Slaveski v State of Victoria & Ors [2010] VSC 441 (1 October 2010)

Last Updated: 1 October 2010

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8519 of 2006

LUPCO SLAVESKI (by his litigation guardian SNEZANA SLAVESKA) Plaintiff v STATE OF VICTORIA AND OTHERS Defendants

---

JUDGE : KYROU J WHERE HELD : MELBOURNE DATE OF HEARING : 3-6, 11-13, 17-19, 24-25, 31 August 2009; 1-2, 7-11, 14-15, 22, 24 September 2009; 4, 14 December 2009; 1-2, 5, 8-12, 15-19, 22-25 February 2010; 1-5, 10-11, 15-19, 22-25, 29-31 March 2010, 7-9, 12-16, 19-21, 23, 27-30 April 2010; 3-7, 10-14, 17-21, 24-28, 31 May 2010; 1-4, 7-8, 10-11, 15-18, 22 June 2010; 6, 12- 13, 16, 18 August 2010 DATE OF JUDGMENT : 1 October 2010 CASE MAY BE CITED AS : Slaveski v Victoria MEDIUM NEUTRAL CITATION : [2010] VSC 441

---

SELF-REPRESENTED LITIGANT – Mentally ill plaintiff – Wife acting as litigation guardian and lay advocate – Supreme Court (General Civil Procedure) Rules 2005, r 15.02(3) – Waiver of requirement that litigation guardian act by solicitor – Possible contempts of court by plaintiff.

POLICE POWER OF ARREST – Crimes Act 1958, s 459(a) – Arrest without warrant – Crimes Act, s 462A – Use of force – Use of handcuffs – Crimes Act s 459A – Entry onto premises to effect arrest.

POLICE POWER TO SEARCH PREMISES – Crimes Act, s 465 – Search of property pursuant to warrant – Requirement that execution of warrant be reasonable – Factors affecting reasonableness – Transcription of information from documents not authorised – Whether an officer who is the subject of a complaint or civil proceeding by the suspected offender should participate in search – Effect of a conflict of interest.

POLICE POWER TO FILM PREMISES BEING SEARCHED – Implied power under warrant – Video footage and photographs taken during search must be incidental to, and for the purpose of, the search – No general power to take video footage or photographs for intelligence gathering purposes.

POLICE POWER TO RETAIN SEIZED ITEMS – Meaning of Magistrates’ Court order authorising informant to retain seized items until they are required to be produced in court.

VICTORIA POLICE MANUAL – Legal status of manual – Importance of police officers identifying themselves when exercising coercive powers.

ASSAULT AND BATTERY – Whether mere words can constitute assault.

FALSE IMPRISONMENT – Crimes Act, s 464A – Whether detention of person under arrest in premises after expiration of a reasonable time for the execution of a search warrant on those premises constitutes false imprisonment.

MALICIOUS PROSECUTION – Malice – Reasonable and probable cause.

DEFAMATION – Slander.

TRESPASS TO LAND – Search warrant not executed in a reasonable manner – General search instead of search for items described in search warrant – Search took 90 minutes whereas if conducted reasonably, it would not have exceeded 60 minutes – Search unlawful during last 30 minutes – Trespass during last 30 minutes.

TRESPASS TO GOODS – Unauthorised transcription of information from documents – Asportation of documents which cannot be seized lawfully.

CONVERSION AND DETINUE – No power to retain items seized pursuant to a search warrant once a decision is made not to lay charges – No power to retain items pending completion of investigation by another law enforcement agency into matters unconnected with the purpose for which the warrant was issued – Effect of absence of demand from person entitled to possession that the seized items be returned.

NEGLIGENCE – Liability of supervising police officer for acts of subordinates – Failure to investigate complaints about the receipt of threatening telephone calls by anonymous caller or callers – Whether a duty of care is owed to the complainant – Conflicting duties principle – Public policy considerations.

STALKING – Crimes Act, s 21A(2)(a) – Meaning of ‘a course of conduct’ and ‘following the victim’.

DAMAGES – Trespass to land – Vindication of occupier’s rights – Consequential loss – Loss of business income – Difficulties in assessing – Probability-based approach – Mental trauma – Whether a natural and probable consequence of the act of trespass.

DAMAGES – Trespass to goods – Nominal damages.

LIABILITY OF STATE – Crown Proceedings Act 1958, s 23(1)(b) – Whether police officers performing duties as servants or agents of the Crown – Police Regulation Act 1958, s 123(1) and (2) – Whether acts of police officers were ‘necessarily or reasonably done ... in good faith in the course of [their duty] as [members] of the force’.

PRACTICE AND PROCEDURE – Deficiencies in parties’ discovery – deficiencies in processes and procedures for retention of documents – destruction of discoverable documents.

---

APPEARANCES : Counsel Solicitors Mrs Slaveska, as Litigation Guardian, appeared on behalf of the Plaintiff For the First Defendant Mr B Ihle Victorian Government Solicitor For the Second to Twenty Fourth Defendants Mr R Gipp Russell Kennedy

TABLE OF CONTENTS

HIS HONOUR:

PART 1 – INTRODUCTION

(1) Nature and outcome of the proceeding

1 Lupco Slaveski has sued 23 present or former police officers (‘police defendants’) and the State of Victoria (‘State’) seeking damages for assault and battery, false imprisonment, malicious prosecution, defamation, trespass to land, trespass to goods, conversion, detinue and negligence.

2 The claims against the police defendants arise out of 13 incidents that occurred between 8 September 2000 and 7 May 2007. All of the police defendants were based at the Epping, Mill Park or Preston police stations during this period. In addition, a claim in negligence has been made against a senior officer – Phil Lowerson – alleging that he failed to prevent the other officers from committing wrongful acts against Mr Slaveski and to investigate his complaints about the receipt of threatening telephone calls.

3 The claim against the State is principally made under s 123(2) of the Police Regulation Act 1958 (Vic) (‘PR Act’), which, in certain circumstances, transfers a police officer’s liability to the State. It is alleged that the State is liable for any damages otherwise payable by the 23 police defendants.

4 Mr Slaveski suffers from a mental illness. Initially, he represented himself. Since 28 January 2010, his wife, Snezana Slaveska, has acted as his litigation guardian and lay advocate.

5 For the reasons set out below, I have reached the following conclusions in relation to Mr Slaveski’s claims:

Claim Conclusion Damages Is State liable? 8 September 2000 incident Dismiss all claims. – – 18 December 2003 incident Dismiss all claims. – – 14 April 2004 incident Dismiss all claims. – – 22 June 2005 incident Dismiss all claims. – – [1] 13 December 2005 incident Officers Kirkright, Baade, Sadler, Cole, Knowles, Anderson and Wendt trespassed upon Mr Slaveski’s shop at 10 May Road, Lalor by remaining inside the shop for 30 minutes longer than was reasonably necessary to execute the search warrant.

Officers Kirkright and Knowles also trespassed by remaining in the recording studio after it became obvious that none of the items described in the search warrant were located there.

Officers Wendt and Kirkright also trespassed by remaining in the rear courtyard after it became obvious that none of the items described in the search warrant were located there.

Officers Wendt and Sadler also trespassed by taking, or directing the taking of, video footage of activities, objects or parts of the shop that had no connection to the execution of the search warrant.

Officer Sadler trespassed upon Mr Slaveski’s goods by taking documents to officers Cole and Anderson and instructing them to transcribe information from the documents, without lawful authority.

Officers Cole, Anderson and Sadler trespassed upon Mr Slaveski’s goods by transcribing information from documents, or directing the transcription of information, without lawful authority.

Dismiss all other claims. $12,200 Part of $12,200 award Part of $12,200 award $15,000 $200 $900 – Yes Yes Yes Yes Yes Yes – 13 January 2006 incident Dismiss all claims. – – 8 June 2006 incident Dismiss all claims. – – 12 July 2006 incident Dismiss all claims. – – 13 July 2006 incident Dismiss all claims. – – 20 July 2006 incident Dismiss all claims. – – 14 August 2006 incident Dismiss all claims. – – 29 January 2007 incident Dismiss all claims. – – 7 May 2007 incident Dismiss all claims. – – Claim against Phil Lowerson Dismiss all claims. – – Total Damages: $28,300 Yes

6 A further hearing will take place to deal with Mr Slaveski’s claims for aggravated and exemplary damages and interest. That hearing will also deal with costs and the form of the orders to be made.

7 For convenience, Part 10 contains a glossary of terms and abbreviations.

(2) Introduction to the parties and Mrs Slaveska

8 In this Part 1(2), I briefly set out details of the parties and Mrs Slaveska. Reference is made to the incidents at which a particular police defendant was present. The incidents are briefly outlined in Part 1(3) below.

9 Mr Slaveski – the plaintiff. Mr Slaveski was born on 20 March 1963 in the Macedonian region of what was then Yugoslavia. He was 14 years old when he arrived in Australia in 1978. He played in a band from a young age and, when he was 17 years old, he began working as a disc jockey with the stage name ‘Sky’. He aspired to international stardom as a songwriter and singer. Between 1996 and 2006, he operated electronic retail sales and service, finance broking and leasing businesses in the Lalor and Thomastown areas.

10 Initially, Mr Slaveski carried on the businesses as a sole trader. Subsequently, the businesses were conducted through Sky Empire Pty Ltd (‘Sky Empire’) trading as ‘Sky TV & Video Service’ and ‘Sky Finance’, and Sky Prestige Sales – Lease – Rentals Pty Ltd (‘Sky Prestige’).[2] In the period 1997 to 2006, his main place of business was his shop at 10 May Road, Lalor (‘Lalor shop’), which comprised two levels. Between early 1999 and February or March 2001, he had a second shop at 453 High Street, Northcote (‘Northcote shop’). Between February 2001 and December 2005, another shop was conducted at 261 High Street, Thomastown (‘Thomastown shop’). Mr Slaveski’s businesses stopped trading in October 2006. Since then, he has been a recipient of disability benefits.

