995) London, Sweet & Maxwell at 590:

A traditional definition of assault is “an overt act indicating an immediate intention to commit a battery, coupled with the capacity of carrying that intention into effect. The irrelevance of the intention to carry the battery into effect is demonstrated by the act of presenting an unloaded firearm in such circumstances that if it had been loaded its discharge would have been likely to cause injury. Such an act is an assault unless the person at whom it is pointed knows that it is empty.

If an assault is proved, it is for the defendant to prove that the assault was justified. According to Smith J in Walker v Hamm [2008] VSC 596 at [37]- [38]:

[37] Where the defendant alleges justification for the blows struck, the law would appear to be that the onus of proof will rest with the defendant to prove that the action taken was justified. That will turn on a consideration of all the evidence but if, on the evidence, the defendants fail to establish lawful justification for the relevant physical contacts, liability will follow. I note, however, that the plaintiffs seek aggravated damages and exemplary damages. To the extent that it is relevant to the claims for such damages, the relevant plaintiff bears the onus of proof to establish facts relevant to prove that the acts of Carter and Sesin warrant such damages.

[38] Because of these complexities, I have taken a practical approach to the actual fact finding task by proceeding on the basis that the plaintiffs bear the onus of proof on all the factual issues and that in relation to liability issues, Briginshaw v Briginshaw applies. In my judgment, this practical course has not disadvantaged the plaintiffs.

Each of the plaintiffs claim in different ways to have been assaulted. The alleged assaults are enumerated in a schedule prepared by the plaintiffs as part of their final submissions. In each case there is more than one assault alleged and sometimes several. Some of the alleged assaults involve actual physical contact whilst others involve the apprehension of contact because of words or gestures or both.
The plaintiffs each claim an assault in relation to the circumstances of their arrest or apprehension. If the arrests were unlawful then it would follow that any physical contact between a police officer and a plaintiff, when for instance the police officers physically placed the plaintiff into a cage car, would amount to an assault.
When my findings of fact are applied to the legal requirements of arrest for trespass or detention for breach of the peace, it becomes clear that based on those findings the arrests or detentions were unlawful. I have found Ms White to have been assaulted and sprayed and bodily dumped over the fence. Mr Bonner was grabbed around the throat and manhandled into a cage vehicle. Ms Brown was assaulted at the time of her arrest. She was further assaulted at the time of her attempted escape from the container. Although she was then lawfully detained, I have found that unreasonable force was used and that there were further assaults upon her after her detention.
Ms Conway was threatened with a baton, assaulted by being kicked in the ribs and was then also dumped over the fence. Mr de Bie was sprayed and assaulted when handcuffed. Mr Foster was sprayed and struck with a baton. Mr Hoffmann was punched in the hand and shoulder and threatened with spray.
Mr Holland was assaulted by being held around the neck in a headlock. He was also threatened with spray, which constitutes another assault.
Ms Johnston was sprayed in the rear of the cage car, having been physically manhandled into the van. Helen Gowans was not arrested or detained and was not falsely imprisoned. I find, however, that she was assaulted in the sense that she had a reasonable apprehension when she was incidentally sprayed whilst standing alongside Ms Gonzalez. Her apprehension was foreseeable given the circumstances and Mr Wilson was reckless in that regard.
Therefore on my findings each of the plaintiffs has been assaulted. I will deal with the effect of the assaults when considering the question of damages.

(ii) Trespass

The statutory offence of trespass is contained in the Summary Offences Act 1953 (SA). Section 17A states:

Trespassers on premises

(1) Where—

(a) a person trespasses on premises; and

(b) the nature of the trespass is such as to interfere with the enjoyment of the premises by the occupier; and

(c) the trespasser is asked by an authorised person to leave the premises, the trespasser is, if he or she fails to leave the premises forthwith or again trespasses on the premises within 24 hours of being asked to leave, guilty of an offence.

The officers present at Beverley were familiar with Operation Beverley.

Operation Beverley sets out in Appendix D1 extracts from the Summary Offences Act and excerpts of comments taken from previous decisions of the courts in relation to the offence of trespass.
To satisfy the first element of trespass, there must be an entry and the entry must be shown to have been without right or authority, or contrary to the scope of any limited authority: see Barker v R [1983] HCA 18; (1983) 153 CLR 338 per Mason J at 341-2.

The essence of trespass by wrongful entry consists in an entry without right or authority by one person on to the land of another who is in possession, using that word in its strict sense so as to include a person entitled to immediate and exclusive possession (Thompson v. Ward [1953] 2 QB 153 at 158-159). If the right or authority to enter is limited in scope then an entry which is unrelated to the right or authority will amount to a trespass.

It must also be shown that the trespasser knew he or she was trespassing when he or she made entry, or while he or she was on the land. See Semple v Mant; Cargill v Semple (1985) 39 SASR 282 per Zelling J at 283:

Clearly there must be a mental element involved in the concept of trespass under s 17a. The trespasser must know that he is trespassing. He may know that when he commences to trespass or he may gain the knowledge later on up to the time when he is asked to leave and fails to do so. The difference does not matter for the purpose of this case. These defendants were trespassing intentionally as part of a protest against the uranium mining which it is proposed to carry on on a portion of the premises.

Mens rea is required and therefore a defence would be an honest and genuine entry under a belief of a claim of right to do so.

In Margarula v Rose [1999] NTSC 22; (1999) 149 FLR 444, an Aboriginal woman entered the land at the Jabiluka mine site under a claim of right as one of the Mirrar clan to protest against the Jabiluka uranium mine. She claimed she entered to protect her land. The trial judge found that she did not enter the land for the traditional purpose of protecting her country. The trial judge found the proection of the land was secured by virtue of the agreement signed by the Northern Land Council and Energy Resources Australia. Her appeal against conviction for trespass was dismissed.
The unlawful entry must restrict or inconvenience the occupier’s use of the land or interfere with use of the land. In Semple Prior J stated at 288:

Enjoyment of the premises includes what is known in the civil law as quiet enjoyment. Enjoyment is interfered with if it is restricted or inconvenienced, or if the right to exclusive possession is destroyed (Goldsworthy Mining Limited v Commissioner of Taxation; Sanderson v Mayor of Berwick-on-Tweed).

