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Aboriginal Law Bulletin (ALB)
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Aboriginal Law Bulletin --- "Damages for False Imprisonment" [1984] AboriginalLawB 15; (1984) 1(11) Aboriginal Law Bulletin 11


Damages for False Imprisonment

A jury in the Sydney District Court recently awarded Max Conlon damages of $6,500.00 for false imprisonment. The damages were awarded against Sgt Leslie Killen (Dubbo Police) and Constable Stewart McFadden (now Parramatta, formerly of Dubbo Police). Mr Conlon was awarded $5,000.00 damages for compensation and $1,500.00 damages for exemplary damages.

Mr Conlon was detained by the two defendants at an all-night road house in Dubbo at about 12.30 am on 15 November, 1980. The defendants asserted that they detained him under the Intoxicated Persons Act, 1979 (N.S.W.), which requires that the person must be "seriously affected apparently by intoxicating liquor" and behaving in a disorderly fashion, in need of protection or posing a risk of injury to himself, others or property. A person detained under that Act may be kept in custody for a maximum period of 8 hours or he can be released when he ceases to be intoxicated (if that is less than eight hours) or he can be released prior to the expiration of eight hours into the custody of a responsible person. Mr Conlon was released from the Dubbo Police Sation cells at 3 am, into the care of a responsible person. He went straight to the Dubbo Base Hospital where he was examined by a doctor. The doctor was of the opinion that Mr Conlon's speech was normal, he was able to stand and walk properly and his eyes were not bloodshot or glazed. Analysis of a blood sample taken at 3.50am showed that it contained no liquor whatsoever. Mr Conlon is a teetotaller, a dedicated member of the Aboriginal Inland Mission Church, and has not consumed liquor since he was sixteen years old.

The defendants did not dispute these matters in cross examination. The police officers filed a defence claiming that they were acting within the scope of the Intoxicated PersonsAct and that they were acting bona fide.

Both police officers gave evidence that when they detained Mr Conlon his speech was slurred, he was unsteady on his feet, his eyes were bloodshot and that he was waving his arms around and talking loudly. All of these aspects were disputed by the plaintiff and a witness called on his behalf; in any event, when cross-examined, both police officers admitted that they did not detect the the smell of intoxicating liquor on Mr Conlon's breath and that they did not ask him if he had been drinking or where he had been drinking. The defendants accepted the evidence relating to the blood alcohol reading and claimed that they were honestly mistaken. The jury clearly did not accept their explanation.

The case is of considerable significance as it is the first case of false imprisonment arising out of police activity under the Intoxicated Persons Act. It is also of significance because exemplary damages were awarded by the jury to indicate the community's condemnation of the conduct of the police on that instance, and as a deterrant. The award of exemplary damages is regarded as particularly significant as there was no allegation by the plaintif of any physical injury to him, his claim for compensation being based only upon the emotional experience he underwent and the contempt and ridicule he was held in within the community as a result of his illegal detention.

The case also involved the interpretation of s8 of the Intoxicated Persons Act 1969 which provides:

"No action lies against any member of the police force ... in respect of anything done or omitted to be done by him in good faith in the execution or purported execution of the Act.'

It was submitted on behalf of the plaintiff that this section amounted only to a defence. However, Judge Thorley, who presided over the case, ruled that the plaintiff must prove on the balance of probabilities that the police were not acting bona fide.

His Honour directed the jury accordingly.


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