Justice Kaye of the Victorian Supreme Court recently considered an action for false imprisonment and assault brought by Bryan Biddle (Biddle) against the State of Victoria and three Victorian police officers.


At about 10:30pm on 19 April 2011 police attended Biddle's residence in order to arrest him for breaching an intervention order taken out against him by Antoinette Gerada (Gerada). In the course of arresting Biddle, a struggle ensued and officers deployed capsicum spray. Biddle was then handcuffed and transported to Shepparton police station. Police refused bail. Biddle was subsequently brought before Wangarratta Court on 20 April 2011 where the Magistrate granted conditional bail.

Biddle commenced proceedings against the State of Victoria alleging that the actions of the police officers constituted false imprisonment and assault and as a result of the arrest and detention he suffered psychological injuries.

The principle issues to be determined by the court were as follows:

  1. Whether the officers believed on reasonable grounds that the plaintiff had committed an offence;
  2. Whether officers executed the arrest in a lawful manner, specifically whether when apprehending the plaintiff they advised him he was under arrest and the reasons why he was under arrest;
  3. Whether the officers used unnecessary and unreasonable force in effecting the arrest;
  4. Whether discharging the capsicum spray and placing the plaintiff in handcuffs was excessive force; and
  5. Whether the plaintiff was brought before a bail justice within a reasonable time.


Reasonable grounds for arrest

In determining whether the arrest was reasonable his Honour noted that it was not necessary for the police at the time at which they arrested the plaintiff, to have assembled sufficient evidence upon which the plaintiff might be convicted. Rather it was only necessary for them to have sufficient information upon which they might have reasonably believed that the plaintiff had breached the intervention order.

The question for his Honour to consider was thus whether the police had reasonable grounds for believing that the plaintiff had attended Garada's premises on that evening.

His Honour, in concluding that the officers did have reasonable grounds to arrest Biddle, took into account the police officers earlier dealings with Biddle, the report of Gerada that Biddle had attended her premises that evening and the admission by Biddle's wife that Biddle could have left their premises during the time it was alleged that Biddle was as Gerada's. Based on this evidence his Honour determined that it was reasonable for the officers to form the belief that the plaintiff had breached the intervention order.

Lawfulness of arrest

In considering the lawfulness of Biddle's arrest his Honour considered the credibility of the witnesses involved.

Counsel for Biddle was critical of the differences in the accounts of the police officers; however, his Honour formed the view that had the evidence of the officers been identical he would have had a strong reason to suspect that the officers had colluded. Whilst his Honour noted that there were some differences in the officers' evidence he was satisfied that overall their independent accounts were generally consistent, providing support for the credibility of evidence of each of them.

Conversely, in assessing the Biddle's evidence his Honour found Biddle to be "an unsatisfactory and unreliable witness". Biddle persistently refused to answer a number of questions put to him and the inconsistencies in his evidence reflected adversely on his reliability.

In these circumstances, his Honour accepted the evidence of the officers that Biddle was informed that he was under arrest for violating an intervention order on more than one occasion and that his behaviour meant that officers did not have the opportunity to give the plaintiff any further explanation of the offence.

Unreasonable use of force

In assessing whether the use of capsicum spray constituted excessive force, his Honour stated that it was important to consider the fact that the plaintiff had engaged in a physical struggle and had offered strenuous resistance. His Honour referred to the circumstances surrounding the deployment of the spray as "quite dynamic" and accepted the evidence of the officers that there was a genuine risk of injury if the struggle were to continue. Thus his Honour was satisfied that the deployment of the capsicum spray was not an unreasonable or excessive use of force.

In regard to the question of whether handcuffing Biddle was a reasonable use of force, his Honour noted that from the moment police spoke with Biddle he was unpredictable and volatile in his behaviour. Having already engaged in a struggle with Biddle, his Honour was satisfied that the use of handcuffs was not excessive or disproportionate to ensure Biddle was properly secured.

Ultimately his Honour concluded that Biddle's arrest and subsequent detention was lawful and the force used by police reasonable, such that Biddle's claim failed and his Honour awarded judgment in favour of the defendant.


Although the decision of his Honour does not substantively alter the law relating to the power to arrest and the use of force by police officers, it is a sensible judgment which takes into account the myriad of factors which officers are faced with on a day to day basis when executing their duties.

The decision may be of benefit to defendant solicitors when drafting communication to plaintiffs' solicitors and to tender in court in support of the lawful actions of police officers, as it:

  • takes into account the reliance of officers upon the information provided to them;
  • finds that an officer is not required to have assembled sufficient evidence upon which an offender may be convicted at the time of arrest;
  • acknowledges that officers act in unpredictable and volatile environments; and
  • finds that, inconsistencies in the evidence of witnesses will not necessarily be fatal to the case.