Andrei Vatarescu v The Commonwealth of Australia and the Australian Capital Territory
[2012] ACTSC 96
•15 June 2012
ANDREI VATARESCU v THE COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN CAPITAL TERRITORY [2012] ACTSC 96 (15 June 2012)
TORTS – MALICIOUS PROSECUTION AND FALSE IMPRISONMENT – Malicious criminal proceedings – plaintiff unable to be served with personal protection orders granted to complainant – plaintiff charged with stalking – prosecution maintained despite “rebuttals” provided by plaintiff to Magistrates Court – repeated failures to appear by plaintiff – plaintiff charged with failing to appear on a bail undertaking – complainant posted overseas – DPP had no evidence to offer – charges dismissed more than three years after being laid – action for malicious prosecution brought in respect of actions of police officers and prosecutors in laying and maintaining charges – laying of charges, and dismissal of charges, not in dispute – failure by plaintiff to establish absence of reasonable and probable cause by any active participant in prosecutions – failure by plaintiff to establish malice on part of any active participant in prosecutions – failure by plaintiff to establish any loss arising out of prosecutions – actions against both defendants dismissed – plaintiff to pay defendants’ costs.
Australian Federal Police Act 1979 (Cth), ss 4, 8
Australian Federal Police Regulations 1979 (Cth), Schedule 1
Crimes Act 1900 (ACT), s 35
A v State of New South Wales [2007] HCA 10
Fitzjohn v Mackinder (1861) 142 ER 199
Glinski v McIver [1962] AC 726
Moses v State of NSW (No. 3) [2010] NSWDC 243
State ofNew South Wales v Landini [2010] NSWCA 157
State of NSW v Hathaway [2010] NSWCA 184
Trobridge v Hardy (1955) 94 CLR 147
Fleming’s The Law of Torts (10th ed, rev Carolyn Sappideen and Prue Vines, Thomson Reuters, 2011)
Balkin and Davis, Law of Torts (4th ed, LexisNexis, 2009)
The Macquarie Dictionary, English Dictionary (online version, March 2012)
ACT Policing Practical Guide: Briefs of Evidence
Protocol on Prosecution Support
DPP Prosecution Policy, para 2.3
No. SC 428 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 15 June 2012
IN THE SUPREME COURT OF THE )
) No. SC 428 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANDREI VATARESCU
Plaintiff
AND:THE COMMONWEALTH OF AUSTRALIA
Respondent
AND:THE AUSTRALIAN CAPITAL TERRITORY
Respondent
ORDER
Judge: Penfold J
Date: 15 June 2012
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff’s action against the first defendant is dismissed.
The plaintiff’s action against the second defendant is dismissed.
The plaintiff is to pay the costs of the first and second defendants.
Introduction
Andrei Vatarescu, who has represented himself throughout these proceedings, instituted action against the Australian Federal Police (AFP) and “the ACT Government” by an originating claim filed on 30 August 2007.
Dr Vatarescu was charged with two offences, the first being an offence of “stalking” under s 35 of the Crimes Act 1900 (ACT) and the second being an offence of failing to appear on a bail undertaking during the proceedings in respect of the stalking charge. The current proceedings claim compensation arising out of the handling of the two charges by the AFP and the Office of the Director of Public Prosecutions (DPP).
It is unnecessary to recite the whole sorry history of Dr Vatarescu’s conduct of these proceedings, but several comments do need to be made.
First, I am satisfied that whatever his original intentions, Dr Vatarescu’s action is now a claim in malicious prosecution and nothing else (see [13] to [22] below).
Secondly, Dr Vatarescu’s approach to the case appears to reflect a belief that the evidence he has provided so clearly establishes the necessary elements of the tort of malicious prosecution that neither the Court nor the defendants need any help in understanding his arguments or drawing the conclusions he requires. Dr Vatarescu has provided copious argumentative material, to this Court and before that to both the Magistrates Court and the DPP, in “rebuttal” of the original charge brought against him; whether that material should or could have been accepted as a basis for dropping the charge will be considered in due course. However, what Dr Vatarescu has not done is to provide submissions explaining how the evidence before me should be interpreted as establishing the elements of the tort of malicious prosecution – which is a question encompassing rather more than simply the relationship between the evidence that was before the prosecuting authorities and the charges laid and maintained by those authorities.
Finally, I note that although Dr Vatarescu’s arguments regularly refer to “the charges”, there is little in the evidence, and nothing in the arguments made by him, that applies specifically to the charge of failing to appear on a bail undertaking.
The original inappropriate descriptions of the two defendants were amended, in accordance with orders of the Master made in June 2008, to show the Commonwealth of Australia as the defendant in an action arising from conduct of the AFP and the Australian Capital Territory as the second defendant rather than “the ACT government”.
The origins of these proceedings
In 1999, Dr Vatarescu became acquainted with Kilmeny Beckering Vinckers (the complainant). She lived in the same block of flats in Watson as Dr Vatarescu, and they were introduced by another resident of the same block. Dr Vatarescu was apparently more interested than the complainant was in developing this acquaintanceship, and over time he issued a series of invitations for the complainant to engage in conversations with him. On a couple of occasions these invitations were accepted but mostly they were declined. The complainant also tried to deflect other attention that was paid to her by Dr Vatarescu.
In October 2002, the complainant moved to a unit in Braddon, without informing either Dr Vatarescu or their mutual acquaintance of her new address. Dr Vatarescu became aware of her new address, and on occasions the complainant observed him in the vicinity of her new unit. On several occasions Dr Vatarescu was involved in passing on mail for the complainant which had accumulated in the mail box of her flat in Watson. In November 2002, the complainant obtained an interim Personal Protection Order (PPO) against Dr Vatarescu, and shortly thereafter a 12-month PPO, but police did not manage to serve either of these orders on Dr Vatarescu.
In December 2003, Dr Vatarescu made two visits to the complainant’s unit, to deliver mail and to leave a note asking her to set a time for them to have a chat.
Following those visits Dr Vatarescu was invited by the complainant, by a message left on his telephone answering machine, to attend at the Debacle restaurant in Braddon, where he was served with a PPO, immediately arrested and later charged with stalking the complainant. After some hours he was released on bail subject to conditions including daily reporting to police. He was re-arrested in June 2004, having failed to appear in the Magistrates Court on several occasions. At some point he was charged with failing to appear on a bail undertaking.
The criminal proceedings dragged on for several years until the stalking charge was finally dismissed when the prosecutor formally indicated that, due to the complainant’s extended absence overseas, he had no evidence to offer. The related charge of failure to appear on a bail undertaking was dismissed a few days later. These proceedings were begun six months later.
Scope of the action
The original claim
Dr Vatarescu’s statement of claim sought compensation for malicious prosecution, wrongful arrest and false imprisonment. These claims were “particularised” as follows:
1.Malicious prosecution based on a lack of investigation in 2003, and refusal to investigate in 2004, in the ACT;
2.Wrongful arrest outside the “Debacle” restaurant on Lonsdale Street in Braddon at 18.25 hours, and false imprisonment on Wednesday 17 December 2003 for 18 hours inside the Civic police station;
3.Malicious bail conditions of daily reporting to the ACT Police between 18 December 2003 and 14 January 2004;
4.Wrongful bail conditions of reporting to the ACT Police twice a week between 15 January 2004 and 24 January 2004;
5.Wrongful arrest outside the Pasadena building at 111 Knox Street, Watson, and false imprisonment inside the Civic police station on Saturday 5 June 2004 for 42 hours despite my having requested the ACT Magistrates’ Court to schedule a hearing during my stay in Canberra on the basis of my rebuttal submitted on 2 January 2004; and,
6.Wrongful bail conditions of reporting to the ACT Police twice a week between 7 June and 7 July 2004.
Under the heading “Reasons for making the claim”, Dr Vatarescu’s document states:
In order to send a clear and unambiguous message that acts of unjustified and wrongful bullying and abuse committed by the ACT Policing Force and the ACT Director of Public Prosecutions are not part of the ACT community’s approach to law and order, compensation should be awarded for the malicious prosecution, wrongful arrest and false imprisonment to which the plaintiff has been subjected.
The compensation should be commensurate with the gravity of the ordeal and nightmare the plaintiff had to endure.
Consequently, a minimum amount of compensation should be $200 000, with market interest to be calculated from December 2003.
Dr Vatarescu revised his pleadings over time. In July 2008 a new statement of claim was filed specifying a claim for malicious prosecution as well as claims for wrongful arrest, false imprisonment and “damaging and injurious bail conditions”, all three described as “resulting from malicious prosecution”. In May 2009 an Amended Statement of Claim was filed, which omitted the claim in respect of bail conditions. Later still, Dr Vatarescu accepted that his claim should be confined to a claim for malicious prosecution, rather than also including wrongful arrest and false imprisonment claims.
After an extended series of interlocutory proceedings mainly initiated by the defendants and aimed at requiring Dr Vatarescu to amend his statement of claim to put it into proper form, I suggested, and the defendants agreed, that despite the problems with the statement of claim, it might be more efficient for the matter to be heard and finalised than to continue with repeated interlocutory proceedings. This approach was adopted on the basis that although Dr Vatarescu’s claim was not properly pleaded, his substantive complaints were as clear as they were ever likely to be, and should be addressed.
Accordingly, a hearing date was set.
Clarification of pleadings
Perhaps unsurprisingly, one of the first issues that arose when the hearing began was the exact scope of the action that was being heard, because Dr Vatarescu’s opening submissions raised doubts in the minds of defence counsel about whether Dr Vatarescu was adhering to his earlier agreement that the claim was confined to malicious prosecution. Defence counsel accordingly queried the status of Dr Vatarescu’s earlier claims based on wrongful arrest and false imprisonment. Eventually the following exchange took place:
HER HONOUR: Mr Vatarescu, what do you think? What are the actions that you are pursuing, the claims?
MR VATARESCU: Of course, it’s malicious prosecution but in order to prove malicious prosecution you have to adduce material facts which later on should prove the malicious prosecution.
HER HONOUR: Yes, yes, but okay, so it is a claim for the tort of malicious prosecution?
MR VATARESCU: Yes, sure, the point is that you have to back it up with something.
HER HONOUR: Yes, you have to back it up with something, but not with other torts, necessarily.
MR VATARESCU: No. You have to back it up with evidence
Dr Vatarescu’s abandonment of claims in wrongful arrest and false imprisonment, as described above, was noted by the first defendant in written submissions after the hearing. This produced the following response in Dr Vatarescu’s submissions in reply:
A: Clarification of the compensation claim
1. No modification was made to the compensation claim at the hearing ... Only the option of going to trial without pleadings was abandoned.
1.1 The matters of wrongful arrest and false imprisonment unrelated to or non-contingent on the matter of malicious prosecution were not included in the pleadings;
1.2 The consequences of the malicious prosecution, ie. Wrongful arrest and false imprisonment as presented on the first page of the amended statement of claim were never withdrawn, nor abandoned;
1.3 The option of wrongful arrest and false imprisonment unrelated to or non-contingent on the matter of malicious prosecution was misinterpreted by the defence counsels [sic] as a new matter arising from the evidence of invalid charges and illegal arrest warrants which was presented by the plaintiff at the hearing on 5 November 2009. It is this option which was ruled out by the plaintiff. (emphasis in original)
I do not understand the distinction Dr Vatarescu seeks to draw between wrongful arrest and false imprisonment as consequences of the malicious prosecution, and wrongful arrest and false imprisonment that is “unrelated to or non-contingent on” the alleged malicious prosecution. Possibly he asserts that his arrest and brief imprisonment were, respectively, wrongful and false because they related to a prosecution that was malicious. However, since none of Dr Vatarescu’s oral or written submissions mention even the elements of the torts of wrongful arrest and false imprisonment, and there is a distinct absence of evidence about the circumstances of his arrests and periods in custody, I see no basis for treating his action as including actions in respect of those torts. If either tort was ever contemplated in any of Dr Vatarescu’s pleadings, I consider that any relevant aspects of the pleadings had been withdrawn by the time the matter was heard.
Accordingly, this judgment deals solely with Dr Vatarescu’s action in malicious prosecution.
