Annan v Harris

[2019] WADC 157

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   ANNAN -v- HARRIS [2019] WADC 157

CORAM:   QUAIL DCJ

HEARD:   16 - 19 SEPTEMBER 2019

DELIVERED          :   22 NOVEMBER 2019

FILE NO/S:   CIV 807 of 2018

BETWEEN:   RACHAEL ANNAN

First Plaintiff

JAMES ANNAN

Second Plaintiff

AND

CRAIG HARRIS

Defendant

Catchwords:

Torts - Trespass - Malicious procurement of search warrant - Misfeasance in public office - Plaintiffs sue police officer regarding investigation of complaints made to WA Police - Application of s 137(3) of the Police Act 1892 (WA) - Turns on own facts

Legislation:

Criminal Investigations Act 2006 (WA), s 31, s 35, s 146, s 147
Evidence Act 1906 (WA), s 79C
Police Act 1892 (WA), s 137(3)
Police Force Regulations 1979 (WA), reg 605(1)(b)
Surveillance Devices Act 1998 (WA)

Result:

Plaintiffs' claims dismissed

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	In person
Defendant	:	Mr J F Bennett

Solicitors:

First Plaintiff	:	Not applicable
Second Plaintiff	:	Not applicable
Defendant	:	State Solicitor's Office

Case(s) referred to in decision(s):

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500

Beamish v The Queen [2005] WASCA 62

Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Cunningham v Traynor [2016] WADC 168

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Farrington v Thomson [1959] VR 286

Gibbs v Rea [1998] AC 786

Googe v Spoljaric [2017] WADC 99

Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1

Ives v The State of Western Australia [2010] WASC 178

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (2005) 222 CLR 612

Neilson v City of Swan [2006] WASCA 94

Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307

Noye v Robbins [2010] WASCA 83

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635

Roman v Commonwealth of Australia (2004) 16 NTLR 80; [2004] NTSC 9

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

The State of Western Australia v Cunningham [No 3] [2018] WASCA 207

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

Young v State of New South Wales; Young v Young (No 2) [2013] NSWSC 330

QUAIL DCJ:

Introduction

1. Ms and Mr Annan (the Annans), two well educated professionals living in Mount Claremont sue Senior Constable (SC) Harris, a police officer attached at all relevant times to the Wembley Police Station, for trespassing on their property, malicious procurement of a search warrant and misfeasance in public office.  For these alleged wrongs they seek damages in the amount of $850 as well as aggravated and exemplary damages.[1]  The Annans explained that they have brought their action in the District Court:

   Because we felt the importance – as you can see it's not necessarily just a monetary thing for us.  It's about the law.  We felt that the law would be followed – best followed at the District Court, and that's why we brought it to the District Court.[2]

   [1] Plaintiffs' particulars of damages filed 21 January 2019.

   [2] ts 51.

2. In deciding this matter I have had regard to the fact that the Annans appeared in person, whilst SC Harris was represented.  There are some well‑established general principles providing guidance on the level of flexibility and assistance which is to be provided to a litigant in person.  They were helpfully summarised by Gething DCJ in Googe v Spoljaric.[3]  His Honour said:

   A litigant in person is entitled to some leniency in relation to compliance with the court rules:  Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (Judgment of the Court). The court should approach the documents in which a litigant in person articulates their claim with some flexibility: Wentworth v Rogers [No 5] (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board(WA) [2012] WASC 48 [10] (Pritchard J).

   …

   A court ought to assist a litigant in person to the extent consistent with the interests of justice.  What the court ought to do will depend upon the nature of the case and the litigant's capacity to understand the issues in the case:  Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113, [15] - [16] (Reasons of the Court); Konings v Commonwealth Bank of Australia [2016] WASCA 122 [12] (Reasons of the Court); Tobin [14]. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Van Der Feltz [15] ‑ [16]; Konings [12]; Tobin [14].

   The court must not intervene to such an extent that a position of neutrality cannot be maintained or a litigant in person is given a positive advantage over another party: Konings [12]. The court also needs to ensure that any latitude given to a litigant in person does not deprive the other party of its rights to procedural fairness and a fair hearing: Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; (Judgment of the Court); MTI v SUL[No 2] [2010] WASCA 58 [42] ‑ [43]; (Newnes JA, with whom Pullin & Buss JJA agreed); Glew [10].

   [3] Googe v Spoljaric [2017] WADC 99 [13] - [15].

3. These principles governed the manner in which I conducted the trial and have decided the issues in dispute.  Despite not being represented, the Annans were both well prepared, intelligent litigants and capable of conducting their action.  Their pleadings and written submissions clearly articulated their various claims.  They complied with orders and were respectful to the court.  The chronology prepared by the Annans at the conclusion of the trial was detailed and, for the most part, helpful.  The Annans gave evidence and cross‑examined witnesses (including each other) and relevantly so.

4. Because of the gravity of the allegations made by the Annans against SC Harris, I must be satisfied of each of the torts alleged on the balance of probabilities and applying the principles from Briginshaw v Briginshaw.[4]

   [4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363. See Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [97].

5. This requires me to be actually persuaded as to the probability of a fact being true.[5]  I also bear in mind what the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (endnotes and citations omitted): [6]

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent proof is necessary 'where so serious a matter as fraud is to be found'.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

   [5] Briginshaw v Briginshaw (360) - (361).

   [6] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 [170] - [171]; (2005) 222 CLR 612.

6. Because of the factual overlap between the causes of action and the breadth of the claim in the third cause of action, alleging misfeasance in public office, I will deal firstly with my regrettably detailed findings of fact in chronological order and then determine whether the Annans have proved their causes of action.

Factual findings

Business records

1. Many of the documents tendered by the parties in the trial were admitted as business records pursuant to s 79C(2a) of the Evidence Act 1906 (WA). Most were records of the Western Australia Police Force (WA Police), including Detected Incident Reports, Incident Reports, Running Sheets, Computer Aided Dispatch (CAD) records, various emails, photographs and a memorandum. WA Police records are business records for the purposes of s 79C.[7]

   [7] Beamish v The Queen [2005] WASCA 62 [159].

2. The statements of fact and opinion in those records are admissible provided direct oral evidence of the statement would be admissible.

3. Generally, I attach significant weight to those records, particularly where they are contemporaneous or where there is no reliable evidence that the person creating the record was entering incorrect information at the time of creation of the record.

Background facts

1. The Annans built their house at 15 Haldane Street, Mount Claremont some years previous to the present dispute.  Their neighbours at 13 Haldane Street at all relevant times were Mr and Ms Stone (the Stones) who have since, and unsurprisingly, moved elsewhere.  From the time of building to April 2017 there were a number of disputes between the Stones and Annans which at least involved restraining order applications, police complaints and a dividing fence action.

2. As at February 2017 Mr Annan was bound by both misconduct and violence restraining orders in favour of Mr and Ms Stone respectively.  The orders prevented Mr Annan from approaching within 1 metre of Ms Stone and from communicating or attempting to communicate, either directly or indirectly, with Ms or Mr Stone.[8]

   [8] The orders were not tendered but their terms were not in issue and are evident from Exhibit D4 and ts 483.

3. Both households had installed security video camera systems which monitored, at least, their own properties and the joint boundary.

4. By April 2017, first Cottesloe and then Wembley based police officers had been involved in investigating numerous complaints made by the Stones and Annans about each other.[9]

   [9] Exhibit P41 is a summary of all the recorded WA Police Incident Reports between the Annans and Stones.

5. The genesis of this action relates to two of those complaints, one by Ms Annan about Mr Stone and another by Ms Stone about Mr Annan.

Ms Annan's complaint about the Stones' security cameras

1. In early April 2017, Ms Annan noticed a security camera placed in the eaves of the Stones' house which appeared to be angled over her boundary and across her yard.  On 6 April 2017 Ms Annan phoned police to complain about the camera.[10]

   [10] ts 67 - 68; exhibit P3.

2. On 7 April 2017, two police officers attended at the Annans' home in response to the complaint.  They inspected a hedge on the fence line that Ms Annan claimed had been trimmed by the neighbours and which she was upset about.  The officers confirmed that Ms Annan was not bound by any court orders and could take photographs of the fence line.  Although not called as witnesses, the police actions are recorded in a contemporaneous WA Police Incident Report which I am satisfied is accurate and reliable.[11]  The same day Ms Annan took a photo of the security camera in the eaves of the Stones' house.[12]

   [11] Exhibit P3.

   [12] Exhibit P1.

3. On 8 April 2017, Ms Annan noticed a second security camera mounted inside a triangular window in the gable of the Stones' residence which appeared to her to be angled in such a way that it pointed across the boundary fence, monitoring the deck where her children played, the Annans' family room and the children's bedroom.  She took photographs of the camera.[13]  She also showed Mr Annan the camera.[14]

   [13] Exhibit P4 and exhibit P11.

   [14] ts 234.

4. Having viewed the photographs, together with a later video that Ms Annan said she filmed on 29 April 2017,[15] I am satisfied her belief that the security camera overlooked her property on the days the photographs and video were taken was reasonable.  In the video the camera appears to be pointed along, but also across, the boundary fence and the lens of the camera is clearly visible from the Annans' family room.  The field of view of the camera is unknown but at the time the photograph and video were taken the camera was operational as the white LEDs around the camera lens were on.  What is not clear is whether the security camera was monitored by any person or connected to a screen or recording device.

   [15] Exhibit P11.

5. On 8 April 2017, Ms Annan made a further telephone complaint to police about the cameras overlooking her home.[16]  Police actions between 8 April and 4 May 2017 in response to Ms Annan's complaint were recorded in another Incident Report.[17]  I am satisfied the Report is accurate and reliable.

   [16] Exhibit D1.

   [17] Exhibit P38.

6. The Incident Report shows that on 11 April 2017, police arranged to attend and speak to Ms Annan but were diverted to a more urgent job.  Subsequent messages and calls from police were not returned until 23 April 2017 when Ms Annan advised police 'they' (which I infer to be the Annan family) had been away and had just received the messages.[18]  She then requested that police attend at night to view the security camera in operation.  The police officer advised her he would speak to the afternoon shift and ask that they attend that night.  Although the specific reason was not recorded in the Incident Report, I infer that other priorities resulted in police not attending that night to view the camera.

