Former Canberra tow-truck driver wins bid to keep lawsuit against NSW Police in ACT after alleged assault

Dylan Yates, who lived in Calwell until June before moving to NSW near Albury, is suing the NSW government after a police officer allegedly assaulted him during a service station stop in the Riverina before he was charged.

He alleges as a result he has suffered psychiatric, injury including PTSD, anxiety, depression, major depressive disorder, hurt, humiliation and distress.

In his statement of claim filed, he states the alleged incident occurred in November 2018 when he was towing a Ford GT from Shepparton to Canberra as part of his work.

When he stopped at a Shell Service Station in Gundagai, two NSW Police officers - including a senior constable - pulled up behind him.

The senior constable allegedly asked Mr Yates if the Ford GT was stolen or whether it was towed legitimately.

The senior officer then allegedly made a comment that implied Mr Yates was a motorcycle gang member, to which he denied, and asked if he had any 13s tattooed on him and demanded to see any tattoos.

He then allegedly grabbed and twisted both of Mr Yates' arms before being told the two officers would search his truck for guns and drugs.

The senior officer then allegedly pushed Mr Yates onto the road, removed his bum bag from the truck and emptied out his belongings, including $5000 he claimed went missing.

The senior constable then allegedly said the truck was defective and served him a notice, but an inspection four days later in Fyshwick revealed no defect.

Mr Yates alleges the senior officer's conduct constituted assault, leading him to fear "the imminent apprehension of physical violence", and that the force used was a battery.

Two months after the incident, the same officer charged him with failing or refusing to comply with a search.

Mr Yates pleaded not guilty and in October 2019 at Goulburn Local Court, the prosecution withdrew the charge.

The NSW government in April applied to move the case from the ACT Supreme Court to its jurisdiction, saying in a July hearing that it would avoid debate about substantive and procedural laws.

It also said if the application were successful, it would then transfer the matter to the district court in Queanbeyan.

However, Mr Yates opposed the application mostly based on his psychiatric health.

He also argued that there was one common law in Australia and the wrongful acts for which he is suing have not been modified in the NSW legislature.

He said a large number of potential witnesses resided in the ACT or just over the NSW border.

MORE COURT AND CRIME NEWS

In her recent decision to keep the case in the territory, Acting Justice Verity McWilliam said despite Mr Yates moving to NSW, it was due to a change in his health conditions - which weighed heavily in the decision making - and that he still had a "real and tangible connection to the ACT".

She said she accepted the medical evidence that Mr Yates, who had been hospitalised twice recently, was at risk of psychiatric harm if he had to travel to Sydney.

"[Mr Yates] is residing in a safe place, as perceived by him psychologically. Namely, his parents' home," Acting Justice McWilliam said.

"If he travels to the ACT, that is another safe place for this plaintiff. The risk of a psychological trigger is much reduced."

She said Mr Yates' current condition was such that even the prospect of him travelling to Sydney may cause his psychological health to deteriorate.

"The state of the plaintiff is determinative in favour of the ACT Supreme Court remaining the more appropriate court," she said.

"The plaintiff's medical condition, combined with the greater convenience for a number of witnesses in the proceedings in hearing the matter in this court, leads to the conclusion that it is in the interests of justice that the proceedings remain in the forum in which they were commenced."

Acting Justice McWilliam also said the application of NSW law did not pose any difficulty.

Other factors she considered were the location of the legal representatives, the experience of either court and their capacities to provide an efficient trial.

The NSW government was ordered to pay Mr Yates' costs related to the application.

A date for the hearing is yet to be fixed.

Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content: