Two Sydney schoolgirls were unlawfully arrested after they assaulted a year 9 girl in an incident caught on CCTV footage, a judge has ruled.
NSW District Court Judge Robert Newlinds said the “violent and shocking” assault by the students, then aged 13 and 14, “appears to have been the culmination of a running battle between two groups of year 9 girls”.
NSW Police unlawfully arrested two teenage girls over a school altercation, a court has found. A police log recorded that threats to stab other students had been made.Credit: Edwina Pickles, Marija Ercegovac
There was “a history, not just of poor behaviour, but of alleged criminal assaults going both ways”, he said.
On the day of the assault in 2020, two police officers were dispatched to the school and up to 10 more responded. The police log recorded “up to 30 students” were assaulting staff and students and “threats to stab other students have been made”.
“Parents are arriving at the site and becoming involved,” the log said.
But Newlinds said in his decision this year that this “greatly exaggerated the situation”.
“No knives were involved, no parents were involved, 30 students were not involved, at best there was three. Nonetheless, that was the information received by the police.”
He used the pseudonym Emma to refer to the victim of the assault.
‘Shocking’ incident caught on CCTV
The judge said the assault was captured on CCTV, and “[in] the context of a fight between young schoolgirls, the incident is shocking”. It could “reasonably be described as violent and serious”.
“It involved punching, hair-pulling, and, once Emma was on the ground, some kicking. It did not go on for very long … [The 14-year-old girl] was undoubtedly the instigator.” The younger teen’s involvement “was much less significant”.
Shortly before the incident, the younger girl had alleged Emma threatened to push her down the stairs, the court heard.
‘Both branded the other as the bully’
“It had been alleged that Emma herself had previously committed a serious assault on a girl in the other group which left that girl unconscious. I am in no position to make any finding about that allegation,” the judge said.
“Of course, at the heart of any resolution of this ongoing issue between [the elder teen] and Emma and the two groups of girls was to determine who was the bully and who was being bullied.
“As is to be expected, both branded the other as the bully and themselves as the victim. Neither the police nor the teachers resolved that question at the time and for the purpose of deciding this case it is irrelevant.”
The arrest
The teens, then in years 8 and 9, were arrested at home about 11.30am that day, and were charged and released on bail at 6pm. They launched proceedings against the state of NSW in 2022, seeking damages for false imprisonment.
Newlinds said the pair was taken to a police station in the city’s southwest without their parents.
He found the arresting officer did not consider allowing the students to be driven to the station by their parents “as an alternative to them being arrested in the full glare of the public in their front driveway”.
The teens were “entirely compliant, quiet, and not agitated, complied with every direction made of them by the police but, as would not be surprising, they did appear to be entirely terrified”, he said.
They were arrested “in the presence of either nine or 10 police officers, with five police vehicles ... in the street”.
“The shock, humiliation, embarrassment, and distress of that circumstance cannot, in my opinion, be underestimated,” he said.
“They each spent somewhere approaching 15 minutes in [separate cells]. That was a terrifying and humiliating experience for anyone, let alone young schoolgirls. Thereafter, the entire period of time was spent in the custody area in the presence of numerous adult, alleged criminals and numerous police officers.”
He concluded the arrest was unlawful, and the arresting officer’s decision was “capricious because it was made almost as a knee-jerk reaction at the school” without considering circumstances that arose later.
He awarded the elder teen $30,000 in damages for false imprisonment and the younger girl $35,000.
Newlinds said “[if] they had gone to the station voluntarily, they would have never been put in the cell, or held in custody at all”. He found the officer “failed to consider an obvious and sensible alternative to arrest”.
By the time of the arrest, the officer’s concern for Emma’s welfare did not bear a “logical connection” to the decision to arrest because the girls were no longer at school, he said.
The judge said the two teens “have both matured into very impressive young people in the four years since, but that does not detract from how they behaved on that day”.
“I say this even assuming (but not deciding) that [the older teen] had been the victim of long-term bullying.”
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