   [18] Exhibit P38.

7. At around 3.34 pm on 25 April 2017, Ms Annan called police again and spoke to SC White.  She complained that 'the neighbours have setup another camera which is pointing at her children's bedroom' and 'she thought it was recording based on a light on the cameras'.  The record reflects that 'there is no evidence currently available that it is being recorded'.  SC White told Ms Annan that due to competing priorities, Wembley police might not be able to attend her address that evening.  Ms Annan said she was going to attend Perth Children's Court to obtain restraining orders against the Stones.  Ms Annan stated she was not sure how police attendance would assist in resolving the issue but was adamant police still attend.[19]

Placement of the signs

[19] Exhibit P38.

1. Later that day,[20] Ms Annan took matters into her own hands, making two A3 paper signs at her work, on which were printed, in large black letters 'Why are you filming my children?'.[21]  She then affixed one sign to a wooden timber privacy screen adjacent to the boundary fence separating the Annans' property from the Stones'.[22]

   [20] The amended statement of claim incorrectly pleads this as occurring on 26 April 2017.

   [21] ts 81; exhibit P17.1.

   [22] Exhibit P12 and exhibit P13.

2. Ms Annan said that the privacy screen was her own fixture and not part of the boundary fence.[23]  Although the Annans did not tender a survey of the boundary I am satisfied that the fence was the boundary of the property and the wooden privacy screen was theirs and on their land.

   [23] ts 160 - 161.

3. The lettering on the sign pointed directly at the Stones' house and would only have been observable by people present on their property.

4. Ms Annan put the second sign on a wooden post at the front of her property.  It was angled slightly towards the Stones' house and visible to anyone passing along the street.[24]

   [24] Exhibit D2.

5. In evidence Ms Annan said, rather disingenuously, that the signs 'weren't targeted at any particular person at all'.[25]  I am satisfied the signs were directed at Ms and Mr Stone.

   [25] ts 171.

6. At 6.30 pm on 25 April 2017, Ms Annan emailed Sergeant (Sgt) Greene of Wembley police, who she had previous dealings with, and advised her that police could expect to receive a phone call as she had installed a sign on a post.  I am satisfied that Ms Annan expected the Stones would complain to police about the sign.  Ms Annan also wrote that the Annans were still waiting for police to attend and check the Stones' security cameras.[26]  

   [26] Exhibit P7.

7. In examination Ms Annan said that she produced and installed both signs on her own.  Under cross‑examination from her husband, Ms Annan said 'there is no connection between you and those signs at all.  I can't think of anything that would connect you to those signs'.[27]

   [27] ts 171.

8. In his evidence, given after Ms Annan, Mr Annan was similarly keen to disassociate himself from the production and placement of the signs.[28]  He said Ms Annan only told him about 'what she had done about the signs' after she spoke to SC Harris.[29]  I deal with what were in fact two discussions between Ms Annan and SC Harris in detail below but I am satisfied the relevant discussion was on 28 April 2017 and thus Mr Annan was suggesting he had no knowledge of the signs before then.

   [28] ts 249.

   [29] ts 235.

9. In reference to the sign at the front of the house, Mr Annan said he saw a stick of wood on the front lawn but thinks 'maybe the paper had blown away by then'.[30]  I am satisfied this was a reference to 28 April 2017 because Mr Annan said he later made an online complaint to police about SC Harris.[31]  For reasons I explain below, the earliest that complaint could have been made was 28 April 2017.

   [30] ts 236.

   [31] ts 236.

10. Ms and Mr Annans' evidence about the placement of the signs is inconsistent with a previous statement Mr Annan made to police in an electronic record of interview he participated in on 14 June 2017 which was tendered as real evidence for its truth.[32]  At the commencement of the interview, Mr Annan was given his rights and told he was under arrest on suspicion of breaching the restraining orders.

    [32] ts 262; exhibit D4.

11. In the interview Mr Annan denied putting up the signs but admitted that he cut pieces of tape at Ms Annan's request, not knowing what the tape was for as Ms Annan did not tell him.[33]  I am satisfied this was a reference to the fixing tape which can be seen in the photograph of the sign on the privacy screen that was subsequently seized by SC Harris.[34]

    [33] Exhibit D4.

    [34] Exhibit P12 and exhibit P17.1.

12. At the time Mr Annan admitted cutting the tape he knew police were investigating whether he was involved in producing or placing the signs.  He knew police had just searched his house looking for evidence, including an A3 printer and CCTV files.  He knew that the signs were a form of communication directed at the Stones and he knew that if he admitted knowingly assisting in their placement he was exposed to the risk of criminal prosecution for breaching the restraining orders.  Mr Annan also knew that police had seized the sign from the fence, and only moments before, taken his fingerprints.  I infer he knew police were able to forensically examine the sign and tape for his fingerprints.  I am satisfied that is why he admitted cutting the tape while maintaining his denial of knowing what the tape was for.  He knew he had to account for the possibility that police might recover his fingerprints from the tape.

13. Surprisingly, in their evidence Mr and Ms Annan said nothing about Mr Annan having cut tape for the privacy screen sign, although both knew that he did so.

14. Despite his denials, it is implausible that Mr Annan cut the tape on 25 April but did not see the very obvious sign in his front yard on 25, 26 or 27 April 2017.[35]  His evidence that he only saw a wooden stick after the sign had possibly blown away was untrue.  That evidence was also inconsistent with Ms Annan’s evidence that she took the sign in the front yard down on 28 April 2017.[36] She could not have taken it down if it had blown away.

    [35] Exhibit D2 is a photograph of the front yard sign taken by the Stones and later sent to police.

    [36] ts 87.

15. It is also implausible that Mr Annan would have cut pieces of tape for his wife without asking her what the tape was for and what she was doing.  It is just as unlikely that Ms Annan, in asking her husband to cut pieces of tape, did not tell him what it was for, particularly given that both she and he were aggrieved by the placement of the security cameras and the conduct of the Stones.

1. In failing to mention the tape cutting, and saying that she could not think of anything connecting Mr Annan to the signs (not even the connecting tape), Ms Annan was trying to protect her husband from potential criminal liability for assisting her in placement of the privacy screen sign.  I am satisfied the evidence of both Ms and Mr Annan regarding Mr Annan's lack of involvement in, and knowledge of, the placement of the signs was deliberately untruthful.

2. For this and other reasons I explain below, I have serious reservations about Ms and Mr Annans' credibility generally and I am not prepared to rely on their evidence except where it is independently confirmed or I identify that I accept it.

Ms Stone complains about the signs

1. At the time the signs were put up, the Stones were overseas.  Their house was occupied though and the presence of the signs was reported to them.  Unsurprisingly, on about 26 April 2017, Ms Stone complained to police about the sign posted in the front yard and on the dividing fence.  Although the original record of her complaint was not produced in evidence, I am satisfied that it was made and the initial police response was recorded in the Incident Report.[37]  The substance of Ms Stone's complaint was that Mr Annan was subject to restraining orders and that the Annans' security cameras on the front corner of their house were overlooking the Stones' driveway.[38]

Removal of the signs and alleged threats by SC Harris

27 April 2017

[37] Exhibit P38 records the police response to Ms Stone at 18.39 and 19.14 on 26 April 2017.

[38] Exhibit P23.

1. On 27 April 2017, SC Harris came on duty, checked the police CAD system and saw the complaint from Ms Stone regarding Mr Annan's alleged breach of restraining orders was outstanding.  As it was a priority 6 task, local police were required to attend to it.[39]  SC Harris was a police officer with 17 years of experience.[40]  He knew generally that there was a history of dispute between the neighbours and knew that Mr Annan was bound by a violence restraining order which prevented him communicating with Ms Stone.  He had no previous investigative involvement in matters between the neighbours.

   [39] ts 323 - 324.

   [40] ts 320.

2. I accept SC Harris' evidence that he decided it was necessary to try and resolve the disputes between the Annans and Stones, which were taking up valuable police time and resources.[41]

   [41] ts 324.

3. SC Harris telephoned Ms Annan with the intention of asking her to remove the signs and to give him time to look at all of the outstanding issues between the neighbours and attempt to resolve them.[42]

   [42] ts 324 - 325.

4. Ms Annan said that, apart from one prior interaction with Sgt Greene in 2016 at which SC Harris was present, she had no other personal dealings with him at all during this whole saga apart from this single phone call she remembered.[43]  SC Harris also believed there was only one phone call between them.[44]

   [43] ts 217.

   [44] ts 331.

5. SC Harris and Ms Annan were both wrong.  I am satisfied there were two phone calls, one on 27 April 2017 and a second on 28 April 2017.  In their evidence, SC Harris and Ms Annan conflated their memories of the separate calls into one.

6. SC Harris' mistake was a consequence of his fading memory over time.  From his perspective the calls were a routine part of his daily police work and he had no particular reason to remember them.

7. Ms Annan's mistake is more serious.  Although she conceded in cross‑examination there were two calls, she did not accept she had conflated them, only that she had forgotten the call on 27 April 2017.[45]  For the reasons I explain below, her refusal to accept she conflated the calls was unreasonable.  Further, her account of the single conversation she recalled and what she did in response was untrue.

   [45] ts 184.

8. The reason I am satisfied there were two calls is that SC Harris is an experienced and diligent officer and he recorded his actions in relation to the investigations, including a summary of both telephone calls, in contemporaneous police records.  He said, and I accept, that he does not intentionally put incorrect entries into the police recordkeeping system.[46]  His first entry on the Incident Report shows that at 1.57 pm on 27 April 2017 SC Harris called Ms Annan and had a short conversation with her, asking her to remove the signs.  She refused to do so.  He asked her again in a 'show of good faith'[47] to remove them until he had time and resources to investigate, and she refused again.

   [46] ts 365.

   [47] Exhibit P38.

9. SC Harris next spoke to Ms Stone and asked her to move the camera that was upsetting Ms Annan until he had time and resources to investigate.  She gave her account of events and said her cameras were not an issue.  SC Harris said he would investigate the next day. [48]

   [48] Exhibit P38.

10. I accept SC Harris' evidence that he was trying to diffuse the dispute between the Annans and Stones and was asking them both in good faith to change their actions causing upset to their neighbour until he had an opportunity to investigate further.[49]  SC Harris' 'good faith' remark was a polite request.  I am not satisfied it was an ultimatum or threat.

    [49] Exhibit P38.

11. On the evening of 27 April 2017, Ms Annan lodged an online police complaint about the Stones' security cameras.[50]  By this stage, her complaint had changed from a concern at being overlooked to include a 'formal request' that Mr Stone be charged with a breach of the Surveillance Devices Act 1998 (WA) (SDA). Ms Annan made no complaint about the conversation she had earlier with SC Harris or his request that she take down the signs. Given the Annans propensity for complaining about police, as demonstrated by their conduct over the next few months, I have no doubt that if SC Harris had threatened or intimidated Ms Annan in the conversation on 27 April 2017 she would have said so in her online complaint.

28 April 2017

[50] Exhibit P8.

1. The Incident Report shows two almost identical entries four minutes apart for SC Harris' actions on 28 April 2017.[51]  The second contains additional information regarding access and attendance at the Stones' house.  I accept SC Harris' explanation for the second entry being that the nature of the document is to record contemporaneous information and the CAD system does not allow editing so that a proper audit trail is preserved.  I am satisfied at the time of creating the Incident Report entries, SC Harris thought it necessary to include additional information for completeness and accuracy.  This is a good example of SC Harris' diligent approach to his recordkeeping and one of the reasons I can be satisfied his police records are accurate.

   [51] Exhibit 38.

2. On 28 April 2017, SC Harris together with First Class Constable (1/C) Dobson attended at both 13 and 15 Haldane Crescent.  SC Harris thought it was at around 2.00 pm or 3.00 pm but I am satisfied, based on the contemporaneous Incident Report it was between 12.30 pm and 1.00 pm.[52]  I accept SC Harris' evidence that there was no sign in the front yard or on the verge of the Annans' property at that time.  If the sign was present, consistent with his actions only a few minutes later, SC Harris would have photographed it.[53]

   [52] ts 325, exhibit P23.

   [53] ts 471.

3. In her evidence Ms Annan said that the sign was present in the front yard on 28 April 2017 and she only took it down that night.[54]  When counsel for SC Harris suggested to her in cross‑examination that she took the sign in the front yard down between the telephone call with SC Harris on 27 April  and him attending on 28 April 2017 she said:

   Absolutely not.  And I recall that vividly because it – I was very upset about the conversation, he did (ask) me as an act of good faith to take it down, he did tell me that he had taken the sign - my sign off the privacy screen and I relented reluctantly and I remember staying up well past my bed time that particular night to take that sign down.  He had given me till the end of that day to take down that sign as an act of good faith. And I waited until 11.30 pm to take that sign down.[55]

   [54] ts 87.

   [55] ts 184 - 185.

4. Ms Annan's confidence in the reliability of her vivid memory was misplaced.  I am satisfied that in response to SC Harris' 'good faith' request and despite her refusal in the telephone call to do so, she removed the paper sign in the front yard on 27 April and not on 28 April 2017.  It may be that she did so late that night after lodging her online police complaint.  She left the sign on the privacy screen in place.

5. After arriving at the Annans' house on 28 April 2017, SC Harris approached the front door and knocked.  No‑one answered.

6. SC Harris then went to the Stones' house next door.  He spoke to the occupant who he believed to be the sister of Ms Stone.  While on the Stones' property, SC Harris observed a paper sign attached to the wooden privacy panel above the boundary fence pointing towards the Stones' residence which SC Harris believed said 'Why are you filming our children?'  The sign in fact read 'Why are you filming my children?' SC Harris' mistake was minor and I reject the criticism made of it by the Annans in their closing submissions.[56]

   [56] Plaintiffs' closing submissions par 49.

7. SC Harris reasonably believed the wooden privacy screen was part of the boundary fence and described it so in the contemporaneous Incident Report.[57]  He took a photograph of the sign and decided to seize it as evidence and for forensic examination.[58]

   [57] Exhibit P38.

   [58] ts 471; exhibit 12.

8. SC Harris was not able to reach the sign and 1/C Dobson, who is taller than him, removed the sign from the wooden privacy screen.  He then handed it to SC Harris who followed usual police procedure and put it in an evidence bag which he sealed and signed.[59]  The sign was subsequently entered into a WA Police property register.[60]

   [59] ts 329; exhibit P17.2.

   [60] On 2 May: exhibit P23.

9. The police officers then returned to the police station. SC Harris telephoned Ms Annan and had a very lengthy conversation with her.[61]  This was their second and final conversation.

   [61] Exhibit P38.

10. Although it is not recorded in the Incident Report, I accept SC Harris' evidence that the conversation was 'fiery'.[62]  I am satisfied that after Ms Annan asked him about the police process regarding the signs, SC Harris explained to her that he would have to speak to her husband which would involve arresting him on suspicion of allegedly breaching the restraining orders and giving him the opportunity to participate in an electronic record of interview.  SC Harris told Ms Annan that Mr Annan would then be 'charged or not charged'[63] depending on the evidence.  I accept he may have said, as Ms Annan recalled, that the placement of the signs was a breach of the peace.[64]

    [62] ts 325.

    [63] ts 325.

    [64] ts 87.

11. Ms Annan's account of the conversation was quite different.  She said in her evidence that SC Harris threatened her by saying that 'if I didn't take the signs down, that he would arrest my husband in front of my children'.[65]

    [65] ts 87.

12. Ms Annan has given other versions of this alleged threat, inconsistent with her evidence.  She said that she and Mr Annan lodged an online complaint about SC Harris on 28 April 2017.[66]  The email acknowledgement from WA Police of receipt of Mr Annan's complaint is dated 2 May 2017.[67]  Subsequent online complaints lodged by the Annans in the same way were acknowledged immediately by WA Police.  Accordingly, I am not satisfied the complaint was made on 28 April, only that it was made sometime between 28 April and 2 May 2017.

    [66] ts 90.

    [67] Exhibit P9.

13. SC Harris' alleged threat as described in the online complaint had an additional element to Ms Annan's evidence.  The complaint was in Mr Annan's name and said that SC Harris 'threatened to re-instigate the fabricated charge of which I was acquitted' and 'threatened to have me arrested in front of my children if Rachael did not comply with his request (to remove the sign from the garden)'.[68]

    [68] Exhibit P9.

14. In the amended statement of claim the alleged threat is pleaded differently again.  It says that SC Harris also demanded that Ms Annan not replace the sign he had removed, that she remove any other signs from her property and threatened to have Mr Annan arrested if Ms Annan did not comply with his demands.[69] 

    [69] Amended statement of claim par 10.

15. These inconsistencies, together with Ms Annan's poor memory and conflation of the two phone calls, causes me to conclude that Ms Annan's account of the telephone calls was unreliable and in relation to the various alleged threats, untruthful.

16. Further, if the alleged threat was made, it could only have occurred in the first conversation on 27 April, as both signs had been removed by the time of the second conversation on 28 April 2017.

17. It is also implausible that SC Harris, an experienced and professional police officer, who had no substantive contact with Ms Annan prior to 27 April 2017, would unlawfully threaten her on the telephone in such a way.  SC Harris' intention on 27 April 2017 was to diffuse the situation and buy time.  A threat to arrest Mr Annan would have had the opposite effect.

18. I am not satisfied that SC Harris made any threats to Ms Annan or about Mr Annan on 27 April, 28 April 2017 or at any other time.

19. After speaking to Ms Annan on 28 April 2017, the Incident Report confirms SC Harris' evidence that he intended for the afternoon shift to attend that evening at the Annans' house to see if the Stones' security camera was pointing into the Annans' daughter's room.[70]  That was because Ms Annan maintained her complaint about the Stones' security cameras in the phone call on 28 April 2017.

    [70] Exhibit P38.

20. The entry rebuts Ms Annan's evidence and the pleaded case that SC Harris told her that he was not going to investigate her complaint about the Stones' cameras.[71]  Ms Annan's evidence on this issue was untruthful.  I accept SC Harris' evidence that it was his job to investigate and he had no choice but to do so.[72]  As will be clear from what follows, SC Harris did continue to investigate Ms Annan's complaint.

    [71] ts 89; ts 192; amended statement of claim par 10.

    [72] ts 334; ts 373.

21. True to his word, on the evening of 28 April 2017, SC Harris arranged for Acting Sergeant (ASgt) Moorfield and another officer from Wembley Police Station to attend and they spoke to Ms Annan.  Although they were not called as witnesses I am satisfied I can rely on the contemporaneous Incident Report entry.

22. From the Annans' house the officers viewed the security camera in the Stones' gable window and recorded that it appeared to be 'pointed along the fence line and may capture some of (the Annans') rear yard'.[73]  The Annans accused police of contacting the Stones, which they said resulted in the angles of the camera being moved before police attended.  The officers provided the Annans with an email address they could forward any video or pictures showing the camera pointing at a different angle to.

    [73] Exhibit P38.

23. This was an odd accusation by the Annans given that the video, which Ms Annan claims was taken on 29 April, appears to show the security camera overlooking the Annan property and, as best I can tell, in the same position as the photograph she took on 8 April 2017.[74]  The security camera does not appear to me to have been moved in between.  

    [74] Exhibit P4.2 and exhibit P11.

24. If the security camera had been moved, which would account for the Annans' accusation, and the police assessment of where it was pointing on 28 April was accurate,[75] Ms Annan's evidence that she took the video on 29 April 2017 was wrong.

    [75] Exhibit 38 records that the attending police took photographs of the camera but they were not tendered in evidence.

25. It is clear from the Incident Report entry that by 28 April 2017 the Annans' primary concern was the investigation and prosecution of the Stones rather than the removal of the overlooking security camera.  Mr Annan said that police should get a warrant immediately to enter the Stones' house.[76]

    [76] Exhibit P38.

26. There is also nothing in the Incident Report about the presence of a sign in the front yard or any discussion with the Annans about a sign.  I would expect that if the sign was still present the police officers would have seen it and noted it in the Incident Report.

Further investigation of the Annans' complaint

1. SC Harris and other officers continued to investigate the Annans' and Stones' complaints through May 2017.  It is not necessary for my purposes to make detailed findings about everything that was done.  I am satisfied the police records tendered by both parties are accurate.  I address only the important matters below.

2. On 1 May 2017, Ms Annan emailed ASgt Moorfield at Wembley police and attached 'screenshots of the video footage evidence taken by me on 1 May 2017'.[77]  The attached screenshots from the video were annotated 'Evidence 2017-05-01'.[78]  The original video in evidence does not have the annotation.[79]

   [77] Exhibit P10.

   [78] Exhibit P10.

   [79] Exhibit P11.

3. In her earlier online complaint of 27 April 2017, which requested that Mr Stone be charged, Ms Annan wrote 'I have today collected photographic and video evidence to support the charge'.[80]

   [80] Exhibit P8.

4. I am satisfied the screenshots were taken and annotated on 1 May 2017 by Ms Annan.  I am not satisfied the video was taken on 29 April as Ms Annan said in evidence, nor on 1 May 2017 as she inferred in the email.  The video was taken at some earlier time, probably on 27 April 2017.  Ms Annan's evidence about when she took the video was unreliable.

5. In her email Ms Annan formally requested Mr Stone be charged for repeated breaches of the SDA.

6. On 2 May 2017, ASgt Moorfield replied to Ms Annan that he had forwarded the evidence she had sent to SC Harris who was following up the complaint.[81]

   [81] Exhibit P10.

7. By this time the Annans' online complaint[82] about SC Harris had come to the attention of Senior Sergeant Foley (OIC Foley), the officer in charge of Wembley Police Station and SC Harris' supervisor above his immediate team leader, Sgt Greene.  On 3 May 2017, OIC Foley interviewed SC Harris and told him not to speak to the Annans.  He was no longer the investigating officer but had an ongoing investigative role with other officers.  He was tasked with the responsibility of reviewing the complaint history between the neighbours and police actions in relation to them.[83]

   [82] Exhibit P9.

   [83] ts 384; ts 413.

8. I am satisfied SC Harris was at all times subject to the orders and supervision of OIC Foley, as is usual police practice.  That he was working under her direction is clear from the police records, for example it was OIC Foley who instructed SC Harris to upload the photographic evidence Ms Annan provided to police to the police data base.[84]

   [84] Exhibit P18.

9. On 4 May 2017, Constable Cooper attended the Annans' house at night to check the Stones' security camera.  His observation was different to that of the officers who attended on 28 April 2017.  The Running Sheet records that the camera was clearly visible and pointed towards the side living room door of the Annans' house.  When the door was open it was reasonable to assume the camera would be able to view inside their house but that it did not appear to look into the children's bedroom.[85]

   [85] Exhibit P22.

10. I accept SC Harris' evidence about what he did in investigating Ms Annan's complaint about the Stones.  His actions are borne out by the contemporaneous WA police records.

11. On 5 May 2017, SC Harris spoke to Ms Stone who told him that they would be returning from Bali.  He told her that he wanted to inspect their CCTV monitors and system for himself and said he had some strategies that he wanted to discuss so that all parties could move forward and have the issues resolved.  He also spoke to Mr Stone.[86]

    [86] Exhibit P18.

12. On about 7 May 2017, the Stones returned from overseas.

13. SC Harris obtained a search warrant for the Stones' house on 8 May 2017.[87]  He also emailed Ms Stone saying that he wanted to discuss three matters in person that day.  Firstly, her complaint regarding the signs, secondly the CCTV issues and thirdly moderation services to resolve the ongoing conflict between the neighbours.[88]

    [87] ts 383 - 384.

    [88] Exhibit P21.

1. Indicative of SC Harris' continuing desire to resolve the disputes between the neighbours he had made enquiries about moderation services and involving outside agencies.[89]  

   [89] Exhibit P22 and exhibit D1.

2. SC Harris attended to execute the warrant with SC Bowman and 1/C Dobson on 8 May 2017.[90]  The Stones gave consent to search the premises and it was not necessary to execute the warrant.[91]

   [90] ts 385.

   [91] ts 385.

3. Whilst at the premises, SC Harris took a number of photographs in an attempt to demonstrate the position and angle of the Stones' cameras.[92]  He also examined the tablet which live streamed the cameras and took photographs of it.[93]  He searched for, but was unable to find, any hard drives or copies of recordings which would provide evidence of unlawful surveillance.[94]

   [92] ts 385 - 386; exhibits P40.1, P40.2, P40.10.

   [93] ts 387 - 388.

   [94] ts 388.

4. SC Harris examined the security camera located in the gable window which Ms Annan had complained about but, at the time of his inspection, it was not plugged in and it was not feeding any live footage to the tablet and there was no evidence of recorded footage on the camera.[95]

   [95] ts 389 - 390.

5. The external camera located in the eaves of the house was a dummy camera and covered with cobwebs.[96]  No evidence in the nature of cameras or recordings were seized during, or as a consequence of, the search.[97]

   [96] ts 389.

   [97] ts 390.

6. After the search Mr Stone sent two emails to SC Harris[98] complaining about the Annans and alleging police failures in dealing with their conduct.  In the second email Mr Stone said he had removed two cameras that SC Harris had asked him to consider moving 'out of deference to your request, and our respect for the police.  Not because I believe I should do so or am required legally to do so'.[99]

   [98] Exhibit P22.

   [99] Exhibit P22.

7. On 12 May 2017, SC Harris interviewed the Stones under caution about the alleged surveillance of the Annans.[100]  He then sought legal advice on proof of an offence under the SDA.  Written advice was subsequently provided via email by Sgt Bacon of WA Police Legal Services.[101]

   [100] ts 392.

   [101] ts 392 - 393; exhibit P19.

8. On 21 May 2017, Ms Annan emailed OIC Foley regarding the investigation of the online complaint against SC Harris.  She also asked for a progress update concerning her complaint about the Stones' security camera.[102]

   [102] Exhibit P15.

9. Under cross-examination Ms Annan agreed that she did not complain to OIC Foley in that email about persistent banging on her fence which she said was occurring around that time and which she believed the Stones were responsible for.  She said she did not complain because she was grateful to the police because they were continuing to investigate her complaint and did not want to 'rock the boat'.[103]  She also said she did not complain because her husband had been threatened by SC Harris and she was scared.[104]

   [103] ts 207.

   [104] ts 207.

10. I do not accept either of those contradictory explanations which reflect poorly on Ms Annan's credibility.  Based upon her conduct, it is clear that Ms Annan was not scared of police and was willing and able to complain about every perceived infringement of her and Mr Annan’s rights.

11. On 26 May 2017, SC Harris completed his review of the ongoing dispute between the Annans and Stones and sent a memo to his team leader Sgt Greene.[105]  I am satisfied the memo objectively summarises his investigative actions and recommendations.  He accurately characterised the 'deeply entrenched' conflict between the Annans and Stones as 'dysfunctional and hostile'.[106]  He wrote, and I accept, that his intentions were to finalise the outstanding criminal investigations and 'more importantly in using a holistic approach I am interested in engaging and developing both parties in order to resolve the ongoing conflict'.[107]

    [105] Exhibit P25.  The memo is addressed, apparently in error, to A Sgt Green.

    [106] Exhibit P25.

    [107] Exhibit P25.

12. On 31 May 2017, SC Harris concluded his investigation of the Annans' complaint and recommended that no charges be laid against the Stones.[108]

    [108] Exhibits P18, P24.

13. The decision not to charge the Stones was made in consultation with OIC Foley.[109]  SC Harris had no power to make that decision alone.

The search warrant for the Annans' house

[109] ts 394.

1. The police investigation regarding the Stones' complaint continued into June 2017.  I accept SC Harris' evidence that OIC Foley wanted all matters finalised and I infer she wanted that done promptly.[110]  In all likelihood OIC Foley was the person who told SC Harris that a warrant to search the Annans' house had been drafted by SC Bowman.[111]  SC Harris then sent an email on 2 June 2017 at 7.16 am to other officers at the station involved in the investigation that the 'search warrant is completed ready for approval.  It's under Amanda CIA form on the system.'[112]  SC Harris wrote that the designated approval officer might need to be changed if Detective Sergeant (DSgt) Yow was not working, and a handover to Sgt Vojkovich organised.

   [110] ts 398.

   [111] ts 462.

   [112] Exhibit P26.

2. I do not accept the email indicates that SC Harris personally drafted the application for the search warrant.  The application was prepared by Constable (PC) Rowland.[113]  If SC Harris had prepared the warrant, he would not mistakenly have said in his email that it was done by Amanda (Bowman), rather he would have said Andrew (Rowland).[114]

   [113] Exhibit P27.

   [114] ts 399.

3. DSgt Yow, a senior police officer, who was independent of the investigation and acting independently of SC Harris, checked and approved the search warrant application.  This was standard WA Police procedure and what SC Harris was referring to in his email.[115]

   [115] ts 399; exhibit P27.

4. After obtaining DSgt Yow's approval, PC Rowland attended before a Justice of the Peace.  On oath he swore that there existed a reasonable suspicion that the items listed in the application, including computer or electronic storage devices containing videos, recordings, photographs or documents resembling the signs, an A3 sized printer and video or still vision of 13 and 15 Haldane Street were in the Annans' home.

5. It is not necessary for me to detail the grounds outlined in the application.  I accept that PC Rowland honestly believed the matters he swore were true.  Of note, par 2, was that when police attended the Annans' house on 28 April 2017, the sign in the front yard had been removed.[116]

   [116] Exhibit P27.

6. The Justice of the Peace was independently satisfied the search warrant should issue and granted the application at 9.08 am.[117] The warrant authorised a search under the Criminal Investigation Act 2006 (WA) (CIA) for the listed items within 14 days.[118]

   [117] Exhibit P27.

   [118] Exhibit P28.

7. Sgt Vojkovich gave evidence before me about what happened next in relation to the matter and I found him to be a truthful and reliable witness.  His involvement started when he was tasked by OIC Foley to supervise the execution of the search warrant and the continuing investigation.  He was given that responsibility as his team of officers had no direct involvement with the investigation before then and because of his background as a senior officer and detective who could be relied upon to handle the matter with impartiality and, I infer, sensitivity.[119]

   [119] ts 288.

8. Sgt Vojkovich's team included, amongst others, 1/C Edwards who gave evidence in the trial and SC Griffiths who did not.  SC Harris was not then, or later, part of Sgt Vojkovich's team which operated independently of him.  Under cross‑examination from Mr Annan, Sgt Vojkovich said that he had received very little information from SC Harris about the matter and didn't think he received 'much direction from SC Harris at all'.[120]

   [120] ts 309.

9. In relation to his and his team's actions relating to the search warrant, Sgt Vojkovich said and I accept that SC Harris 'had no input into the matter at all'.[121]  He testified that he 'might have discussed it with him but I - in terms of what we were doing at the time, I can't recall speaking to Craig Harris at all'. [122]  I accept Sgt Vojkovich's evidence.  He was not acting on behalf of SC Harris, nor executing a plan developed by SC Harris. [123]

   [121] ts 312.

   [122] ts 312.

   [123] ts 316.

10. Sgt Vojkovich said, and I accept, that he did not blindly execute the search warrant, but did his due diligence and satisfied himself about what it was he was being asked to supervise.[124]

    [124] ts 310.

11. In his evidence, 1/C Edwards confirmed that the involvement of his team led by Sgt Vojkovich team was uncommon but came about because of the issues relating to Mr Annan having made a complaint about police.[125]

    [125] ts 279.

12. Although the investigation had been handed over, and despite going off shift for two days, on 9 June 2017 SC Harris emailed Sgt Vojkovich, 'Mate my phone is on if you need to call re the ANNAN warrant'.[126]  I am satisfied SC Harris sent that email so that Sgt Vojkovich could speak to him, even though Mr Harris might be off‑duty, if it became necessary to obtain background information about the complaint.  That was entirely professional and reasonable of SC Harris.

    [126] Exhibit P29.

13. On 9 June 2017, Sgt Vojkovich put SC Griffiths, who was a very experienced and competent officer, in charge of the continuing investigation of the Stones' complaint and the execution of the search warrant, while he took on the role of supervising officer.

14. As Sgt Vojkovich said, the plan for the search warrant was  'a softly, softly door' - in other words, a very low key approach with no forced entry, no use of tactical weapons or techniques, no surrounding the house and as low grade an execution of a search warrant as could be carried out.[127]

    [127] ts 290.

15. On 13 June 2017, SC Griffiths sent an email to OIC Foley, in response to another complaint by Mr Annan, outlining his involvement in the matter.[128]  I am satisfied that he conducted his own review of the complaint and case file and, before attending the Annans' house, hoped to get consent to search for the evidence.  He only intended to execute the warrant if consent was not given.  He confirmed that Sgt Vojkovich's involvement was to act as a mediator and as part of the 'soft' approach to the warrant that was planned.  Sgt Vojkovich was not to be in uniform and would not be armed.  Consideration was given to the possibility that young children might be in the house at the time.

    [128] Exhibit P32.

16. On 10 June 2017, Sgt Vojkovich and five officers from his team attended at the Annans' house to execute the warrant if it proved necessary to do so.  SC Griffiths knocked on the door and spoke to a young female child who answered.  Rather than execute the warrant he told her that he would come back at a later time to see her Mum and Dad.  The child was friendly towards him and did not appear bothered by the presence of police.[129]

    [129] Exhibit P32, date incorrectly recorded as 19 June 2017.

17. Very shortly after police attendance, Ms Annan telephoned the general police line and asked why police wanted to contact her.  She was anxious and concerned for her children.[130]

    [130] Exhibit P30.

18. On 11 June 2017 at 11.28 am, WA Police acknowledged receipt of an online complaint by Mr Annan concerning the attendance by police on 10 June 2017.  Mr Annan wrote that there was no reasonable explanation for the police having come to his house and the event frightened his children 'who are in constant fear of the police'.[131]  He described the police behaviour as abusive and inferred it was a response to his complaint about the Stones.  He alleged that Wembley police had a strategy to harass his family.

    [131] Exhibit P35.1.

19. Sgt Vojkovich's team attended later on 11 June 2017 to execute the search warrant but no‑one was home.  Numerous attempts were made to communicate with the Annans by knocking on the door and telephoning, without success.[132]  Again, and consistent with their 'soft' plan, the team decided not to execute the warrant at that time.

    [132] ts 293.

20. After police left, Mr Annan lodged yet another online complaint and received a WA Police email acknowledgement at 5.15 pm.  Again he wrote that the behaviour of the police was unnecessarily abusive and harassing.  The complaint added that 'Julie Foley is in charge of these officers and must be aware of this ongoing harassment I am today seeking immediate intervention from another police department and the CCC as I fear for my children's safety'.[133]

    [133] Exhibt 35.2.

21. Not content with that, on 12 June 2017, Mr Annan spoke to a lawyer friend[134] and then emailed a further written complaint about police conduct to an ASgt Green of the police ethics team and courtesy copied OIC Foley.  Mr Annan alleged that police were behaving in a vindictive and intimidating way and harassing his family and that OIC Foley was 'allowing' SC Harris to carry out his threat of arrest 'with maximum impact'.[135]  I infer it was this complaint that SC Griffiths was responding to in his email to OIC Foley on 13 June 2017.

    [134] ts 237.

    [135] Exhibit P31.

22. Of note, it is clear from those complaints that Mr Annan knew that the police officers who attended his house reported to OIC Foley and that SC Harris was also subject to her authority.

23. On 13 June 2017, Sgt Vojkovich's team, including 1/C Edwards, attended again at the Annans' home to execute the search warrant but no‑one was home and the warrant was again not executed.[136]

The search of 14 June 2017, arrest of Mr Annan and finalisation of the police investigations

[136] ts 274.

1. On 14 June 2017, Sgt Vojkovich's team attended again at the Annans' house to execute the search warrant.  Shortly after 7.30 am SC Griffiths knocked on the door and made a phone call to Mr Annan following which he answered the front door.[137]  SC Griffiths asked, as he was required to pursuant to s 31 of the CIA, for consent to search prior to execution of the search warrant.[138]  Mr Annan's consent to the search was video recorded and he also signed a consent to search form.[139]

   [137] ts 296.

   [138] ts 296; ts 260.

   [139] ts 297; exhibit D3.

2. Sgt Vojkovich then sent two of the officers back to the police station.  Only he, 1/C Edwards and SC Griffiths entered the premises.  Police were conscious of the presence of the children and tried to minimise the impact on the family of the search.[140]

   [140] Exhibit P22.

3. Police searched for the items listed in the search warrant in the kitchen and living area for about five minutes.  They then went to a small study near the front door where they looked at and photographed a computer printer.[141] Mr Annan assisted SC Griffiths by operating his computer so police could examine his saved security camera recordings.[142]  Nothing of interest to police was found.

   [141] Exhibit P22.

   [142] ts 298.

4. Sgt Vojkovich made the decision not to seize the computer hard drive for further analysis given the likely delay in that occurring.[143]  Nothing else was seized.  In accordance with usual police procedure the search was video recorded.  The Annans also recorded the search.[144]  The video recordings were not produced in evidence.

   [143] ts 299.

   [144] Exhibit P33.

5. In her evidence and under cross-examination, Ms Annan claimed that one of the officers who attended on the search told her that her husband was a criminal.[145]  I accept that Ms Annan was under some stress during the search and it is clear from her evidence generally that she misinterpreted routine police procedures as potentially threatening to her.  However, some matters are not a consequence of interpretation and impression and, in circumstances where the Annans have not produced any objective video evidence to support their allegations of police misconduct during the search, I do not accept Ms Annan's evidence that a police officer told her that her husband was a criminal.  I also do not accept her evidence that for the duration of the search one of the officers had his hand on his taser.[146]  I do accept the evidence of Sgt Vojkovich and 1/C Edwards about what they say occurred during the search.

   [145] ts 216.

   [146] ts 134.

6. I am not satisfied, as the Annans plead, that Sgt Vojkovich's team attended at their house on five consecutive days and remained for an excessive and unwarranted duration.  Whilst a number of the officers were armed, that was not excessive and is routine in the planned execution of many search warrants.  Police officers are usually armed when performing duties outside of a police station.

7. After the search was completed police wanted to formally interview Mr Annan about his knowledge of the signs.  Ordinarily Mr Annan would have been arrested as a suspect and transported to the police station.  Sgt Vojkovich though, struck a very unusual 'gentleman's agreement' that Mr Annan would make his own way down to the police station.[147]  Sgt Vojkovich, in his many years of experience, said that he could count on one hand the number of times he had done so.[148]  I am satisfied this was indicative of police consideration for the Annans and their children and consistent with his teams 'softly softly' approach to the investigation.

   [147] ts 301.

   [148] ts 304.

8. Mr Annan voluntarily attended at the police station where he refused to provide his fingerprints to SC McIntyre.  Detective Sergeant Yow authorised those identifying particulars to be taken and they were.[149]

   [149] Exhibit P22.

9. 1/C Edwards and SC Griffiths then conducted the electronic record of interview with Mr Annan about which I have already made some findings.  It is not necessary to summarise it further.  What is revealing though is the overt hostility Mr Annan displayed towards the Stones, describing them as the 'criminals living next door'.[150]  I am satisfied the interview was conducted voluntarily, fairly and the behaviour of the police officers was entirely professional.