It is alternatively possible that Dr Vatarescu’s reference to wrongful arrest and false imprisonment as consequences of the malicious prosecution were intended to point to aspects of the loss he has suffered as a result of the prosecution; this is considered at [291(e)] and [292] below.
The hearing
The course of the hearing
On 5 November 2009, Dr Vatarescu made opening submissions as follows:
Your Honour, this case, this compensation case, is the result of a rather aggressive and very reckless mode of operation practised by the defendants while prosecuting the plaintiff between February 2003 and February 2004.
This case, as I maintain before, is simple and straightforward. It is simple because there was no evidence to begin with to charge the plaintiff and it was straightforward, still is straightforward because the defendants deliberately ignored information and evidence which pointed in the opposite direction to the avowed goal of convicting the plaintiff.
From the very beginning, the charges [sic] laid by the plaintiffs were both illegal, they were invalid and consequently everything that flowed, starting from that particular charge, was illegal. (emphasis in original)
Dr Vatarescu then gave sworn evidence. He was not cross-examined.
On 6 November 2009, after Dr Vatarescu had completed his evidence, I adjourned the hearing until 5 February 2010 and made orders for an exchange of written submissions.
When the matter resumed in February 2010, after submissions had been filed in accordance with those orders, the defendants indicated that they did not wish to call any evidence or to make any oral submissions.
Oral evidence
Dr Vatarescu’s oral evidence related almost entirely to events after he was first arrested. On the first day of the hearing he gave the following evidence:
The first I heard of this, of a case brought against me by the DPP and the AFP, was at 6.25 on a Wednesday 17 December 2003 when I was waiting outside a restaurant aptly called the Debacle which was going to give a meaning to the whole operation, and I was summoned there by the complainant.
By whom?---By the complainant in a phone message I found on my answering machine the night before. I assumed it has to do with ... a note I attached to some mail items I had delivered to her from the previous address, because she had left the previous address a year earlier and there was still some residual mail items turning up there, and since I was the only neighbour she knew who would walk between the suburb of Watson and Acton, the university campus, it was on my way. Besides I had a friend who was already living in that residential complex, actually in the same building on the other side, and so it was easy for me to bring the letters or mail items. So I went to that particular location outside Debacle Restaurant which is in Braddon on Lonsdale Street about 100 metres away from Girrahween Street, which is overall some 250 metres away from her residential complex, and since I know the neighbourhood pretty well, north Canberra, it doesn’t take long for me to find the place. So at 6.25 two police officers dressed in civilian clothes approach me and ask me if I was the person whose name appeared on a protection order. And then I said, “Yes, what happened?” “Well, we have to take you in Ford.” Okay, no problem let’s go in. So they put me in a Ford car, we went to the police station just across the street here, down to the Watch-house, whatever they call it, and well started to okay empty your pockets, take off your sandals or shoes, belt off, and what is that? Okay, get in the - what happen? They didn’t know for about one and a half hours, then the same four, five police officer who had encircled me before came to the cell. “Well, we are going to charge you with stalking Ms Beckering-Vinkers.” “You must be kidding?” I said to them. So, they took me before the sergeant. They asked me a few questions, I can’t remember exactly the questions, and they said well yes, I find no problem …(inaudible)… but never questioned me, and they charged me, they put me in a detention cell for the night. The next day they brought me before the Magistrates Court. I thought that the matter would be sorted out but little did I know that the whole saga was going to just – was just beginning, and what happened was that when they read out the charge I didn’t understand what it was all about because what I was told that unless you sign this bail condition you won’t get out of here. I said, “Well okay, let’s get out of here first.” So they signed me out from the outside. So the problem was that the bail condition was rather severe, every day reporting to the police for what? I didn’t have a clue what I had done. There was a legal aid lawyer, Foliaki‑Singh if I remember her name. But she didn’t read the charge, she didn’t read anything, so she couldn’t do much, just advised me to sign off on the bail conditions so I could get out. So, all right. So it is on 18 December, well it took me a couple of days to figure out what is going on, and then the Magistrates Court closed for about two weeks on 23 December for the Christmas/New Year break. So over the long two weeks of daily reporting to the police, I prepared - actually I prepared a first version of the rebuttal which I handed in to the Legal Aid within days before the 23rd, but they knocked back my application. So on 2 January, which was a Friday, I fronted up to the Magistrates Court and I handed in my rebuttal. I had no idea about the legal proceedings, I mean legal system. So, on Monday I went back again, after I ask her what is going on and they said we took it, put in the file. I mean what was in the file? I need to get out of these bail conditions. Okay, then you sir take a new copy, go to the DPP. Where is it? Across the street over there. And okay I did that. A week later I received a letter from one of the senior DPP prosecutors saying that my rebuttal isn’t acceptable and they are going to proceed with the case. Then I went back to court and I asked for bail conditions to be varied, I think it’s called. So, instead of daily reporting after 28 days during the summer break I was given only two days a week to report. But I notified the Magistrates Court that I was going to leave Canberra as planned before the end of January and I was ready to have an expedited hearing, as soon as possible a date should be set down for a later time. Nothing happened so there was I think another letter to the DPP and this time there was another letter, a response again, saying that we are going to proceed regardless of your position. Fine, no problem. And then I went away for about three months, I came back, I kept the place in Watson. It was a bedsit, didn’t cost much at the time. So come back to Canberra to sort this thing out. In the meantime I had sent in by post a summation for the case management, there’s nothing I can do about case management, I don’t have a lawyer, just set a date for trial, I’ll turn up, he didn’t set any date for the trial. I came back towards the end of April and then I tried to figure out how the legal system works in the ACT, I approached the Department of Justice by email, I tried to make some inquiries. I couldn’t figure out much in the end so I thought the best thing to do is to leave a copy of the rebuttal and other documents in the complainant’s mail box, I was there anyway. That was a breach of the bail condition but they didn’t charge me with that ...
So I was wondering why not. So I went about my business. I had to go overseas in July as planned and I had to get a new passport and I had to other things - new driver’s licence that were coming at the same time. And then all of a sudden on 5 June, I believe, on a Saturday afternoon, apparently the police had been staking out the building where I used to live since the morning, and as I got out, “Okay is that you?” “Yes.” And, “Okay come with us.” “Okay come with you. For what?” “Well I don’t know what’s happened.” “Okay. Are you going to talk to me this time, question, sort things out?” “No” and they put me in a cell for two days until Monday. Start all over again. I mean if - well I can express an opinion? The first time they said they didn’t have time to prepare the brief, the brief would have been ready by now. Half a year later. They still didn’t talk to me, still they started the process all over again. “Sorry, I have to go overseas.” So, I went overseas in July for about until the end of November, and I ended up in Canberra again. I got stuck in Queanbeyan, I couldn’t find a place to rent in Canberra until the end of January. So I came back to Canberra towards the end of January 2005. I was still doing some work in Canberra. Trouble is that I tried to figure out how the legal system worked because my position from the very beginning was I mean to go to the Magistrates’ Court any time you wish but you have to bring the accuser to court so it can sort the things out right away without having to go through the process three or more times, another half a year and the other one was that, look, someone has to pay compensation for the losses I incurred because I can easily prove that nothing of what I was charged with could be substantiated. I said “No don’t pay compensation, you better watch that but because of their mistakes, why should I bear the cost of your incompetence, why should I bear the cost of your malicious prosecution” or this is how it goes. Well that’s how it goes, we’ll have to wait for the complainant to come back from overseas so that you couldn’t argue at that stage that crucial witness was not available to testify and that’s why you got off the hook ...
Well what I did was to figure out a way of obtaining compensation for the losses I have incurred without having to initiate a legal process like this one because I was told the only way to get compensation was to sue the authorities basically the government and the AFP for I don’t know, malicious prosecution or whatever other offences I might be able to come up with. So towards the end of 2006, I went to the DPP’s office outside here and I talked to the Deputy DPP Chilcott, Michael Chilcott at the time, I’m not so sure now. So, he says he was going to look into the matter. He said, “Yes, we still prosecuting and they are not going to get any compensation even if you get off the hook. If you’re not found guilty.” ...
No, the problem is, well how do you deliver justice if, I ask myself, do you deliver justice by having the person who’s not guilty of something bear the cost of a malicious prosecution? No. Do I have the money to hire legal representation to get this matter up to the Supreme Court? No. So what can you do? All you can do is to wait for the complainant to come back from overseas so that the matter will be sorted out without any reservation or any implication at a later stage the plaintiff, that is myself, would be accused of taking advantage of her absence from the country not to get off the hook criminally but going to court afterwards to claim compensation. So, it was a tricky one. Eventually she comes back from overseas. I learned about that and I went again to the DPP, Chilcott again, I thought look it’s time for you to put up or shut up the complainant is in the country. Let’s have a hearing everything together. It’s a pretty tough one and I know it and I’ll press the compensation afterwards because once I prove that there was no evidence, no evidence to justify the cause of action taken by the defendants, I should have no difficulty in proving malicious prosecution. So eventually they did organise a hearing or mention on 12 February 2007. I turned up, but instead of deciding what to do whether to offer no evidence or whether to decide on okay keep on prosecuting, okay, keep on prosecuting.
Sorry, who said that?---The DPP representative in court decided - they made a decision to carry on prosecuting in February 2007.
He said in court that he was going to - - -?---Yes, it’s also in the documents in the - - -
Right, well we’ll get to the documents in due course.---And what happened next, yes, I went to court and days later, okay, they dropped the charges against me for stalking but they kept up the charges of, what is it, failure to appear. Okay, I said fine - - -
When was that?---On 12 February when it was the first mention, after the mention I went to the DPP’s office and I said “Look, I can’t stay in Canberra for longer than another three weeks. You either sort this one out in three weeks’ time or you will have to chase me again next year.” They decided - they managed somehow to find a time slot for this case on the 22 February, ten days, later they summonsed me to court. They dropped the charges of stalking against me but they kept up the charges - they maintained the charges of failure to appear and I said fine but do it quickly so they managed to find another time slot five days later on 27 February and the magistrate, well it was actually the same one who was first - who imposed on me the bail conditions, that was Magistrate Doogan actually and looked at the evidence, listened to what I had to say and the mitigating circumstances - on the basis of mitigating circumstances he decided to dismiss the charge and so I was free to pursue compensation. Well, that’s not the problem. For me to pursue compensation I needed either money to the amount of at least three or $4,000 to hire some legal firm for a long duration or to stay in Canberra and do it myself. So given that I could do some work over the internet I decided to stay in Canberra and so here we are again, I mean, we do - we’ve progressed from the first statement of claim which was struck out to the second statement of claim to the amended statement of claim and so on. That’s what I know. What’s happened before I can try to reconstruct from the documents or from whatever.
The next morning, Dr Vatarescu gave further evidence about a PPO taken out against him by the complainant as follows:
Well the first time I saw the protection order was at 6.25 pm outside on - next to the restaurant named Debacle in - on Lonsdale Street.
What date was that?---The date was 17 December 2003.
2003?---Yes.
Right, okay. And you have no knowledge of any attempt - - -?---No.
- - - to serve it before that?---No. There was - I wasn’t residing at that address at the time. And there was indeed a sealed envelope - - -
Sorry, at which address were you not residing?---In the – [xx/yyy] in - I’ve forgotten what the name of the street, I can’t remember. Knox Street, Knox Street in Watson. And the information I got over the phone was that a medium sized yellow or orange - - -
...
HER HONOUR: Dr Vatarescu, can you explain what you’re telling us about? You’ve said that you weren’t residing at - - -?---Well, it was summertime, it was December.
December?---2002.
‘02. And something happened?---When the sealed envelope - when I was in Canberra, someone else taking care of my mail. And what happened was that I was told that this envelope, but there’s no sender’s name on it, there - - -
Sorry, there was an envelope where?---In my mailbox, sealed.
In Watson?---Yes. But there was no sender’s name on it.
Right?---There was only the return to PO Box. So I advised that person to drop it back in the mail with a “return to senders PO Box” in circle or something, that’s all. That’s - that’s when I - later on, I mean, one year later I only linked the two things together, it could be the same one, it could be something - - -
Okay, we don’t need the - - ---I don’t know.
