AW v State of New South Wales - [2005] NSWSC 543

No judgment structure available for this case.

CITATION:
AW & Ors v State of New South Wales [2005] NSWSC 543
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18/8/03, 20/8/03, 21/8/03, 25/8/03, 26/8/03, 27/8/03, 28/8/03, 29/8/03, 1/9/03, 2/9/03, 3/9/03, 4/9/03, 5/9/03, 8/9/03, 9/9/03, 10/9/03, 11/9/03, 16/9/03, 17/9/03, 18/9/03, 22/9/03, 23/9/03, 24/9/03, 25/9/03, 26/9/03, 29/9/03, 30/9/03, 1/10/03, 3/12/03,4/12/03, 5/12/03, 9/12/03, 10/12/03, 11/12/03, 15/12/03, 16/12/03, 17/12/03, 18/12/03, 5/2/04, 3/5/04, 4/5/04, 5/5/04, 6/5/04, 21/5/04, 15/6/04, 16/6/04, 17/6/04, 18/6/04, 22/6/04, 24/6/04, 28/6/04, 29/6/04, 30/6/04, 1/7/04, 2/7/04, 5/7/04, 6/7/04, 7/7/04, 8/7/04, 9/7/04,

JUDGMENT DATE :

5 July 2005

JUDGMENT OF:
Bell J at 1

DECISION:
1. Verdict and judgment for the defendant on each of the claims brought by the first plaintiff; 2. Verdict and judgment for the second plaintiff in the sum of $35,000 with respect to her claim for false imprisonment and $65,000 with respect to her claim for malicious prosecution; 3. Verdict and judgment for the estate of the third plaintiff in the sum of $25,000 for her claim brought for false imprisonment and $40,000 for her claim for malicious prosecution; 4. I will hear from the parties on the question of costs and interest. The proceeding may be relisted for submissions on these two outstanding matters on three days' notice.

CATCHWORDS:
False imprisonment - wrongful arrest - failure to inform of reasons for arrest - malicious prosecution

LEGISLATION CITED:
Children's (Care and Protection) Act 1987
Crimes Act 1900
Crimes (Sexual Assault) Amendment Act 1981
Crown Proceedings Act 1988 (NSW)
Crown Prosecutors Act 1986
Director of Public Prosecutions Act 1986
Evidence Act 1995
Law Reform (Vicarious Liability) Act 1983

CASES CITED:
Abrath v North-eastern Railway Co (1883) 11 KBD 440
Adams v Kennedy [2000] NSWCA 152
Birchmeier v Rockdale (1934) 51 WN (NSW) 201
Brown v Hawkes (1981) 2 QB 718
Cassell & Co Ltd v Broome [1972] AC 127
Christie v Leachinsky [1947] AC 573
Commercial Union Assurance Company of New Zealand Ltd v Lamont (1999) Aust Torts Rep 80-236
Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343
Commonwealth of Australia v Murray (1988) Aust Torts Reps 80-207
Davis v Gell (1924) 35 CLR 275
Dent v Standard Life Assurance (1904) 4 SR (NSW) 560
Fleet v District Court of New South Wales [1999] NSWCA 363
Glinski v McIver [1962] AC 726
Gray v Motor Accident Commission (1998) 196 CLR 1
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Herniman v Smith (1938) AC 305
Hicks v Faulkner (1878) 8 QBD 167
Jones v Dunkel (1958-1959) 101 CLR 298
Leibo v Buckman [1952] 2 All ER 1057
Lister v Perryman (1870) LR 4 HL 521
Musgrove v Newell (1837) 1 M&W 582, 150 ER 567
Rapley v Rapley (1930) 30 SR (NSW) 94
Price v Ferris (1994) 34 NSWLR 704
Ruddock v Taylor [2003] NSWCA 262
Sharp v Biggs (1932) 48 CLR 81
Spautz v Butterworth (1996) 41 NSWLR 1
State of NSW v Riley (2003) 57 NSWLR 496
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Tempest v Snowden (1952) 1 KB 130
Tims v John Lewis & Co Ltd (1951) 2 KB 459
Trobridge v Hardy (1955) 94 CLR 147

PARTIES:
AW (First Plaintiff)
LW (Second Plaintiff)
JS (Third Plaintiff)
State of NSW (Defendant)

FILE NUMBER(S):
SC 20218/99

COUNSEL:
A.J. Bartley SC / L Whalan (First Plaintiff)
A.J. Bartley SC / D.R. Campbell SC / L. Whalan (Second Plaintiff)
D.R. Campbell SC / L. Whalan (Third Plaintiff)
B. Donovan QC / C.F. Hodgson (Defendant)

SOLICITORS:
Greg Walsh & Co (First, Second and Third Plaintiffs)
Crown Solicitors (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Tuesday 5 July 2005

20218/99 AW & Ors v State of New South Wales

JUDGMENT
Note

1 These proceedings arise out of events in 1994 in which charges were laid against the plaintiffs alleging that they had committed sexual offences against a number of complainants. Those proceedings were prescribed sexual offence proceedings for the purposes of the Crimes Act 1900. Section 578A(2) of the Crimes Act makes it an offence to publish any matter that identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. This prohibition remains even though the prescribed sexual offence proceedings have been finally disposed of: subs (3). For this reason I will refer to the plaintiffs, the complainants and the officer in charge of the investigation (for reasons that will become apparent) in a way that does not identify them.

Unless otherwise stated references to dates are to 1994.
Introduction

2 The first plaintiff, AW, and the second plaintiff, LW, married in 1972. Shortly after their marriage they purchased the home in which LW had lived all her life (the family home). They had four children.

3 AW was employed by a State Government Corporation since commencing his apprenticeship (save for a period when he had been conscripted into the Australian Army). In 1994 LW was working at the canteen of the high school at which two of her children were enrolled. Her mother, JS, is the third plaintiff. In 1994 JS was a widow living in a caravan that was parked in the back yard of the family home. She was aged seventy-two years and was suffering from respiratory problems including emphysema and asthma.

4 In April 1994 the eldest of AW and LW’s children, SW, was aged eighteen years. She had moved out of home and was living with her boyfriend, Michael. The remaining three children were still at school and living at home. They were: a son, JW, aged fifteen, a daughter, EW, aged thirteen, and another daughter, JLW, aged eleven.

5 In November 1993 SW and Michael sought counselling from Douglas Keir, a counsellor employed at the Family Planning Association’s Chatswood office because they were experiencing difficulties in their sexual relationship: SW did not want to have sexual intercourse.

6 In the course of counselling SW told Douglas Keir that she had been raped by boyfriends who had been physically violent to her. She also said that she had been sexually molested by her father. In a counselling session on 17 January SW complained that her father had attempted to rape her a matter of days earlier. Mr Keir tried to persuade her to report the matter to the police but SW was unwilling to do so.

7 In a counselling session on 21 March SW told Mr Keir that her father had raped her at her home three nights earlier. By this time Mr Keir had come to the view that he was required to inform the Department of Community Services (DOCS) that SW’s younger siblings may be at risk of abuse. He told SW this. SW agreed to report her father’s abuse to the police.

8 On 30 March SW provided a statement to Detective Sergeant Cruickshank (the Cruickshank statement) detailing a history of sexual abuse by her father commencing when she was aged five years. In the course of making this statement SW said that she had not told her mother of the abuse because of her belief that her mother would try to kill herself if she found out what had been happening.

9 The further investigation of the complaints made by SW in the Cruickshank statement was assigned to Detective Sergeant MOD at the Dee Why Detectives’ office. He interviewed SW on 17 April. During this interview SW made claims suggestive that her mother had been complicit in her father’s sexual abuse of her.

10 In a further interview on 19 April SW told MOD that her mother had engaged in various indecent acts with her over a number of years. AW and LW were arrested and charged with the commission of sexual offences against SW on that day.