In Semple demonstrators against uranium mining entered the mine premises to distribute literature to employees, trying to persuade them to stop work. This was held to be interference.
The third element of trespass places an onus on the occupier, or an authorised person, to ask the trespasser to leave the premises, which the trespasser must comply with “forthwith”.
“Forthwith” has been defined as “the shortest time which is reasonably practicable in the existing circumstances”: see R v Conley (1982) 30 SASR 226 at 240.
I have been unable to find any law relating to what constitutes a request to leave.
However, the law relating to the third element appears to be that although the legislation requires an occupier or an authorised person to ask a trespasser to leave, once the trespasser knows that they do not have permission to stay on the land, and they refuse to leave, they are guilty of the offence. In Police v Slobodian [2008] SASC 79; 254 LSJS 117 Gray J said at [26]:

[26] It is to be observed that both Semple and King involved a refusal to leave premises following the revoking of an implied permission. In this situation it is difficult to see how any claim of right could arise. The elements of the offence are the revoking of permission and the failure to leave. The relevant state of mind of the accused involves an awareness of those two matters.

At [33]-[34] Gray J said (referring to the decision in King v Police [2007] 247 LSJS 406):

[33] … Doyle CJ concluded that once the defendant knew he no longer had permission to stay, and refused to leave, he was guilty of the offence.

[34] Counsel for the police submitted, however, that Parliament could not have intended that, to prove guilt of a section 17A offence, it must be proved not only that a defendant knew of all of the facts which made what he did a trespass, but also that he did not genuinely believe that he had a right to be on the premises, however ridiculous or wrong-headed that belief might be. Irrational, awkward or potentially violent individuals who create disturbances on private property would be immune provided they purported to hold a genuine belief as to their right to do what they were doing. These considerations, given that section 17A is concerned with public order, invite the conclusion that once a trespass of the particular kind specified occurs, it need only be proved that a defendant knew of the facts which made his actions a trespass of that kind and failed to leave…

Although in all these cases there has been no doubt that a request to leave has been made to the trespasser, the evidence in this case does not support the conclusion that requests were made or that if they were, they were adequately communicated. In some cases arrests were made without prior requests to leave, and in others the requests have not been proved to have been communicated to the protester in question.
Section 17A(1)(c) of the Summary Offences Act states that “the trespasser be asked by an authorised person to leave the premises …” (my underlining). The plaintiffs submit that there can be no offence of trespass in this matter because it has not been proved that the police were authorised by the mine management to ask the protesters to leave the premises. This is put as a bald submission, and although accepted by senior counsel in argument as a technical point, it was nevertheless put forward to defeat any claim in the event that, if it were found that the protesters were asked to leave, then the person asking them was not an authorised person within the meaning of the section.
During final submissions, I put to counsel for the plaintiffs that surely I could imply that by the police presence at Beverley, the co-operation of mine management with the police, the provision by the mine management of facilities made available to the police department and the fact that mine management attended the briefings in relation to the plan of action in relation to protesters that it was a small step to infer authority. Mr Walters responded to that by saying that all may be so but strict proof is still required and two persons in particular, Superintendent Boxall and Mr Brunt of Heathgate were not asked any questions at all regarding authority and therefore in relation to trespass no offence can be made out.
It is quite clear from the whole of the evidence that from the time Operation Beverley was conceived there was co-operation between the mine management and the police department. Furthermore, as it became apparent that a large protest was being organised, communications between the mine management and the police obviously took place. Patrols from Leigh Creek regularly visited the mine, and particularly after police intelligence revealed that there was likely to be a number of protesters travelling to the mine.
Entries from the Leigh Creek police station journal show that on 2 May 2000 the police and Heathgate were liaising regarding the possibility of protests. After a patrol to Beverley the journal shows that there was further liaison with both Mr Brunt and with Chubb Security regarding the impending protest.
Despite the lack of direct evidence, I am prepared to infer that the police were there during the protest at the request of the mine management and with management’s authority. I also infer that the police were asked by the mine management to remove protesters and were thereby authorised within the terms contemplated by s 17A(1)(c).
I have found that Ms White did not enter the mining lease on 9 May 2000. All the other plaintiffs did. Each of them gave different reasons for doing so. Mr Bonner said he went onto the land after hearing that there had been an invitation from Mr Coulthard to go onto the land. Ms Brown knew the Adnyamathanha people, including Mr Coulthard, and said she followed him when he went onto the land. She also said that she knew she was risking arrest.
Ms Conway, Mr de Bie and Mr Foster were not asked about their reason for going onto the land. Mr Hoffmann had either left the land or was in the process of leaving it, being actually halfway through the fence, when he was apprehended.
Mr Holland, Ms Johnston and Mr Bonner were arrested for trespass. Mr Holland believed from his past experiences as a cameraman that he would be asked to leave the premises and said that he would have done so had he been asked, as had happened on other occasions when he had been covering various events for his employer. He was not asked to leave efore being arrested for trespass. Ms Johnston said she thought there was an arrangement between the police and Mr Coulthard as her reason for going onto the land.
Therefore it seems that in terms of s 17A no plaintiff had the mental element as required. Moreover none of the plaintiffs were asked to leave. I am not satisfied that any requests to leave, if they were made, were adequately communicated to the protesters in the midst of the noise and confusion which is obvious from the video footage.

(iii) Breach of the peace

The relevant considerations relating to detention for breach of the peace are set out in Operation Beverley. In Appendix C Operation Beverley said “Breach of the peace is disturbing public order…”.
In R v Howell (1981) 3 All ER 383, Watkins LJ said at 36-7:

… there is a breach of the peace whenever harm is done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
… we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.

Watkins LJ also said at 37:

It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable…may arrest an offender without a warrant.