11 It was not in dispute that Mr Slaveski suffers from a panic disorder; however, the severity and causes of this disorder were in dispute. The parties were also in dispute about whether Mr Slaveski suffered from other mental illnesses and, if so, about the causes of any such illnesses. Throughout the trial, Mr Slaveski was taking medication, including Xanax tablets.

12 Mrs Slaveska – Mr Slaveski’s wife. Mrs Slaveska was born in the Macedonian region of the former Yugoslavia. Her maiden name, which she continues to use occasionally, is Angeleska. She met Mr Slaveski in Macedonia in 1992. They were married that year and she moved to Australia in December 1992. She and Mr Slaveski have two teenaged daughters and a teenaged son. Mrs Slaveska is enrolled in an arts degree at La Trobe University and is undertaking some legal studies as part of that degree. She was present at most of the incidents that are the subject of this proceeding.

13 Shaun Bingham – second defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

14 Mark Smithwick – third defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

15 Paul Kirkright – fourth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was based at the Mill Park police station and held the rank of detective senior sergeant. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and continued to hold the rank of detective senior sergeant. At all times that are relevant to this proceeding, officer Kirkright was the officer in charge of the Mill Park police station.

16 Leigh Cole – fifth defendant. He was allegedly involved in the incident of 8 September 2000. At that time, he was working in Melbourne as part of the Tactical Response Group and held the rank of detective senior constable. It was not in dispute that he was involved in the incident of 13 December 2005. At that time, he was based at the Mill Park police station and held the rank of detective senior constable.

17 Catherine Sadler – sixth defendant. She was involved in the incidents of 18 December 2003 and 13 December 2005 while she was based at the Mill Park police station. She held the rank of detective senior constable on 18 December 2003 and the rank of detective acting sergeant on 13 December 2005.

18 Adrian Tennyson – seventh defendant. He was allegedly involved in the incidents of 13 December 2005 and 13 January 2006 while he was based at the Epping police station and held the rank of leading senior constable.

19 Glenn Parker – eighth defendant. He was allegedly involved in the incidents of 8 June, 12, 13 and 20 July and 14 August 2006 while he was based at the Epping police station and held the rank of sergeant.

20 Phil Lowerson – ninth defendant. At all times that are relevant to this proceeding, he was a senior sergeant. In September 2000, he was the officer in charge of the Preston police station. From January 2001 until his retirement on 4 April 2008, he was the officer in charge of the Epping police station. Mr Slaveski alleges that, in the period from September 2000 to May 2007, officer Lowerson breached an alleged duty to prevent other police officers from engaging in wrongful conduct towards him and that, after June 2006, officer Lowerson failed to investigate his complaints about the receipt of threatening telephone calls.

21 Graeme Wheeler – tenth defendant. He was allegedly involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

22 Paul Smith – eleventh defendant. He was involved in the incident of 29 January 2007 while he was based at the Preston police station and held the rank of detective sergeant.

23 Andrew Roberts – twelfth defendant. He was involved in the incident of 8 September 2000. At that time, he was a uniformed officer based at the Epping police station. He was in the Traffic Management Unit performing motorcycle duties and held the rank of senior constable.

24 Timothy Robinson – thirteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of senior constable.

25 Andrew Stephen – fourteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of constable.

26 Craig Rhodes – fifteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective sergeant.

27 Garry Barton – sixteenth defendant. He was involved in the incident of 8 September 2000 while he was based at the Mill Park police station and held the rank of detective senior constable.

28 Peter Jones – seventeenth defendant. He was involved in the incident on 14 April 2004 while he was based at the Mill Park police station and held the rank of detective sergeant.

29 Timothy Peck – eighteenth defendant. He was allegedly involved in the incident of 18 December 2003. It was not in dispute that he was involved in the incidents of 14 April 2004 and 7 May 2007. At the time of the 2003 and 2004 incidents, he was based at the Mill Park police station and held the rank of detective senior constable. At the time of the 2007 incident, he was part of the Homicide Squad in Melbourne and held the rank of detective senior constable.

30 Kevin Nolan – nineteenth defendant. He was involved in the incident of 22 June 2005 while he was based at the Mill Park police station and held the rank of leading senior constable.

31 Michael Baade – twentieth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective sergeant.

32 Michael Leemon – twenty-first defendant. He was involved in the incident of 18 December 2003 while he was based at the Mill Park police station and held the rank of detective senior constable.

33 Philip Wendt – twenty-second defendant. He was involved in the incident of 13 December 2005. At that time, he was a uniformed constable who was performing temporary duties at the Mill Park crime investigation unit (‘CIU’).

34 Peter Anderson – twenty-third defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.

35 Matthew Knowles – twenty-fourth defendant. He was involved in the incident of 13 December 2005 while he was based at the Mill Park police station and held the rank of detective senior constable.

(3) Outline of the 13 incidents in dispute

36 In this Part 1(3), I set out a brief outline of the 13 incidents that are part of Mr Slaveski’s claim.

37 First incident – 8 September 2000. Mr Slaveski alleges that officers Bingham, Smithwick, Kirkright, Cole, Wheeler, Roberts, Stephen, Robinson, Rhodes and Barton entered the Lalor shop and unlawfully assaulted him, handcuffed him and took him into custody. He also claims that they damaged merchandise in the shop and that officer Bingham punched him while they were in a police vehicle on the way to the Mill Park police station. The causes of action alleged are false imprisonment, assault, battery, trespass to goods, conversion and (possibly) trespass to land.

38 Second incident – 18 December 2003. Mr Slaveski alleges that officer Sadler and either officer Peck or officer Leemon entered the Lalor shop and unlawfully demanded payment of an amount of $890 that was the subject of a dishonoured cheque to The Good Guys store at 290 Settlement Road, Thomastown (‘The Good Guys store’). He also claims that officer Sadler said to him, ‘I will get you for this’. The causes of action alleged are trespass to land and (possibly) assault.

39 Third incident – 14 April 2004. Mr Slaveski alleges that officers Jones and Peck entered the Lalor shop and unlawfully demanded items that had been left with Mr Slaveski by a client (Aneli Manevska) as security for a loan. The causes of action alleged are trespass to land and (possibly) assault.

40 Fourth incident – 22 June 2005. Mr Slaveski alleges that, while he and his family were in the reception area of the Mill Park police station, officer Nolan said to a person who was present (Ray Rivett) that Mr Slaveski was ‘the worst criminal in the area’. The cause of action alleged is defamation.

41 Fifth incident – 13 December 2005. Mr Slaveski alleges that officers Kirkright, Baade, Sadler, Cole, Anderson, Knowles, Wendt and Tennyson unlawfully arrested and handcuffed him outside the Lalor shop and then conducted a search of the Lalor shop in a manner that exceeded their powers under the relevant search warrant. Mr Slaveski also claims that the police officers stole documents and musical equipment, unlawfully took video footage and photographs, and failed to return to him seized items after they had decided not to charge him with any offence relating to those items. The causes of action alleged are assault, battery, false imprisonment, negligence, trespass to land, trespass to goods, conversion and detinue.

42 Sixth incident – 13 January 2006. Mr Slaveski alleges that officer Tennyson stalked him and made threatening hand gestures towards him while officer Tennyson was across the road from the Lalor shop. The cause of action alleged is assault.

43 Seventh incident – 8 June 2006. Mr Slaveski alleges that, while he was in the Children’s Court at Melbourne (‘Children’s Court’) waiting to be called as a witness in a proceeding between officer Parker’s wife, Jasmina Talevska, and her former husband, Nicola Stavreski, officer Parker requested protective services officers (‘PSOs’) to eject him from the building. It is not clear what cause of action is alleged.

44 Eighth incident – 12 July 2006. Mr Slaveski alleges that officer Parker attended outside the Lalor shop and stalked and made threatening hand gestures towards him through the shop window. The cause of action alleged is assault.

45 Ninth incident – 13 July 2006. Mr Slaveski alleges that, while he was in the Children’s Court waiting to be called as a witness in the adjourned hearing of the proceeding between Ms Talevska and Mr Stavreski, officer Parker requested PSOs to eject him from the building. It is not clear what cause of action is alleged.

46 Tenth incident – 20 July 2006. Mr Slaveski alleges that, while he was at the Epping Plaza Shopping Centre (‘Epping Plaza’), officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.

47 Eleventh incident – 14 August 2006. Mr Slaveski alleges that, while he was at the Epping Plaza, officer Parker stalked and behaved in a threatening manner towards him. The cause of action alleged is assault.

48 Twelfth incident – 29 January 2007. Mr Slaveski alleges that officer Smith unlawfully arrested him and charged him with stalking officer Parker at the Children’s Court on 13 July 2006. The causes of action alleged are false imprisonment and malicious prosecution.

49 Thirteenth incident – 7 May 2007. Mr Slaveski alleges that officer Peck said to him over the telephone that ‘Anybody can get shot these days anytime, anywhere’. The cause of action alleged is assault.

(4) Outline of the claim against Phil Lowerson

50 Mr Slaveski alleges that officer Lowerson owed him a duty to take reasonable care for his safety and that he breached that duty by, among other things, failing to prevent the other police defendants from committing wrongful acts against him and failing to investigate his complaints about the receipt of threatening telephone calls. The cause of action alleged is negligence.

(5) Conduct of the hearing

Duration of trial and its two phases

51 The trial had two phases. The first phase of the trial commenced on 3 August 2009 and ended on 14 December 2009. The second phase of the trial commenced on 1 February 2010 and ended on 18 August 2010.[3]

52 During the first phase, Mr Slaveski represented himself with the assistance of Mrs Slaveska as a McKenzie friend. During the second phase, Mrs Slaveska appeared on behalf of Mr Slaveski as his litigation guardian and lay advocate.