11 Following the arrest of LW DOCS took the younger children, JW, EW and JLW into care. Each of the children initially denied that their parents had sexually abused them. Over time each came to make allegations of sexual impropriety against one or both of their parents.

12 On 22 April an officer of DOCS filed an application pursuant to s 72 of the Children (Care and Protection) Act 1987 alleging that JW, EW and JLW were in need of care (the care proceedings).

13 Following the arrest of AW and LW, the two eldest girls, SW and EW, went to stay with their uncle, PS, and his wife, YS, on the Central Coast. PS was one of LW’s brothers. In time PS’ children, SS and KS, also came to allege that AW had sexually interfered with them.

14 MOD took a lengthy statement from SW in late April and early May. In this statement SW departed in significant respects from the account of the abuse that she had given to Detective Cruickshank. She now claimed her mother had been an active participant in the sexual abuse.

15 EW also made florid allegations of abuse against both of her parents, and claimed that her grandmother, JS, was a participant in the abuse.

16 On 23 June AW and LW were charged at court with a large number of offences of sexual assault. LW was charged with sexual assaults on SW, EW and on her son, JW. AW was charged with sexual assaults on SW and EW and on their cousins, SS and KS.

17 MOD took a further statement from SW on 13 and 14 September. In this statement she came to make allegations for the first time that her grandmother, JS, had been a party to the sexual assaults that had been committed on her and on her siblings.

18 On 15 September JS was arrested and charged with sexual offences including the carnal knowledge of her two granddaughters.

19 On 18 August the hearing of the care proceedings commenced before Mr Rooney, Children’s Court Magistrate. The proceedings were heard over 109 sitting days. The children did not give evidence. Their complaints, including the complaints made by SW, were in evidence before Mr Rooney.

20 On 20 November 1995 Mr Rooney delivered judgment. Among other things he found:

“With respect to the allegations of sexual abuse of the four children by their parents and grandmother, I have been drawn slowly and inexorably over many hearing days to the firm conclusion that they are, on the evidence presented, essentially and substantially untrue. Admittedly, I have not heard oral evidence from the children, and I stress that I come to this conclusion subject to that qualification.

There are many inconsistencies and improbabilities, too numerous to traverse in this finding, revealed on consideration of details recited by the children. Sometimes the evidence can only be described as fanciful, especially when hearing directly from the parents and grandmother and observing their demeanour, when giving evidence, and the overall consistency of their evidence. I find it quite impossible to accept the allegations as true. In any event the three children, subject to these proceedings, have in the case of one child partly withdrawn the allegations and the other two have completely withdrawn them with respect to the parental involvement.”

21 Mr Rooney’s findings included that there had been inappropriate sexual activity between the three younger children and that this was suggestive of a lack of adequate supervision. He was also of the opinion that the making of the allegations, which he regarded as substantially untrue, was some evidence of psychological damage. He found that the children were in each case in need of care within the meaning of the Children (Care and Protection) Act and he made consequential orders.

22 On 18 March 1996 the committal hearing of the charges brought against the three plaintiffs commenced before Mr Price, Magistrate. The prosecution was conducted by a Crown Prosecutor. On 13 May 1996 Mr Price found that there was a prima facie case against each of the plaintiffs (15/5/1996 at T 1/2). AW and LW gave evidence at the committal hearing. On 21 June 1996 his Honour discharged LW and JS in respect of all of the charges. AW was discharged in respect of all charges save for one, which alleged an offence against SS. The Director of Public Prosecutions (the Director) subsequently determined to take no further proceedings against AW with respect to this charge.

23 JW, EW and JLW have all retracted the allegations that they made against their parents and grandmother.

24 At August 2003, when the hearing of the proceedings against the defendants commenced, JLW was living in the family home. JW was living and working in Western Australia but maintained contact with his parents and grandmother, returning to visit them at Christmas and on other occasions. EW had re-established contact with her parents and grandmother relatively shortly prior to the hearing.

25 SW had not resumed contact with her parents or grandmother. At the time of the hearing SW was living in a de facto relationship with MOD, who had been the officer in charge of the investigation into the complaints made by her.

THE PLAINTIFFS’ CLAIMS

26 The plaintiffs sue the State of New South Wales pursuant to the Crown Proceedings Act1988 as vicariously liable for the acts and omissions of a number of police officers (the police officers). The State’s vicarious liability arises under the Law Reform (Vicarious Liability) Act1983. Section 6 of that Act deems a police officer to be a person in the service of the Crown.

27 Each plaintiff pleads causes of action in false imprisonment, malicious prosecution and abuse of process, and claims damages including aggravated and exemplary damages.

28 The hearing of the plaintiffs’ claim commenced on 18 August 2003. It was adjourned from time to time. The hearing occupied sixty-one days and was concluded on 9 July 2004. The first plaintiff, AW, was represented by Mr Bartley SC and Ms Whalen. Mr Bartley SC, Mr Campbell SC and Ms Whalen appeared on behalf of the second plaintiff, LW. Mr Campbell SC and Ms Whalen appeared on behalf of the third plaintiff, JS. Mr Donovan QC and Mr Hodgson appeared on behalf of the defendant.

29 The plaintiffs’ original statement of claim was struck out by order of O’Keefe J. His Honour gave leave to replead causes of action in malicious prosecution and abuse of process. The plaintiffs were given leave to proceed on separate statements of claim. The pleadings were amended by leave during the course of the hearing. The first and second plaintiffs proceed upon their third further amended statement of claim.

30 The third plaintiff was born in July 1922. At the conclusion of the hearing she was aged eighty-two years and was in frail health. After judgment was reserved I was informed by her solicitors (with the consent of the defendant) that she had died on 29 July 2004.

31 By letter dated 16 March 2005 her solicitor, Mr Walsh, sought leave to file a fourth further amended statement of claim. Implicit in the leave that was sought was the substitution of LW as the trustee for the estate of the late JS as the third plaintiff. A copy of a letter dated 8 March 2005, signed by the solicitor with carriage of the matter on behalf of the defendant, was attached to Mr Walsh’s letter and conveyed the defendant’s consent to the filing of the fourth amended statement of claim.

32 The pleading enclosed with the letter of 16 March 2005 departed in material respects from the third plaintiff’s third further amended statement of claim and from the way her claim had been advanced at the hearing. The proceedings were listed at my direction on 30 June 2005 in order to clarify the position. Mr Walsh informed me that the pleading attached to his letter contained a number of errors. The defendant consented to the filing in court of a fourth further amended statement of claim. I made an order substituting LW as trustee for the estate of the late JS as the third plaintiff in the proceedings. The defendant consented to this course.

THE ELEMENTS OF THE CAUSES OF ACTION

33 Abuse of process, false imprisonment and malicious prosecution are each intentional torts.

False imprisonment

34 The action for false imprisonment requires proof of the intentional restraint of the person’s movement without lawful authority. This may be achieved by actively confining the person or by preventing the person from leaving the place in which he or she is: Fleming The Law of Torts (Sydney: LBC Information Services, 1998, 9th ed), at 33. It is not necessary that the person be the subject of actual force. Submission to the control of another who asserts lawful authority is sufficient provided the restraint is against the person’s will.

Abuse of process

35 Each of the plaintiffs pleads a cause of action in the tort of abuse of process, relying upon the material facts pleaded in support of the claim for malicious prosecution and contending, in the alternative, that the criminal process was utilised by the police officers so as to effect an object not properly within the scope of the process. The particulars of the improper object are in each case pleaded as:

(a) Utilising the criminal process in an effort to justify the unlawful arrest of the plaintiff;

(b) Utilising the criminal process in an effort to conceal the earlier negligent and/or improper investigation resulting in charges that should not have been brought and/or maintained against any of the plaintiffs; and

(c) By MOD, utilising the criminal process to secretly conceal and foster his illicit relationship with the principal complainant, SW, thereby contaminating the evidence of SW during the care and criminal proceedings, thus eroding the integrity of the criminal process during the above proceedings to the detriment of the plaintiffs.