The test in R v Howell was approved in South Australia by Brander v Lovegrove (No 2) 103 LSJS 304 per White J at 310:

These common law powers are in themselves inconsistent with the liberty of other citizens so they can only be exercised lawfully when the common law condition precedent to their exercise exists. That condition precedent is the actual existence of a reasonable belief in the mind of the constable or citizen that a violent breach of the peace is occurring or is imminent. The belief must be actually entertained at the time. The reasonableness of the belief is tested objectively, that is, against proved facts. The person claiming to have so acted must depose to holding that belief and his grounds. It is not enough that a breach of the peace had occurred in the locality in the past, although that could be a factor taken into account but only if it is relevant to the likely course of events in the future and if it is known to the person claiming the belief. In other words what happened in the past must form part of the belief.

And further at 310:

At common law, both constables and citizens are entitled to restrain, detain and even forcibly remove from the area of potential breach any offenders reasonably believed to be committing or to be about to commit a breach of the peace.

It was held in Jordan v Gibbon (1863) 8 LT 391 that the mere refusal of a trespasser to leave a premises does not constitute a breach of the peace.
It was also held in Forbutt v Blake (1981) 51 FLR 465 that mere disobedience of a police direction would not necessarily constitute a breach of the peace.
Appendix C of Operation Beverley states:

Are offenders “arrested”?
It is clear from the cases that there is no obligation to ‘process’ a person who is “arrested” by police to prevent a breach of the peace or consequent upon a breach of the peace. It is permissible to detain the person until peace is restored and then to release the person.
How long can we detain these offenders?
Such detention would normally be of only a few minutes duration and would often involve just removing the offender from the site if the offender was a trespasser and the trespass was provoking the breach.

Counsel for the defendant submitted that a power of arrest for breach of the peace does exist: see R v Howell. This was part of the defendant’s written closing submissions.
Counsel for the plaintiffs submitted that the police do not have a common law power to arrest for breach of the peace, but the power to detain only – subject to the test in Brander v Lovegrove being satisfied, which they submit it was not.
In R (on the application of Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, Lord Bingham of Cornhill said at [28] that:

A breach of the peace is not, as such, a criminal offence, but founds an application to bind over.

Also Lord Brown of Eaton-under-Heywood said at [114]:

[114] As Lord Mance puts it in para 141 of his opinion, the reasonable apprehension of an imminent breach of the peace is an important threshold requirement which must exist before any form of preventative action is permissible at common law… There is no inconsistency between this principle and the further principle that, even when a breach of the peace is reasonably judged imminent, the police must still take no more intrusive action than appears necessary to prevent it.

This seems to me to strike a chord with the sentiments expressed in Operation Beverley. As I have found, the sentiments of Operation Beverley were only observed in the breach.
In relation to the plaintiffs in this matter, most were detained and then held in custody purportedly for breaches of the peace. This group included Ms White who I have found did not enter onto the mine site at any stage. She was never told of the reason for her arrest. Mr Bonner was not asked to leave the mine site before he was arrested. He said that he was arrested for trespass. Mr Oates agrees that he did not ask Mr Bonner to leave.
There is some confusion as to what Ms Brown was initially detained for but it is pleaded that it was for either breach of the peace or trespass. She was not breaching the peace at the time of her apprehension. She was taking video footage at the time she was apprehended.
In the case of Ms Conway, she had left the land and was not breaching the peace. Messrs de Bie and Foster were also leaving the land and had not breached the peace. Mr Hoffmann had left the land but, as I have indicated, was caught up in the fence when he was detained.
As previously discussed, Mr Holland was never asked to leave prior to being arrested for trespass. Ms Johnston, also arrested for trespass, was not given any prior request to leave the land. Helen Gowans of course was never detained.
Therefore of the six plaintiffs detained for breach of the peace, three had exited the mine lease and three had done nothing, other than being on the land, to justify their detention for breach of the peace.
It is my view that the police on the day had no clear appreciation of the purpose for using breach of the peace powers. This was despite the fact that it was clearly set out in Operation Beverley. They appeared to regard breach of the peace and trespass as interchangeable. I have already referred to Mr Thiele’s confusion in this regard. I am not sure that Superintendent Boxhall really understood how to properly use the breach of peace powers, or if he did, that he adequately explained it to his officers.
In my view the officers were not properly briefed as to the use of breach of the peace powers. They then took it upon themselves to make “arrests” for breach of the peace and those “arrests” were not justified.
Whatever directions were given by Superintendent Boxall, and this is far from clear, one stated object, and the prime object, was to remove the protesters from the land as quickly as possible and arrest them only in the case of the commission of a substantive offence. This direction was not observed by the officers. Arrests were made after the Star Force wedge operation, and not in relation to the commission of any substantive offences, but on a random system which involved arresting those who were in the wrong place at the wrong time.

(iv) False imprisonment

To be successful in an action for false imprisonment, it must be proved that by the voluntary conduct of the defendant, the plaintiff was totally deprived of freedom of movement, without lawful justification. The restraint will still be total if the plaintiff’s only alternative means of movement or escape is unreasonable.
The plaintiff does not have to prove that there was any damage caused. As Lord Griffiths said in Murray v Ministry of Defence [1988] UKHL 13; [1988] 1 WLR 692 at 703:

The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage.

The imprisonment, false or otherwise, must be directly caused by the defendant: see Maine v Townsend (1883) 4 LR (NSW) per Sir J Martin CJ at 7:

[B]efore any person can have a verdict against him on such a count there must be evidence that he either directed the imprisonment, or was party to it, or gave oral or written directions for the arrest to be made…to make him liable he must be a party either directly or indirectly to the arrest.

In this case, the imprisonment was intentional and was effected by direct physical contact by the defendants. It appears this element is easily satisfied in this case and does not appear to be controversial.
As I have said, the deprivation of liberty must be total. In R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 Lord Jauncey said at 178:

… total deprivation of liberty, that is to say of all such liberty as the individual presently enjoys and not deprivation of total liberty, namely liberty which is otherwise wholly unrestricted …

In Bird v Jones (1845) 7 QB 742 Coleridge J said at 744:

Deprivation does not need to be confinement within a cell, or shackles. A confinement within defined bounds will satisfy the condition. The boundaries of movement may be physical or non-physical.

It appears this element is also easily satisfied in this case, as it is agreed that most of the plaintiffs were generally physically held, then locked up in the back of a police vehicle, and then later locked up in the shipping container and welded cage.
False imprisonment for any period of time, no matter how short, is actionable. However, the duration of the false imprisonment is a consideration relevant to damages.
Lawful justification for imprisonment is a question of fact on the evidence to be established by the defendant. In Myer Stores Ltd v Soo [1991] VicRp 97; [1991] 2 VR 597 Murphy J said at 599:

If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute.

Not only must the defendant show the initial detention was justified, but that the continuance of the detention was also justified. In Dallison v Caffery [1965] 1 QB 348 Diplock LJ said at 370-371:

The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable. What is reasonable conduct on the part of a police officer in this respect may not be the same as what would be reasonable conduct on the part of a private arrestor.

It follows from my reasons that the police had no lawful justification for the imprisonment of the plaintiffs who, I have found, were wrongfully arrested or detained.
I have found that at the time of the arrests of the plaintiffs, either for trespass or breach of the peace, the arrests were unlawful. It follows that the initial imprisonment of the plaintiffs was unlawful.
The defendant has been unable to justify the initial imprisonment of the plaintiffs. Likewise, it has not been able to justify the continuance of the detention over such a long period. I have already dealt with these aspects in my reasons when I dealt with the time of release, which in most cases meant that the plaintiffs, except Helen Gowans, had been imprisoned between seven or eights hours after first being detained. The exception is Mr Holland who was held for about five hours. The imprisonment itself in the shipping container and the overall time that the plaintiffs were held, first in cage cars, second in the container, third in the welded cage and finally in a vehicle transporting them to Balcanoona, cannot and has not been justified in my view.
The defendant clearly owed the protesters a duty of care to ensure that they were properly treated when imprisoned. In my view the defendant failed to provide adequate facilities, and included in that was the failure to initially provide adequate water for an extended period. Any imprisonment, in any conditions, should at least provide fresh air, light and water as basic human requirements.

12. Damages

The plaintiffs have all claimed general damages, aggravated damages and exemplary damages. Some have claimed specific items of special damage.

(i) General damages

Each of the plaintiffs, to varying extents, was assaulted in some way, on the findings which I have made. Some were assaulted at the time of their original apprehension. All except Helen Gowans were placed into police vehicles and all, again with the exception of Helen Gowans, to varying extents when in the container were subjected to the welding to the outside of the container. On my findings each of the plaintiffs apart from Mr Holland and Helen Gowans was falsely imprisoned for periods of between seven and eight hours. The conditions of the imprisonment, especially in the container, were unpleasant, to say the least.
The amount of damages to be awarded varies in each case, depending on the effect the assaults and imprisonment have had on the individual plaintiffs. The plaintiffs are to be compensated for their pain and suffering and loss of any amenities, including loss of enjoyment of life. Any such award of damage, of course, is a discretionary award and I will summarise for each plaintiff those aspects which I consider are relevant when I make the assessment in each case.

(ii) Aggravated damages

Aggravated damages are awarded as compensation for injury to the plaintiff’s feelings caused by the defendant’s insulting or humiliating conduct. The High Court said, in contrasting aggravated and exemplary damages, in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1 at 8:

… aggravated damages in contrast to exemplary damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.

In Lamb, the respondent Cotogno was enraged when the appellant Lamb tried to serve him with a summons. The respondent threatened to kill him. As the appellant attempted to leave the property, the respondent threw himself across the appellant’s bonnet and held on as he attempted to drive away. In fear, the appellant drove off, then attempted to dislodge the respondent by accelerating and swerving. He eventually braked suddenly which threw the respondent off, injuring him seriously. The appellant drove away. Provocation was taken into account in the assessment of damages. $5,000 was awarded as exemplary damages.
Such damages have been awarded for wrongful imprisonment in the past (see Myer Stores Ltd v Soo) and in those cases the circumstances of the detention was relevant.
Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149 described aggravated damages as those “given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done”.
In Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 Lord Hailsham said at 1073:

In awarding “aggravated” damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and, as the result of the conduct exciting the indignation, demands a more generous solatium.

In State of NSW v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125, Delly was wrongfully arrested as an accessory to the murder of Paul Harris. She was asked her name and date of birth and taken into custody without being told she was under arrest or the reasons for her custody. She was held in a room from approx 8.30 am. By 11.00 am the police had formed the view she could not be charged. However, she was not told she could leave. At 12 noon she was released. Aggravated damages were awarded by the primary judge because Delly was held for a number of hours. The award was set aside. An award of $10,000 for exemplary damages was made by the Court of Appeal because police knowingly and deliberately held Delly for an hour after knowing she could not be charged.
Delly was appealed to the High Court and special leave was refused.
In McDonald v Coles Myer Ltd (1995) Aust Torts Reports 81-361 (NSWCA), the appellant was arrested and charged with shoplifting at K-Mart. The Magistrate found that there was “no case to answer”. The appellant then brought a claim for wrongful arrest and false imprisonment. The case was compounded by the defendant’s patently false and offensive imputations during trial that the plaintiff was mentally ill. No apology was made. Damage to the appellant’s reputation due to the allegations was a consideration. The appellant was awarded $13,500 aggravated compensatory damages at first instance, which was increased to $27,000 on appeal.
Clarke JA, citing Lawrence LJ in Walter v Alltools Ltd (1944) 171 LT 371 at 372, said:

In my opinion that case lays down that any evidence in a case of false imprisonment which shows, or tends to show, that the defendant is persevering in the charge which he originally made in bringing about the false imprisonment, is evidence which may be given for the purpose of aggravating the damages. In the same way, the defendant would be entitled to give any evidence which tended to show that he had withdrawn, or had apologised for having made, the charge on which the false imprisonment proceeded. The general principle, in my view, is that any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages are assessed. A false imprisonment does not merely affect a man’s liberty; it also affects his reputation. The damage continues until it is caused to cease by an avowal that the imprisonment was false.

Provocative conduct by a plaintiff may reduce the amount of aggravated damages otherwise appropriate, or even disentitle a plaintiff from such damages. In my view none of the plaintiffs engaged in any conduct which could be regarded as provocative.

(iii) Exemplary damages

Exemplary (or punitive) damages are awarded in order to punish the defendant for “conscious wrongdoing in contumelious disregard of another’s rights”: as stated by Knox CJ in Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71 at 77. It is my understanding that this is the preferred definition in Australia.
The decision in Lamb has confirmed that exemplary damages may be awarded in the absence of any malice on the part of the defendant. The decision also shows that the conduct that makes exemplary damages appropriate can actually occur after the tort has been committed.
In Lamb the event giving rise to exemplary damages was the appellant’s act of driving off after the respondent was seriously injured by the appellant. The $5,000 exemplary damages awarded was upheld, for the appellant’s “callous” conduct in driving off.
Aside from punishing the defendant, exemplary damages may be awarded to demonstrate the court’s disapproval of the defendant’s conduct and to provide general and specific deterrence.
In Delly Ipp JA said at [24]:

[24] As Tobias JA observes, exemplary damages will be awarded to plaintiffs in cases where it is necessary to punish the defendant for the defendant’s anti-social behaviour to the plaintiff and to deter others from like conduct.

In NSW v Ibbett [2006] HCA 57; (2006) 229 CLR 638, the Court at [38] cited the rule in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558:

The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.

In Ibbett, two plain-clothes police officers entered a residence at night without justification and sought to arrest a resident, pointing a gun at him and his mother who was the owner of the premises. The mother was awarded $50,000 for trespass and $50,000 for assault, which award was upheld by the High Court.
I note also the comments in Delly per Ipp JA at [25]:

A tendency has developed to assume that, where plaintiffs are successful in cases of false imprisonment, exemplary (and, indeed, aggravated) damages should be awarded automatically against the police. Such a tendency is incorrect and should be avoided. The requirement laid down by the law must be applied, properly, in each individual case. I record my express agreement with what Basten JA has written (at 149 [115]-[117] infra).

Basten JA said at [115]-[117]:

[115] Circumstances of aggravation do not necessarily demonstrate conduct of a kind warranting an award of exemplary damages. Such an award is justified by reference, not to the effects on the plaintiff, but to the knowledge, intention or recklessness of the tortfeasor. An award of exemplary damages may be justified by “conscious wrongdoing in contumelious disregard of the plaintiff’s rights”. On the other hand, actual subjective advertence to wrongdoing is not necessary, at least, it would seem, in circumstances where the conduct is objectively outrageous so that the tortfeasor can properly be described as reckless.

[116] One purpose of an award of exemplary damages is to deter both the wrongdoer and others who may be in his or her position from a repetition of the kind of conduct under scrutiny. In the present case, it is the State of New South Wales, rather than the individual police officers who will suffer the financial burden of an award. Further… such an award may indirectly have a deterrent effect on the police officers concerned through the response of the Police Service. It is, therefore, important to preserve the deterrent effect of such an award. That effect will tend to be diminished if the preconditions for an award are not tightly controlled. No doubt it is important that police officers know and observe the limits of their powers: however that desirable end will not make a careless or mistaken exercise of power outrageous or high-handed.

[117] The fact that an award of exemplary damages constitutes an expression of the Court’s disapproval of the conduct does not mean that the Court’s disapproval is a sufficient reason to make an award.

Before making an award of exemplary damages, I must review all evidence which might mitigate the defendant’s conduct.
In Andary v Burford (1994) Aust Torts Reports 81-302, a truck driver (appellant) and car driver (respondent) were in a minor accident, which turned into a verbal altercation. The appellant tried to drive off and avoid further argument but the respondent got out of her car, abused the appellant, and held on to the side of his truck. The appellant, while moving, shook his truck door to dislodge her, and after she fell to the road in a heap he continued to drive away. The appellant appealed against the magistrate’s decision to award $7,500 in exemplary damages without reduction for the respondent’s provocation. Millford J allowed the appeal and reduced the damages by half for the respondent’s loud, drunk and abusive provocative conduct.
As I have said, I have not found there to be any provocation on the part of the plaintiffs or any lawful motivation for the defendant’s conduct in committing the offences.

Distinction between aggravated and exemplary damages

As already discussed, aggravated damages are generally compensatory in nature and are awarded to restore the plaintiff’s dignity and to compensate for conduct which has shocked them. Exemplary damages, on the other hand, indicate the court’s disapproval of the defendant’s conduct.
The distinction between the two heads of damage was first recognised in England in 1964 in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 (HL) at 1221 per Lord Devlin.
It has been accepted in Australia that the distinction is difficult to make in some circumstances.
In Uren Taylor J said at 129:

Prior to Rookes v Barnard the law relating to exemplary damages both in England and in this country was that damages of that character might be awarded if it appeared that, in the commission of the wrong complained of, the conduct of the defendant had been high-handed, insolent, vindictive or malicious or had in some other way exhibited a contumelious disregard of the plaintiff’s rights. Various expressions had been employed to describe such conduct and the law, though, of necessity invested with a degree of flexibility, was sufficiently certain. The cases in which this principle has been acted upon are numerous and it is sufficient for the present to say that it has been acted upon in this Court on a number of occasions. It is, perhaps, desirable to point out that there had been a degree of confusion between “aggravated” and “exemplary” damages and sufficient attention has not, in the past, been given to the distinction between these two concepts.

Windeyer J said at 149:

[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve to one or more of the objects of punishment – moral retribution or deterrence.

Double punishment

While the purposes of aggravated damages and exemplary damages are different, both may be awarded if appropriate.
An example of that would be intentionally insulting conduct, which offends both the plaintiff and the court. This proposition was considered in Johnstone v Stewart [1968] SASR 142.
The court stated in Ibbett at [35], referring to the “global” approach:

[35] In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. Such an approach was adopted by Bray CJ in Johnstone v Stewart.

The court affirmed the remarks of Spigelman CJ in the judgment appealed from at [34]:

[34] …it is relevant to note that the matters to which I have referred as justifying an award of exemplary damages are also pertinent, as is often the case, to an award of aggravated damages. The difference is that in the case of aggravated damages the assessment is made from the point of view of the plaintiff and in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, it is necessary, as I have noted above, to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.

In a case such as the present one, I must be mindful of the remarks of the court at [36] with respect to:

[36] … the conceptual distinctions between aggravated and exemplary damages and of the dangers of an excessive overall award where some or all of the factors supporting one head of damages also support(s) the other.”

Relevantly, Smith J in Walker v Hamm (No 2) [2009] VSC 290 said at [63]:

[63] It has been noted in the authorities that there is no necessary proportionality between compensatory and exemplary damages. In addition, however, it has been recognised that in reality there can be an element of punishment in aggravated damages. As a result, in considering whether to award exemplary damages and, if so, their quantum, it is necessary to consider whether the awarded compensatory damages, including aggravated damages, address any need that may exist in a particular case for punishment of the tortfeasor through the award of exemplary damages. Double punishment must be avoided. Further, the court should approach any assessment with restraint and moderation. It also appears to be established that deciding whether to award exemplary damages, and their quantification, generally will involve the exercise of discretion except where there is no room for a discretion.

13. Factors relevant to exemplary damages

Mr Walters submitted that some of the relevant factors to be taken into account in awarding exemplary damages to the plaintiffs were as follows:

(a) The police hierarchy and the State of South Australia has endorsed the police conduct on the day.

(b) The conditions in which the plaintiffs were held at Beverley were degrading and the police knew that to be so.

(c) No police officer has been held accountable following the hearing investigating the events.

(d) No apology has been issued.

(e) Statements were made by two Ministers of the government which were inflammatory and hurtful.

It was submitted that the public statements of both the Deputy Premier Mr Foley and the Police Minister Mr Wright show a “high handed and contumelious disregard of the rights of the plaintiffs”. The statements were made by the Ministers to a newspaper to explain why the government had instructed its legal advisers to withdraw from a mediation at the last moment. The mediation had been suggested by and agreed to by both parties and had been approved by the court.
Mr Foley described the plaintiffs as “a bunch of feral protesters who put the safety of our police officers in peril”. The plaintiffs submit that this statement is all the more offensive because it was made with knowledge of a Police Complaints Authority report. This report described incidents which occurred at Beverly on 9 May 2000. The conduct of several police officers was criticised. That conduct was the unnecessary use of force by the use of both capsicum spray and batons and a failure to follow proper procedures.
The application to tender the report was made by Mr Walters after all the evidence was taken. Miss Nelson objected to its tender. The tender was only pressed on limited grounds, namely that it showed criticism of police officers for their conduct on the day. As a result it was submitted that the report is relevant to the issue of damages and the statements made by the two government Ministers.
I have looked at the report for the purpose of deciding how to evaluate the statements made by the Ministers. The report contains criticisms of the actions of some police officers, including senior police officers, on the day in question. I am asked to assume that no disciplinary action has been taken because it was in the hands of the defendant to lead such evidence if that had been the case. The plaintiffs contend that they opened their case on that basis and therefore it should be inferred, in the absence of any explanation by the defendant, that no such action has been taken. Some police officers told me they had been counselled. It is not necessary to make any such inference, in my view.
The fact that there are criticisms clearly set out in the report is sufficient to show that the statements made by the Ministers are unfounded and made in the face of adverse comments by the Police Complaints Authority on the actions taken by the police against the protesters. The report is particularly critical, as am I, of the decision to hold protesters in custody in a shipping container and for long periods which were unjustified. It is also critical of the force used by individual officers.
Mr Foley in his statement also said, “The government sends a message to any anarchist group that we will not be a soft touch. They can have their day in court”.
The plaintiffs have now had their day in court and have succeeded. My findings indicate that the comments made by Mr Foley were both unreasonable and antagonistic when made in the circumstances of aborting the planned mediation. These statements are relevant to the assessment of exemplary damages. The comments are one-sided and do not acknowledge the extreme way in which the police dealt with protesters and the circumstances of their detention.
Mr Wright, as the Minister for Police, made similar provocative statements without any factual basis. He must have known the full details of the report. He said, “The offering of substantial sums to the plaintiffs by way of settlement has the potential to undermine the authority and good standing of the SA Police”. He also said, “The payment of a settlement amount may encourage other members of the public to provoke a response from SA Police in similar situations with a view to seeking compensation from the State”.
Again, these comments were unjustified and offensive to the plaintiffs and will sound in exemplary damages. The authority and good standing of the SA Police was undermined by the report. It is my view that both Ministers, in making these statements, have acted with a high-handed and contumelious disregard of the plaintiffs as citizens of the State with a right to protest, and with the right to be treated according to law if they did protest. As I have found, they were not treated according to law.