- - - speculation at this stage.---Now, as to other times, well I was actually residing in a building next to the Davenport residential complex and this was one of the reasons that I was being seen that particular neighbourhood.
Dr Vatarescu did not call any other witnesses. At the beginning of the hearing I had asked him about the possibility that had been raised in earlier directions that he might call as witnesses a number of the people involved in his proceedings, to which he replied:
No, your Honour, I decided, as the witnesses were hostile to the plaintiff, there was no point in the plaintiff’s subpoenaing the witnesses. If the defendants would like to shed new light on the evidence, you are welcome to summons or subpoena the witnesses for whom I’ll be ready to present questions.
There was thus no direct evidence before me of the state of mind of any police officer or DPP officer.
Exhibits
Dr Vatarescu tendered assorted documents, most or all of which he had obtained from the defendants. Some were objected to; those that became exhibits are listed at Appendix A.
The facts
Chronology
The following chronology reflects the evidence provided by Dr Vatarescu and not challenged by the defendants.
1998
In November 1998, the complainant moved into a flat in Watson (Exhibit B).
1999
In late 1999, the complainant was introduced to Dr Vatarescu by their mutual neighbour Robin Antioch, and Dr Vatarescu began trying to establish some kind of relationship with the complainant. Events of this period and the next couple of years are described in the complainant’s witness statement (Exhibit C) as follows:
I was introduced to Andre VATARESCU by our neighbour Robyn ANTIOCH. That same day I met Andre at the Dickson Woolworth’s. He asked me for a lift home, which I gave him. Shortly thereafter Andre started to leave notes under my door and in my post box asking to meet with me to discuss Indigenous affairs, which was the area of work that I was in at that time. I ignored these notes.
Andre then started to come to my door on numerous occasions, banding on it and shouting my name if I didn’t answer (which I generally didn’t). The notes and door banging continued.
Andre then tried to phone me with requests for meetings. During one of these calls I shouted to him “leave me alone”. This seemed to work for a limited time but a few months later the notes started up again. Andre would also take my mail out of the post box when I was on leave (usually for about 5 weeks in July/August every year) despite the fact that a friend would collect my mail once a week. He would then give it to me on my return with a note stating that my friend had not done a good enough job.
At one stage Andre left a stuffed bear in a bag on my door. Attached to the bear was a poem asking me to adopt it and let it hibernate in my apartment. I returned the bear and the note (I left it hung on his door). Little stickers of bears then appeared on the wall of the stairwell as well as on his post box. He drew tears and a sad face on them.
On one occasion after repeatedly being harassed by Andre and being accused of not speaking to him, I knocked on his door and said that he could speak to me at that time. I decided to speak to him so that he could no longer use my ignoring him as an excuse to continue to contact me. Andre came up to my apartment and we spoke about current affairs and my time in Bougainville as a peace monitor. We spoke for about 40 minutes. I then hoped that he would not resume contact. However shortly thereafter he requested that I put aside time in my diary on a weekly basis to continue such discussions. I could not seem to win.
Andre has also tried to contact me at work on one occasion when I worked on the Indonesia desk at the Department of Foreign Affairs and Trade. At this time he again asked to meet with me.
2001
On 1 May 2001, the complainant wrote (Exhibit J) to her landlord for the Watson flat, describing her difficulties with Dr Vatarescu and asking him to raise the matters with Dr Vatarescu or his landlord.
I refer to our phone discussions of 19 September 2000 and of this morning regarding Andre, the current resident of the apartment below mine at [xx yyy] Knox Street, WATSON.
As I said, Andre seems to have developed an interest in my life and background and has been trying for some months to set up a meeting with me to discuss, inter alia, the Canadian Senate system, and more recently, my time in Bougainville. Andre has repeatedly invited me out to dinner in Dickson assuring me that it is not a date but doesn’t seem to understand that my silence on the matter is a way of ignoring this pursuit.
Andre increased his visits to my door which occurred every weekend for awhile prior to my leaving in early December for overseas (he not only bangs on my door but calls my name quite loudly at the same time which is fairly disturbing). As I had been on the phone each time he had arrived at my door, I had just called out to him alerting him of that fact, and he had gone away. However he then left me a number of notes which I found quite disturbing. Andre has left notes in the past when I have not answered my door, repeating his requests about seeing me.
More recently, in the past few months, Andre has once again resumed his requests for meetings etc. I finally gave in on Australia day and had a discussion with him in my apartment, hoping that that would put to rest any further requests. Unfortunately that was not the case and he has repeatedly made more requests, actually asking me to put aside a regular time in my diary to meet with him. I have had one other discussion with him in my apartment. This occurred on Easter Monday. I get to the point where I get completely fed up and just give in so that he will stop bothering me.
On Anzac Day when I returned home late in the afternoon I found a bag containing a stuffed bear hanging on my door. It was from Andre with a little note on it asking me ‘to find a warm place where [the bear] could hibernate’. I left the bear and note at his door the next morning, adding on the note that I could not accept his gift. As per usual, a note from Andre was in my mailbox when I returned that evening. On top of this he rang me on the weekend to see if I would meet with him again. I told him to “back off” and am hoping that will be the end of it but have little faith in his willingness to respect my privacy.
To top it all off, he glued a little picture of a crying teddy bear to his mailbox as, I can only surmise, a reminder to me of the antics of last week. That disappeared yesterday to be replaced by a little sticker of another teddy bear. Although all of his actions seem quite harmless, they are nonetheless, intrusive. I have had enough of his requests and foolishness and would really prefer that he does not contact me at all in future.
I would appreciate it if you could raise this issue with either Andre himself or, if he is a tenant, with his landlord. I would just like to enjoy my privacy when I am at home and would hope that he could respect that request.
In October 2001 the complainant bought a unit in Braddon, but did not occupy it immediately (Exhibit B).
2002
In October 2002, the complainant moved into her unit in Braddon, without giving her new address to either Dr Vatarescu or Mr Antioch (Exhibit B).
Dr Vatarescu’s behaviour during October and November 2002 is described in the complainant’s witness statement (Exhibit C), and in the police statement of facts in the third person (Exhibit B), as follows:
Approximately three weeks after moving in I was sitting on my patio when Andre walked past my courtyard. He did not see me and I remained absolutely still so as not to attract attention. A few days later he returned and this time he noticed me. He stopped on the other side of my fence from me and stared in at me. He did not try to communicate, he just stared for about 10-15 seconds then continued up the path.
This behaviour has continued. I usually watch the news between 6pm and 7.30 pm, the time when the defendant generally passes by my flat. However, when I am in the living area of my flat during that time, I usually see him walk by. He has begun to do double circuits especially if he knows that I am home (if I am out on my patio or when my stereo is on or the patio door is open).
On 19 November 2002, the complainant applied for a PPO against Dr Vatarescu. An interim PPO was made, effective until 27 November (Exhibit A).
In her application, the complainant described Dr Vatarescu’s behaviour as follows:
I believe [Dr Vatarescu] has: Engaged in behaviour of such an offensive or harassing nature in that:
he continues to seek out my company even though I have moved and does not seem to understand that I do not want to meet with him—through notes, phone calls—now he has taken to passing past my new flat & peering in. (see attached statement).
and unless the respondent is restrained, I believe that such behaviour is likely to happen again.
The first defendant says that the “attached statement” is the letter written by the complainant to her landlord on 1 May 2001, set out at [35] above (Exhibit J). The contents of the May 2001 letter, for obvious reasons, are not directly relevant to the claim (that Dr Vatarescu has taken to passing her new flat and peering in) that is set out immediately before the reference to the attached statement, but the copy of the letter tendered in evidence has a reference number handwritten on the top right-hand corner that matches the reference number on all the PPO documents, and I find on the balance of probabilities that Exhibit J was among the PPO papers available to police. Dr Vatarescu has claimed that the May 2001 letter is an attempt to “confuse the matters”, but tendered it without disputing its authenticity.
On 27 November 2002, an interim PPO was made, effective until 11 December. On 10 December, Senior Constable David Gibbs swore an affidavit (Exhibit A) detailing AFP efforts to serve PPO documents on Dr Vatarescu and applying for substituted service, as follows:
A. Police have made numerous visits to the address of the Respondent named in an Interim Personal Protection Order Mr Andre VATARESCU of ... Pasadena Apartments, 111 Knox St, Watson A.C.T in an attempt to serve a Notice of Proceedings, Interim Personal Protection Order and an Application for a Personal Protection Order RO02/958 issued by the Deputy Registrar of the ACT Magistrates Court on the 19th November 2002.
B. On the evening of the 26th November 2002, Police attended the residence in an attempt to serve the Respondent without success. The Order was subsequently returned unexecuted.
C. The Deputy Registrar re issued the Order on the 27th November 2002, Police attended the Respondent’s residence on that evening, nil person/s answered the door. Further attendances were on the next day, newspapers were at the front door, however the following day the papers were gone.
D. On the 2nd December 2002, a telephone message was left on the Respondents answering machine to contact Police as a matter of urgency, no return call was received, attempts to serve the Respondent on the 2nd and 3rd of December during the evening were also unsuccessful.
E. Police again attended the Respondents residence on the 4th December early morning and left an AFP calling card under the front door to contact Police, plus another phone message. On a return visit on the 6th December, the AFP calling card had been removed from the front door.
F. Enquiries with various neighbours indicated the Respondent will not/doesn’t answer the front door, further attendances by Police on Saturday the 7th & Sunday the 8th December and on early and evening of Monday the 9th December, it was noted the lights were on inside the premises.
G. Police contacted the Applicant on the 9th December 2002 and updated her on the Police enquiries to serve the Respondent, she was advised all efforts so far were unsuccessful and an application for a substitute service in accordance with Section 98 of the Protection Orders Act of 2001 would be submitted to the Courts on the adjournment date:- Wednesday the 11th December 2002.
H. Police have attended the Respondents residence 13 times in an effort to serve the Order, visits have included early morning, evenings, weekdays and weekends
7. Police are therefore of the opinion the Respondent is purposely avoiding service now seek the Court’s permission to serve the Respondent named in the Order by substitute service ...
On 11 December 2002, another interim PPO was made, effective until 18 December, and an order was made for substituted service of the PPO application and related documents, permitting this to be done by leaving sealed copies under the door and in the letterbox of Dr Vatarescu’s unit in Watson. That day, substituted service was effected in accordance with the order by Trevor Raymond of the AFP (Exhibit A).
On 18 December 2002, a PPO was made, operative for 12 months, restraining Dr Vatarescu from “behaving in a harassing manner” towards the complainant and prohibiting him being on premises where she lived or worked or contacting her except at court (Exhibit A).
2003
Some time later, the complainant approached police about Dr Vatarescu’s behaviour, and spoke to Constable Olivia Cruise. After discovering that the PPOs had not been served, Constable Cruise tried to speak to Dr Vatarescu. She described this in a subsequent witness statement (Exhibit F) as follows:
About 8.00pm [on 12 February 2003] Senior Constable BAIRD and I attended Unit [xx, yyy] Knox Street, Watson, the defendant’s residence in an attempt to speak to him. On arrival I knocked on the door and heard a male voice inside.
He said: ‘Oi!’
I then identified myself as a Police Officer and after numerous attempts could not gain any response from the inside of the unit.
About 9.00pm Ms BECKERING VINCKERS attended the City Police Station and I obtained a victim statement from her.
Constable BAIRD and I then resumed normal duties.
As mentioned in Constable Cruise’s statement, the complainant made a statement that night about evidence she could give about her dealings with Dr Vatarescu since 1999 (at [38] above).
Presumably on the same evening or the next morning, an AFP charge sheet (Exhibit E) was prepared by Constable Cruise for hearing in the afternoon of 13 February. It set out the charge against Dr Vatarescu as follows:
That he, in the Australian Capital Territory, on 06 February, 2002 [sic] did stalk Kilmeny Anne Beckering Vinckers with intent to harass a person, namely Kilmeny Anne Beckering Vinckers by loitering near, watching, approaching or entering a place where the stalked person resides.
An AFP statement of facts (Exhibit B) was also prepared, relating to an offence of stalking under s 35 of the Crimes Act alleged to have been committed on 6 February 2003.
However, it seems that nothing actually happened in the Magistrates Court on 13 February 2003, presumably because Dr Vatarescu was unable to be found in order to be arrested or summonsed to court.
Two other undated documents also seem likely to have been prepared in anticipation of a mention of the stalking charge on 13 February 2003. The first was a document that was placed on a DPP file, which set out a bullet-point summary of asserted facts and evidence relevant to the stalking charge (Exhibit N).
The second document was an undated minute from Constable Cruise to the DPP prosecutor about bail conditions to be sought if Dr Vatarescu were to be granted bail (Exhibit G). The conditions sought and apparently accepted include a requirement for daily reporting to police. The exhibited copy of the minute has minor changes marked. Whether this document came from the Magistrates Court file or from the DPP file is not clear, and the changes may have been made by the Magistrate, or by the prosecutor, during the court proceeding.
It is not clear whether the summary of evidence and the minute were prepared in anticipation of the 13 February 2003 court event that did not take place or of the 18 December 2003 court event that did take place and in which the AFP minute appears to have been used as the basis for granting bail.
On 13 February 2003, presumably before the expected hearing at 3.00 pm that day, a Mention Brief Adjudication Sheet was completed by an adjudicating police sergeant with an indecipherable name and signature (Exhibit D).
The unidentifiable sergeant was satisfied that:
The Statement of Facts accurately reflects the strength of the prosecution case. There is a reasonable prospect of a successful conviction based on the evidence presented. (emphasis in original)
As noted, it seems that Dr Vatarescu was not located for his scheduled court appearance on 13 February 2003. After that, Constable Cruise made further attempts to speak to him, describing events in her witness statement (Exhibit F) as follows:
Over the course of the next couple of months I attended the defendant’s residence on a number of occasions in order to speak to him, however all attempts made by me to speak to him were unsuccessful. Subsequently I swore a First Instance Warrant in the A.C.T. Magistrates Court for the defendant’s arrest.
The next recorded development was in December 2003. On 9 December, Dr Vatarescu put a note (Exhibit H) in the complainant’s letterbox in Braddon, in the following terms:
Kilmeny,
Yesterday when I brought you the letters, I was hoping to talk to you. But you dismissed me with the request that I put the letters over the fence. I nearly hit the cat.
Anyway, in the spirit of the festive season, will you be ready to pencil me in for at least half an hour to have a chat about foreign affairs, Canada, etc?—nothing personal. There’s a restaurant some 200 metres from your place, and it’s free.
My phone number is 62xxxxxx—after 8.30 pm.
Andre
ANDRE—ph. 62xxxxxx
PS You might be able to help me find a Japanese translator. With a bit of luck I shall need one.
On 12 December 2003, this note was annotated at the bottom of the page by someone to the following effect (the bracketed question marks reflect the fact that the copy of this document put in evidence does not show the full text of the annotation):
THIS LETTER WAS IN [??]’S LETTERBOX. A SAYS R HAS NEVER LEFT AUSTRALIA; HE [??] STILL AT WATSON [??]DRESS AND APART FROM WALKING TO/FRO [??] VIA A’S #, IS [??]CLUSIVE.
Dr Vatarescu gave evidence that on 16 December 2003, he found a message from the complainant on his answering machine “summoning” him to Debacle restaurant in Braddon the following evening. He assumed the message related to the note he had attached to some mail items he had delivered to her from her previous address.
Accordingly, Dr Vatarescu said, on the next day, 17 December 2003, he went to Debacle restaurant in Braddon around 6.00 pm, and waited outside. At 6.24 pm a PPO was served on him, due to expire the following day (18 December), and at 6.25 pm, he was arrested outside the restaurant (Exhibit A).
The next day, 18 December, Dr Vatarescu appeared in the Magistrates Court and pleaded not guilty to the charge of stalking. The matter was adjourned to a Case Management Hearing on 1 April 2004, and bail was granted, subject to daily reporting to the City Police Station (Exhibit R).
On 30 December 2003, Constable Cruise made a witness statement about evidence she could give about her dealings with the complainant on 12 February 2003 and her attempts to contact Dr Vatarescu (Exhibit F).
2004
On 2 January 2004, Dr Vatarescu lodged a “Rebuttal” in the Magistrates Court, with a covering letter (Exhibit I) as follows:
On the basis of the attached, irrefutable rebuttal of the charges brought against me, I hereby appeal to the Court for the dismissal of these charges, or an expedited hearing and a lifting of the penalty of daily reporting to the Police.
Lies and deceit should not destroy a person’s life.
I need to leave Canberra at the end of January 2004.
The “Rebuttal”, dated 22 December 2003, set out:
(a) various factual matters that were not in general terms inconsistent with the allegations made in the Statement of Facts;
(b) an explanation for his dealings with the complainant’s uncollected mail items;
(c) an assortment of rhetorical questions apparently intended to cast doubt on the allegations reflected in the laying of the stalking charge;
(d) assertions that his “traumatic ordeal” could have been avoided if the complainant had arranged to have her mail redirected and if the police had “posted the [PPO] on my door for everyone to see it during my absence”; and
(e) a request for the dismissal of the charges and the granting of compensation “for the humiliation and anguish I have had to suffer as a result of these false accusations”.
On 7 January 2004, Acting Sergeant Matthew Varley prepared an AFP Minute alerting the Prosecution and Judicial Support Unit of ACT Policing to his concern that while the “Hearing Brief” for the stalking charge against Dr Vatarescu clearly disclosed the necessary conduct by Dr Vatarescu, it might not substantiate the necessary intent, and that the DPP should consider before the hearing whether this was sufficient “to successfully prosecute this matter” (Exhibit S).
On the same day, a new PPO was made, backdated to 18 December 2003 and effective for 12 months from that date. It was served on Dr Vatarescu at the City Police Station on 9 January 2004 (Exhibit A).
On 13 January 2004, a DPP officer, Bernard Standish, wrote to Dr Vatarescu in response to a letter from Dr Vatarescu dated 2 January, probably Dr Vatarescu’s letter of that date to the Magistrates Court (at [62] above). The letter advised Dr Vatarescu that the stalking charge against him would proceed and be determined by the court (Exhibit K).
On 14 January 2004, Dr Vatarescu’s matter was mentioned in the Magistrates Court by Mr Standish (Exhibits L and R). He amended the charge in court to address an issue of concern to him, being that the charge specified a single date while stalking requires more than one act. The charge was amended to allege stalking between 1 October 2001 (said to be when the complainant left Watson for Braddon), and 6 February 2003, the last date mentioned in the police statement of facts (these dates were problematic – see discussion at [170] to [172] below). The matter was adjourned to a Case Management Hearing on 26 February 2004.
On 15 January, Mr Standish emailed DPP and AFP officers (Exhibit L) to advise them of the amendment of the stalking charge as follows:
[Dr Vatarescu] relisted his matter in the A list yesterday for bail variation and in an attempt to have the charge dismissed. He had written an “irrefutable rebuttal” of the charges against him and expected that the Magistrate would simply agree with him and dismiss the stalking charge.
He is a very highly strung individual who demonstrated all of the symptoms of a stalker in Court. [The Magistrate] actually warned him to stop speaking lest he jeopardise his defence.
He was at pains to point out the injustice of daily reporting. [The Magistrate] agreed to reduce his reporting to twice each week (each Monday and Thursday). She also agreed to break the remand and relist his CMH on 26 February 2004 at 10.00 am. The CMH date of 1 April 2004 was vacated.
Shane Drumgold is the senior prosecutor listed for 26 February and will now have the carriage.
I amended the charge in Court yesterday as it alleged stalking on 6 February 2002 (sic). Stalking requires more than one act and, as such, the charge has been amended to allege stalking between 1 October 2001 (October being the month the complainant moved away from Watson and into Braddon) and 6 February 2003, the last date mentioned in the Statement of Facts.
The next day, 16 January, Dr Vatarescu wrote again to the Magistrates Court (Exhibit M) referring to his 2 January rebuttal, repeating his “two major rebuttal points” (the police failure to catch him “on the spot”, and the failure to identify any “threat, obstruction, blackmail, extortion, personal demand, etc” making the complainant unsafe), and advising that he needed to leave Canberra “unless the Court guarantees me compensation in the amount of $20 000, for lost income”, and that he would be leaving on 24 January.
On 20 January 2004, the Director of Public Prosecutions wrote to Dr Vatarescu in response to Dr Vatarescu’s letters dated 2 and 16 January 2004 to the Magistrates Court. The letter (Exhibit K) advised Dr Vatarescu that the stalking charge against him was to proceed and be determined by the court, continuing:
I note your assertion as to your innocence. Ultimately, the Court will decide whether you are guilty or not guilty of the offence for which you have been charged.
On 19 February 2004, Dr Vatarescu wrote again to the Magistrates Court (Exhibit M) about the Case Management Hearing listed for 26 February, referring the Court to his 2 January rebuttal, repeating his “two major rebuttal points which the Prosecution is unable to refute”, and asserting that if the Court refused to dismiss the charges against him, it should order an investigation of the complainant’s psychiatric condition, and the provision of public funding “so I can hire a lawyer to stand up to the Prosecution’s legal tricks”.
On 26 February 2004, Dr Vatarescu’s matter was mentioned in the Magistrates Court. Dr Vatarescu did not appear, and the matter was adjourned to 4 March. On 4 March the matter was again mentioned in the Magistrates Court, and again Dr Vatarescu did not appear. This time the Magistrate ordered that a warrant was to issue (Exhibit R).
On 29 March 2004, Dr Vatarescu wrote to the Magistrates Court (Exhibit M) advising that he “could be” in Canberra between 27 and 30 April, that if the prosecution intended to persist with the case the Magistrates Court should organise it for that period and let him know about it, and that he would only need 10 minutes to ask questions about the complainant’s psychiatric condition, about the prosecution’s failure to investigate the accusations, and about the Court’s failure to consider his rebuttal as soon as it was submitted. In the letter he alleged paranoia on the part of the complainant, bias and incompetence on the part of the prosecution, and bias and discrimination on the part of the Magistrates Court.
On 5 June 2004, Dr Vatarescu was arrested on warrant, outside the apartment block in Watson which he described in his oral evidence as “the building where I used to live”, and held in custody for two days. On 7 June he appeared before the Magistrates Court, and was granted bail and remanded to appear again on 23 June (Exhibit R). On that day the matter was mentioned in the Magistrates Court and adjourned to a Case Management Hearing on 26 August 2004. The bench sheet records that at the mention, Dr Vatarescu asked the Court to investigate the DPP.
Dr Vatarescu gave evidence that in July 2004 he went overseas until about November. He failed to appear at the Case Management Hearing on 26 August 2004, and again the Magistrate ordered that a warrant was to issue.
The issue of the warrant was notified to Dr Vatarescu by email from the Magistrates Court Registry on 30 August 2004 (Exhibit T). Dr Vatarescu replied by email saying that he “should be able to turn up” for a “final – deciding – hearing” on a Friday or a Monday. Curiously, the address he seems to have given for official notification of a hearing date was the complainant’s address in Braddon; however, there is no hard copy of the email in evidence, and the text of the email is found in a letter from the Director of Public Prosecutions in January 2005 (Exhibit T) – it is possible that the wrong address found its way into the quoted material.
In response to Dr Vatarescu’s email, a hearing date of 1 November 2004 was set and notified to Dr Vatarescu by email and by letter dated 7 September 2004 to the specified address. Dr Vatarescu acknowledged the email notification, by email, and asked the Court to investigate “the fallacious allegations”, allow him to contact the complainant, and revoke the warrant. On 8 September, the Deputy Registrar of the Magistrates Court replied to Dr Vatarescu’s email (Exhibit T), advising that Dr Vatarescu would be able to put his defence at the hearing, that the warrant would not be revoked until he appeared in court or was arrested, and that contacting the complainant would be a breach of his bail conditions. Dr Vatarescu replied to the Deputy Registrar by email on the same day (Exhibit T), suggesting that the hearing be cancelled, and alleging bullying by “the Public Prosecutions” and intransigence on the part of the Court.
On the next day, 9 September 2004, Phil Thompson of the Magistrates Court replied to Dr Vatarescu confirming that the hearing would proceed (Exhibit T).