36 In Fleming at 687, describing the tort of abuse of process, the learned author observes:

“Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, predominantly for any purpose other than that which it was designed to serve. Although usually committed by plaintiffs, the tort may equally consist in an abusive defence. It involves the notion that the proceedings were “merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate.” It is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator: the improper purpose is the gravamen of liability” (footnotes omitted).

37 In Hanrahan v Ainsworth (1990) 22 NSWLR 73 Kirby P observed of the tort of abuse of process that (at 96):

“The tort involves using court process for an ulterior purpose, that is, for a purpose not within the scope of such process”.

38 In the same case Mahoney JA also considered that the tort would be made out by proof that the proceedings had been brought for an improper purpose. Clarke JA considered that the tort of abuse of process would be established where it is proved that process ancillary to a principal claim for relief had been used to effect an object not within the scope of the process and thereby damage had been occasioned. His Honour stated that the action would not lie where the claim is that a party instituted proceedings, whether principal or ancillary, in order to effect an object within the scope of the proceedings.

Malicious prosecution

39 The tort of malicious prosecution requires the plaintiff to prove the following elements (see Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343):

(i) The defendant (in this case one of the police officers) instituted and/or maintained criminal proceedings against the plaintiff;

(ii) The criminal proceedings were terminated in favour of the plaintiffs;

(iii) The absence of reasonable and probable cause in instituting and/or maintaining the criminal proceedings against the plaintiffs;

(iv) Actual malice; and

(v) Damage.

40 The State of New South Wales is the only defendant. No claim is brought by any of the plaintiffs against the Director of Public Prosecutions (the Director).

(i) Who is the prosecutor?

41 MOD was the informant in respect of all charges laid against AW and LW.

42 AW and LW were first charged with sexual offences on 19 April 1994. On 23 June 1994 a number of fresh charges were laid against AW and LW in court. Jill Cash, who was then a solicitor working in the Office of the Director of Public Prosecutions (the ODPP), appeared on behalf of the prosecution on this occasion. There is an issue concerning whether the Director had taken over the prosecution of the proceedings against AW and LW as at 23 June 1994 (or on an earlier date) such that MOD was no longer a prosecutor for the purposes of the tort.

43 The defendant submitted that the inference to be drawn from the record of the appearance of Ms Cash on the charge sheets for 23 June is that the Director had taken over the conduct of the prosecution against AW and LW by that date and that MOD was not a prosecutor of any of the charges against them.

44 A further charge was laid against LW on 30 January 1995. The charge sheet records that this charge was listed before the St James Local Court on that day. The charge sheet does not record the appearances. Further charges were laid against AW and LW during the committal hearing, which commenced on 18 March 1996, in substitution for charges that had been preferred at an earlier time. Ms Helen Morgan (as she then was), Crown Prosecutor, appeared on behalf of the prosecution at the committal hearing.

45 JS was arrested by Detective Sergeant Holloway. He was named on the charge sheets as the informant in respect of the offences with which she was charged on 15 September 1994. It was the plaintiffs’ case that Detective Holloway acted at the direction of MOD in arresting JS and charging her with a number of offences, and that MOD was the prosecutor of the charges preferred against her on 15 September.

46 In the defendant’s submission the charges preferred against JS following her arrest on 15 September were laid at the direction of the Director who had assumed the conduct of the prosecution of the related offences against AW and LW. To the extent that liability as a prosecutor attached to any police officer for the institution of the prosecution of JS, it was submitted to attach to Detective Holloway. When fresh charges were laid against JS at court on 18 March 1996 (in substitution for earlier charges) the prosecutor was submitted to be the Director. MOD was nominated as the informant on the charge sheets handed up in Court on 18 March, but in the defendant’s submission he did not have responsibility for the conduct of the prosecution.

47 For the purposes of the tort of malicious prosecution the law looks to the substance and not legal form to determine who is the prosecutor; Davis v Gell (1924) 35 CLR 275 per Isaacs ACJ at 282-283. The defendant acknowledged that a police officer might remain a prosecutor for the purposes of liability for the tort notwithstanding that the conduct of the prosecution has been taken over by the Director. Thus, in a case in which a police officer deliberately withholds from the Director information bearing on innocence, he or she may be liable for the maintenance of the prosecution.

48 The plaintiffs asserted that certain material in MOD’s possession had been withheld from them and, it may be, from the Director. In opening the plaintiffs’ case reliance was placed on the failure to serve the first statement made by Mr Keir with the brief of evidence. Certain material bearing on the assessment of SW’s credibility was also said to have been deliberately concealed.

49 In the plaintiffs’ submission it was sufficient to prove that MOD had instigated the prosecution of the charges against them. No notice under s 10 of the Director of Public Prosecutions Act1986 (DPP Act) was proved in evidence and the defendant did not call evidence to establish that the Director had taken over the prosecution of any of the charges against the plaintiffs. The inference to be drawn in their submission was that MOD remained the prosecutor and was responsible for the maintenance of it until the proceedings were terminated.

50 Sections 9 and 10 of the DPP Act provide as follows:

9 Taking over prosecutions or proceedings
(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:

(a) carry on the prosecution or proceeding,

(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,

(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and
(d) conduct, as respondent, an appeal in any court in respect of the offence.

(2) The Director may not take over a matter under this section involving a summary offence, unless:

(a) the offence is a prescribed summary offence, or
(b) a person otherwise responsible for the matter has consented in writing.

(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.

(4) If the Director takes over a matter under this section:

(a) the Director shall, as from the time when the Director complies with section 10(1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and

(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.

10 Director to inform court etc when taking over proceedings
(1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable:

(a) by notice in writing, inform the person otherwise responsible for the matter, and
(b) if the matter is pending before a court:

(i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or
(ii) if the prosecution or proceeding is being heard by a Judge or Magistrate—in such manner as the Director thinks fit, inform the Judge or Magistrate,

that the Director has taken over the matter.

(2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter.

51 It was contended that in the absence of any evidence that the Director had determined to take the prosecutions over, and in the absence of a s 10(1) notice, all that might be concluded was that a solicitor from the ODPP appeared and that a Crown Prosecutor was subsequently briefed to appear. It was submitted that there was no evidence that Ms Cash or the Crown Prosecutor were acting on instructions other than those of the informant. I have concluded that this is not the inference to be drawn.

52 The provisions of s 9(4) operate so as to fix the time at which a prosecution instituted by a private informant is taken over by the Director, by deeming it to have occurred from the moment the Director complies with s 10(1). In some cases the Director may take over a prosecution instituted by a private informant and, after serving notice in conformity with s 10(1), decline to proceed further with the prosecution. This may take place prior to the prosecution coming before the Court. That the decision to take over a prosecution may be made before the prosecution is pending before the Court is made clear by s 10(1)(b).

53 The failure to comply with s 10(1) does not carry with it that the Director has not taken over the prosecution of a matter. Section 10(2) provides to the contrary. The Director’s functions are not affected by the Director’s failure to notify or inform in relation to the matter: Price v Ferris (1994) 34 NSWLR 704 per Kirby P (with whom Meagher JA agreed) at 708.F and Priestley JA at 712.G – 713.A.

54 The functions of the Director are set out in Pt 3 of the DPP Act. The principal functions are those stated in s 7, which relate to the institution and conduct on behalf of the Crown of prosecutions for indictable offences in the Supreme Court and the District Court. Additional functions are conferred on the Director under s 8. These include the institution and conduct of committal proceedings for indictable offences.