14. Assessment for individual plaintiffs

(i) Lucinda White

On the findings I have made, Ms White was assaulted at the time of her original apprehension. She was taken against her will from outside the mine site and transported across the fence onto the mine site, whilst complaining about her handling. She was also assaulted when sprayed. She was verbally abused and insulted and then confined in the shipping container and later in the welded cage. Her total loss of liberty from the time of her apprehension, at about 10.15 am to her release at Balcanoona is probably about seven hours.
Dr Epstein diagnosed Ms White to be suffering from a mild adjustment disorder with depressed mood and anxiety which he said settled within two years.
Ms White said that she had a difficult few months after the events. She said that she was stressed and worried. She said she was easily upset and volatile at times. Ms White had a strong view that the police must be held accountable for their actions and became involved in organising the plaintiffs to bring this action.
For her general damages I would award her $40,000. Because of the way she was treated at the fence and also in the way she was removed from public land and transported across the fence, together with the insults to which she was subjected, I consider that she is entitled to aggravated damages. In addition she was the scope of allegations, which I have found groundless, of being a rock thrower. This was mentioned by several police witnesses but never put to Ms White.
The defendant maintained throughout the trial that she was a rock thrower on the land. That has not been proved, and indeed there is very strong evidence, which the defendant has not been able to explain, which points to exactly the opposite conclusion, namely, that she did not ever enter the mine lease and was certainly not part of any rock throwing when the group generally was retreating towards the boundary fence.
No apology has been forthcoming. She was targeted during the trial as the ringleader of the protesters. She was an organiser to the extent of the pre-Beverly publicity and meetings, but she did nothing at the mine site which was a breach of the peace, nor did she commit any substantive offences. After the event she arranged for witnesses to give evidence to the Police Complaints Authority. I can see no reason why someone, on behalf of the protesters, should not be a co-ordinator and then after the event be involved in ensuring that people gave statements and then evidence to the Police Complaints Authority.
I will therefore award an extra $25,000 for aggravated damages in her case.
I have considered the question of an award of exemplary damages. I have warned myself not to overcompensate because of factors which I have already taken into account in awarding aggravated damages.
However, I consider that the circumstances of imprisonment for the long period of time in primitive and degrading conditions does warrant an extra award for exemplary damages. This applies to all the plaintiffs who were detained in the shipping container. In addition, each plaintiff is entitled to be compensated for the unnecessary and demeaning remarks of the two government Ministers. In my view an award of $15,000 would not be overcompensation.
I therefore award Ms White the sum of $80,000 for damages. Her special damages are $50 for her sunglasses and $60 for her torn vest. I have taken, in the case of each plaintiff, the lower of the figures claimed in the affidavit of loss and from the oral evidence in fairness to the defendant.
Ms White is entitled to interest on her damages. The damages are all for the past. The comments made by the Ministers is so recent I will not allow any interest on that component of exemplary damages. I have decided to use the provisions of s 30C(3) of the Supreme Court Act 1935 and award a lump sum in lieu of interest from the date of the issue of the proceedings (2 May 2003) for a period of about seven years. The damages in each case were sustained by the time the proceedings were issued. There is no component of future pain and suffering and loss of amenities in any of the assessments. I would therefore award a lump sum in lieu of interest in the amount of $15,000.
The total award for Ms White is $95,110.

(ii) Matthew Bonner

Mr Bonner did not commit any breach of the peace. He was filming a documentary and was arrested for trespass without any request for him to leave. I have found that he was physically assaulted by Mr Oates when restrained and held by the throat and placed in the cage van. His loss of liberty overall was in the region of at least seven hours and maybe slightly longer. Prior to his arrest he was driven at by a police officer in a police vehicle. He said that he was insulted and humiliated.
No medical evidence was called on behalf of Mr Bonner. He said that following the events at Beverley he suffered from migraines and he said that he saw an osteopath and a chiropractor. He said that he also lost his wallet. The wallet was returned later but money was missing.
For his general damages I would award him $25,000. For aggravated damages I would award him a further $20,000. I would also award him an additional $15,000 for exemplary damages. I believe some of the same factors apply as with Ms White. In his case the behaviour of the police was not as extreme as with Ms White.
I regard as the aggravating factors the fact that he was singled out whilst filming and not causing any problem. He was run down after being targeted and then harshly treated physically by Mr Oates.
I would therefore award him the sum of $60,000 for damages. For his special damages I award him $100 for the loss of the money in his wallet.
For interest using the same basis as for Ms White I would allow a lump sum in lieu of interest of $11,000. Therefore the total award is $71,100.

(iii) Isabella Brown

I have found that she was assaulted when apparently detained for a breach of the peace. She was not involved in any breach of the peace. She was struck on the legs with a baton. When she escaped from the container she was unfairly treated in relation to the circumstances of her apprehension and her subsequent detention as I have set out earlier. She was rightfully kept in custody because by then it was discovered that she was in breach of her bail conditions. However, the treatment given to her, as I have set out earlier, was unnecessary and harsh in all the circumstances. She was treated very poorly once she was placed under arrest.
She said that she suffered nightmares following the incident. She was examined and diagnosed by Dr Epstein. His opinion was that she suffered a mild post-traumatic stress disorder. For her general damages I would award her $25,000 plus a further $15,000 for aggravated damages. For exemplary damages I would award her a further $15,000. That makes a total award of $55,000.
The aggravating factors in her case are the treatment she received after escaping from the container. I have accepted her account which includes taunting her, handcuffing whilst in a police van, and the actual way in which she was apprehended. She claimed that a camera valued at $1,500 was irreparably damaged. She bought it in 1999. I will therefore allow her $1,000 for the loss.
For interest, using the same basis as for Ms White, I would allow a lump sum in lieu of interest of $10,000. Therefore the total award is $66,000.

(iv) Stephanie Conway

She had left the mine lease when she was detained outside the fence. She had not committed any breach of the peace, nor had she committed any substantive offences. Her treatment, especially the kicks to the ribs, which I have found to have occurred, was particularly harsh.
She said that she suffered from bruising and from nightmares. Her loss of liberty was again in the order of about seven hours. In addition, she was struck with a baton and sprayed.
It was alleged that she was a rock thrower but this allegation has not been made out. I would award her $40,000 for her general damages and a further $25,000 for aggravated damages. Her circumstances are almost the same as those which I took into account for Ms White. In addition, I have found that she was kicked whilst on the ground. She was also humiliated and abused.
In her case I would also award her an amount of $15,000 for exemplary damages over and above her aggravated damages. This would be on the same basis as set out in my reasons for awarding exemplary damages to Ms White. That makes a total amount of $80,000. I would allow her $50 for the loss of her sunglasses.
For interest, using the same basis as for Ms White, I would allow a lump sum in lieu of interest of $15,000. Therefore the total award is $95,050.

(v) Marcel de Bie

This plaintiff committed no breach of the peace and committed no substantive offences. He was sprayed and then held in the container. Overall he lost his liberty for about seven hours. There was no medical evidence in relation to his injuries. I would award him $20,000 for his general damages and a further $10,000 for aggravated damages. This award is for injury to his feelings when he was insulted and humiliated.
In his case I would award a further sum of $15,000 for exemplary damages for the same reasons as previously expressed. His total damages are $45,000.
For interest, again on the same basis, I would allow a lump sum in lieu of interest of $8,000. Therefore the total award is $53,000.