The matter was re-listed for mention on 30 September 2004, and DPP officer Shane Drumgold advised the Magistrates Court that the complainant had been posted to the Solomon Islands and would not be available on 1 November 2004 or for the next 12 months (Exhibits O and T). He sought an adjournment for 12 months, but the Magistrate refused the adjournment. Later that day, Mr Drumgold emailed Constable Cruise to report on the mention, and asked Constable Cruise to contact the complainant and obtain her views, because “we need to proceed on 1/11/04 or NETO the matter” (Exhibit O). “NETO” is shorthand for disposing of a matter by having “no evidence to offer” when the matter is called on.
On 10 October 2004, Constable Cruise reported to Mr Drumgold by email (Exhibit O):
I have spoken to Kilmeny briefly over email and she understands that it may be difficult to proceed without her and at this stage she is unsure how long it will be until she is back.
She did ask however if their [sic] was any possibility of giving evidence over the phone or by any other means?
If this is not possible I sadly think we may have to NETO the charges which disappoints me given the nature of the charge and the attitude and apparent mindset of the defendant.
Mr Drumgold replied to Constable Cruise’s email the next day (Exhibit O):
There is no provision to take evidence via phone for this matter. I will NETO the charge. Although disappointing, we appear to have no choice.
On 1 November 2004, Dr Vatarescu’s matter was mentioned in the Magistrates Court, but Dr Vatarescu did not appear. The prosecutor advised that the matter would not proceed, but the Magistrate refused to dismiss the charges in Dr Vatarescu’s absence (Exhibits R and T).
Dr Vatarescu gave evidence that he returned to Australia around the end of November 2004.
2005
On 5 January and then again on 11 January 2005, Dr Vatarescu made complaints about the matter, at least one of which appears to have been made to the Chief Minister of the ACT. The complaints themselves are not in evidence, but they are mentioned in a letter, dated 24 January 2005 and referring to ministerial correspondence files, from the Director of Public Prosecutions to an officer of the Department of Justice and Community Safety. The Director’s letter appears to be addressing claims very similar to those made in Dr Vatarescu’s various rebuttals and other documents already mentioned.
Around the end of January 2005, Dr Vatarescu said, he returned to Canberra.
On 14 March 2005, the stalking charge against Dr Vatarescu was mentioned in the Magistrates Court, together with a charge of failing to appear on a bail undertaking on 4 March 2004 (Exhibit R). Dr Vatarescu did not appear, and the Magistrate ordered that no further hearing dates be set until the warrant for Dr Vatarescu’s arrest was executed. Mr Standish explained to Constable Cruise and Mr Drumgold later that day, by email, that the DPP had wanted to offer no evidence on the stalking charge, but did not want to “reward” Dr Vatarescu for failing to appear “to such an extent that the complainant had moved on”. Mr Standish noted that the fail to appear charge would proceed because failing to appear in accordance with a bail undertaking “brings the administration of justice into disrepute” (Exhibit Q).
2006
There is no evidence of events for over a year from March 2005, but on 18 April 2006, Dr Vatarescu failed yet again to appear in the Magistrates Court. The Magistrate noted that a warrant had already issued (Exhibit R).
Dr Vatarescu gave evidence that towards the end of 2006, he approached Michael Chilcott (then acting Director of Public Prosecutions) about his matter, and was told he would not get compensation even if found not guilty.
At some point after his meeting with Mr Chilcott, Dr Vatarescu said, he discovered that the complainant was in Australia, and he approached Mr Chilcott again asking that a hearing date be set.
On 19 December 2006, AFP officer Robert Tait emailed Mr Chilcott, and Peter Budworth of the AFP as follows (Exhibit U):
I spoke to [the complainant], she is back in the ACT, and is available for Court if required. Having spoken to her I think it is very important that he not know that she is back in the ACT.
2007
On 12 February 2007, Dr Vatarescu’s matter was mentioned in the Magistrates Court and adjourned to a Case Management Hearing listed for 5 April 2007 (Exhibit R).
After the matter was mentioned on 12 February, Dr Vatarescu went to “the DPP’s office” and said that he couldn’t stay in Canberra for more than another three weeks and “You either sort this one out in three weeks’ time or you will have to chase me again next year”. A hearing was set for 22 February 2007.
On 14 February 2007, DPP officer Carmen King spoke to Constable Cruise and reported to Mr Chilcott by email (Exhibit P):
[Constable Cruise] said that the complainant is still working with DFAT and is still overseas. Doesn’t believe she will come back for this. She said that she would be more than happy for the charge to be NETOed as there has been such a lapse of time and the complainant, realistically, is not available. She seemed to think that the complainant would have no issue with us taking that course with the charge.
On 19 February, Ms King spoke to Mr Chilcott, who agreed that the stalking charge should be “NETO-ed” but that the fail to appear charge would proceed (Exhibit P).
On 22 February 2007, the stalking charge against Dr Vatarescu came on for hearing and was dismissed when no evidence was offered (Exhibit R).
Several days later, on 27 February, the fail to appear charge against Dr Vatarescu was heard and was dismissed, in Dr Vatarescu’s words in evidence, “on the basis of mitigating circumstances”.
Comments on the events recorded
Several general comments can be made about the chronology recorded above.
There is evidence that over the period from late 1999 until early 2003, Dr Vatarescu made repeated approaches to the complainant including requests for meetings with her, but most of the approaches were rejected or ignored; on one occasion the complainant shouted at Dr Vatarescu to leave her alone, on another occasion told him to “back off” and on another occasion she returned a gift that Dr Vatarescu had given her.
From late 2002, the complainant sought the help of the courts in deterring Dr Vatarescu’s attentions. She was granted several interim PPOs as well as a 12‑month order, but police were unable to serve any of them personally until Dr Vatarescu turned up to the restaurant where the complainant had invited him to meet her in December 2003. Statements from police officers who had tried to serve the PPOs suggest a belief that on at least some occasions Dr Vatarescu was in his apartment but refusing to answer the door. Dr Vatarescu’s own evidence refers to what seems to have been an attempt to serve an order by post, which he dealt with by asking a friend to return, to the return address, a letter addressed to him but without the sender’s name on it. It is implicit in his evidence either that this was Dr Vatarescu’s normal practice in relation to letters without an identified sender, or that there was some other reason for him to return this particular letter unopened, because he claimed in his evidence that it was only much later that it occurred to him that this letter might have been relevant to attempts to serve the PPOs.
From the first involvement of the police and the justice system more generally, Dr Vatarescu showed at least disdain and possibly even contempt for the operation of the law and the institutions responsible for enforcing it. His apparent attempts to evade service of the PPOs pale into insignificance beside his repeated failures to attend scheduled hearings in the Magistrates Court, his determination to respond to the charges in his own way rather than according to the normal processes (that is, by submitting “rebuttals” instead of appearing in court), and his repeated attempts to negotiate with, or simply bully, the Magistrates Court into dealing with his proceedings according to his convenience; this last was starkly exemplified by his letter to the Magistrates Court on 16 January 2004 advising that he needed to leave Canberra and would go on 24 January 2004 (despite a scheduled case management hearing on 26 February 2004) “unless the Court guarantees me compensation in the amount of $20 000, for lost income” (Exhibit M).
Dr Vatarescu’s behaviour in failing to attend the Magistrates Court in November 2004, as a result of which the Magistrate refused to accept the DPP’s attempt to have the stalking charge dismissed, meant that the proceedings continued for more than another two years before being finally dismissed. It would not be surprising if the pattern of Dr Vatarescu’s dealings with the AFP, the prosecutors and the Magistrates Court, by indicating the disdain and possibly contempt mentioned earlier, had increased the normal determination of relevant police officers and prosecutors to ensure that Dr Vatarescu was required to comply with his legal obligations like any other member of the public.
The law
Elements of the tort
A v NSW
Dr Vatarescu and counsel for the defendants agree that the elements of the tort of malicious prosecution are as set out in A v State of New South Wales [2007] HCA 10 (A v NSW). In their joint judgment, the plurality (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) at [1] said:
For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:
(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause. (citations omitted)
Need to show damage?
In State ofNew South Wales v Landini [2010] NSWCA 157 (Landini) at [20], after quoting the High Court’s description of the elements of the tort, the NSW Court of Appeal said:
To these elements should be added proof of damage, as malicious prosecution is an action on the case (Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 284, 285 per Isaacs ACJ and Smith v Commonweath Life Assurance Society Ltd (1935) 35 SR (NSW) 552 at 557 per Jordan CJ with whom Halse Rogers and Street JJ concurred).
Fleming’s The Law of Torts (10th ed, rev Carolyn Sappideen and Prue Vines, Thomson Reuters, 2011) notes at 694 that there were originally three grounds on which damage could be shown, being that the prosecution “tended to involve the accused in scandal, or exposed the accused to the jeopardy of imprisonment or other corporeal punishment, or actually caused pecuniary loss”, but (at 695) that:
the third head of damage—actual pecuniary loss—became for all practical purposes dominant when legal costs by a successful criminal defendant were held to qualify, even if the court trying the offence made an allowance towards the cost of the accused’s defence. (citations omitted) (emphasis in original)
See also Balkin and Davis, Law of Torts (4th ed, LexisNexis, 2009), pp 689-690, [25.2] and pp 698-702, [25.16] to [25.21].
Establishing the elements (A v NSW)
In A v NSW, the plurality provided the following comments on how to assess whether the several elements of the tort have been established:
57.There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff’s favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff’s favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor.
58.Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.
59.Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light. (citations omitted) (emphasis added)
Summary of requirements (A v NSW)
In State of NSW v Hathaway [2010] NSWCA 184 (Hathaway), the NSW Court of Appeal quoted at [154], with apparent approval and noting that “no issue was taken on the appeal that [it] was other than an accurate summary of what the High Court had determined in A”, the trial judge’s useful summary of the propositions emerging from the High Court’s consideration in A v NSW, as follows:
“(i) The onus lies upon the [plaintiff] to prove each element. In the case of absence of reasonable and probable cause, that involves proof of a negative;
(ii) Although there may be some overlap between the concepts of malice and absence of reasonable and probable cause, the High Court maintained the principle that there are two separate issues to be litigated;
(iii) Malice is proved where a plaintiff proves that the prosecutor brought the proceedings for a purpose other than a proper purpose of initiating legal proceedings—one, but not the only, example of such a purpose is ‘personal animus’;
(iv) That purpose must be the sole or dominant purpose actuating the prosecutor; malice may be proved by inference, but it must be proof, not conjecture or suspicion;
(v) With respect to the absence of reasonable and probable cause, the relevant questions have, in different cases, been differently formulated, for example:
‘1. Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case;
2. Did they honestly believe the case which they laid before the magistrates; and
3. Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff [?]’;
(vi) Reasonable and probable cause for prosecuting another for an offence exists where the following conditions apply:
‘(1) The prosecutor must believe that the accused is probably guilty of the offence.
(2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise.
(3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true.
(4) This belief must be based upon reasonable grounds.
(5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty’;
(vii) ‘Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment’;
(viii) There is no disharmony between the expressions of the applicable principles in [(vi) and (vii) above];
(ix) The relevant time for consideration of the existence of malice, and the absence of reasonable and probable cause, is the time of institution, and the time of maintenance, of the proceedings;
(x) Two questions arise: what did the prosecutor make of the material available? (a subjective question); and what should the prosecutor have made of that material (an objective question).” (emphasis in original)
To succeed in his action, Dr Vatarescu needs to establish on the balance of probabilities the four elements specified by the High Court in A v NSW and, as outlined in Landini, that he has suffered damage. In considering these matters, I have chosen to deal with the issues of malice and absence of reasonable and probable cause in the reverse order from that set out by the High Court and in other cases; this is because Dr Vatarescu says that the necessary malice can be inferred from what he sees as the determination of police and DPP officers to initiate and persist in a prosecution without reasonable and probable cause. Without addressing reasonable and probable cause first, it would be impossible to make sense of Dr Vatarescu’s submissions about malice.
(1) Were criminal proceedings initiated against Dr Vatarescu by the defendant?