53 The trial occupied 115 sitting days and generated 16,166 pages of transcript. Its duration considerably exceeded the time that was reasonably required to deal with the issues in the proceeding. The inordinate delay in the completion of the hearing was caused by a combination of Mr Slaveski’s mental illness and the lack of legal representation. Mr Slaveski wasted time and behaved inappropriately when he represented himself from the bar table and when he gave evidence from the witness box. Mrs Slaveska wasted time in examining witnesses – and, in particular, in cross-examining the police defendants – due to her lack of legal training. I will further discuss the conduct of Mr and Mrs Slaveski below.

Warnings about the risks of litigation

54 Throughout the first phase and the early stages of the second phase of the trial, I repeatedly warned the parties about the risks of litigation. In particular, I pointed out that the multiplicity of claims against the separate defendants meant that the proceeding would not necessarily lead to an ‘all or nothing’ result. I specifically warned Mr and Mrs Slaveski that a possible outcome of the proceeding was that Mr Slaveski might succeed on some claims against some defendants, but that the damages awarded in his favour might be substantially exceeded by the costs awarded in favour of the other, successful, defendants. Notwithstanding my warnings, the parties pressed on with the trial.

Mr Slaveski’s conduct

55 Mr Slaveski’s behaviour during the first phase of the trial was discussed in detail in my interlocutory judgments dated 24 September 2009[4] and 14 December 2009.[5] The first interlocutory judgment sets out details of Mr Slaveski’s inappropriate behaviour, the advice and warnings that I gave to him and my reasons for adjourning the hearing pending receipt of an independent psychiatric report on his mental illness. The second interlocutory judgment explains why I concluded that Mr Slaveski was not capable of managing his affairs in relation to this proceeding and why Mrs Slaveska was appointed as his litigation guardian.

56 Mrs Slaveska’s appointment as litigation guardian took effect shortly before the completion of her cross-examination. Her re-examination was in the form of comments by her on aspects of the evidence she gave in cross-examination.

57 During the first and second phases of the trial, I explained to Mr Slaveski and Mrs Slaveska, respectively, the rules of evidence and procedure on various issues, and provided other assistance to them, in accordance with my duty to ensure a fair trial. This duty was discussed by Bell J in Tomasevic v Travaglini[6] in the context of a self-represented litigant. The current proceeding, and its unusual course, has highlighted the need to ensure that the principles governing a trial judge’s duty to conduct a fair trial where one of the parties is self-represented are flexible and pragmatic so that the trial judge has sufficient latitude to manage the proceeding in the interests of all the parties and of the administration of justice. It is vital that the principles are formulated and applied in a manner that does not tip the balance too far in favour of self-represented litigants, impose too high a burden on the trial judge or result in prejudice to opposing parties.[7]

58 Unfortunately, on 9 February 2010, the second day of his examination in chief, Mr Slaveski became abusive and made scurrilous allegations against the defendants and Victoria Police generally. He also made offensive comments in relation to counsel for the police defendants, Mr Gipp.

59 At the commencement of the hearing on 10 February 2010, during a discussion about the Court’s sitting times, Mr Slaveski again became abusive and unruly, and used profane language. I adjourned the hearing briefly. When the hearing resumed, I informed Mrs Slaveska that I would not tolerate such behaviour and I reminded her that, in my judgment of 24 September 2009,[8] I had left open the possibility that the defendants or the Court might revisit the question of whether the hearing should be stayed if that course was warranted by the circumstances. I said that I would not permit repetition of the type of conduct that had occurred during the hearing in September 2009. At this point, Mr and Mrs Slaveski became emotional and I stood down the matter briefly.

60 After the hearing resumed, Mrs Slaveska informed me that she had discussed with Mr Slaveski options for limiting his evidence in chief so as not to provoke similar outbursts from him. She said that certain events were very sensitive for Mr Slaveski and that, when he was questioned about them, he had flashbacks to those events which caused him to become angry and verbally aggressive. Mrs Slaveska said that, where she and Mr Slaveski were both present on any occasion that was relevant to the proceeding, she would ask Mr Slaveski whether he had heard her evidence and whether he would adopt it, instead of asking him to give his own detailed account of the events.

61 I adjourned the hearing for an additional period to enable Mrs Slaveska to consider further how she wished to proceed with Mr Slaveski’s evidence. After the adjournment, Mrs Slaveska informed me that she wished to proceed with Mr Slaveski’s evidence and that she would be selective about the questions that she asked him.

62 The defendants adopted the sensible approach of agreeing to treat comments that Mr Slaveski made from the bar table regarding the contents of any video, DVD or audio tape that was played in the Court as if those comments had been made by him as a witness under oath. They agreed to do so subject to their right to cross-examine Mr Slaveski in respect of the comments and to make submissions about the admissibility or weight of the comments. This approach saved the Court’s valuable time and assisted the progress of the hearing.

63 On 1 March 2010, at the conclusion of Mr Slaveski’s evidence, I informed him that he was welcome to remain in the Court while other witnesses gave evidence, but that he would be asked to leave the Court building for the rest of any day on which he became disruptive.

64 Mr Slaveski became disorderly on 4 March 2010 while Jacqueline Baldwin was being cross-examined by Mr Gipp; on 15 and 17 March 2010 while officer Bingham was being cross-examined by Mrs Slaveska; and on 18 March 2010 while officer Smithwick was being examined in chief by Mr Gipp. I ordered that he remain away from the Court building for the rest of the day on 4, 15 and 17 March 2010 and for the rest of the sitting week on 18 March 2010.

65 On 29 March 2010, during the examination in chief of officer Barton, I ordered that Mr Slaveski remain away from the Court building for the rest of that day. I made a similar order on 31 March 2010 during the cross-examination of Professor David Wells; on 15 April 2010 during the cross-examination of officer Rodney Brewer; on 28 and 29 April 2010 during the cross-examination of officer Sadler; on 14 May 2010 during the cross-examination of officer Knowles; on 1 June 2010 during the examination in chief of Lindsay Alexander; and on 2 June 2010 prior to the examination in chief of PSO Della Lovett.

66 The conduct of Mr Slaveski that resulted in his removal from the Court, or in him being reprimanded by me, included menacing behaviour towards me and witnesses. Examples of such inappropriate conduct include:

(a) On 15 March 2010, Mr Slaveski asked me, ‘Are you a puppet for the State?’ and then said to Mrs Slaveska, ‘They’re corrupted mate including this judge is corrupted.’

(b) On 18 March 2010, Mr Slaveski called me ‘biased’.

(c) On 22 March 2010, after I rose at 4.15pm, Mr Slaveski took a photograph in the courtroom of officer Rhodes, who was still under cross-examination.

(d) On 29 March 2010, Mr Slaveski accused me of being ‘corrupted’. Relevant extracts from the transcript are set out at [69] below.

(e) On 31 March 2010, Mr Slaveski called out ‘Thank you Doctor’ when Professor David Wells gave an answer in cross-examination which Mr Slaveski perceived to be favourable to him.

(f) On 15 April 2010, Mr Slaveski said, among other things, that I was corrupt and that maybe he should sue me or apply to the Sheriff of the High Court to have me arrested. Relevant extracts from the transcript are set out at [70] below.

(g) On 28 April 2010, while I was absent from the courtroom during a brief adjournment, Mr Slaveski responded to my associate’s request that he calm down by saying, ‘No, you people are tampering with evidence mate’ and ‘Yeah, because all of you people are corrupted mate’.[9]

(h) On 29 April 2010, Mr Slaveski twice accused me of being ‘biased’.[10]

(i) On 14 May 2010, Mr Slaveski called a witness, officer Knowles, a ‘crook’ and threatened to photograph him.[11]

(j) On 1 June 2010, while Lindsay Alexander was being examined in chief by Mrs Slaveska, Mr Slaveski threatened to sue him.

(k) On 2 June 2010, Mr Slaveski threw a tantrum. Over several minutes, he ranted and raved, uttered vulgarities and accused me of being part of a conspiracy and of ‘probably’ being aware of an alleged attempt on his life that morning. Relevant extracts from the transcript are set out at [74] below.

Possible contempts of court

67 In the course of the second phase of the trial, there were seven occasions when Mr Slaveski engaged in conduct which arguably constituted a contempt of court. In respect of each occasion, I informed Mr and Mrs Slaveski that, once I had made final orders in the proceeding, I would invite submissions from the parties as to whether Mr Slaveski’s conduct constituted a contempt of court and, if so, what should be done about it.[12]

68 The first incident involving conduct which arguably constituted a contempt of court occurred on 25 March 2010. Prior to the luncheon adjournment on the previous day, Mrs Slaveska had requested an adjournment in order to obtain legal advice on whether to seek leave to withdraw as Mr Slaveski’s litigation guardian and on whether to make an application that I disqualify myself. I adjourned the hearing until 10.15am on 25 March 2010 to enable Mrs Slaveska to obtain advice on these issues. At 5.00pm on 24 March 2010, Mrs Slaveska sent an email to my associate and to the other parties, stating that she had been unsuccessful in obtaining legal advice. There was no suggestion of ill health. On 25 March 2010, however, my associate received the following telephone messages from Mr Slaveski and his three children:

[9.01am] G’day Shaun, this is a message for you and to Mr Kyrou. Snezana was just taken by an ambulance. I called the ambulance at 8.30. They came about 8.40 ... of feeling dizzy. All of her right side has been numb and I personally hold the judge responsible for putting pressure on Snezana. I told him not to put pressure on her. She told him not to put pressure on her. Even the judge said to her ... even ... sorry ... even the doctor said ... she needs to take it easy but the judge is putting pressure on her. So please give me a call so I can give you more information. She has been hospitalised ... taken by an ambulance at the Northern Hospital in Epping. He is responsible for all this ... for not disclosing that he used to work for the Police Association and also for working for the State. No wonder I used to call him he is bias ... and there you go ... and Snezana said now ... this morning to me at about 7 o’clock that yes, the judge is bias. So please give me a call. He cannot ... he must not put pressure on Snezana like he has. Now, the phone number is [...]. Thank you. [9.09am] Shaun, Mr Slaveski here. Pick up the phone. I wanna tell you what happened to my wife. It all happened because of the judge, okay. So pick up the phone. If I have to call you 50 times today we’ll call you. You people are putting pressure on my wife. [9.22am] Yeah ... Slaveski here. Pick up the phone, I wanna tell you what happened to my wife ... and you people caused this okay. Tell the judge. You people do it ... putting pressure on my wife. [9.37am] Shaun, this is Stojne Slaveski ... um ... my mother was taken to hospital this morning and I don’t appreciate you not answering your phone and also the judge putting pressure on my mother ... like you people have made my father sick ... by the police ... and I would really like for you to answer your phone. [10.04am] Hello, this is Naum Slaveski, the son of ... um ... Snezana. I’m telling you to not make my mother sick and stop putting pressure on her. Cos she’s in hospital at the moment so ... stop ... because of you people putting pressure on her ... so stop. [10.06am] Hello ... um ... this is Tanja Slaveski, the ... um ... daughter of Snezana Slaveski. Um ... you sent ... my mum’s now in hospital because of you giving her stress, stop ... giving her stress. [Long pause] The judge is putting pressure on her. [11.13am] Why ... you’re not picking up the phone. Let me know what’s happening so I can tell you what you people did to my wife mate ... putting pressure. Tell the judge that. [12.29pm] Hey ... Slaveski here. Just wanna ... just came to the hospital for my wife ... I wanna give you an update ... [word sounding like ‘Ashifsez’]. [1.15pm] Yeah ... Slaveski here. [2.21pm] This is Mr Slaveski. I called you guys 15 or 20 times. You should be embarrassed of yourselves not picking up my phone. Anyway, I just received your email and the treating emergency doctor at the emergency department at Northern Hospital, it’s 185 Cooper Street, Epping. The treating doctor at the emergency hospital for Snezana was Peter Papadopoulos ... okay ... so you tell your Greek judge he is a Greek doctor as well. His name is Peter Papadopoulos ... okay. [4.20pm] Hey Mr Gladman. This is Mr Slaveski. I’ve called you guys about 15 times or more today. I don’t understand how your phone doesn’t work today. I just wanted to give you an update for my wife Snezana.

69 The second incident involving conduct which arguably constituted a contempt of court occurred shortly afterwards on 29 March 2010. This was the next sitting day after Mr Slaveski left the telephone messages to which reference is made at [68] above. During the examination in chief of officer Barton, Mr Slaveski said to me, ‘You are corrupted mate’. The relevant parts of the transcript are set out below:

[His Honour:] ... one way of interpreting the messages [which were left by Mr Slaveski on 25 March 2010] was that there was a threat. ... I will invite you on behalf of Mr Slaveski to make submissions as to whether they were a threat or whether they're a contempt of court and, if so, ... what should be done about it but I'm not going to deal with that now. [Mrs Slaveska:] Your Honour, Mr Slaveski has advised me that he doesn't feel like coming to court anymore. [His Honour:] It's a matter for him, Mrs Slaveska. It's always been a matter for him whether he attends court or not. [Mrs Slaveska:] I mean, he likes to come to court but he says, "I don't wanna stay over here and have security on top of me and - - - [His Honour:] Well, security - - - [Mrs Slaveska:] - - - have it at the top of my head - - - [His Honour:] The security officers - - - [Mrs Slaveska:] - - - whether I'll be charged." [His Honour:] I was going to invite the security officers to leave court now. You may leave the court. Thank you very much. Yes. But that matter, I will deal [with] at the end of this case and I will deal with any other issues that arise, whether for Mr Slaveski or any other person that might possibly be a contempt of court. [Mr Slaveski:] I am going for good. (Indistinct.) [His Honour:] All right. Thank you. Call [Mr Barton]. ... <GARRY ALAN BARTON, sworn and examined:> [His Honour:] Yes, Mr Gipp. [Mr Gipp:] Yes. Thank you, Your Honour. Could you state your - - - [Mr Slaveski:] I'm going for good. I want a written letter from the judge so he doesn't threaten me anymore. [His Honour:] Mr Slaveski. Mr Slaveski. [Mr Slaveski:] That's what I want. I am taking my family and if I were you, I'd go to the High Court, Snezana, as well. I want a written letter what they plan. [His Honour:] Mr Slaveski, you said you'd leave the court. Leave the court please. [Mr Slaveski:] Sorry? [His Honour:] Leave the court please. [Mr Slaveski:] You are corrupted mate. [His Honour:] Mr Slaveski, I will now, at the end of this case, also consider whether [your conduct], by leaving this court and saying that I am corrupted, constitutes a contempt of court. Don't make things worse for yourself. [Mr Slaveski:] You believe, Your Honour, that you can really - - - [His Honour:] Call the security officers please. [Mr Slaveski:] You really believe that you can threaten me in front of my children.

70 The third incident involving conduct which arguably constituted a contempt of court occurred on 15 April 2010. During the cross-examination of officer Rodney Brewer, who is not a defendant, Mr Slaveski got agitated and said that he should have sued him as well. I asked Mr Slaveski to leave the Court. Mr Slaveski then started arguing with me. He said that I was corrupt, that maybe he should sue me or apply to the Sheriff of the High Court to have me arrested, that I should be locked up and that he was sick of me. In addition, while officer Brewer was in the witness box, Mr Slaveski yelled, ‘I should’ve sued this man as well’. Finally, he threw on to the floor a Hi Fi cassette tape recorder that he had brought into the Court. The relevant parts of the transcript are set out below:

[His Honour:] Mrs Slaveska, move on. It's got nothing to do with what Nolan said. You know that. Stop wasting my time. Get on with it. [Mrs Slaveska:] Your Honour, I'm not wasting your time. [His Honour:] You are wasting my time. The committal's got nothing to do with what Nolan said. Your claim is about what Nolan said. Move on. What Mr Rivett said is very relevant. That's what you should be focusing on. Mr Slaveski, leave the court and do not come back for the rest of the day please. You are not here to make comments about who you should sue. You're interrupting. [Mr Slaveski:] I should've sued you as well - - - [His Honour:] Mr Slaveski, leave the court. [Mr Slaveski:] Maybe I should sue you as well. [His Honour:] Call the security people to escort Mr Slaveski out of court. You are not coming back until tomorrow. [Mr Slaveski:] Of course - - - [His Honour:] And be quiet. [Mr Slaveski:] You be quiet as well. [His Honour:] Mr Slaveski, now be careful. I've got you on two possible contempts. Do not - - - [Mr Slaveski:] Yeah, if I make application - - - [His Honour:] Do - - - [Mr Slaveski:] - - - be arrested by the sheriff - - - [His Honour:] Do - - - [Mr Slaveski:] - - - by the sheriff - - - [His Honour:] Do not - - - [Mr Slaveski:] - - - by the sheriff - the High Court. OK. OK. [His Honour:] Mr Slaveski, do not add [a] third complaint - - - [Mr Slaveski:] - - -taking - - - [His Honour:] - - - possible investigation of a contempt please. [Mr Slaveski:] What are you going to do? [His Honour:] Mr Slaveski, I have already said at the end of this case - - - [Mr Slaveski:] I would - I would like an apology from you - - - [His Honour:] Mr Slaveski, I have said at the end of the case - - - [Mr Slaveski:] - - -understood that's just what I want from you. [His Honour:] Mr Slaveski, I've said at the end of this case I am going to [hear] a possible contempt case. Do not add to your problems. [Mrs Slaveska:] Leave that. You don't need that. Would you leave that? [Mr Slaveski:] What did you say? [His Honour:] Do not add to your problems. [Mr Slaveski:] Add to my problems? [His Honour:] Yes. [Mr Slaveski:] Add to my problems - add to my problems. [His Honour:] Call security please. [Mr Slaveski:] Add to what problem? [His Honour:] The problem, Mr Slaveski, is that I have - - - [Mr Slaveski:] - - - like this at well? [His Honour:] - - -said at the end of this case I'm going to hear submissions as to whether you've committed a contempt of court. [Mr Slaveski:] Yeah. You should be locked up. You should work for police association - - - [His Honour:] Mr Slaveski, you have now in - - - [Mr Slaveski:] You - - - [His Honour:] In the court you have now smashed your tape recorder on the floor and broken it. [Mr Slaveski:] Of course I did. I'm taking my equipment from here. [His Honour:] Take your equipment, Mr Slaveski. [Mr Slaveski:] You are corrupt and I told you that. [His Honour:] Mr Slaveski, I'm now going to hear three possible contempt matters, and that includes you smashing things on the floor of this court and saying that I am - complaint - - - [Mr Slaveski:] It's my - it's my recorder - - - [His Honour:] Mr Slaveski, you've just said that I was corrupt. [Mr Slaveski:] Of course you are - - - [His Honour:] I am going to consider whether that constitutes contempt. [Mr Slaveski:] Good. [His Honour:] That is the third possible contempt - - - [Mr Slaveski:] I'm sick of you. You - - - [His Honour:] If you continue behaving this way I will exclude you from the court for a longer period than - - - [Mr Slaveski:] How long do you want? [His Honour:] Today; it's one day. [Mr Slaveski:] No. [Mrs Slaveska:] Just go please? [Mr Slaveski:] I should've sued this man as well. How stupid of me. He came in front of my shop and - - - [His Honour:] Mr Slaveski, please do not make comments that are intended to intimidate a witness. [Mr Slaveski:] They've got the guns. I don't have a gun. [Mrs Slaveska:] Just get your - you left (inaudible) down there. [Mr Slaveski:] I'm sick of this - - - [His Honour:] Please escort Mr Slaveski outside the building please. Do not permit him to return to the court complex until tomorrow morning. Thank you. Please escort Mr Slaveski outside the court, officers. Thank you, officers.