55 Each of the charges brought against AW, LW and JS alleged the commission of an indictable offence. The prosecutions were pending in the Local Court and the Director’s functions included the power to conduct them pursuant to s 8.

56 The functions of the Solicitor for Public Prosecutions are set out in s 23 of the DPP Act. They are to act as solicitor for the Director in the exercise of the Director’s functions and to instruct the Crown Prosecutors and other counsel on behalf of the Director.

57 Section 20(2) confers on the Director power to advise and assist any Crown Prosecutor, any member of the Police Force or, if so directed by the Attorney General, any other person in respect of the conduct of criminal proceedings.

58 The scheme of the DPP Act does not seem to me to admit of a solicitor employed in the ODPP appearing on behalf of a private informant in committal proceedings. The Solicitor’s functions are as I have stated. In my opinion the power conferred on the Director by s 20(2) to advise and assist a member of the Police Force does not extend to the provision of representation in Court on behalf of a private informant in a prosecution that has not been instituted or taken over by the Director.

59 I consider that the inference to be drawn from the fact that Ms Cash appeared on behalf of the prosecution against AW and LW at the Manly Local Court on 23 June 1994 is that the Director had taken over the prosecution of the charges against each of them under s 9 of the DPP Act.

60 The case was conducted upon an acceptance that at material times Ms Morgan held an appointment as a Crown Prosecutor.

61 The functions of Crown Prosecutors are set out in s 5 of the Crown Prosecutors Act1986. Relevantly the functions include the conduct of and appearance as counsel in proceedings on behalf of the Director. A Crown Prosecutor may not engage in the practice of law outside the duties of her office without the consent of the Attorney General or of the Director: s 10(1)(a). I consider that Ms Morgan appeared as counsel on behalf of the Director in the prosecution of the committal proceedings against each of the plaintiffs.

62 Each of the plaintiffs plead as a particular of malice that the police officers, or anyone acting on their behalf, omitted to terminate the prosecution of each of them in circumstances where, upon a proper consideration of the evidence in the care proceedings and the findings of Magistrate Rooney on 20 November 1995, the prosecutions were doomed to fail (particular (kk)). I understand the reference to persons acting on behalf of the police officers as the assertion that a solicitor in the employ of the ODPP or, for that matter, a Crown Prosecutor, might be seen to be acting on the instructions of the private informant and not on behalf of the Director. This seems to me to involve a misconception concerning the Office of the Director.

63 In Price v Ferris Kirby J observed at 707.F:

“What is the object of having a Director of Public Prosecutions? Obviously, it is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution discretions. Its purpose is illustrated in the present case. The Court was informed that, in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be ‘taken over’ from a private prosecutor or informant and conducted by the DPP. The purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour.”

64 The plaintiffs’ claim that MOD and the other police officers failed to continually review the evidence and to terminate the prosecution at the earliest date when it became apparent that it was insufficient to prove any offence beyond a reasonable doubt. Specifically, they particularise the failure to terminate the prosecution after Magistrate Rooney delivered his reasons. It seems to me that these particulars of their claims must fail to the extent that they relate to the time after the Director took over the conduct of the prosecution in each case.

65 From the time the Director took over the prosecution of the plaintiffs MOD did not have standing to take any step in the proceedings including to discontinue them: Price v Ferris per Kirby P at 708 - 709.

66 There is a factual issue as to when the Director took over the prosecution of the charges against the plaintiffs. In the defendant’s submission I would find that the Director had taken over the prosecution of AW and LW well before 23 June 1994. There was evidence of the involvement of solicitors from the ODPP in discussions with MOD and Detective Yeomans from early May. Detective Yeomans was attached to the Dee Why Detectives’ Office and assisted MOD throughout the investigation.

67 It is clear that the police consulted with staff attached to the ODPP on several occasions prior to 23 June 1994. On 14 June MOD recorded an attendance at the ODPP and that he had spoken with Jill Cash and had provided her with “copies of statements for SW, EW (some), JW, JLW and witnesses”. He attended the ODPP and spoke again with Jill Cash on 16 June. On that day he spent time working on a summary of the charges in the W matter. He attended a conference with Jill Cash on 20 June and again the following day when he gave her copies of more statements taken in connection with the matter.

68 Detective Yeomans recorded in his duty book that on 15 June he liaised with MOD and “attended to charges for 23.6.94”. After commencing this task he travelled to Chatswood, where the Child Mistreatment Unit (CMU) was located, and collected the Protection Services Indictment Book. The Protection Services Indictment Book set out the terms of charges for sexual offences, both historical and current. Detective Yeomans noted in his duty book that he returned to the Dee Why office and attended to the charges relating to SW for 23 June 1994.

69 Detective Yeomans conferred with Jill Cash concerning the “proposed charges” on 22 June 1994. He said that copies of statements had been given to Jill Cash but he was not able to recall when, save to state that, “all statements were eventually provided to the DPP” (T 119.37).

70 On 22 June MOD and Detective Yeomans both devoted a considerable number of hours to attending to the charges to be preferred against AW and LW.

71 It was the defence case that Detective Yeomans took the form of the charges from wording given to him from Ms Cash. This was said to support the inference that the charges were preferred at the instigation of the Director, who should be found to have taken over the prosecution prior to the further charges being laid on 23 June. I do not accept that to be the case. Detective Yeomans was uncertain as to the contact that he had had with Ms Cash prior to that date. He had a recall of receiving what he described as “indictments” from her, but he was unable to say when that had occurred. Given the entries in his duty book in the days prior to 23 June disclosing significant amounts of time devoted to the preparation of the charges and, in particular, to the circumstance that he obtained a copy of the indictments book to assist him, I am not satisfied that he merely took the form of the charges from Ms Cash.

72 A further consideration that tells against the defendant’s submission that I would infer that the prosecution was taken over by the Director prior to 23 June relates to the form of the charges. The first three charges laid in court against LW on 23 June (OLC nos. 5159/3/4/5) each charged her with carnal knowledge of her daughter SW, a girl under ten years. This was an offence provided by s 67 of the Crimes Act (as it then stood). It required proof of penile penetration of the vagina. The definition of “sexual intercourse” that was introduced into the Crimes Act by the Crimes (Sexual Assault) Amendment Act1981 admitted of a woman having sexual intercourse with a woman or girl. This explains why the charges of carnal knowledge against LW were subsequently withdrawn and replaced by charges under s 61D(1) of sexual intercourse without consent. I think it unlikely that Ms Cash would have framed a charge against LW alleging that she had carnal knowledge of her daughter.

73 Detective Yeomans was present at the Manly Local Court on 23 June. The charge sheets record the appearance of Ms Cash on behalf of the prosecution.

74 The likelihood is that MOD, who was familiar with the statements, framed the charges that were preferred against AW and LW on 23 June, and that he was assisted by Detective Yeomans in this task. The evidence does not establish when the Director made a determination to take over the conduct of the prosecutions but I am satisfied that he did so not later than 23 June when Jill Cash appeared on behalf of the prosecution.

75 From the date Ms Cash appeared on behalf of the prosecution on 23 June I consider that the Director had taken over the prosecution of the charges against both AW and LW. From the day Ms Cash appeared on behalf of the prosecution when the charges preferred against JS were before the Local Court I consider that the Director had taken over the prosecution of the those charges. From the time the Director took over the conduct of the prosecution of the charges against each of the plaintiffs it fell to him to determine whether to proceed further with the prosecution of each charge.

76 It remains to consider whether MOD (or any of the police officers) was a prosecutor for the purposes of liability for the tort of malicious prosecution by reason of concealing material from the Director relevant to the investigation or, perhaps, by deliberately refraining from making inquiries that might tend to establish innocence.

(ii) Proceedings terminated in favour of the plaintiffs

77 It is accepted by the defendant that this element of the tort of malicious prosecution has been established. Each of the charges preferred against each plaintiff were terminated in the plaintiffs’ favour either by being withdrawn prior to or at the commencement of the committal or by the plaintiff being discharged at committal in respect of the charge, save for one charge involving SS which terminated in AW’s favour when the Director decided to take no further proceedings in respect of it.

(iii) Absence of reasonable and probable cause

78 The plaintiffs are required to prove that there was an absence of reasonable and probable cause in instituting the prosecution of the charges against them. It is necessary for the plaintiff in each case to prove that the officer who instigated the prosecution did not have a belief in his or her probable guilt such that upon general grounds of justice the charge against him or her was warranted or, if he did have that belief, that on the materials of which he was aware a person of ordinary prudence and judgment would not have so concluded: Brain per Dixon J at 382 citing his earlier judgment in Sharp v Biggs (1932) 48 CLR 81 at 106.

79 Senior counsel for AW submitted that the prosecutor’s belief was required to be one based upon a “full conviction” of guilt. He relied on the judgment of Hawkins J in Hicks v Faulkner (1878) 8 QBD 167 at 171:

“That brings me to the consideration of what is reasonable and probable cause.

Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant’s situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.”

“The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of.”

80 In written submissions the defendant noted the distinction between an honest belief in the guilt of the accused (Hicks v Faulkner) and a genuine belief that the proceedings were justified (Sharp v Biggs per Dixon J at 106). In the defendant’s submission it is sufficient that the prosecutor believe the probability of guilt to be such that upon general grounds of justice a charge is warranted: Sharp v Biggs and Brain (WS 7 at [9]). In this respect reliance was placed on the discussion of this element of the tort in Fleming, at 681:

“In any event, unshakable certainty in the guilt of the accused is not demanded, since a fair minded person may well feel justified in bringing a suspect to justice without, in his own mind, prejudging the issue. It is sufficient, if he believes that the probability of guilt is such that upon general grounds of justice a charge is warranted. In other words, he may have probable cause for initiating a prosecution, although lacking a conviction of guilt beyond reasonable doubt such as a jury must entertain to justify a verdict of guilty” (footnotes omitted).

81 I approach the matter upon the basis that the subjective element of reasonable and probable cause requires that the prosecutor believe in the probability of the accused’s guilt such that upon general grounds of justice the charge against him or her is warranted: Brain per Dixon at 382 and Sharp v Biggs per Dixon J at 106.

82 In the way each of the plaintiffs put their case, the prosecutor for relevant purposes was MOD.

83 It is necessary that the prosecutor have reasonable and probable cause with respect to each of the charges brought against each plaintiff: Leibo v Buckman [1952] 2 All ER 1057; Dent v Standard Life Assurance (1904) 4 SR (NSW) 560; Birchmeier v Rockdale (1934) 51 WN (NSW) 201.

84 The reasonableness of the prosecutor’s belief must be based on the facts known at the commencement of the proceedings and not upon facts that may subsequently have come to his attention: Musgrove v Newell (1837) 1 M&W 582, 150 ER 567; Tempest v Snowden (1952) 1 KB 130 per Denning LJ at 139.

85 In the event that additional evidence comes to light after the proceedings have been instituted tending to show that the prosecution is baseless, the maintenance of the proceedings will show lack of reasonable and probable cause: Tims v John Lewis & Co Ltd (1951) 2 KB 459 at 472-474.

86 In considering the material known to the prosecutor at the time the proceedings were instigated and/or maintained it is open to have regard to evidence that may not be admissible upon the hearing: Lister v Perryman (1870) LR 4 HL 521.

87 The prosecutor is not required to test every item of evidence before instituting proceedings. He is not required to ascertain whether there exists a defence to the charges laid, but rather whether there is reasonable and probable cause for instituting the proceedings: Herniman v Smith (1938) AC 305 at 319. While the focus of the inquiry is on the material available to the prosecutor at the time the proceedings were instigated, it is not necessary that the prosecutor consider possible defences, it is necessary that the prosecutor make sufficient enquiry so as to inform himself of the true state of the case: Abrath v North-Eastern Railway Co (1883) 11 KBD 440 per Brett MR at 451 and Glinski v McIver [1962] AC 726 per Lord Devlin at 768.

88 Proof of the element of absence of reasonable and probable cause requires the plaintiff to establish a negative. In Fleming it is put this way at 683:

“Thus in order to establish the prosecutor’s disbelief in his guilt, the plaintiff must give evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not enough merely to adduce reasons for non-belief, without showing that they were in fact operative. The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in his guilt, but it is not sufficient merely that he had information, some of which pointed to guilt and some to innocence” (footnotes omitted).

(iv) Malice

89 The final element that the plaintiffs must prove is that the prosecutor was actuated by malice. In Rapley v Rapley (1930) 30 SR (NSW) 94 per Street CJ at 98 it was said:

Hicks v . Faulkner

Hawkins, J

Bromage

Prosser

Bayley, J

malus animus

90 In Commercial Union Assurance Company of New Zealand Ltd v Lamont (1999) Aust Torts Rep 80-236 at 68,509 Richardson J observed:

Glinski

McIver

91 Malice may be established by proving the wrong motive or by proving that the circumstances were such that prosecution may only be accounted for by imputing a wrong or indirect motive to the prosecutor: Brown v Hawkes (1981) 2 QB 718; Trobridge v Hardy (1955) 94 CLR 147 per Kitto J at 163. In Trobridge Kitto J observed at 163:

“Evidence which points to a particular motive which is a wrong motive goes directly to the issue of malice. It is true that such evidence may only establish immediately certain primary facts from which the step of drawing an inference has to be taken before the conclusion can be reached that the particular form of malice existed; but the route to that conclusion is a direct one, none the less. It is in this very respect that it contrasts with the second method referred to by Cave J. That is a method which follows the route – I see no difficulty in calling it the indirect route – of proving that the defendant’s conduct is not to be explained by the existence of a right motive.”

Onus and standard of proof

92 The onus of proof of each of the elements of the causes of action in false imprisonment, abuse of process and malicious prosecution is upon the plaintiffs. The standard of proof is upon the balance of probabilities. It is appropriate to have regard to the seriousness of the allegations to be proved, particularly with respect to the causes of action pleaded in malicious prosecution and abuse of process. In applying the standard of proof I have regard to the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.”

The evidence of MOD

93 Before turning to the history of the investigation and to the evidence generally it is convenient to say something about the approach that I have taken to the evidence that was given by MOD.

94 MOD was called in the defendant’s case. His evidence commenced on 3 December 2003. His evidence in chief was taken over five days. Cross-examination commenced after the luncheon adjournment on 10 December. It continued for the balance of that day and throughout 11 December. The proceedings were then adjourned until Monday 15 December when cross-examination was continued. The following day, after the morning adjournment, Mr Donovan applied for an adjournment of the hearing. I was informed that MOD was distressed and unable to continue his evidence and that arrangements had been made for him to see a psychiatrist, Dr Cassimatis, that evening.

95 MOD did not return to complete his evidence. Ultimately an application was made that he be excused from giving further evidence because of his mental condition. Evidence was led from Dr Cassimatis in support of the application. The evidence given by Dr Cassimatis on the application was later tendered in the trial.

96 Dr Cassimatis’ evidence was that MOD was discharged from the Police Service in 1998 having been assessed as hurt on duty. In October 1996 Dr Cassimatis had diagnosed him as suffering from a psychiatric condition involving major depression and an acute stress disorder. These conditions, in Dr Cassimatis’ opinion, stemmed from the pressures associated with the W investigation. Dr Cassimatis had reviewed MOD from time to time. In December 2000 he had been seeing MOD on a monthly basis, prescribing medication and providing ongoing psychotherapy for his depressive disorder.

97 Dr Cassimatis gave further evidence in February 2004. At that time it was his opinion that MOD was suffering from a major anxiety disorder and a post-traumatic stress disorder, and that should he be required to complete his evidence it would result in him being quite ill from between six months to two years.

98 I excused MOD from further attendance.

99 The question arose as to what use, if any, might be made of the evidence of MOD. His cross-examination had the appearance of being far from complete at the time that he became psychiatrically unwell.

100 MOD presented throughout evidence in chief as a confident, precise witness with a detailed recall of the progress of the W investigation. He was an exemplar of a practiced police witness. I considered that no assessment of the credibility of his evidence based on his demeanour could be made.

101 At the point that he became distressed MOD was being cross-examined about the circumstances in which he had taken a very lengthy statement from SW. He was confronted with a prior inconsistent statement concerning the materials that he had available to him at the time of taking the statement.

102 In Heydon JD, Cross on Evidence (Sydney: Butterworths, loose-leaf Aust ed) at [17480] there is discussion of the effect of the loss of the right to cross-examine a witness who has become unfit to complete his evidence. The preferred view is suggested to be that the evidence remains admissible, although its weight may be diminished. This approach, it is noted, is consistent with the provisions of s 13(6) of the Evidence Act1995, which deals with the evidence of a witness who dies or who ceases to be competent.

103 The plaintiffs did not submit that I would disregard MOD’s evidence in its entirety. They sought to rely upon parts of it. It seems to me that since the cross-examination had not been completed I should not accept his evidence on matters in issue in the absence of independent evidence tending to support it.

THE HISTORY OF THE ALLEGATIONS MADE BY THE COMPLAINANTS

SW’s first complaint to the police: The Cruickshank statement

104 On 30 March, following the counselling session with Mr Keir on 21 March, SW went to the Manly Police Station where she saw Detective Cruickshank. Over the course of that day and the next Detective Cruickshank took a narrative statement that detailed a long history of sexual abuse of SW by her father. Throughout the taking of her statement SW was accompanied by a support person.

105 The Cruickshank statement was lengthy, consisting of thirty-four single spaced typewritten pages. In it SW gave an account of having been sexually abused by her father from the time she was five years old. She was able to date the commencement of the abuse to the day of her grandfather’s funeral. She described frequent sexual abuse of increasing seriousness, continuing until a fortnight before the date of the statement, when her father had called to her home and raped her.

106 SW made no allegation in the Cruickshank statement of having been sexually abused by any person other than her father. She said that she had not told her mother about the abuse. She feared that her mother would kill herself were she to learn of it.

107 At the date of making the Cruickshank statement SW was very underweight. She was receiving medical treatment and counselling for anorexia.

108 Detective Cruickshank has had lengthy experience in taking statements from complainants in sexual assault cases. Over the course of the two days that it took her to take the statement, SW was often distressed and it was necessary to take frequent breaks. Detective Cruickshank considered that SW was a credible complainant. She conveyed her opinion in this respect to MOD. Detective Cruickshank thought that SW might not have revealed everything about the abuse.

The further investigation of SW’s complaint

109 Detective Cruickshank made arrangements for the further investigation of SW’s complaint to be taken over by the detectives attached to the Dee Why Police Station. On 7 April she gave SW’s statement to Detective Senior Constable Yeomans.

110 SW was aged eighteen at the date she made her complaint. She did not allege that her younger sisters or brother had been abused. However, the nature of her allegations was such as to give rise to concern for the welfare of the children who were still living in the family home. Detective Yeomans reported SW’s allegations to DOCS.

111 Detective Senior Sergeant Burns, the Chief of Detectives at Dee Why, assigned the investigation of SW’s complaint to MOD. MOD was a detective sergeant with considerable experience in the conduct of criminal investigations, although he did not have specialist training in interviewing complainants in sexual assault cases. MOD was assisted by Detective Yeomans throughout the investigation. The two had not previously worked together. Neither knew SW nor any member of her family.

112 MOD was given the Cruickshank statement on Monday 11 April. On 13 April he spoke with DOCS officers about SW’s complaint. During the course of this discussion he expressed the concern that SW’s mother may be colluding in the abuse. SW had not made such a claim.

113 It was apparent that SW’s initial complaint had been made to Douglas Keir. MOD appears to have spoken to Mr Keir by telephone on 15 April. No statement was taken from Mr Keir concerning the disclosures that SW had made to him before the decision was made to arrest AW and LW.

114 After making her complaint to the police SW went to stay with her maternal uncle PS and his wife YS, and their family, on the Central Coast. On 17 April MOD and Detective Yeomans travelled to the Central Coast to interview SW. She attended the Woy Woy Police Station with PS. MOD commenced interviewing her in the presence of Detective Yeomans and PS. SW became distressed and MOD continued the interview with her alone. The only record of the interview is the handwritten notes that were recorded in pencil by MOD on a copy of the Cruickshank statement (the annotations to the Cruickshank statement).

115 Some of the material contained in the annotations to the Cruickshank statement is not repeated in the later statements that SW made in connection with the investigation.

116 It was clear to MOD on 17 April that SW was alleging that her mother, LW, was complicit in the abuse in that she knew that her husband had sexual intercourse with SW when she was as young as nine years old. This was inconsistent with the account SW had given to Detective Cruickshank.

117 On 18 April SW attended a counselling session with Douglas Keir. In the course of this session it appears that for the first time she gave an account that her mother had participated in the sexual abuse.

118 The next day SW telephoned MOD early in the morning, telling him that there were matters that she had not disclosed and that her mother had been involved in the sexual abuse. MOD recorded the fact of the call in his duty book. He made notes of the contents of the discussion in a Spirex notebook. After the telephone conversation with SW, MOD spoke with an officer of DOCS about the coordination of the investigation. He made arrangements for SW and her uncle to be conveyed to the police station.

119 At 1:15pm on the afternoon of 19 April MOD interviewed SW at the Dee Why Police Station. Again, MOD interviewed SW alone. He made notes of the interview in his Spirex notebook. SW gave further details of the sexual abuse to which she claimed her mother had subjected her.

120 On 26 April MOD commenced taking a further statement from SW about her allegations of sexual abuse by both AW and LW. This statement was taken over twelve days (the second statement). The allegations that SW made in it differed in important respects from the allegations that she had made in the Cruickshank statement. The circumstances in which the second statement came to be made will be addressed in dealing with the plaintiffs’ case on malice.

EW’s complaints

121 EW was interviewed by DOCS officers at the Manly Community Services Centre on the afternoon of 19 April. EW and SW were both present at the Dee Why Police Station on the evening of 19 April. Their uncle, PS, was also present. MOD was told that EW had made disclosures of digital sexual interference by her brother and father in her interview with the DOCS officers.

122 EW’s allegations of sexual misconduct by her father were elicited in the interview with DOCS officers by leading questions and only after initial denials. She denied that her mother had engaged in any form of sexual abuse. It appeared from things EW said in the course of this interview that SW had spoken to her, at least in general terms, about her (SW’s) allegations.

123 EW volunteered in her interview with the DOCS officers that her older brother, JW, had engaged in sexual misconduct with her. Each of the children volunteered that there had been sexual contact with JW. Each initially denied awareness of any form of sexual misconduct involving their parents. This was one of the few respects in which the children’s accounts exhibited any consistency.

124 The only significance of the material contained in the interview of 19 April between DOCS staff and EW is to the extent that MOD knew that EW had made an initial denial of parental abuse and that her subsequent complaints were elicited in response to leading questions. There was close liaison between MOD and DOCS officers in connection with this investigation. A transcript of the DOCS officers’ interview with EW was annexed to an affidavit sworn in connection with the Children’s Court proceedings on 10 May. I think it likely MOD had seen the transcript prior to 23 June.

125 The first statement made by EW in the course of the police investigation was on 10 May. She was interviewed by Constable Marnie Nicholson. EW was aged thirteen years at the time. In the first statement EW said that her father had sexually interfered with her from when she was aged about nine years. She particularised a number of specific instances of abuse. She said that her mother occasionally got involved when her father was abusing her. She instanced an occasion when her father was having anal sex with her and her mother walked into the room naked with a vibrator and inserted it into her vagina.

126 EW made a second statement to the police on 16 May in which she detailed allegations of sexual abuse by her mother. She claimed that her mother started indecently touching her when she was in Year 3. From the time she was in Year 5 her mother had digitally penetrated her and licked her vagina and breasts and made EW do the same to her. In this statement EW made a number of allegations of abuse associated with menstruation.

127 One feature of the account EW gave to the police in the first statement related to her claim to have had an abortion. Prior to Christmas 1993 she said that she thought she might have been pregnant because she had not had a period for six weeks. She had been taken by her parents to a house where a man carried out an abortion on her on the dining table. Her mother and father held her down during the procedure. She experienced the worst pain that she had known in her life. She screamed out in pain and her father struck her. She had lost consciousness after this.

128 In the course of re-telling the story of the abortion in successive statements EW gave differing accounts of the circumstances in which she had her pregnancy confirmed. In the initial account she said that her mother tested her urine using a home pregnancy test. Later she was to say that a man had called to the family home and examined her in her bedroom, making her urinate into little cup. He had then told her mother that she was pregnant. In the later version she said that the abortion was carried out on the kitchen table.

129 In giving her initial account EW said that she had written to Dolly magazine seeking advice about her fears that she was pregnant. She claimed that Dolly magazine published a reply to her letter, but that it was too late.

130 On 18 May Constable Nicholson took a third statement from EW in which EW said that her father had sexually assaulted her cousin, SS, during a family holiday at Murrurundi. SS was one of the cousins with whose family EW had come to live in the aftermath of the disclosures of abuse.

131 On 2 June Constable Nicholson took a fourth statement from EW concerning allegations relating to her cousin, KS. In this statement EW described seeing her father indecently touching KS on an occasion around Christmas when her uncle and aunt and their children were visiting the family home. This occurred when EW was aged around nine or ten years.

132 On 7 June EW made a fifth statement in which she detailed her knowledge of a sexual assault committed by her father on her cousin, BS. This incident also occurred at Christmas when EW was aged eight or nine years and the S family were visiting the family home. Her father made her hold BS while he removed BS’ pants and anally penetrated her. He made EW put her finger inside BS’ vagina. No complaint was made by BS concerning this incident or any incident of sexual abuse.

133 EW made a further statement on 8 June 1994 outlining allegations of sexual interference with her cousin, CS. The incident occurred on Boxing Day 1992 when KS was aged around five and a half years. She saw her father rubbing KS’ bottom and between her legs near her vagina. CS made no complaint about this incident or any incident of sexual abuse.

134 In the course of a discussion with Constable Nicholson on 6 June it appears that EW made an allegation that her mother had used a syringe to take blood from her. On 10 June Constable Nicholson took a statement from her about this allegation. In the statement EW said:

“It was about two years ago, near the end of November. It was a school day. It was when I had my first period, it was the morning after the first day of my first period. Mum took blood from my left breast. We were in the kitchen. I was standing near the kitchen bench, I was leaning on it, my bum was leaning on it. It was the kitchen bench that has a red bench top, Dad put it on. Mum came over to me with the needle in her hand. The cap was off the needle end. She said, ‘come here’. I went over to her. She unzipped my school uniform and held me still. She stuck the needle in and said, ‘watch everyone, I’m taking her blood.’ JLW, JW, JS, were also there, Dad was at work. Mum half filled the needle with blood. I don’t know what they did with the blood. Mum took the needle.”

“She [her mother] dragged me into my bedroom and poured the blood on my bed sheet. She pulled the bottom part out and tipped it upside down. I had to leave it there the whole time I had my first period. I felt really dirty when I woke up in the morning because I had to sleep on it. Each night she took some more blood from me, in the kitchen, from my left breast, put it on my bed sheet. She did this for about seven nights. Each night she used a different needle. I watched her get it. My sheet had blood in the middle of it. In the morning the blood had sort of soaked in and it was a bit darker. Every time she did it she said, ‘blood’s coming out of you so you’ll have to sleep in it’.”

135 EW claimed that LW took blood from her breast about ten or twenty times. Sometimes she did it when EW was not menstruating, but most of the time it took place when she was menstruating. Her breast felt very sore and the procedure left a mark for a few days.

136 Constable Nicholson was a relatively junior officer who did not have investigative training. Detective Hill was assigned to the W investigation on 18 May. She had completed the Initial Response Officers’ Course (IROC) in mid 1991. This course relates to the conduct of interviews with complainants in sexual cases. Since that time Detective Hill had been involved in a number of investigations of sexual assault complaints. Although she was not designated as a detective in 1994 her duties were investigative and she was working as a detective. She commenced working on the W investigation on 18 May. Initially she was assigned to interview JLW. As time went on Detective Hill found that she was giving directions to Constable Nicholson about matters in EW’s statements that required clarification and investigation. Ultimately MOD assigned her to take over the further interviewing of EW.

137 Detective Hill conducted a number of interviews with EW in which she sought to clarify the allegations that EW had made in her statements.

138 EW came to retract certain of her allegations during the course of the investigation. None of the retractions occurred before AW and LW were charged with the further offences, including offences against EW, at court on 23 June 1994.

The evidence of EW’s complaint

139 EW claimed that she had complained about the sexual abuse to her friend Christine. On 20 July Detective Hill took a statement from Christine. Christine said that she had known EW since the beginning of 1993. EW had told her, “I don’t like going over to Tony’s house or when he comes over here because they feel me and I don’t like it”. Christine explained that Tony was EW’s next-door neighbour and that he was a good friend of her brother. She was not sure when the complaint was made to her, but she thought it was around August 1993. On another occasion at school EW told Christine that “they’d stopped it for a while after she told me the first time but then they started it again later” (Q & A 17). Christine clarified that her reference to “they” was a reference to EW’s brother, JW, and the neighbour, Tony. Christine’s statement provided no support for EW’s assertion that she had complained of parental sexual abuse.

140 On 21 July 1994 Detective Hill interviewed EW about what it was that she had said to Christine. EW agreed that she had told Christine that Tony and JW did stuff to her. She explained that she had not wanted Christine to know that it was her father who was interfering with her.

EW’s medical examination

141 EW was seen on a number of occasions by Dr Allen at the Gosford District Hospital as the result of the allegations that she made. A statement from Dr Allan, dated 23 June, records attendances by EW with Constable Marnie Nicholson on 13 May, 23 May and 26 May. It would seem that at the first consultation Constable Nicholson related some details of the alleged abuse. The history given included vaginal intercourse, anal intercourse and an illegal abortion. EW was described as being unwilling to undergo an examination on that occasion. On the second visit her attitude appears to have still been one of reluctance with respect to the physical examination but she agreed to have blood tests. On the third visit EW was described as still being very reluctant to undergo an examination and as having difficulty tolerating the procedure.

142 Dr Allen recorded her findings as follows:

“EW is a thirteen year old girl. There have been allegations of sexual abuse. The genital examination was not well tolerated; speculum examination caused considerable distress and was terminated. The appearance of the vulva, perineum and perianal regions was normal; a small area of the base of the hymen was not adequately visualised but was otherwise normal. A normal genital examination neither confirms nor denies a history of sexual abuse.”