Criminal proceedings were initiated against Dr Vatarescu in respect of two charges, being “stalking” and failing to appear on a bail undertaking. There is no specific evidence before me about the initiation of the fail to appear charge, but it is implicit in other evidence that the charge was laid and, in due course, dismissed. I accept that the proceedings in relation to both charges were initiated by officers of the AFP for whose actions the first defendant would be vicariously liable.
The proceedings were maintained for over three years (until February 2007), despite Dr Vatarescu’s attempts to have them terminated earlier. This involved the AFP indirectly, and directly involved DPP officers for whose actions the second defendant would be vicariously liable. However, the proceedings would have concluded in November 2004, when the prosecutor first indicated that no evidence would be offered, except that the Magistrate refused to dismiss the charges because of Dr Vatarescu’s failure to appear at the listed hearing (at [82] above). It was another two years before Dr Vatarescu attended a hearing at which the prosecution again indicated that no evidence would be offered, and the Magistrate dismissed the charge.
(2) Did the relevant proceedings terminate in favour of Dr Vatarescu?
There is no dispute that the proceedings in respect of each of the two charges terminated in favour of Dr Vatarescu. When the stalking matter came on for hearing in February 2007, counsel for the DPP indicated to the Magistrates Court that he had no evidence to offer, and the charge was thereupon dismissed. When the fail to appear charge was heard, it was dismissed, in Dr Vatarescu’s words, “on the basis of mitigating circumstances”, a claim which has not been explained in any more detail but has also not been challenged by either defendant.
Reason for termination of charges in favour of Dr Vatarescu
There is no evidence before me about either of the court proceedings that could establish that the charges were dismissed because of the weakness of the case.
The stalking charge
Exhibit P, an annotated hard copy of Ms King’s email to Mr Chilcott (at [93] above), indicates that the prosecution’s inability to offer evidence when the stalking charge finally came on for hearing on 22 February 2007 was due to the extended absence of the complainant overseas (as a result of her employment), rather than any identified weakness in the prosecution case.
Dr Vatarescu in written submissions said that “A cover-up of the complete lack of evidence is attempted at Exhibit P”, but did not expand on this claim. In his submissions in reply, Dr Vatarescu said:
The complainant was available to testify as indicated in Exhibit U [at [90] above] from the AFP Prosecution & Judicial Support Unit, and no time limit was attached to this information. By contrast, the information coming indirectly from the police informant was tainted by malice and intended to thwart any future compensation claim. The plaintiff requests that an immigration records enquiry be carried out as he had solid information that the complainant was in Canberra at the time.
I assume that Dr Vatarescu’s reference to “the information coming indirectly from the police informant” is a reference to the advice recorded in Exhibit P. If by his assertion that “no time limit was attached to” the complainant’s presence in the ACT, Dr Vatarescu meant that the email at Exhibit U did not specify when she would leave the ACT, he is correct, but this does not prove either that the complainant was available in Australia in February 2007, or that a hearing date was available while the complainant was in Australia in late 2006 but was deliberately avoided by the prosecution. Dr Vatarescu’s claim (in submissions made after he had given his evidence) to have had “solid information” that the complainant was in the ACT “at the time” presumably refers to some significant time other than 19 December 2006 (because her presence in the ACT at that date is not in dispute). However, he has not identified the time, he made no attempt to produce the “solid information” at the hearing, and he did not even identify the information in his submissions. Nor had Dr Vatarescu pursued the immigration records inquiry that he requested be carried out (it is not clear whether he thought the Court, or the defendants, might have the role of carrying out that enquiry, or who else he thought might undertake it).
I can think of no sensible argument that Dr Vatarescu might have been raising by his reference to a cover-up. Accordingly, I find that the stalking charge was dismissed because the complainant was, for good reason, unavailable to give evidence.
The fail to appear charge
There is no evidence before me of the nature of the “mitigating circumstances” in which the fail to appear charge was dismissed.
Significance of reasons for termination in Dr Vatarescu’s favour
The reason for the termination of proceedings in favour of the plaintiff may be irrelevant to whether this element is made out, but the incontrovertible acquittal described by the plurality in (A v NSW at [57], quoted at [106] above) does not establish an absence of reasonable or probable cause for the initiation or maintenance of the proceedings.
Initiation of stalking charge because of failure to serve PPOs
Dr Vatarescu alleged that Constable Cruise “laid charges for the single reason that the defendant could not locate the plaintiff to serve on him the protection order”. I cannot make any sense of this claim, given that the purpose of serving a protection order was in fact achieved through the complainant’s invitation to Dr Vatarescu to meet her at the restaurant in Braddon, and before Dr Vatarescu was arrested and charged. If there is a basis for saying that the protection order could not have been served in this way without the preparation of stalking charges, Dr Vatarescu has not identified it.
Dr Vatarescu also argued that he did not know where the complainant lived in Braddon because the police had not served the PPO on him. It is clear, however, from other evidence including Dr Vatarescu’s own evidence of delivering the complainant’s mail to her new address that, by whatever means, he became aware of the complainant’s new address without having been served with the protection order.
Failure to interview Dr Vatarescu
Dr Vatarescu identified the police failure to interview him as evidence that the prosecution was begun or maintained without reasonable and probable cause. That argument, including the significance of Dr Vatarescu not offering any evidence about why there was no police interview, is dealt with at [201] to [206] above. In relation to malice, Dr Vatarescu says that police decided not to interview him on or after 17 December 2003 because they knew that there had been no contact between Dr Vatarescu and the complainant and “an interview would have spoilt the malicious prosecution”. Even if a decision not to interview Dr Vatarescu might have resulted from the pursuit of a malicious prosecution, the failure to interview as such, without any evidence of why there was no interview, does not prove that the prosecution was malicious, does not evidence an improper purpose, and does not even provide any help in identifying any particular improper purpose that might have driven the allegedly malicious prosecution.
Bail conditions
Exhibit G is an undated minute from Constable Cruise to a DPP officer setting out the bail conditions that the AFP would want imposed if Dr Vatarescu were granted bail, as follows:
1.To not approach within 100 metres of the premises situated at [...] Braddon, in the Australian Capital Territory.
2.To not approach within 100 metres of the premises situated at the Department of Foreign Affairs and Trade [, R.G. Casey Building, Brisbane Avenue, Barton.]
3.To not approach, contact [directly or indirectly] Kilmeny Anne BECKERING VINCKERS.
4.Not to harass, intimidate or threaten Kilmeny Anne BECKERING VINCKERS.
5. To report to [OIC] City Police Station daily between 8am and 8pm.
On the exhibited document, the words in square brackets at conditions 2, 3 and 5 have been added in handwriting (which appears to be the same as the handwriting in which Exhibit E, the Magistrates Court bench sheet, is annotated). Dr Vatarescu describes these bail conditions as:
severe bail conditions of daily reporting to police ... based on the preposterous argument that the AFP could not find the plaintiff committing the offence assigned to him in the twisted scenario concocted by the AFP and the DPP. (emphasis in original)
Because Exhibit G is undated it is not clear whether the conditions were drafted and forwarded to the DPP officer when the stalking charge was first prepared in February 2003 or when it finally came before the Magistrates Court in December 2003. However, even assuming that the conditions were drafted at the earliest point, before Constable Cruise had anything except the complainant’s claims to go on, the request for these conditions does not establish malice. Although daily reporting to police would not in my experience normally be sought for a person who has no previous history of failures to appear on bail undertakings and who is not accused of an offence carrying a very high penalty, a request for such a condition would not be inappropriate in the circumstances of the police’s inability to contact Dr Vatarescu at his supposed residence (even when they believed him to be there) or to serve the PPOs on him anywhere during November and December 2002, despite multiple attempts (outlined at [42] above).
Furthermore, the fact that bail was granted with a daily reporting condition as requested, but with other clarifications of the conditions sought, indicates that, as would have been well known to Constable Cruise, Magistrates do not necessarily impose bail conditions exactly as sought by the police or prosecutors. In other words, the Magistrate had made an independent decision in determining the bail conditions, including a decision to impose a daily reporting condition, which does not prove but certainly suggests that there was nothing glaringly inappropriate in the prosecution request for such a condition.
I am satisfied, having regard to the difficulties that police had in finding Dr Vatarescu to serve PPOs on him, that Constable Cruise’s request for a bail condition requiring daily reporting might have reflected impatience or frustration but does not establish ill-will, spite or any other improper purpose on her part; nor would malice have been established by the action of any DPP officer in making that request for specific bail conditions known to the Magistrate.
Emails about the prosecution
Dr Vatarescu points to the email exchange in September–October 2004 between Constable Cruise and Mr Drumgold (Exhibit O) as evidence of malice, noting that Constable Cruise “expressed her disappointment at failing to frame the plaintiff” (the email is set out at [80] above).
I note first that the emails concerned do not refer to “framing” Dr Vatarescu, or contain any other words that could be interpreted as admitting an improper basis for prosecution.
It is appropriate to refer briefly to the obligations of members of the AFP. The functions of the AFP include providing police services in the ACT (Australian Federal Police Act 1979 (Cth) (AFP Act), s 8); “police services” include “services by way of the prevention of crime” (AFP Act, s 4); the promise made by an AFP member (whether by oath or affirmation) under the Australian Federal Police Regulations 1979 (Cth) Schedule 1, Forms 1 and 2 is to:
faithfully and diligently exercise and perform all my powers and duties as ... a member ... of the Australian Federal Police without fear or favour, affection or ill will, from this date until I cease to be ... a member ... of the Australian Federal Police.
... whenever performing duty in the Australian Capital Territory, ... cause Her Majesty’s peace to be kept and preserved, and prevent, to the best of my power, offences against that peace.
... while I continue to be ... a member ... of the Australian Federal Police, ... to the best of my skill and knowledge, faithfully discharge all my duties according to law.
As Constable Cruise made explicit in her email, she was disappointed that the charge would have to be abandoned; her disappointment was, also explicitly, related to “the nature of the charge” and “the attitude and apparent mindset of [Dr Vatarescu]”. Dr Vatarescu has not explained how this could be interpreted as evidence of any purpose other than the purpose of carrying the law into effect; that is, doing her job as a member of the AFP. Nor has Dr Vatarescu specified what other purpose should be inferred.
The only evidence before me indicates that Constable Cruise believed that Dr Vatarescu had committed an offence and that this was not an unreasonable belief. She could reasonably have believed that Dr Vatarescu’s repeated failure to comply with court or bail requirements, as evidenced among other things by his failures to appear in the Magistrates Court as required (three failures by the time Constable Cruise sent the email concerned), had been largely responsible for the situation in which the principal witness against him was unavailable and the charges would have to be dropped. Having regard to her role and obligations as a member of the AFP, she could legitimately have been disappointed by the need to drop the charges without having their substance considered by a court.
In such circumstances, Dr Vatarescu has not established that the disappointment Constable Cruise expressed reflected spite, ill-will, or any purpose other than a desire to see the law carried into effect. There is no other evidence pointing to malice on Constable Cruise’s part.
Constable Cruise’s willingness to see the charges dropped (by failing to offer evidence) when it became apparent that the complainant would not be available to give evidence (at Exhibit P) seems to confirm an absence of any interest in the matter beyond that of seeing the law carried into effect, but Dr Vatarescu interpreted her behaviour in another way; he argued that Constable Cruise’s acquiescence in the dropping of the charge reflected her “dismal” performance and the overlooking of need for evidential proof for criminal charges. That is, she “was happy to have the case closed because her performance had been dismal”.
This does not seem to be an argument directly in support of malice; I assume the point of Dr Vatarescu’s claim was to suggest that Constable Cruise’s willingness to see the prosecution dropped did not negate initial malice because there was another explanation for her attitude. However, since Dr Vatarescu has not established malice apart from the significance of Constable Cruise’s attitude to the dropping of the charge, there is no need to consider whether her attitude to the dropping of the charge weakens the case for finding malice. I note also that the accusation that Constable Cruise had overlooked the need for evidence is controverted by her preparation of the police statement of facts, which includes a list of the proposed witnesses and the evidence they were expected to give (Exhibit B).