71 The fourth incident involving conduct which arguably constituted a contempt of court occurred on 28 April 2010. While I was absent from the courtroom during a brief adjournment, Mr Slaveski became agitated and verbally abused Mrs Slaveska, causing her to cry. Mr Slaveski subsequently had a confrontation with a PSO who was sitting in the Court. When Mr Slaveski was asked to calm down by my associate, he responded by saying, ‘No, you people are tampering with evidence mate’ and ‘Yeah, because all of you people are corrupted mate.’[13]

72 The fifth incident involving conduct which arguably constituted a contempt of court occurred on 29 April 2010, during the cross-examination of officer Sadler. After the luncheon adjournment, I told Mr Slaveski that I had been informed that he had been observed unplugging one of the microphones in the courtroom. I then instructed him not to unplug or touch the microphones. When Mr Slaveski became argumentative, I asked him to leave the Court. In response, Mr Slaveski said, ‘I can see that the judge is biased’ and ‘this judge is biased’.

73 The sixth incident involving conduct which arguably constituted a contempt of court occurred on 14 May 2010, during the cross-examination of officer Knowles about photographs he had taken of Mr Slaveski after his arrest on 13 December 2005. Speaking loudly enough for officer Knowles and me to hear, Mr Slaveski said to Mrs Slaveska, ‘I will take a photo of him’ and ‘I’ll wait for them outside the Court’. I reminded Mr Slaveski that he was not permitted to make comments that might intimidate witnesses and requested him to leave the Court. At Mrs Slaveska’s request, I briefly adjourned the hearing to enable her to speak to Mr Slaveski outside the courtroom. After I had left the Court, Mr Slaveski said to the witness, ‘You’re a crook. You come by yourself ... not with the guns.’[14]

74 The final incident involving conduct which arguably constituted a contempt of court occurred at the commencement of the hearing on 2 June 2010. Mrs Slaveska informed me that some police vehicles were ‘chasing’ her and Mr Slaveski on the freeway as they drove to the Court, that the police intended to shoot them because of the proceeding and that she did not feel safe in attending the Court. While I was discussing these concerns with Mrs Slaveska, Mr Slaveski was extremely agitated and was constantly interrupting. When I told Mr Slaveski that I would hear from Mrs Slaveska and not from him, he flew into a rage and hurled abuse at me and everyone else in the Court. Among a myriad of profanities, he accused me of being part of a conspiracy and of ‘probably’ being aware of an alleged threat on his life that morning. The relevant parts of the transcript are set out below:

[Mrs Slaveska:] Your Honour, Mr Slaveski wants me to ask you, on his behalf, are you aware that the State and the police ordered a hit on us to be killed? [His Honour:] No, I'm not - - - [Mrs Slaveska:] Whether you are aware of that? [His Honour:] No, I'm not aware of that, Mrs Slaveska. [Mrs Slaveska:] Well, Your Honour, you should know these things. [His Honour:] I only know what happened – Mr Slaveski, please sit down, I'm not going to hear from you. Please sit down. [Mr Slaveski:] You don't want to hear from me? [His Honour:] No, I do not. Now, sit down. [Mr Slaveski:] That's why can get a (indistinct) for three judges. [His Honour:] Mr Slaveski, please sit down, otherwise I'm going to remove you from the court. I will remove you from the court. Please sit down. I know - - - [Mr Slaveski:] Are you threatening me? [His Honour:] No, all I said - - - [Mr Slaveski:] Are you threatening me? [His Honour:] Call extra security, please. Mr Slaveski, you are excluded from the court for the rest of today. [Mr Slaveski:] Today? [His Honour:] Yes. [Mrs Slaveska:] No, Your Honour, I'm not going to stay without Mr Slaveski - - - [Mr Slaveski:] No, no, no, no, this is a conspiracy. You know, Your Honour - - - [His Honour:] Mr Slaveski, please be quiet. [Mr Slaveski:] - - - (indistinct) Victoria Police and everybody that want to kill us. [His Honour:] Please be quiet. [Mr Slaveski:] Do you know anything about the murder? [His Honour:] No, I don't know anything about any murder - - - [Mr Slaveski:] Yes, you probably do, Your Honour. [His Honour:] Please leave the court now. [Mrs Slaveska:] No, Your Honour, where is he going to outside to get shot? [His Honour:] He's going to leave this court - - - [Mr Slaveski:] Don't fucking touch me. Don't touch me. I believe – I believe - - - [His Honour:] Security officers. [Mr Slaveski:] Hey, don't fucking touch me. [His Honour:] Security officers. Security officers - - - [Mr Slaveski:] Don't touch me, I'm going. [His Honour:] Security officers. Sit down, please. [Mr Slaveski:] Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my (indistinct) and I (indistinct) you mother-fuckers, you fucking tried to kill me today (indistinct) - - - [His Honour:] Mr Slaveski, - - - [Mr Slaveski:] Do not fucking touch me. Do you fucking understand me, you mother-fuckers? Do not fucking touch me. [His Honour:] Security officers, sit down. We're going to call (indistinct) - - - [Mr Slaveski:] Sit fucking down. Sit fucking down. [His Honour:] Mr Slaveski - - - [Mr Slaveski:] Do not fucking touch me. [His Honour:] Mr Slaveski - - - [Mr Slaveski:] Yes, sir. [His Honour:] I'm giving you the opportunity to leave peacefully. [Mr Slaveski:] Do not fucking touch me. [His Honour:] No one is touching you. [Mrs Slaveska:] Lupco, calm down. Lupco - - - [His Honour:] No one is touching you. [Mr Slaveski:] You fucking mother-fuckers, you going to kill my fucking children - - - [His Honour:] Madam Associate - - - [Mr Slaveski:] What you and the fucking (indistinct) - - - [His Honour:] - - - call extra security. Sit down, please. Sit down, please. [Mrs Slaveska:] Your Honour, please call an ambulance, he is in a panic - - - [Mr Slaveski:] OK, do not - - - [His Honour:] No one is going to touch Mr Slaveski. [Mrs Slaveska:] I call an ambulance. [His Honour:] Right. I'm giving him an opportunity to leave peacefully. [Mr Slaveski:] I don't need a fucking opportunity to say - - - [His Honour:] Just calm down, Mr Slaveski. We're giving you an opportunity to leave peacefully. [Mr Slaveski:] He is touching me. [His Honour:] No one is touching you, Mr Slaveski. Well, call an ambulance, Mrs Slaveska. [Mr Slaveski:] One and a half hours of phone calls, six guard dogs. [Mrs Slaveska:] Calm down. [Mr Slaveski:] I'm sorry. How can you run a trial like this? You fucking pigs, you took my health away. [His Honour:] Security officer, join your colleagues please and sit down. Just go through this row please and sit down. (Ambulance telephoned.) [Mr Slaveski:] I had enough of you people. And I had enough of Supreme Court. I wait for my family to pick me up from here. You going to stay. You going to continue. They tried to kill me today and I've got them recorded. [His Honour:] That's fine, Mr Slaveski. [Mr Slaveski:] On this pen, this is a camera. [His Honour:] Mr Slaveski, I have asked you to leave the court, please. [Mr Slaveski:] OK. Don't make it come between you and me, Your Honour, please. [His Honour:] There's nothing between you and me, Mr Slaveski. Just be calm and leave the court, please. [Mr Slaveski:] I get (indistinct). Don't make it come between you and me, Your Honour, please. [His Honour:] I don't know what you mean, Mr Slaveski. Just be quiet - - - [Mr Slaveski:] Any way you want to take it, Your Honour. Twenty-three police officer being sued, let's come to the trial of this court - - - [His Honour:] Officer, sit next to your colleagues, please. [Mr Slaveski:] - - - and finish. [His Honour:] Just go around this way, please. [Mr Slaveski:] I had enough of this State and I had enough of this corruption, including this Supreme Court corruption. You going to threaten me. I had enough of your threats, (indistinct) you crooks, you mother-fuckers, I had enough of you. You want to kill my children. Fuck you and the fucking State. I had enough of you, you fucking mother-fuckers. [His Honour:] Mr Slaveski, you're better off being quiet now, please. You're being recorded; it's not good for you. [Mr Slaveski:] I am recorded. [His Honour:] Yes. [Mr Slaveski:] You are part of this conspiracy, Your Honour. You know about the murder that they plot on me and my wife today. [His Honour:] Mr Slaveski, this incident is now going to be added to the contempt matters against you. [Mr Slaveski:] Good. Good. And you have a duty to send security downstairs to get my wife. [His Honour:] Mr Slaveski, leave the court please. [Mr Slaveski:] Piece of evidence - on the freeway they want to kill me. On the freeway. The state. Is that what sort of a state you people are running? (Ambulance telephoned.) [His Honour:] Mr Slaveski, please be quiet and leave the court. [Mr Slaveski:] Your Honour, please stop the killing. Stop the hit on me and my wife. Please. [His Honour:] Mr Slaveski, it's best if you be quiet please. [Mr Slaveski:] Please, Your Honour. I'm praying to you and your family and me and my family, please. [His Honour:] Mr Slaveski, do not mention my family. [Mr Slaveski:] I - I don't want my family to be killed. Do you know about this hit? [His Honour:] Mr Slaveski, I know nothing about any hit. Be quiet. [Mr Slaveski:] Ten years of torture. Ten years of torture of Victoria Police. Fuck you, you motherfuckers. You gonna kill me and my family. [His Honour:] Mr Slaveski, please be quiet. [Mrs Slaveska:] Your Honour, she wants me to give it to a court staff member or somebody [His Honour:] Let - yes, Madam Associate will speak to him. Get an ambulance to come to 210 William Street. [Mr Slaveski:] I made an - an offer to come to the funeral so we can read - read it out. One on one at the funeral, so they either die or I die. Ten years of torture (indistinct). [Mrs Slaveska:] You're going to tell them to come quickly then. [Mr Slaveski:] For the sake of children, please, Your Honour, tell them to stop this. Please. I beg you. Your Honour. Your Honour, please. Your Honour, can you look at me. Tell them to stop this, please. [His Honour:] Mr Slaveski. [Mr Slaveski:] Please. [His Honour:] Please leave the court. [Mr Slaveski:] Can you tell them to stop. [His Honour:] Mr Slaveski, please leave the court. [Mr Slaveski:] Do you give me your word that you will tell them to stop this. [His Honour:] Mr Slaveski, I'm hearing this case. I'll hear the evidence and I'll make a decision. Please now leave the court. [Mrs Slaveska:] Your Honour, can I go with him please. [His Honour:] Yes, yes. Mrs Slaveska, I'm going to adjourn the court as soon as you're at the door. Security officers, you are to follow Mr Slaveski. You are not to interfere with them unless it becomes absolutely necessary. He's obviously very agitated. Don't confront him unless it becomes necessary for your safety and the court's safety. I'll adjourn now until further notice. Thank you.