   [150] Exhibit D4; ts 261.

10. Whilst at the police station, Mr Annan accused police of corruption and fabrication of evidence.[151]  He alleged that he was unreasonably imprisoned in a small cell and mocked by police.[152]  Mr Annan was not imprisoned and I do not accept that he was mocked.  His allegation, even though contemporaneous, is inconsistent with my findings about the conduct and professionalism of the police officers who dealt with Mr Annan on the day.  Mr Annan's other allegations are part of the Annans' claim, which I will deal with later in my reasons.

    [151] Exhibit P22.

    [152] Amended statement of claim par 21.

11. Mr Annan was released unconditionally after the interview without charge.

12. Later on 14 June 2017, Ms Stone was advised by SC Griffiths that the outcome of the investigation was that Mr Annan was not being charged at that time.[153]

    [153] Exhibit P22.

13. Also on 14 June 2017, Sgt Vojkovich emailed SC Harris and asked him 'even though you are not the investigating officer' to attend to finalising the necessary police records concerning two of the incident reports relating to Ms Annan's complaints. SC Harris, in response said that he would do so and thanked Sgt Vojkovich for doing the warrant.[154]  I accept SC Harris' evidence that he did so simply to be nice and to show gratitude to Sgt Vojkovich, because he knew that no‑one at Wembley Police Station wanted to be involved in the warrant.[155]  It is also abundantly clear from the email exchange that, as between Sgt Vojkovich and SC Harris, the more senior person providing direction is Sgt Vojkovich, not the other way around.

    [154] Exhibit P36.

    [155] ts 402.

14. On 14 June 2017, OIC Foley also emailed SC Harris regarding the finalisation of the Annan complaint and directed DSgt Yow review it.[156]  Again it is clear that OIC Foley was aware of and checking what SC Harris was doing, was more senior to SC Harris and was providing him with directions he had to comply with.

    [156] Exhibit P18.

15. On 15 June 2017, SC Harris acted on the directions from Sgt Vojkovich and OIC Foley and entered the reasons for the finalisation of Ms Annan's complaint in the Running Sheet as 'insufficient evidence to prove or even support a charge.  The POI have not committed an offence and the complaint is bordering on vexatious'.[157]

    [157] Exhibit P18.

1. On 9 January 2019 Ms Annan's sign was returned to her by police.[158]

   [158] ts 163.

First cause of action – Trespass to land

1. The Annans claim that SC Harris, in removing Ms Annan's sign without her consent and without reasonable grounds, trespassed on their land.  Although the claim is pleaded as a trespass on land they also claim that their fixtures were interfered with and that a receipt was not provided for the sign and the sign was not returned.  Further, they allege that SC Harris acted maliciously and without any proper motive.  They claim, amongst other things, that SC Harris was trying to stop Ms Annan's protest against police inaction and punish her for that and her complaints about the Stones' security cameras.

2. SC Harris does not admit any of those claims.

3. I will deal with those aspects of the claim relevant to trespass and seizure of the sign below and the balance of the matters when I consider misfeasance.

Legal principles

1. An action in trespass lies against police officers and private persons.[159]

   [159] Halliday v Nevill [1984] HCA 80; (1984) 155 CLR 1.

2. To prove trespass Mr and Ms Annan must prove that:

   1.SC Harris voluntarily and physically entered onto land in their possession;

   2.without either of the Annans' consent; and

   3.without lawful authority.[160]

Did SC Harris enter the Annans' property?

[160] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 647.

1. The Annans allege that SC Harris, whilst on the neighbouring property of the Stones, reached across the dividing fence and removed the paper sign that Ms Annan had fixed to her timber privacy screen.  Insofar as the statement of claim suggests that the attendance by SC Harris on the Annans' property earlier when he knocked on the front door to see if they were home was a trespass, Ms Annan made it clear in her evidence that she and Mr Annan did not allege that was an act of unlawful trespass.[161]

   [161] ts 162 - 163.  See also plaintiffs' closing submissions par 1 - par 4 and par 12 - par 15.

2. I am satisfied that the alleged trespass, being the reaching over the boundary fence by a few centimetres to remove the sign on the privacy screen, was done by 1/C Dobson and not SC Harris.

3. In their closing submissions the Annans argue that SC Harris slipped in cross‑examination and admitted that he physically removed the sign and therefore trespassed on their property.[162]  That was not my interpretation of SC Harris' evidence.  I am satisfied his answer was not an admission of personal removal but an acceptance on his part of joint responsibility with 1/C Dobson for seizing the sign.  Joint responsibility is not sufficient to prove a trespass.  The Annans must prove that SC Harris personally entered their property.  He did not do so.

   [162] Plaintiffs' closing submissions par 12 - par 15; ts 414.

4. The Annans have failed to prove SC Harris trespassed on their land and their first cause of action fails.

Did the Annans consent to entry?

1. If my conclusion about entry onto the land is wrong I am satisfied the entry, whether it was by SC Harris or 1/C Dobson was without the consent of Ms Annan or Mr Annan. 

Was SC Harris acting without lawful authority?

1. The Annans have not satisfied me that there was an absence of lawful authority, even if there was a trivial trespass of reaching across the boundary fence to remove the sign.

2. Section 35(1)(b) of the CIA authorises a police officer who reasonably suspects that a breach of the peace by a person is occurring may enter the place in order to prevent it.  I do not accept the Annans' closing submissions about how that power should be interpreted.[163]  I am not satisfied that when 1/C Dobson reached across the fence he and SC Harris did not reasonably suspect that Mr Annan was in breach of a restraining order and thus in breach of the peace.

   [163] Plaintiffs closing submissions par 20 - par 25.

3. Even if there was a trespass, the seizure of the sign by police was authorised by s 146 of the CIA, at least to preserve the sign's evidentiary value.  

4. Police should have provided written notice 'if practicable' of the seizure to the Annans and it seems they did not.[164] I am satisfied it was practicable for SC Harris to give written notice to the Annans of seizure of the sign before 3 May 2017. This was a minor failure though as SC Harris told Ms Annan within hours that the sign had been removed and seized.  After 3 May it was not practicable for SC Harris to give written notice to the Annans because he was ordered not to contact them by OIC Foley.  In any event, the failure to provide written notice does not invalidate the seizure of the sign.

   [164] CIA s 147(3).

5. The CIA provides a remedy for aggrieved occupiers where property is seized in such circumstances. [165]  There is no evidence that the Annans exercised that remedy and applied to the Magistrates Court for review of the seizure of the sign.  Even though written notice of seizure was not given to them, the Annans knew police had the sign and failed to exercise the remedy available to them.  Without having done so their complaint about interference with their chattel in these proceedings is misconceived. 

   [165] CIA s 147(5).

Second cause of action – Malicious procurement of a search warrant

1. The Annans claim that SC Harris procured a search warrant for the search of their property and that he had no reasonable and probable cause to apply for it as no offence had been committed.  They claim the things sought in the warrant did not exist, there were no reasonable grounds to believe the things would or should exist and that, if the things sought had existed they had no evidentiary value.  They claim the application by SC Harris to obtain the warrant was malicious and done to discredit them and deflect police from prosecuting the Stones.  Further, they claim they were intimidated by their property being unreasonably occupied by armed police for an unreasonable period of many days and that they were humiliated and vilified in their local community and depicted as hardened criminals.[166]

   [166] Amended statement of claim par 24.

2. SC Harris does not admit any of those claims.

Legal principles

1. The tort of maliciously procuring a search warrant has been recognised in Australia.[167]  The action is akin to malicious prosecution, its true foundation being an intentional abuse of the processes of the court.[168]

   [167] Young v State of New South Wales; Young v Young (No 2) [2013] NSWSC 330 and Roman v Commonwealth of Australia (2004) 16 NTLR 80; [2004] NTSC 9.

   [168] Gibbs v Rea [1998] AC 786 [41].

2. To be successful the Annans must prove that SC Harris:

   1.made or caused to be made a successful application for the search warrant;

   2.did not have reasonable and probable cause to make the application; and

   3.acted with malice.[169]

   [169] Gibbs v Rea [38].

3. Based on the decision of the Privy Council in Gibbs v Rea,[170] both parties submitted that a fourth element, namely that damage resulting from the issue or execution of the warrant needed to be proved.

   [170] Gibbs v Rea [38].

4. In relation to the analogous tort of malicious prosecution, proof of damage was not identified as an element by the High Court in A v New South Wales[171] and Beckett v New South Wales.[172]  With respect I agree with the analysis of those decisions by Davis DCJ in Cunningham v Traynor[173] to that effect and apply it to this cause of action.  I will proceed on the basis that damage is not an element of the tort.[174]

   [171] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500.

   [172] Beckett v New South Wales [2013] HCA 17; (2013) 248 CLR 432.

   [173] Cunningham v Traynor [2016] WADC 168 [131].

   [174] In the unsuccessful appeal from her Honour's decision the Court of Appeal did not refer to damage as an element of the tort of malicious prosecution: The State of Western Australia v Cunningham[No 3] [2018] WASCA 207 [152].

5. Acting without reasonable and proper cause may be established in either or both of two ways: the defendant did not 'honestly believe' the application that was made, or the defendant had no sufficient basis for so believing.[175]  In most cases, the allegation that the defendant did not 'honestly believe' the application will require consideration of what the defendant knew, believed or concluded about some aspect of the material that he or she had available when deciding whether to procure the search warrant.[176]

   [175] A v New South Wales [77].

   [176] A v New South Wales [78].

6. The element of absence of reasonable and probable cause is often intimately connected with the element of malice, and it is not easy to place the relevant factual matrix into neat compartments.[177]  An inference of malice might also demonstrate the absence of reasonable and probable cause.[178]

   [177] Noye v Robbins [2010] WASCA 83 [123].

   [178] A v New South Wales [90].