Apart from the question of her state of mind when the stalking charge was laid, there is also the question whether Constable Cruise should have arranged the dropping of the charge at any later stage. Having considered the way the matter developed, and Dr Vatarescu’s attempts at “rebutting” the charges (rather than defending them in court), I have concluded at [227] to [231] above that Dr Vatarescu has not established that there was any point at which the stalking charge should have been dropped but was maintained without reasonable and probable cause. Nor can I see any basis for saying that the charge was maintained maliciously when it should have been dropped.
Dr Vatarescu has not satisfied me that Constable Cruise acted maliciously at any stage in the proceedings.
As to the two police sergeants who reviewed the prosecution case before particular Magistrates Court events, there is nothing on either relevant form (Exhibits D and S) that even hints at an improper purpose. It is clear that Acting Sergeant Varley in particular gave careful consideration to the strength of the prosecution case, and expressly raised questions (about the prosecutor’s ability to establish intent on Dr Vatarescu’s part) which he suggested should be considered by the DPP before any hearing. His concern appears to have been solely the carrying into effect of the law, which, it can be inferred, he recognised might involve the stalking charge not proceeding. There is no hint that either sergeant sought to have the charges maintained for any improper purpose.
Dr Vatarescu did not articulate an argument that DPP officers should have reviewed the prosecution more carefully after Acting Sergeant Varley identified the potential difficulties in proving Dr Vatarescu’s intent. However, a response to any such argument would involve reference to Exhibits K, T and possibly N, which show that there was ongoing or at least repeated consideration by DPP officers of the strength of the prosecution case and whether it should proceed. I have already found that Acting Sergeant Varley’s warning did not oblige Constable Cruise to abandon the charge, and there is no better argument that the DPP should have abandoned it because of that warning.
Mr Drumgold’s response to Constable Cruise’s email (Exhibit O), noting that he would abandon the charge because “Although disappointing, we appear to have no choice”, also reflects some disappointment. Dr Vatarescu mentioned Mr Drumgold’s “great disappointment” when tendering this exhibit, but not in any of his submissions. In the email, Mr Drumgold did not explain his disappointment, but there is no basis on which I could infer that his disappointment reflected ill-will or spite towards Dr Vatarescu, or related to any purpose other than seeing the law carried into effect. Nor did Dr Vatarescu identify anything in any of the evidence that would suggest that any other DPP officer involved in the prosecution acted otherwise than for the purpose of seeing the law carried into effect.
Description of Dr Vatarescu in DPP email
Dr Vatarescu asserted:
Malice is clearly indicated by the Second Defendant in [Exhibit L] which contains the following quotation:
“[Dr Vatarescu] is a very highly strung individual who demonstrated all of the symptoms of a stalker in Court”
ignoring the absence of any material facts and particulars in the statement of facts filed by the First Defendant.
Exhibit L is a hard copy of an email from DPP officer Bernard Standish to various DPP and AFP officers (see [68] above). I am not sure what Dr Vatarescu was getting at when he quoted the material from Mr Standish’s email and then referred to someone “ignoring the absence of any material facts and particulars”. It is not clear what material facts and particulars are absent from the police statement of facts at Exhibit B, or who has ignored that absence. It is also not clear what the absence of material facts or particulars had to do with Mr Standish’s assessment of Dr Vatarescu as “highly strung” and as demonstrating “all of the symptoms of a stalker in Court”, since that assessment was explicitly based on Dr Vatarescu’s behaviour in court rather than on anything in (or absent from) the police statement of facts. Apart from that, it seems that Dr Vatarescu has mistaken a negative opinion about him expressed by a prosecutor for evidence of malice. He has not identified any “improper purpose” that was revealed by Mr Standish’s assessment, nor could it be said that Mr Standish’s comment showed any ill-will or spite; all it seems to illustrate is a belief in the strength of the prosecution allegation of stalking that Mr Standish has formed as a result of Dr Vatarescu’s own behaviour during the Magistrates Court mention. Mr Standish’s email does not establish malice.
Failure to pass on case brief
Dr Vatarescu sought to rely on Exhibit V, which includes an extract from a document apparently called “ACT Policing Practical Guide: Briefs of Evidence”, as follows:
2) Brief Submission
a) All briefs of evidence and associated material must be submitted to ACT Prosecution and Judicial Support (P&JS). The ACT Director of Public Prosecutions (ACTDPP) will not accept any briefs of evidence or associated material that have not been forwarded through P&JS.
Dr Vatarescu said that there was a breach of the “prosecution protocol” in that Constable Cruise did not deliver the case brief to Prosecution and Judicial Support for 10 months, “probably hoping to add further charges but failing to do so”. The 10 months asserted by Dr Vatarescu appears to be the period running between February and December 2003.
The extract set out in Exhibit V and quoted above does not specify the required timing for the submission of the relevant material to Prosecution and Judicial Support. Rather, it specifies the order and manner in which things must be done – that is, a brief will not be accepted by the DPP unless it has come through Prosecution and Judicial Support. There is no evidence suggesting that the proper process was not complied with, and indeed the Hearing Brief Adjudication Sheet (part of Exhibit S) records “Brief of evidence received on time? Yes”. The alleged delay in forwarding the material, even if established, might well have been explained by the delay in locating Dr Vatarescu from February 2003. There is no basis for interpreting any delay as evidence of malice.
Failure to pass on Dr Vatarescu’s rebuttal to AFP
Exhibit V also includes an extract from a “Protocol on Prosecution Support”, as follows:
9 Representations
9.1 When the DPP receives written representations from or on behalf of a defendant asking the DPP to –
(i) discontinue a prosecution,
(ii) change the charge(s), or
(iii) accept a guilty plea to a lesser or alternative charge(s)
the DPP will cause a copy of those representations to be sent to Prosecution Support and the Informant with a request for comment. Comments on the matters raised are to be provided within 10 days. The DPP shall consider the informant’s view in determining the future of the prosecution. If there is no response from the informant in 10 days the DPP may request Prosecution Support or the relevant team leader for a response or determine the matter in the absence of a response.
Dr Vatarescu alleged that the DPP failed to comply with this protocol when they “decided not to have [Dr Vatarescu’s] rebuttal ... submitted on 5 January 2004 verified by the [AFP]”.
As mentioned at [174] above, there is no direct evidence that the rebuttals were passed on to the AFP. Two letters were sent to Dr Vatarescu by or on behalf of the Director of Public Prosecutions (Exhibit K) after Dr Vatarescu’s first rebuttal, and the first letter in the second rebuttal bundle, were provided to the Magistrates Court in early January 2004; neither specified that Dr Vatarescu’s rebuttals had been sent to either “Prosecution Support” or to Constable Cruise, but there is no reason why such letters would have referred to compliance with an internal protocol anyway. On the other hand, both letters did refer to consideration of Dr Vatarescu’s material, and there is also other evidence of ongoing dealings between DPP officers and Constable Cruise (for instance, Exhibits L, O, Q and U). Exhibit L, Mr Standish’s email in which he mentioned the “irrefutable rebuttal”, was sent to recipients including Constable Cruise and Acting Sergeant Varley; that is, there was no attempt to conceal the fact of Dr Vatarescu’s rebuttals from AFP officers.
There is no evidence before me of any DPP decision not to have Dr Vatarescu’s rebuttal “verified” by the AFP.
Having regard to the evidence before me, I cannot be satisfied that DPP officers made any such decision as alleged by Dr Vatarescu, or that the protocol was in fact breached by a failure to pass on the rebuttals to the AFP. However, even if there was no formal referral of the rebuttals from the DPP to “Prosecution Support” and the informant Constable Cruise, I cannot see that this establishes any improper purpose for the DPP’s maintenance of the prosecution. Dr Vatarescu has not articulated either how such a failure evidenced an improper purpose or what improper purpose was in fact suggested.
Breach of prosecution protocol
Dr Vatarescu claimed that the DPP also breached the protocol quoted at [282] above in that, despite “the complete absence of evidence”, the DPP “took a gamble to prosecute” Dr Vatarescu. In making this argument in his submissions in reply, Dr Vatarescu quoted an extract from paragraph 2.3 of the DPP’s Prosecution Policy; this document has not been formally tendered, but since it appears on the DPP’s public website and neither defendant objected to its consideration when the hearing resumed after the exchange of submissions, I do not see any basis for refusing to consider it. The paragraph is as follows:
2.3 The initial consideration will be the adequacy of the evidence. A prosecution should not be instituted or continued unless there is reliable evidence, duly admissible in a court of law, that a criminal offence has been committed by the person accused. This consideration is not confined to a technical appraisal of whether the evidence is sufficient to constitute a prima facie case. The evidence must provide reasonable prospects of a conviction. If it is not of sufficient strength any prosecution would be unfair to the accused and a waste of public funds.
Dr Vatarescu noted that “no assessment document was made available”. This may reflect an expectation on Dr Vatarescu’s part that there would be a written record of the consideration required by para 2.3, and that it would have been included in the documents provided by the defendants to Dr Vatarescu earlier in the course of his proceedings (although without any proper request for discovery). However, in the circumstances the absence of such a document does not prove the non-existence of the document and, more importantly, it certainly does not prove the absence of the required consideration. The substance of para 2.3 is, as far as I can see without the benefit of argument, relevantly to the same effect as the common law requirement in this context that there be reasonable and probable cause for a prosecution. Alleging (without any specific evidence) a breach of the Prosecution Policy requirement in the context of a claim of malice by the DPP (especially without any specific evidence of such a breach) adds nothing to the consideration at [153] to [230] above of whether there was reasonable and probable cause for the prosecution.
There is nothing in the evidence before me that could be interpreted as indicating malice as defined in A v NSW on the part of any possible prosecutor in relation to the stalking charge.
Fail to appear charge
There is no evidence before me that is even remotely relevant to the possibility that malice was involved in the laying or maintaining of the fail to appear charge.
(5) Loss suffered by plaintiff
Finally, I note that Dr Vatarescu provided no evidence, and made no meaningful submissions, about any loss he had suffered. The only arguably relevant material before me is as follows:
(a) In his statement of claim (quoted at [14] above), Dr Vatarescu said that “compensation should be commensurate with the gravity of the ordeal and nightmare the plaintiff had to endure”, and suggested that the minimum compensation should be $200,000 with “market interest” from December 2003.
(b) In one of his rebuttals (dated 22 December 2003 and quoted at [178] above), Dr Vatarescu referred to compensation for the “humiliation and anguish” he had had to suffer as a result of false accusations.
(c) In his letter to the Magistrates Court dated 16 January 2004 (the first letter in the second rebuttal bundle), Dr Vatarescu said “I need to leave Canberra, unless the Court guarantees me compensation in the amount of $20 000, for lost income” (Exhibit M). His intended departure date was said to be 24 January 2004. There is no direct evidence of whether he did leave Canberra, but such a departure might explain his failures to appear in the Magistrates Court on 26 February and 24 March 2004. There is no evidence of any lost income arising from remaining in Canberra.
(d) The letter from the Director of Public Prosecutions dated 24 January 2005 (Exhibit T) quoted, from an email by Dr Vatarescu to the Deputy Registrar of the Magistrates Court, a claim for “compensation in the amount of $5,000 to become the victim of your system”.
(e) In his submissions in reply, Dr Vatarescu referred to wrongful arrest and false imprisonment as “consequences” of the alleged malicious prosecution (at [19] above). This may have been an attempt to identify them as aspects of the loss he has suffered and therefore as grounds for the award of damages, but no such intention was made explicit either during the hearing or in any relevant written material.
Dr Vatarescu made no submissions about the prosecution tending to involve him in scandal, or exposing him to the jeopardy of imprisonment or corporeal punishment (with the possible exception of his references to false imprisonment as a “consequence” of the prosecution).
I note also that although the stalking charge was “maintained” for over three years before it was finally dismissed, it would have been dismissed less than a year after Dr Vatarescu was charged if he had attended court hearings as required (at [82] above). This would in my view have affected any award of damages that Dr Vatarescu might have been entitled to if he had established that he had been maliciously prosecuted.
If Dr Vatarescu had established the other elements of a malicious prosecution against either or both of the defendants, it would have been difficult if not impossible on the basis of the material identified at [291] above to justify anything more than a fairly modest award of general damages (if that).