75 Mr Slaveski did not attend the Court again until 6 August 2010. Mrs Slaveska informed the Court that he had fled to Sydney for his safety. On 22 June 2010 – the day on which the hearing of the evidence was due to be completed – Mr Slaveski telephoned my associate and left rambling and highly inappropriate messages over a continuous period of 24 minutes. Parts of the messages are set out below:

I had no choice your Honour Justice, Justice Kyrou but to leave the State on the 2nd of June 2010, you know what happened, we told you, we advised you and to be quite honest, I was disappointed in you because I do believe that you have the ultimate power to order this corrupted crooks, murderers, police officers. They had a plot to kill me on the freeway and I suspect, well I thought that if they would have killed me, I think they had a plan to kill me the way things came out, probably they would have killed Snezana as well so there’s no witness there. But on the other hand, I would have expected your Honour to tell this corrupted, excuse the language, mother fuckers, they are crooks, say your Honour could have said, I’m ordering Victoria Police to leave Mr Slaveski and Mrs Slaveski to come from home to Court and give their evidence to the best of their ability and then let your Honour decide, but then again your Honour, I don’t know what’s behind the Supreme Court, I don’t know whether somebody’s on top of you, forcing you to not look into that matter, but then again we are looking at your Honour, human rights, we are looking at human person. I’ve got three children. I’m not going to stop on the freeway for this crooks, Victoria Police murderers. ... I want my family to be safe and sound so please tell this people not to get near my children. If they, if they get into my children, I will go in their children’s kindergartens, whatever they do to my kids, I will do to their kids. I swear on my three children, I swear on Saint Naum, it’s a saint in Macedonia, so please tell this crooks to keep away from my children. So let your Honour decide whatever you wanna take it but you must understand your Honour, you have the power to expose this crooks, because don’t forget, you’ve got children, you’ve got a brother or you’ve got a sister or you’ve got a cousin, it will happen one day to your nephew, to your son, to your daughter, it could happen to your brother’s son or daughter, to your cousin’s son or daughter, so you have the power, you are on top of that bench sitting high close to God, therefore you must stop this your Honour. ... So your Honour, please excuse this language that I am speaking but I beg you to put in your judgment to stop all the conspiracy, expose this corruption of Victoria Police so it’s a new stage, a new era and once again, I’d like to apologise to you, and your Honour, I wanted to be there for the last day to apologise to you in person but I could not and I will not come back to Victoria because I’m scared. I don’t wanna be killed. If I was to come there, I applied for a gun in front of three judges, they didn’t give me one, so I’ll apply interstate for a gun here so if I was to come there, I’ve gotta come there, I can’t come there like Snezana said excuse the language, they’ve got 10 guns and I’ve got what, excuse the language, I’ve got my hands on my dick? No. I apologise for the language your Honour. ... So once again your Honour, please forgive me and overall you are a good man, I mean that. God bless you and all the best to you and your family and, give my regards to your workers there and apologise once again. And also, give my um, if your assistant can apologise to the security guys there, but it’s been a very very long run, very very long trial and I’ve gotta congratulate you for putting up and looking into the case. ... So your Honour, once again, good luck, God bless and I’m sorry, I hope you forgive me and I’m asking God to forgive me. Good-bye my dear friend, all the best, bye-bye.

Mrs Slaveska’s conduct as litigation guardian

76 By any measure, acting as Mr Slaveski’s litigation guardian without legal representation was always going to be a difficult task for Mrs Slaveska. She had to conduct a large and complex trial over several months virtually on her own. She had to read a large number of documents; to prepare detailed questions for 17 of her own witnesses as well as for 40 defence witnesses, which included 34 experienced police officers and three experts; to learn the rules of evidence and trial procedures; and to perform her task in the face of constant outbursts from Mr Slaveski. It is likely that most lay people would have found the burden too onerous and would have given up. To her credit, Mrs Slaveska had the courage to persevere and she worked tirelessly in the pursuit of Mr Slaveski’s claims. I have no doubt that no other lay advocate could have done a better job in presenting his case.

77 Although Mrs Slaveska’s energy and determination resulted in a robust – and sometimes feisty – presentation of Mr Slaveski’s case, her lack of legal qualifications and experience inevitably resulted in the hearing progressing in an inefficient and unwieldy manner.

78 Mrs Slaveska often objected to questions simply because she did not like them or because Mr Slaveski asked her to do so. In cross-examination, she frequently asked questions which were irrelevant, repetitious or mere assertions. Some questions were aimed at embarrassing the police defendants, rather than at eliciting relevant evidence from them. Some purported questions contained not-so-subtle threats that the witness would be sued, notwithstanding my prior warnings that the making of such threats was highly improper. Mrs Slaveska put matters to witnesses without any factual foundation and irresponsibly accused all but four of the 40 witnesses she cross-examined of lying to the Court.[15]

79 Mrs Slaveska sometimes became argumentative when I made rulings against her. She also made repeat applications on matters upon which I had already ruled. On some occasions, she was a mere mouthpiece for Mr Slaveski. That is not to say, however, that Mrs Slaveska failed to exercise independent judgement; not infrequently, she motioned for Mr Slaveski to be quiet or put aside handwritten notes that he had given to her without referring to their contents.

80 The agreed time limits for the completion of Mrs Slaveska’s cross-examination of witnesses always afforded her more time than she reasonably required. Nonetheless, on several occasions, Mrs Slaveska failed to complete the cross-examination of a witness within the agreed time limit because she became obsessed with the pursuit of peripheral credit issues. When I sought to enforce the deadline, she would complain that ‘it’s not fair’. Mrs Slaveska appeared to be of the view that ‘fairness’ required that she be allowed to keep a witness in the witness box for as long as it suited her. Invariably, on these occasions, I extended the deadline to enable her to ask additional questions. I also agreed to recall some witnesses at her request.

81 Some hearing days were lost when Mr or Mrs Slaveski informed the Court, on the morning of the relevant day, that Mrs Slaveska was ill or that their teenaged son was ill and that she was required to stay at home to care for him. Although I explained to Mrs Slaveska that an application for an adjournment on medical grounds had to be supported by more than a one-line medical certificate, she continued to rely on such certificates to justify her absences from the Court. These absences caused inconvenience to the Court and to the defendants, their legal practitioners and their witnesses. They also added to the already considerable delays in the resolution of the proceeding.

82 In addition, much time was wasted because Mrs Slaveska regularly arrived at the Court well past the scheduled time of commencement for the hearing. This included days when, at her request, the hearing had been scheduled to commence earlier than usual.

83 Unfortunately, on many occasions, the hearing degenerated into a farce, with Mr Slaveski shouting and otherwise behaving inappropriately, Mrs Slaveska making speeches ‘for the record’ and witnesses looking on in disbelief. On these occasions, my priority was to restore order, usually by removing Mr Slaveski from the Court. I would then remind Mrs Slaveska about the proper conduct of the proceeding, and press on with the trial.

84 The requirement in r 15.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that a litigation guardian must act by a solicitor has much to commend it. I waived that requirement in this proceeding because, had I not done so, the likely result would have been an order that the proceeding be stayed and Mr Slaveski would have been deprived of his right to have his claims tested in the Court.[16]

My questions to the police defendants and their witnesses

85 Prior to the defendants calling any evidence, I informed Mr Gipp that I might ask some questions of any defence witness after Mrs Slaveska had completed her cross-examination. I said that, if I did so, it would be for two reasons. The first reason was to ensure a fair trial by asking the witness any obvious questions which Mrs Slaveska had neglected to ask. The second reason was for me to give the witnesses an opportunity to clarify any issues that were not clear to me or that caused me concern. Mr Gipp did not object to this proposed course.

86 In accordance with what I had indicated to Mr Gipp, after Mrs Slaveska had completed her cross-examination, I asked some questions of officers Bingham, Leemon, Sadler, Peck, Jones, Nolan, Cole, Tennyson, Wendt, Sadler, Kirkright, Baade, Anderson, Knowles, Lowerson, Cross, Wood, Parker, Bakas, Smith and Gray and PSO Lovett. I gave Mrs Slaveska an opportunity to ask each witness any further questions that arose out of any of my questions. Mr Gipp then re-examined the witness on matters arising out of Mrs Slaveska’s cross-examination and my questions.