7. Malice must be proved.  It may arise by inference but cannot arise from conjecture or suspicion.[179]  To constitute malice, the dominant purpose must be a purpose other than the proper invocation of the criminal law.[180]  It is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked.[181]  'At the heart of the notion of malice is the abuse of a power for some improper motive or purpose'.[182]

Did SC Harris apply for the search warrant?

[179] A v New South Wales [93].

[180] A v New South Wales [91].

[181] A v New South Wales [92].

[182] Ives v The State of Western Australia [2010] WASC 178 [27] ‑ [28].

1. Following from my factual findings I am not satisfied that SC Harris applied for the search warrant as it was obtained by PC Rowland.

2. I am also not satisfied that SC Harris caused the application for the search warrant to be made in the sense that he directed or procured PC Rowland to do so.[183]  SC Harris was one of a number of police officers investigating the Stones' complaint.  Evidence gathered by SC Harris was relied upon by PC Rowland in his independently authorised and sworn application.  The search warrant was independently and lawfully issued by a Justice of the Peace.

   [183] ts 462.

3. At all relevant times SC Harris was acting under the supervision and at the direction of OIC Foley.  Because of the complaint made against him by the Annans, SC Harris was not involved in the planned execution of the warrant and subsequent search of the Annans' premises which was done by an independent team of police officers lead by Sgt Vojkovich.

4. The Annans have failed to prove SC Harris procured the search warrant and their second cause of action fails.

Was there no reasonable cause for the search warrant application?

1. If my conclusions about the first element are wrong I am not satisfied that SC Harris did not honestly believe the search warrant application.  Indeed, I am satisfied SC Harris was an honest witness and independently of PC Rowland and his application, honestly believed the matters referred to in the application.

2. Although not pleaded, in their closing submissions the Annans allege that SC Harris withheld crucial information from and provided false and misleading information to PC Rowland.[184]

   [184] Plaintiffs' closing submissions par 47 and par 48.

3. I am not satisfied SC Harris withheld crucial information from the application.  Ms Annan's claim that she had lawfully erected the signs was not crucial information for the purposes of obtaining a search warrant to consider whether Mr Annan was involved in the commission of an offence in relation to the signs.[185]  Police were not required to accept Ms Annan's statement at face value.  Only an unprofessional police officer would take a witness' statement as gospel and rely on it in the way that Ms Annan submits SC Harris should have.  Only a very foolish police officer would accept at face value a statement from a witness who is not independent and has an obvious interest in protecting her husband from prosecution.

   [185] Plaintiffs' closing submissions par 56 and par 57.

4. Following from my factual findings I am not satisfied SC Harris provided any false or misleading information to PC Rowland.

5. I am also not satisfied that SC Harris had no sufficient basis for his beliefs. Following from my findings of fact, it was reasonable for SC Harris and other investigating police officers to suspect that Mr Annan was involved in placing the signs because he was one of the adult residents at the property, had a history of conflict with the Stones and he and Ms Annan were upset about the placement of the Stones' security cameras.  It was reasonable for SC Harris to suspect that Mr Annan had breached the terms of the restraining orders that he was bound by.

6. Indeed, albeit to the civil standard, I am satisfied that Mr Annan knew about and was involved in the placement of the sign on the privacy screen and well knew it was a form of at least indirect communication with the Stones.

7. SC Harris[186] and PC Rowland[187] were right to suspect Mr Annan's involvement in an offence of breaching the restraining orders.

   [186] ts 483.

   [187] Exhibit P32.

8. It was not unreasonable for them to suspect that the items listed in the search warrant existed.  If any had been found and linked to Mr Annan they would have been admissible in evidence in any prosecution against Mr Annan for breaching a restraining order.  I am not satisfied SC Harris was on a 'fishing expedition' as the Annans allege in their closing submissions.[188]

   [188] Plaintiffs' closing submissions par 64 and par 65.

9. It was also not unreasonable for SC Harris to believe the sign on the privacy screen was on the dividing fence.  An ordinary person looking at the photograph taken by SC Harris at the time of seizure of the sign would assume that the privacy panel above the fence was part of it.

10. I am therefore not satisfied the Annans have proved SC Harris had no sufficient basis for believing the search warrant application, if he caused it to be made.

11. Thus it follows that the Annans have not proved that SC Harris, if he caused the search warrant application to be made, acted without reasonable and probable cause.

Did SC Harris act maliciously regarding the search warrant?

1. If I am wrong about those conclusions, I am not satisfied SC Harris acted maliciously in relation to the search warrant.

2. SC Harris could not have acted maliciously in relation to the execution of the search warrant because it was never executed.  The search of the Annans' premises was done with the express consent of Mr Annan.

3. In relation to the application for the search warrant, the malice alleged in evidence by Ms Annan was that SC Harris threatened her.[189]  Mr Annan believed that police were enacting some form of retribution because of the complaint he had made against SC Harris.[190]

   [189] ts 87, ts 186.

   [190] ts 251 - 252.

4. Earlier in my reasons I found that I am not satisfied that SC Harris made any threat to Ms Annan and no threat about Mr Annan.  Even if I am wrong about that and SC Harris did threaten Ms Annan on 27 or 28 April 2017, it was a conditional threat related to the removal of one or both of the signs.  By the time police obtained the search warrant on 2 June 2017, more than one month later, both signs had been removed.  Thus, any threat had already achieved its aim and could not have been part of the motivation for SC Harris or PC Rowland to procure the search warrant.  As much was conceded by Ms Annan in her evidence.[191]

   [191] ts 188 - 189.

5. Further, Sgt Vojkovich's team who attended the Annans' property on 10, 11, 13 and 14 June were acting independently of SC Harris.  SC Harris had no input into the decisions and actions of Sgt Vojkovich and SC Griffiths.  Thus even if a threat was made by SC Harris, it was of no effect in the decision‑making and conduct of the police officers who dealt with the Annans on those days.

6. Similarly, PC Rowland and the Justice of the Peace were acting independently of SC Harris.  Any threat by SC Harris was of no effect in PC Rowland obtaining the search warrant.

7. I am also not satisfied that SC Harris or any of the other officers involved in this matter were enacting retribution against Mr Annan because of his complaint.  The evidence suggests quite the opposite.  Independent police officers were tasked to deal with the search because of the complaint made against SC Harris.  I am satisfied they acted professionally and without malice.

8. There was no evidence that armed police unreasonably occupied the Annans' property for 'many days' and no evidence that the Annans were humiliated and vilified in their local community and depicted as hardened criminals.  Those claims are indicative of the irrational exaggeration and hyperbole the Annans have vented in these proceedings.

9. Accordingly, I am not satisfied that SC Harris procured the search warrant for a malicious purpose.

Third cause of action – Misfeasance in public office

1. There is no issue that at all material times SC Harris held public office and was performing duties incidental to that office.  

2. The Annans claim that SC Harris acted unlawfully by attempting to pervert the course of justice in that he refused to investigate Ms Annan's complaint, supressed evidence of it, intimidated them and refused to charge Mr Stone.  They claim he intended for that conduct to pervert the course of justice as he knew prosecution was imminent and knew his conduct would deflect police from prosecuting Mr Stone.  The Annans also claim that the acts of unlawful trespass, removal of property, intimidation of witnesses, deprivation of Ms Annan's right to peaceful protest, maliciously procuring a search warrant and maliciously procuring Mr Annan's arrest were unlawful. 

3. The Annans further claim that SC Harris acted maliciously as he deliberately concealed Mr Stone's alleged offending, deflected police from prosecuting him, and intimidated, humiliated and vilified the Annans in their community by procuring Mr Annan's arrest on absurd and false allegations.  

4. SC Harris does not admit any of those claims.

Legal principles

1. The tort of misfeasance in public office concerns an exercise of authority by a public officer other than in an honest attempt to perform a function of his or her office.[192]  The aim of the action is to prevent public officials from maliciously abusing their power.[193] The tort may apply to police officers in the exercise of their powers.[194]

   [192] Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 357.

   [193] The State of Western Australia v Cunningham [No 3] [151].

   [194] Farrington v Thomson [1959] VR 286.

2. The elements of the tort the Annans must prove are that:

   1.SC Harris did an invalid or unauthorised act;

   2.he did so maliciously;

   3.he was a public officer;

   4.the act was done in the purported discharge of his public duty; and

   5.the act caused loss or harm to the Annans.[195]

   [195] Northern Territory of Australia v Mengel (370).

3. A failure to act or an omission can be an invalid or unauthorised act.[196]  Any failure to act must be deliberate, not negligent or inadvertent or arising from a misunderstanding of the legal position.  There must be an effective duty to act, known to the official, and a conscious decision not to act.[197]

   [196] Mengel (355).

   [197] Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; Neilson v City of Swan [2006] WASCA 94 [47].

4. To prove malice the Annans must demonstrate SC Harris' intention to cause harm, or that he was recklessly indifferent to harm, or that he knowingly acted in excess of his power.[198]  The tort will not apply to a mere mistake by SC Harris.[199]

   [198] Mengel (347 - 348).

   [199] Sappideen and Vines, Fleming's The Law of Torts (10^th ed) [27.160].

5. As the third and fourth elements are admitted I will decide whether each of the remaining three are proved.

Were there any invalid or unauthorised acts by Mr Harris?

1. I have already determined that I am not satisfied SC Harris unlawfully threatened Ms Annan, trespassed on or removed the Annans' property or procured a search warrant. I will consider the other alleged acts and omissions below.

Did SC Harris fail to investigate the Annans' complaint or attempt to pervert the course of justice

1. My factual findings are that SC Harris did investigate Ms Annan's complaint about the Stones' security camera and I am not satisfied his acts in doing so were invalid or unauthorised.  He did not suppress evidence and what evidence was gathered was recorded and reviewed by other officers.  SC Harris documented his investigative actions in contemporaneous WA Police records.

2. Notwithstanding those records were tendered by Ms Annan and in her possession well before she gave evidence, Ms Annan maintained that SC Harris failed to properly investigate her complaint.  Under cross‑examination she agreed that was the essence of her misfeasance and attempt to pervert the justice claim.[200]  Ms Annan accepted she had no first-hand knowledge of the investigation but it was her 'belief' that is what happened.[201]  Based on my factual findings I am satisfied any such belief had no factual foundation and was irrational.