Fleming, quoted at [104] above, refers to the legal costs of a successful criminal defendant as sufficient to establish actual pecuniary loss – but since Dr Vatarescu appears to have represented himself throughout the relevant legal proceedings, it is not clear that he could have established actual pecuniary loss on that basis.
Conclusions
I have concluded that Dr Vatarescu has not established that either of the prosecutions, for stalking with intent to harass and for failing to appear on a bail undertaking, was initiated or maintained without reasonable and probable cause (at [231] and [232] above). I have also concluded that Dr Vatarescu has not established that either of those prosecutions were initiated or maintained maliciously (at [289] and [290] above). Accordingly, Dr Vatarescu’s claims against the two defendants fail and his proceedings must be dismissed.
Dr Vatarescu’s interpretation of defendants’ approach to submissions
Finally, I mention that after the hearing at which he gave evidence, Dr Vatarescu filed separate written submissions in relation to the two defendants. There was much common ground between the two sets of submissions.
The first defendant then filed detailed submissions in reply, addressing among other things the material that was common to Dr Vatarescu’s submissions in relation to the two defendants. The second defendant’s submissions expressly adopted in large part the first defendant’s submissions, to the extent that they dealt with matters common to Dr Vatarescu’s two sets of submissions. Dr Vatarescu in submissions in reply said:
The Second Defendant’s decision to adopt the First Defendant’s submissions provides further evidence of their collusion to pervert the course of justice by instituting a malicious prosecution against the plaintiff.
The approach taken by the two defendants seems to me to be a commonplace and efficient way for parties to conduct litigation, in the interests of all the parties and the Court, by avoiding needless repetition of argument (and needless waste of time and paper). If Dr Vatarescu can interpret such an approach as evidence of collusion to pervert the course of justice, it may be unsurprising that he has seen evidence of impropriety in so many other aspects of his encounter with the criminal justice system that are, on careful analysis, entirely innocent and not at all improper.
Costs
Dr Vatarescu’s approach to the proceedings in general, and in particular his tendency to repeat his arguments, while subtly re-framing, re-organising and re-directing them with each repetition (a tendency that emerged with the second rebuttals and has been continually demonstrated during these proceedings), and also adding new arguments emerging, often, from his opponents’ attempts to respond to his earlier assertions, has made this a very difficult and time-consuming matter for me, and probably for the defendants, to deal with. In particular, as will be apparent from the foregoing consideration, I have found it very difficult to work out what Dr Vatarescu sees as the significance of any particular evidence, claim or argument
At [114] above I have described Dr Vatarescu’s request, made in submissions filed after the first part of the hearing:
that an immigration records enquiry be carried out as [Dr Vatarescu] had solid information that the complainant was in Canberra at the time
This request, made after evidence in Dr Vatarescu’s case was finished, and addressed to no-one in particular, for inquiries to be made to support “solid information” that Dr Vatarescu did not identify and had not sought to tender, but simply claimed to possess, is a good example of Dr Vatarescu’s apparent lack of understanding of the proper way to conduct a civil proceeding.
Dr Vatarescu’s apparent inability or unwillingness to frame a coherent proposition, to grasp its significance and its place in the larger argument, and to hold to that understanding (as described at [300] above), and his failure to acquire even the most basic grasp of the processes of civil litigation (despite repeated advice from me and probably others that he should try to do so), has complicated, and delayed the finalisation of, this matter in numerous respects.
I can see no reason why costs should not follow the event.
Orders
The orders are as follows:
(a) The plaintiff’s action against the first defendant is dismissed.
(b) The plaintiff’s action against the second defendant is dismissed.
(c) The plaintiff is to pay the costs of the first and second defendants.
I certify that the preceding three-hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Rik Sutherland
Date: 15 June 2012
Counsel for the plaintiff: The plaintiff appeared in person
Counsel for the first defendant: Mr M S McDonogh
Solicitor for the first defendant: HWL Ebsworth Lawyers
Counsel for the second defendant: Mr J Harris SC
Solicitor for the second defendant: ACT Government Solicitor
Date of hearing: 5 and 6 November 2009, 5 February 2010
Date of judgment: 15 June 2012
Appendix A – Exhibits
The following documents were in evidence:
| Exhibit A: | A large number of documents relating to personal protection orders sought or made between 2002 and 2004, including several of the applications made by Ms Beckering Vinckers for interim and 12-month PPOs, and documents about the many unsuccessful attempts to serve the various PPOs. The original application was lodged in the Magistrates Court on 19 November 2002. The “attached statement” mentioned in the applications is not part of Exhibit A, but may have been Exhibit J. [32 pages] |
| Exhibit B: | An AFP statement of facts (prepared for court on 13 February 2003) relating to an offence of stalking under s 35 of the Crimes Act 1900 (ACT) alleged to have been committed by Dr Vatarescu on 6 February 2003. [4 pages] |
| Exhibit C: | A statement made by Ms Beckering Vinckers on 12 February 2003 setting out the evidence she would be prepared to give in court as a witness about her experience with Dr Vatarescu in the period since 1999. [4 pages] |
| Exhibit D: | An AFP form headed “Mention Brief Adjudication Sheet” and dated 13 February 2003; this appears to be a form used for a review or assessment by a Sergeant of the processes undertaken by the police officer identified as the informant in relation to a charge. The form is filled in to show the informant as Constable Olivia Cruise and the adjudicating Sergeant with an indecipherable name (possibly White). Relevantly, this form shows that the adjudicating Sergeant was satisfied that “The Statement of Facts accurately reflects the strength of the prosecution case” and “There is a reasonable prospect of a successful conviction based on the evidence presented”. [1 page] |
| Exhibit E: | An AFP charge sheet, expressed to be for a hearing on 13 February 2003, that has been used to record proceedings in the Magistrates Court, as shown by the three lines of handwriting on the typed charge sheet. It is not clear whether the sheet is the Magistrates Court record or the DPP record. The handwritten annotations include “Bail self $1000 on conditions as attached”. The minute at Exhibit G is annotated in the same handwriting and was probably the attachment mentioned. [1 page] |
| Exhibit F: | A statement made by Constable Olivia Cruise on 30 December 2003 setting out the evidence she would be prepared to give in court as a witness about her dealings with Ms Beckering Vinckers on 12 February 2003 and her attempt to contact Dr Vatarescu on that day. [3 pages] |
| Exhibit G: | An undated AFP minute from Constable Cruise to the DPP prosecutor Jenny Woodward setting out the bail conditions that the AFP sought if Dr Vatarescu were to be granted bail. The conditions have been annotated, apparently in the same handwriting as is used on Exhibit E. [1 page] |
| Exhibit H: | A handwritten note apparently from Dr Vatarescu to Ms Beckering Vinckers dated 9 December 2003 (the document tendered did not show a year but, during consideration of objections to evidence on 25 September 2009, the parties agreed that the note had been written in 2003), with an annotation to the effect that it was found in Ms Beckering Vinckers’ letter box. [1 page] |
| Exhibit I: | Documents lodged in the Magistrates Court on 2 January 2004 and signed by Dr Vatarescu, being a 3-page document headed “Rebuttal of Charges of Stalking Made Up by [Ms Beckering Vinckers]” and a covering letter describing the 3-page document as an “irrefutable rebuttal of the charges brought against me”. [4 pages] |
| Exhibit J: | A letter from Ms Beckering Vinckers dated 1 May 2001 to a Mr John Judge. [2 pages] |
| Exhibit K: | A letter to Dr Vatarescu dated 13 January 2004, signed by Bernard Standish on behalf of the Director of Public Prosecutions, advising Dr Vatarescu that the stalking charge against Dr Vatarescu would proceed and be determined by the court, and another letter dated 20 January 2004 signed by the Director of Public Prosecutions to the same effect, which also gives advice about Dr Vatarescu’s expressed intention to leave Canberra and the effect of any breach of his bail conditions. [3 pages] |
| Exhibit L: | A hard copy of an email, dated 15 January 2004, from Bernard Standish to DPP and AFP officers, about the amendment of the stalking charge. [1 page] |
| Exhibit M: | A bundle of three letters from Dr Vatarescu addressed to the Magistrates Court and dated 16 January 2004, 19 February 2004 and 29 March 2004 respectively. The “attached material” mentioned in the third letter is the earlier two letters. [3 pages] |
| Exhibit N: | An undated document headed with Dr Vatarescu’s name and explained by the second defendant as having been located on the DPP file, which appears to be a bullet-point summary of the asserted facts and relevant evidence prepared in advance of a hearing of the stalking charge against Dr Vatarescu. [2 pages] |
| Exhibit O: | A hard copy of an email exchange between DPP officer Shane Drumgold and the informant Constable Cruise during the period 30 September 2004 to 11 October 2004. The emails record the Magistrates Court’s refusal to grant a further extended adjournment of the matter despite the complainant’s absence overseas. [1 page] |
| Exhibit P: | A hard copy of an email dated 14 February 2007 from DPP officer Carmen King to DPP officer Michael Chilcott advising that Ms Beckering Vinckers is still overseas and doesn’t plan to come back for the proceeding, and that Constable Cruise would be “more than happy” for the charge to be abandoned given the lapse of time and Ms Beckering Vinckers’ unavailability. The printed copy of the email has a handwritten note of a conversation in which Mr Chilcott agreed that the stalking charge should be abandoned but that the fail to appear charge should proceed, and attaches a file note of the conversation between Ms King and Constable Cruise. [2 pages] |
| Exhibit Q: | An email from Bernard Standish to AFP and DPP officers recording that Dr Vatarescu had failed to appear in the Magistrates Court on 14 March 2005, and that the Magistrate had ordered that no further hearing dates be set unless and until the warrant was executed on Dr Vatarescu. [1 page] |
| Exhibit R: | Another copy of the AFP charge sheet that is Exhibit E, but with further annotations, apparently made by successive Magistrates or DPP officers, recording events from 14 January 2004 until 22 February 2007; the notation for the last date shows that the stalking charge against Dr Vatarescu was dismissed on 22 February 2007 when no evidence was offered. [2 pages] |
| Exhibit S: | An internal AFP minute from the North District Beat Team to the Prosecution and Judicial Support Unit dated 7 January 2004, and attached Hearing Brief Adjudication Sheet. The minute records the concerns of Acting Sergeant Matthew Varley that the “Hearing Brief” relating to the stalking charge against Dr Vatarescu, while disclosing the conduct needed to make out the charge, “may not substantiate the intent required”; that in the absence of any record of interview with Dr Vatarescu the prosecution would rely on inferences of intent drawn from Dr Vatarescu’s conduct; and that “[w]hether this is sufficient to successfully prosecute this matter should be considered by the DPP prior to hearing”. [2 pages] |
| Exhibit T: | A letter dated 24 January 2005 from the Director of Public Prosecutions to a Mr Brett Phillips of the Department of Justice & Community Safety, apparently in response to a complaint by Dr Vatarescu made on 11 January 2005. The letter records, among other things, that on 1 November 2004 the prosecutor appeared in the Magistrates Court and advised that the matter would not proceed but that the Magistrate refused to dismiss the charges at that stage because Dr Vatarescu had not appeared and a warrant for his arrest was still unexecuted, and instead adjourned the matter generally until Dr Vatarescu attended court voluntarily or the warrant was executed. [4 pages] |
| Exhibit U: | An email dated 19 December 2006 from Robert Tait of the AFP Prosecution and Judicial Support Unit addressed to DPP officer Michael Chilcott and to a Peter Budworth, advising that Ms Beckering Vinckers is back in the Australian Capital Territory and available for Court if required, but that it is important that “he” not know she is back in the ACT. [1 page] |
| Exhibit V: | An apparent consolidation of two extracts from other documents. The first extract is from “ACT Policing Practical Guide: Briefs of Evidence”, and records a requirement to submit briefs of evidence to the ACT DPP through ACT Prosecution and Judicial Support. The second extract is from a “Protocol on Prosecution Support”, and requires the DPP to seek comments from Prosecution Support and the informant on any written representations from defendants asking the DPP to discontinue a prosecution, change a charge or accept a plea of guilty to an alternative or lesser charge. [1 page] |
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