Applications that I disqualify myself

87 On 7 September 2009, during the first phase of the trial, Mr Slaveski made an application that I disqualify myself on the basis of rulings I had made that were adverse to him. During the second phase of the trial, Mrs Slaveska made an application that I disqualify myself on the basis that I had acted for the State while I was in practice and also on the basis of rulings I had made that were adverse to Mr Slaveski. I refused both applications.[17]

88 Subsequently, Mr Slaveski made an ex-parte application to a judge of the High Court seeking leave to apply for an order under s 40 of the Judiciary Act 1903 (Cth) removing the current proceeding into the High Court. On 15 September 2010, Crennan J refused to grant leave on the basis that the proposed application for removal, if issued, would be an abuse of process of the High Court.

PART 2 – POLICE POWERS

89 As most of the causes of action relied upon by Mr Slaveski relate to events which involved the exercise of police powers, in this Part 2, I discuss the legal sources and scope of the relevant police powers.

(1) Arrest without warrant

90 In Victoria, the common law powers of arrest without warrant have been abolished by statute.[18] Section 457 of the Crimes Act 1958 provides that no person may be arrested without warrant except pursuant to the provisions of that Act or some other Act that expressly confers a power of arrest without warrant.

Power of arrest conferred by s 459 of the Crimes Act

91 Sections 458 and 459 of the Crimes Act provide for the arrest of a person without a warrant.

92 Section 458 provides that any person, regardless of whether he or she is a police officer, may arrest another person in defined circumstances. The powers of arrest contained in s 458 are not relevant to this proceeding.

93 Section 459 authorises a member of the police force to arrest a person that he or she believes on reasonable grounds has committed an indictable offence. This is the power relied upon by the police defendants to arrest Mr Slaveski on 8 September 2000, 13 December 2005 and 29 January 2007. At all relevant times, s 459 relevantly provided:

459 Powers of member of police force to apprehend offenders In addition to exercising any of the powers conferred by section 458 or by or under any other Act a member of the police force may at any time without warrant apprehend any person— (a) he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard or determined summarily); ...

94 Section 459 must be read in conjunction with s 461(1) of the Crimes Act, which provides:

461 Arrest on reasonable grounds not to be taken to be unlawful (1) Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.

95 It was not in dispute in this proceeding that the offences for which Mr Slaveski was arrested on 8 September 2000, 13 December 2005 and 29 January 2007 were indictable offences.

96 A police officer arresting a person under s 459 must believe on reasonable grounds that the person has committed an indictable offence. In George v Rockett,[19] the High Court said:

When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. [20]

97 Consequently, in order for an arrest to be authorised by s 459, the police officer must actually believe that the person being arrested has committed an indictable offence and his or her belief must be based on facts that would be sufficient to induce that state of mind in a reasonable person.

98 Belief must be distinguished from suspicion.[21] This is because, as Vincent J observed in Walsh v Loughnan,[22] ‘[t]he facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.’[23]

99 In George v Rockett,[24] the High Court cited with approval the definition of ‘suspicion’ proffered by Kitto J in Queensland Bacon Pty Ltd v Rees:[25] ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”’.[26]

100 The Court held that ‘[b]elief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.’[27] While belief is a more certain state of mind than suspicion, it need not be informed by actual proof. As their Honours said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. [28]

101 The information upon which the police officer formed his or her belief may take a variety of forms and relate to a wide variety of matters. When the reasonableness of that belief is in issue, the fact that the information may be inadmissible as hearsay at a later trial of the arrested person is irrelevant because it is put forward, not as evidence of its own truth, but as part of the material that is said to have given the police officer reasonable grounds for the belief.[29]

102 The police officer must believe that a particular indictable offence has been committed, and not just an indictable offence in some general sense.[30]

Common law requirements for arrest

103 While powers of arrest are now governed by statute in Victoria, the common law still determines how a lawful arrest must be effected. Assuming there exists a statutory power of arrest and that power is not exceeded by the person effecting the arrest (‘the arrester’), a person (‘the arrestee’) will be lawfully arrested if:

(a) the arrestee was deprived of his or her liberty;

(b) the arrester informed the arrestee that he or she was under arrest; and

(c) the arrester informed the arrestee of the reason for the arrest.

104 If any of these requirements is not satisfied, the arrest will be unlawful and, if the arrestee is restrained, he or she may recover damages for assault, battery and false imprisonment. These torts are discussed in Part 3.

105 Each of the requirements is discussed below.

Deprivation of liberty

106 While the arrestee must be deprived of his or her liberty in order to be lawfully arrested, there is no requirement that the arrestee be actually seized or subjected to physical force. There will be a sufficient deprivation of liberty if the arrestee submits to the arrester’s control after the arrester has indicated his or her intention to effect the arrest. In Alderson v Booth,[31] Lord Parker CJ said:

There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying ‘I arrest you’ without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear ... that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion. [32]

107 If the arrestee does not submit to the arrester’s control, the deprivation of the arrestee’s liberty must be formally established by the arrester touching his or her person.[33]

Communication of arrest

108 The arrester must do all that a reasonable person would do in the circumstances to inform the arrestee that he or she is under arrest.[34]

109 An arrest will not be lawful if the arrestee, in submitting to the arrester, understands that he or she is acting voluntarily. Any form of words used to communicate the fact of arrest must unequivocally bring home to the arrestee that he or she is acting under compulsion.[35]

110 In R v Inwood,[36] the English Court of Appeal held that whether it has been made sufficiently clear to the arrestee that he or she is acting under compulsion is a question of fact that depends upon all the circumstances of the case. The Court said:

No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities. There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man. [37]

Communication of the reason for the arrest

111 In Christie v Leachinsky,[38] the House of Lords held that the arrester ordinarily must inform the arrestee, at the time of the arrest, of the offence, or the facts that are said to constitute the offence, for which the arrest is effected.[39]

112 Numerous decisions of Australian courts have referred to Christie with approval.[40]

113 The arrester need not communicate the reason for the arrest to the arrestee using technical or precise language.[41] The sufficiency of the communication is to be considered as a matter of substance and by reference to the principle that

a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. [42]

114 Provided that the arrestee is informed of the facts that are said to constitute the offence for which the arrest is effected, it does not matter that he or she is later charged with a different offence from that specified by the arrester. As Lord Simonds said in Christie:

if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. [43]

115 In Christie, however, the arrestee was not so informed. The arrest in question was effected without warrant by two Liverpool police officers, who reasonably suspected the arrestee to have stolen or feloniously received certain goods. Rather than inform the arrestee that he was under arrest for larceny, the police officers led him to believe that the arrest was for the misdemeanour offence of being ‘in unlawful possession’ of the goods. In the circumstances, this misdemeanour offence could not justify the arrestee’s arrest without a warrant. The House of Lords held that the arrest was unlawful because the arrestee had not been informed of the true reason for his arrest. This reason was not a suspicion that the arrestee merely possessed the goods, but a suspicion that he had stolen the goods or had received them knowing that they were stolen.[44]

116 There are some circumstances in which an arrester is excused from immediately informing the arrestee of the reason for the arrest, including where:

(a) the arrestee prevents the arrester from doing so, for example, by violently resisting the arrest or absconding;[45]

(b) the circumstances are such that the arrestee must know the general nature of the offence for which the arrest is effected, such as where he or she has been given prior notice of the proposed arrest and the reason for it or has been ‘caught red-handed and the crime is patent to high Heaven’;[46] and

(c) the arrestee is unable to understand the reason because of a disability, an inability to speak English or intoxication, provided that the arrester does all that a reasonable person would do in the circumstances.[47]

117 In these situations, the arrestee must be informed of the reason for the arrest at the earliest reasonable opportunity.[48]

118 In Victoria, the common law as stated in Christie has been supplemented by legislation. Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) provides:

A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.

119 Section 21 is contained within Part 2 of the Charter, which sets out numerous human rights. Part 2 commenced operation on 1 January 2007.[49] Section 38(1) of the Charter provides that it is unlawful for a ‘public authority’, which includes Victoria Police,[50] to act in a way that is incompatible with a human right contained in Part 2. This section, however, is contained within Division 4 of Part 3 of the Charter, which did not commence operation until 1 January 2008,[51] after the events of this proceeding.

Use of force

120 Section 462A of the Crimes Act provides:

462A Use of force to prevent the commission of an indictable offence A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

121 Broadly, s 462A contains two limbs. The section authorises any person to use such force not disproportionate to the objective as he or she believes on reasonable grounds to be necessary:

(a) to prevent the commission, continuance or completion of an indictable offence (‘first limb of s 462A’); or

(b) to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence (‘second limb of s 462A’).

122 It is the second limb, and not the first limb, of s 462A that may be relevant to this proceeding. This second limb of s 462A confers a right to use force that is ‘not disproportionate’ to effect a lawful arrest, but it does not confer any power of arrest. This follows from the use of the expression ‘lawful arrest’, which logically makes the existence of a valid power of arrest a prerequisite for the use of force to effect that arrest.

123 In my opinion, for the reasons that follow, the second limb of s 462A is confined to situations where the arrest is effected contemporaneously with the commission or suspected commission of an offence and does not apply to an arrest effected under s 459(a).

124 The use of the present participle ‘committing’ makes it clear that the right to use force that is ‘not disproportionate’ to ‘effect ... the arrest of a person committing ... any offence’ is conditional upon the arrest occurring at the same time that an offence is committed. In order to construe the second limb of s 462A as applying to an arrest under s 459(a), the word ‘committing’ in the phrase ‘person ... suspected of committing any offence’ would have to be given a different meaning; that word would have to be read, in the second instance only, as ‘having committed’. Such a construction, however, would strain the language of the provision.

125 Further, the other provisions in Part III, Division 1, Subdivision (30) of the Crimes Act distinguish between a person found ‘committing’ some offence[52] and a person that is reasonably believed to have ‘committed’, or that is suspected of having ‘committed’, some offence.[53] An apposite example is s 463A(1), which uses both expressions. This section provides that the person in command of an aircraft may arrest without warrant a person that he or she ‘finds committing, or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to or affecting the use of an aircraft.’ Section 462A should be interpreted consistently with the Parliament’s clear intention to distinguish between the words ‘committing’ and ‘committed’ in Part III, Division 1, Subdivision (30), and these words should be given their plain and ordinary meanings.

126 Even in the absence of s 462A, a person would be entitled to use force, but only reasonable force, when lawfully effecting the arrest of a person. For a police officer arresting a person that he or she believes on reasonable grounds to have committed an indictable offence in Victoria, the source of that right is s 459(a) of the Crimes Act. The right to use force is a corollary of the right to effect an arrest. As the Full Court said in R v Turner,[54] a statutory provision that conferred on a person a power of arrest, but made no allowance for the use of force to exercise that power, ‘would be a very weak and in most cases ineffective power to bestow.’[55]

127 In that case, the Court held that a statutory provision that confers a right to use force to effect an arrest should be construed as authorising only such force as is reasonably necessary to do so.[56] In the context of a police officer’s power under the common law to arrest a person who has committed, or is about to commit, a felony, the Court said that the reasonableness of the force used by the arrester depends upon two factors:

He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of the felony or the escape of the felon). [57]

128 Where they apply to determine the nature of the force that may be used in effecting a lawful arrest, the test in s 462A of the Crimes Act and the test in R v Turner[58] are likely to produce the same result in a given case. The force used by persons effecting an arrest must be not disproportionate to their objective or, considered from the position of a reasonable person, not disproportionate to the evil that they are attempting to prevent, and must be reasonably believed by them to be necessary to effect the arrest.

129 The power of an arresting officer to use reasonable and proportionate force to effect an arrest includes the use of such force to restrain or recapture an arrestee, who resists or breaks away from the arresting officer after the arrest. In other words, the power is not exhausted merely because the arrest was formally established by an initial touching of the arrestee by the arrester.[59]

130 In Walker v Hamm,[60] Smith J emphasised that an assessment of the reasonableness of a police officer’s conduct must be made in a ‘realistic manner’ that takes into account ‘the reality that the officer has to make decisions quickly, often in emergencies and under pressure.’[61] Similar statements appear in other cases. In Woodley v Boyd,[62] for example, Heydon JA said that, ‘in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight.’[63] His Honour then referred to the following observation of Connor J in McIntosh v Webster:[64]

Arrests are frequently made in circumstances of excitement, turmoil and panic [and] it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances. [65]

Use of handcuffs

131 A police officer is not entitled to use handcuffs on a person merely because an arrest has been effected. All the circumstances must be examined to determine whether there are reasonable grounds for the use of handcuffs. As Charles JA explained in Perkins v County Court of Victoria,[66] the circumstances must disclose some special feature in order for such reasonable grounds to exist:

there is no general rule that persons arrested and being conveyed to [a place of detention] or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner's escaping; or committing some further offence; or endangering the safety of persons or property. [67]

132 In Leigh v Cole,[68] Williams J said:

with respect to handcuffing, the law undoubtedly is, that police officers are not only justified, but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrates' court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets. [69]

133 In Kumar v Minister for Immigration, Local Government and Ethnic Affairs,[70] the applicant challenged the lawfulness of his arrest by an officer of a government department. Lockhart J held that the power of arrest exercised by the officer implied a power to handcuff an arrested person, but only to prevent that person from escaping or endangering the safety or property of other persons.[71] His Honour decided that the handcuffing of the applicant was unreasonable because his conduct had not suggested that he was likely to escape or to act in a violent manner. The unlawfulness of the handcuffing, however, did not vitiate the applicant’s lawful arrest, which was completed before the handcuffs were placed on him.[72]

Detention of arrested person in custody

134 Section 464A of the Crimes Act provides:

464A Detention of person in custody (1) Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be— (a) released unconditionally; or (b) released on bail; or (c) brought before a bail justice or the Magistrates' Court— within a reasonable time of being taken into custody. (2) If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)— (a) inform the person of the circumstances of that offence; and (b) question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence. (3) Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence. (4) In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered— (a) the period of time reasonably required to bring the person before a bail justice or the Magistrates' Court; (b) the number and complexity of offences to be investigated; (c) any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation; (d) any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation; (e) the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody; (f) any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence; (g) any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person; (h) any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place; (i) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention; (j) any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest; (k) the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody; (l) any other matters reasonably connected with the investigation of the offence.

135 Section 464C of the Crimes Act relevantly provides:

464C Right to communicate with friend, relative and legal practitioner (1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she— (a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and (b) may communicate with or attempt to communicate with a legal practitioner— and, unless the investigating official believes on reasonable grounds that— (c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or (d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed— the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication. (2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is— (a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and (b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard. ...

136 Section 464(1) of the Crimes Act provides that, for the purposes of Part III, Division 1, Subdivision 30A, a person is in custody if, among other things, he or she is under lawful arrest under s 459.

137 The detention of a person in custody for longer than a ‘reasonable time’, contrary to s 464A(1) of the Crimes Act, constitutes the tort of false imprisonment.[73]

A lawful arrest is not vitiated by subsequent unlawful conduct by the arrester

138 An arrest is lawful if the requirements set out at [103] above are satisfied. Once those requirements are satisfied, the arrest is completed. Subsequent unlawful conduct by the arrester – such as the unlawful detention of the arrestee – cannot vitiate[74]he arrest.74

(2) Entry onto premises to effect arrest

139 Section 459A of the Crimes Act provides:

459A Entry and search of premises (1) A member of the police force may, for the purpose of arresting under section 458 or 459 or any other enactment a person whom he— (a) believes on reasonable grounds— (i) to have committed in Victoria a serious indictable offence; (ii) to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or (iii) to be escaping from legal custody; or (b) finds committing a serious indictable offence— enter and search any place where the member of the police force on reasonable grounds believes him to be. (2) In order to enter a place pursuant to subsection (1), a member of the police force may, if it is necessary to do so, use reasonable force. (3) In this section serious indictable offence has the same meaning as it has in section 325.

140 The expression ‘escaping from legal custody’ includes breaking away from a police officer after being arrested by that officer.[75]

141 The expression ‘serious indictable offence’ is defined in s 325(6) of the Crimes Act as:

an indictable offence which, by virtue of any enactment, is punishable on first conviction with imprisonment for life or for a term of five years or more.

142 The offence of making a threat to kill, which is relevant to Mr Slaveski’s arrest on 8 September 2000, was (and is) a serious indictable offence.

(3) Search of property pursuant to warrant

Common law background

143 The common law allowed the issue of search warrants only in cases where premises were to be searched for the purpose of seizing stolen items, together with the person in whose custody any such items were found.[76] Outside this category of case, the general rule was that police officers were forbidden to enter upon private property without the occupier’s permission.[77]

144 The common law position is now subject to many legislative exceptions. In Baker v Campbell,[78] Mason J described the search warrant in the following terms:

The search warrant has been described as ‘part of the investigative pre-trial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known’ ... Its function is to authorize a search and seizure of materials which will implicate a person in the commission of the offence. The search and seizure which it authorizes is designed, among other things, to yield evidence which can be tendered by the prosecution in the subsequent trial of a person for the offence described in the warrant. [79]

145 Given that statutory provisions for the issue of search warrants authorise what would otherwise be tortious conduct, the courts require those provisions to be clearly expressed in unmistakeable and unambiguous language.[80] They insist that search warrants be issued and executed in strict compliance with the requirements laid down by the legislature.[81]

Crimes Act, Magistrates’ Court Act and relevant regulations

146 Section 465 of the Crimes Act is the core provision governing the issue of search warrants in Victoria. As at 13 December 2005, s 465 relevantly provided:

465 Issue of search warrant by magistrate (1) Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building, receptacle or place— (a) anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or (b) anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or (c) anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant— may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle or place for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law. (1A) ... (1B) ... (2) Subject to this section the rules to be observed with regard to search warrants mentioned in the Magistrates' Court Act 1989 shall extend and apply to warrants under this section. (3) The provisions of this section shall be read and construed as in aid of and not in derogation of the provisions with regard to warrants to search contained in this or any other Act. (4) The Governor in Council may make regulations prescribing the form of any warrant to be issued under this section ...

147 Section 465(2) means that the provisions of the Magistrates’ Court Act 1989 dealing with search warrants are applicable to warrants issued under s 465(1).

148 Section 57(8) of the Magistrates’ Court Act provides:

A warrant must be executed by the use of a copy of the warrant, known as the execution copy, or by the use of a copy of the execution copy, including a copy transmitted by facsimile machine.

149 Section 57(10) of the Magistrates’ Court Act provides that the execution copy of the warrant must be returned to the Magistrates’ Court when it has been executed.

150 Section 78 of the Magistrates’ Court Act sets out the authority given by the search warrant. As at 13 December 2005, this section relevantly provided:

78 Authority conferred by search warrant (1) A search warrant authorises the person to whom it is directed— (a) ... (b) if the warrant is to search for any thing— (i) to break, enter and search any place named or described in the warrant for any article, thing or material of any kind named or described in the warrant; and (ii) to bring the article, thing or material before the Court so that the matter may be dealt with according to law; and (iii) to arrest any person apparently having possession, custody or control of the article, thing or material. (2) ... (3) ... (4) ... (5) For the purposes of sub-section (1)(b)(ii) an article, thing or material that is bulky or cumbersome may be brought before the Court by giving evidence on oath to the Court as to the present whereabouts of the article, thing or material and by producing a photograph of it. (6) The Court m