   [200] ts 193.

   [201] ts 193.

3. I am not satisfied SC Harris deliberately failed to do anything in the investigation of the complaint that it was his duty to do.

4. There was no evidence that SC Harris planned with Mr Stone to suppress evidence, search the Annans' home or arrest Mr Annan on a false allegation.[202]  Those are all false assumptions made by the Annans without any foundation whatsoever.

   [202] Amended statement of claim par 17.

5. In their closing submissions the Annans say that SC Harris forewarned the Stones about searching their home.  I am satisfied he did so, but it was not an invalid or unauthorised act.  Section 30 of the CIA authorises entry and search of places without warrant where occupiers give informed consent.  A request for consent can be made at the premises, warrant in hand, or at an earlier time.  Advance notification and request for permission to search is a matter for judgment by the investigating officer.  As Sgt Vojkovich said, at one end of the scale searches are done 'softly softly' and at the other, the door is broken down by the Tactical Response Group.[203]

   [203] ts 290.

6. I am not satisfied, given his laudable intention to diffuse the conflict between the neighbours and the relatively minor nature of the alleged offence, that it was inappropriate for SC Harris to tell Ms Stone in advance that he wished to inspect her security camera system for himself.  In much the same way, he gave Ms Annan the opportunity to remove the signs on her property before police attended, even though Ms Stone had complained they were in breach of restraining orders and even though breaching a violence restraining order is objectively more serious than breaching the SDA by optical surveillance of a private activity.[204] 

   [204] The offence of breaching a violence restraining order carries a maximum penalty of a fine of $6,000 or 2 years' imprisonment or both.  The offence of breaching the SDA carries a maximum penalty of a fine of $5,000 or 12 months' imprisonment or both. 

7. I am satisfied the investigation conducted by SC Harris was appropriate and lawful.  His recommendation not to charge was correct as there was insufficient evidence to prove an allegation of unlawful surveillance against any person to the criminal standard of beyond reasonable doubt.  SC Harris did not refuse to charge Mr Stone, rather, the final decision not to charge him was authorised by OIC Foley.

8. I am not satisfied SC Harris intimidated witnesses, deflected police from investigating and prosecuting the Stones or did any of the other acts or omissions which the Annans allege were an attempt to pervert the course of justice.

Did SC Harris procure Mr Annan's arrest?

1. Following from my factual findings I am not satisfied SC Harris procured Mr Annan's arrest.  I am satisfied that after the search of his house, Mr Annan went voluntarily to Wembley police station where he was arrested by police officers investigating the Stones' complaint and who were acting completely independently of SC Harris.  Their actions were lawful and their conduct professional.  Mr Annan's arrest was entirely justified.  After interview Mr Annan was released without charge.

Was there any unlawful interference with Ms Annan's claimed right to freedom of expression?

1. Ms Annan claims that SC Harris interfered with her right of freedom of expression as afforded to her by Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) by asking her to remove her signs and in removing one himself.[205]

   [205] Plaintiffs closing submissions par 8 - par 11; amended statement of claim par 23.

2. Australia signed the ICCPR in 1972 and ratified it in 1980.  Justice Mason and Justice McHugh considered the effect of the ICCPR on Australian law in Dietrich v The Queen:[206]

   Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provision.

   [206] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305.

3. Article 19(2) of the ICCPR has not been incorporated into the domestic law of Australia or Western Australia and provides no justiciable claim for the Annans in these proceedings.

4. Further, even if Ms Annan had a right to peaceful protest, SC Harris did not interfere with it. SC Harris asked Ms Annan to remove her signs in good faith.  Ms Annan chose to remove the sign in the front yard herself.

5. I have already found that the sign on the privacy screen was lawfully seized by police as evidence.  Any ICCPR right to peaceful protest must give way to the CIA in that regard.

6. Even if it were justiciable, I am not satisfied SC Harris unlawfully interfered with any right to peaceful protest the Annans may have had.

Other claims

1. Although not specifically pleaded, the Annans submit that SC Harris failed to perform and carry out his duty in a proper manner by reference to reg 605(1)(b) of the Police Force Regulations 1979 (WA).[207]  As with many of their generalised allegations, the Annans have not particularised the alleged failure.  On the evidence before me, no such failure, apart from not providing written notice to the Annans of seizure of the sign, has been proved. 

   [207] Plaintiff's closing submissions par 88.

2. I am not satisfied though that the failure to provide written notice of seizure of the sign was an invalid or unauthorised act, even though it was practicable before 3 May 2017 for SC Harris to provide notice.  The only relevant act that might enliven the tort was the seizure of the sign which was an authorised and valid act.  As I have already found in relation to trespass, the Annans did not seek review of the seizure at the time.

3. There was no evidence SC Harris targeted any acts at the Annan children.[208]  The submission he did so is without any foundation.

   [208] Plaintiffs opening submissions par 93.

4. There was no evidence that SC Harris did any acts which humiliated, intimidated or vilified the Annans in their local community and no evidence I accept that he did so at all.  The claim of vilification is manifestly groundless.

5. The Annans have failed to prove SC Harris acted in an invalid or unauthorised manner and their third cause of action fails.

Did SC Harris act maliciously?

1. If my conclusions above are wrong I will deal with those claims of malice I have not yet dismissed.

2. Following from my factual findings, even if any of the acts or omissions at the heart of the Annans' claim that SC Harris attempted to pervert the course of justice were unlawful, I am not satisfied that he acted maliciously. 

3. Even if SC Harris procured Mr Annan's arrest and it was an invalid or unauthorised act, I am not satisfied that he did so maliciously.

4. In their closing submissions the Annans complain, disingenuously, that SC Harris failed to respond to them directly or indirectly.[209]  That 'failure' was because SC Harris was ordered not to communicate with them after Mr Annan made a complaint about him, a complaint that I am satisfied was baseless.

   [209] Plaintiffs' closing submissions par 97.

5. If my conclusion above about the failure to give written notification of seizure of the sign to the Annans is wrong, I am not satisfied that SC Harris' failure to do so was anything more serious than oversight or a mistake on his part.  I am not satisfied it was malicious.

6. I am not satisfied that SC Harris knew, intended or was reckless that any of his acts or omissions (or those which might be attributed to him) would cause harm or mental distress to the Annans.  I am also not satisfied that he knowingly acted in excess of his powers or attempted to pervert the course of justice.

7. I am not satisfied that malice has been proved.

8. Indeed, following from my factual findings, I am satisfied that at all relevant times in the performance of his duties, SC Harris acted lawfully, professionally, honestly and with the intention of diffusing the conflict between the Annans and Stones. 

Did the Annans suffer loss or harm?

1. The Annans make various claims in their pleadings, particulars of damage and submissions that they suffered harm or loss.  The nub of it seems to be that they suffered mental anguish, stress and anxiety at the hands of SC Harris,[210] were denied peaceful enjoyment of their property for five months,[211] were humiliated, vilified and intimidated,[212] and have lost credibility with WA Police.[213]  They also say they lost time from work on the day of the search.

   [210] Amended statement of claim par 25; plaintiffs' closing submissions par 101.

   [211] Plaintiffs' closing submissions par 100.

   [212] Amended statement of claim par 24, par 25.

   [213] Plaintiffs' closing submissions par 102.

2. Apart from Ms Annan's evidence of her mental distress and Mr Annan's umbrage at being placed in a cell at the police station, no other evidence in support of loss or harm was led.

3. I am not prepared to rely on the scant and vague evidence of the Annans concerning loss or harm. Loss or harm are not proved.

The effect of s 137(3) of the Police Act 1892 (WA)

1. SC Harris pleads that by reason of s 137(3) of the Police Act 1892 (WA) an action in tort does not lie against him because at all relevant times he was a WA Police officer performing his police functions without corruption or malice.

2. The parties made no submissions at the end of the trial regarding the application of s 137(3) so I will deal with it only briefly.

3. Section 137(3) provides that:

   An action in tort does not lie against a member of the Police Force for anything that the member has done, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

4. The effect of s 137 was recently comprehensively reviewed by the Court of Appeal in The State of Western Australia v Cunningham[No 3].[214]

   [214] The State of Western Australia vCunningham [No 3] [128] - [157], [170] - [205].

5. Because malice is an ingredient of the torts of misfeasance and malicious procurement of a search warrant, s 137(3) will not protect a police officer from tortious liability if the tort is proved.[215] In relation to trespass, if the tort is proved and a police officer acts with malice or corruption, s 137(3) will not protect him or her from tortious liability.[216]

   [215] Cunningham [No 3] [153].

   [216] By analogy from the tort of battery: Cunningham [No 3] [154].

6. Following from my factual findings I am satisfied that SC Harris acted without malice and corruption when he attended the Stones' property with 1/C Dobson. If he did unlawfully trespass on the Annans' property by reaching over the fence to remove the sign, he is protected from liability by s 137(3) and no action in trespass lies against him.

7. In relation to the second and third causes of action I am not satisfied that malice is proved. If I am wrong about that and the tort is proved, s 137(3) provides no protection for SC Harris.

Damages  

1. In light of my liability findings there is no need to provisionally assess damages. I will make some brief findings though.

2. There was no evidence of the pecuniary damages ($850) claimed by the Annans.  I am not satisfied they are proved.

3. I have rejected the scant evidence from the Annans potentially going to aggravated damages.  They are not proved.

4. There is no basis for any claim to exemplary damages.

Conclusion  

1. For the reasons set out above the Annans have failed to prove liability against SC Harris.  Further, I am satisfied these proceedings were instituted without reasonable grounds.

2. My decision will be referred to the Attorney General so that if the Annans bring similar proceedings in the future, consideration can be given to an application pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).

Orders  

1. Ms and Mr Annans' claims are dismissed.

2. I will hear the parties on costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

AW
Associate to Judge Quail

21 NOVEMBER 2019