(vi) Ian Foster

Mr Foster was moving towards the boundary fence when he was sprayed and detained, apparently for both breach of the peace and for being unlawfully on premises. Neither of those suggestions have been substantiated. He suffered more fear and anxiety than most when held in the container because he was a person with experience in welding, and as a result held genuine fears as to his safety.
He suffered from bruising, shock and sleep problems, and said that he still has visions of his confinement in the container.
He was examined by Dr Epstein and diagnosed with a mild acute stress reaction which has settled. I would award him the sum of $30,000 for his general damages and a further $20,000 for his aggravated damages. The fear he experienced from the welding carried out on the shipping container was considerable. He was also insulted and humiliated.
I would then award him a further $15,000 for exemplary damages for the same reasons I have set out earlier. His total award is $65,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $12,000. Therefore the total award is $77,000.

(vii) Samuel Hoffmann

This man was leaving the property when detained. In fact he was half-way through the fence when he was apprehended. He had committed no breaches of the peace or any substantive offences. Earlier he had been filming and was separate from the group. At the fence he was assaulted by being hit on the hands. He said that he was traumatised by the whole incident. He said he suffered from nightmares, including flashbacks, and he felt humiliated by the whole process. I have accepted his evidence on these matters.
He was diagnosed with a post-traumatic stress disorder with recurrent intrusive thoughts. Dr Epstein believed that this settled without treatment over a period of about 12 months.
For his general damages I would award him $30,000 plus a further $20,000 for aggravated damages. He was insulted, offended by the police and unnecessarily physically abused when he had all but left the mine site.
I would award him an extra $15,000 for exemplary damages for the same reasons as previously expressed. The total award for damages is $65,000.
For special damages I would allow him $300 for the damage to his camera and battery pack and for his jacket which he says was never found.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $12,000. Therefore the total award is $77,300.

(viii) Jamie Holland

This man was arrested for trespass but was given no warning to leave the premises. He committed no breach of the peace. It was always obvious that both he and Mr Caldicott were involved in some way with a commercial filming operation. He identified himself as being from Channel Seven but Mr Irrgang said that did not make any difference. He was assaulted when placed in a headlock and then kept in the container for about three hours. He was then released and driven to Balcanoona. He said that he was fearful during the whole time he was in the container and felt a sense of powerlessness, and he later suffered from nightmares. The medical diagnosis is that he did not suffer from any psychiatric disorder but displayed anxiety symptoms. I accept his evidence as to how the incident affected him.
I would award him the sum of $30,000 for general damages and $25,000 for aggravated damages. The circumstances of his arrest, the placing of him in a headlock, and the way he was treated when it was shown he was a member of the media are all relevant factors in an award for aggravated damages.
In his case I would award him a further amount of $15,000 for exemplary damages. I believe that this is a good example of why the State is liable for exemplary damages. Mr Holland was apprehended whilst going about his daily business, namely as a member of a Channel Seven camera crew. No apology has been issued to Mr Holland. He was also subjected to an unwarranted attack on his character during cross-examination. His total damages are assessed in the sum of $70,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $13,000. Therefore the total award is $83,000.

(ix) Emily Johnston

She was arrested for trespass without any prior request to leave the premises. She had committed no breach of the peace. She was sprayed by Mr Wilson in the back of the van and felt the effects of this for some time. She was never decontaminated. She escaped from the shipping container and was then held in a police van for some time. Overall her time in imprisonment was in the order of seven hours or thereabouts. She was insulted and humiliated.
The situation became complicated after the events at Beverley in that she began drinking heavily and went on a crime spree. This was completely out of character for her. Her mother said that she changed her character. I accept that she did.
She received no initial medical attention but in mid-2004 she was diagnosed with depression with suicidal tendencies and was prescribed medication. She suffered from panic attacks. She was cross-examined in detail about numerous contributing factors.
I find that there were these contributing factors but that nonetheless the diagnosis by Dr Epstein of a post-traumatic stress disorder from the events at Beverley, which remained after medication until 2007, is a causative factor. She said she suffered from nightmares and flashbacks and had recurrent intrusive thoughts.
Whilst she had many other problems, all described by her in mid-2004, the fact remains that this event was a contributing factor and a significant one.
I would award her $35,000 for general damages and $25,000 for aggravated damages. The assault on her by way of being sprayed while in the back of the van was a cruel and unnecessary act by Mr Wilson. Her humiliation and the injury to her feelings and the manner in which it was done, including the fact that Mr Wilson said that she and others “stank”, are all relevant.
In addition I would award her a further $15,000 for exemplary damages. This makes a total amount of $75,000.
For interest, on the same basis, I would allow a lump sum in lieu of interest of $14,000. Therefore the total award is $89,000.

(x) Helen Gowans

She was not trespassing and was not apprehended for anything on the day. She was sprayed as a result of a reckless act by Mr Wilson and she was in fear and suffered pain and discomfort as a result of the spraying. She was treated at the Leigh Creek Hospital the following day. She was never taken into custody and the police officers decontaminated her from the effects of the capsicum spray on the mine site.
For her general damages I would award her $10,000 plus $5,000 for aggravating factors, including the injury to her feelings at being confronted, at the age of 10, by a police officer spraying the person she was with, regardless of her safety. That was a reckless and unnecessary act.
I do not believe she is entitled to any further award for exemplary damages. For interest, on the same basis, I would allow a lump sum of $3,000. Therefore the total award is $18,000.

14. Judgment details

There will therefore be judgment for the plaintiffs against the defendant as follows:

(1) Lucinda White $95,110.00 inclusive of interest.

(2) Matthew Bonner $71,100.00 inclusive of interest.

(3) Isabella Brown $66,000.00 inclusive of interest.

(4) Stephanie Conway $95,050.00 inclusive of interest.

(5) Marcel de Bie $53,000.00 inclusive of interest.

(6) Ian Foster $77,000.00 inclusive of interest.

(7) Samuel Hoffmann $77,300.00 inclusive of interest.

(8) Jamie Holland $83,000.00 inclusive of interest.

(9) Emily Johnston $89,000.00 inclusive of interest.

(10) Helen Gowans $18,000.00 inclusive of interest.

I will hear the parties as to costs.

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