143 Detective Hill had obtained medical records relating to EW and various other of the children. She recalled that EW had not undergone a completed examination with Dr Allen. She had discussed with EW the reasons for this and EW told her that she had not wanted to go through with the medical examination with Dr Allen because Constable Nicholson was present. After consultation with MOD Detective Hill suggested that EW agree to a further medical examination.

144 Detective Hill took EW to the Sexual Assault Unit at the Royal North Shore Hospital on 17 June, where she was seen by Dr Edwards. Dr Edwards obtained a history that included that EW had been subject to vaginal and anal intercourse and to the use of a vibrator from the age of about nine years and that she had an abortion performed on her when she was about two months pregnant. Dr Edwards provided a statement to police on 20 June in which, after setting out this history, she expressed the following conclusion:

“Physical examination revealed no abnormality. Genital examination revealed a redundant hymen with a frilled edge and a large opening. Inspection of the anus in the left lateral position revealed spontaneous anal dilation to about 0.5cm.

The findings of no genital abnormalities and definite spontaneous anal dilation in the left lateral position is consistent with the history obtained by me.”

EW’s retractions

145 Detective Hill consulted Dr Bedami, the Government Medical Officer, on 29 June about EW’s claim to have had blood removed from her breast with a syringe. It was his opinion that the allegation was not likely to be true. Detective Hill conveyed this advice to MOD. He told her that he proposed obtaining further medical opinion about the matter.

146 The following day EW telephoned Detective Hill and told her that she needed to see her. EW said that it was not true that her mother had taken blood from her breast: the blood had been taken from her arm. Detective Hill arranged to see EW later that day.

147 Detective Hill interviewed EW and recorded the retraction of her allegation. In the interview EW adhered to her account that her mother had taken blood from her using a syringe. It was taken from a vein in her arm. She maintained that JLW, JW and JS were present when this occurred.

148 EW also maintained that her mother had regularly taken blood from her and that the blood had been tipped onto the bed sheet. She continued to claim that her mother had injected the blood into her vagina but she now said that the pointy part of the needle had not been inserted into her vagina. Detective Sergeant Hill asked why EW had earlier claimed that blood had been taken from her breast. EW said, “because I was sick of doing statements and I wanted youse to think I was lying” (at [A 84]).

149 On 29 July 1994 Detective Hill took a statement from Ms Funnell, an employee of Australian Consolidated Press, the publisher of Dolly magazine. Ms Funnell said that the 5 January issue of Dolly magazine included a feature on incestuous sexual assault. Detective Hill was given a copy of a letter that had been received by Dolly magazine. It read:

“I am 13 and me and my dad have sex every night. I saw an article on it a while ago so I am writing in too. My real worry is that ever since I was 11 I have had my period monthly but the last 2 times they haven’t come I am worried that I am pregnant what should I do please help me I am too afraid to go to the chemist or doctor.”

Dolly

150 On 15 August Detective Hill took a statement from EW in which she said that her allegations about undergoing a pregnancy test and writing a letter to Dolly magazine were not true. During the course of this interview EW complained of feeling sick and the statement was suspended. It was completed on Monday 22 August. EW told Detective Hill that she had not been pregnant. She said she had made the story up because when she had told Constables Nicholson and Woolston about her history of abuse Constable Woolston had asked, “And you didn’t get pregnant?” This prompted EW to make up the story.

151 Constable Woolston did not give evidence. Detective Hill was cross-examined about this matter. I am satisfied that Detective Hill spoke with Constable Woolston at the time and that Constable Woolston denied making such a remark. This was a matter of some importance. The likelihood is that Detective Hill told MOD about it. EW’s explanation for the lies that she told about the pregnancy and the abortion was itself suspect. Detective Hill and MOD were aware of that fact.

JW’s complaints

152 JW gave evidence in the plaintiffs’ case. He was born in October 1978. He was fifteen years of age at the date of his parents’ arrest. He saw his mother being taken from the family home on 19 April. He did not see her or his father again for a number of months. The conditions of their bail did not permit them to have contact with their children. JW did not know this. He was removed from the family home and placed at the Minali Receiving and Assessment Centre, Lidcombe. He remained in that facility for around six weeks. Minali proved a frightening environment for him. Ultimately he was placed with an older cousin, LS, and her family. He remained in this situation until he had completed Year 12. In 1997 he moved interstate and commenced university studies. He graduated in computer/mathematic sciences with second-class honours. At the date of giving evidence he was employed as a computer systems officer and had been living with his girlfriend for a number of years.

153 EW had disclosed that she had been sexually interfered with by JW in her interview with DOCS officers on 19 April.

154 On 20 April JW was interviewed by DOCS officers. In the course of the interview he was asked about his relationship with his mother and father. He described a good relationship with his mother and a more distant relationship with his father. He made no allegation against either of his parents. The interview included the following exchange:

“Q. I don’t think there’s any point in beating around the bush. EW had told us that you have touched in a way that she made her feel uncomfortable, hurt her and caused her a lot of distress. Right?

A. Yes.

Q. The sort of information SW’s given us is more complex and your Mum and Dad have been charged.

A. Shit. Will I ever see them again?

Q. Yes you will and you won’t be charged by the police: You are a child and although we know you’ve done stuff to EW it won’t be the same story. I think we need to be straight about that. You can choose not to talk to us about it but you should know that we have this information about you. Things aren’t going to be the same for your family.”

“Q. Do you know if anyone else in your family has touched anyone in any inappropriate way?

A. No.

Q. Have you touched anyone else?

A. Yes. JLW.”

“Some families have shaky boundaries in terms of space and in touching so your left not really knowing what’s right and what’s wrong. I would suggest that your family might have informal rules about this.

A. Do you mean if I’m doing it to them then someone’s touched me or I’ve seen someone do it?

Q. Yes.

A. Well I haven’t and no one’s touched me.”

155 JW was asked if he thought that his mother and father might have guessed that he had sexual contact with his younger sisters. He said he thought not, as they had not been at home when the incidents occurred. He did not think that either of his younger sisters had engaged in any form of sexual play with anyone apart from him.

156 Detective Yeomans read the transcript of the DOCS officers’ interview with JW and was aware that JW denied knowledge of any sexual misconduct involving his parents.

157 On Friday 29 April Detective Yeomans and Stephen Dinning, a DOCS District Officer, collected JW from Minali and took him to the Bankstown Police Station to interview him.

158 In the course of the interview that followed, JW made allegations that his mother had sexually interfered with him, that he had observed his father behaving sexually inappropriately with JLW and that he had heard his father having sexual relations with someone in the bathroom of the family home.

159 The circumstances in which JW came to make these claims were the subject of controversy. JW recalled being interviewed by Detective Yeomans and Stephen Dinning on 29 April. He said that during the course of the interview Detective Yeomans had asked Mr Dinning to leave the room and that Mr Dinning did so and was absent for around fifteen minutes. In the time that Mr Dinning was away, JW said that Detective Yeomans told him that what he, JW, was saying was “frog shit” (T 395.9). JW said that Detective Yeomans “just told me everything I was saying was lies. He said he knew stuff had happened, things had gone on” (T 396.50 – 51). Detective Yeomans was standing close to him as he said these things and JW felt threatened by him.

A. Well, to the point of where I would have been looking for explanations as to why.

Q. And would have at the very least deferred the question of whether charges, and if so what charges, ought be laid against JS?

A. Depending on the explanations that I was given I perhaps may have, yes.”

689 Detective Holloway’s attention was directed to the charge that JS had sexual intercourse with SW without her consent at Manly Vale between 4 September 1993 and 6 April 1994. He agreed that the material relied upon by him in preferring this charge was that set out in paragraph [22] of SW’s third statement. That paragraph in turn referred to paragraph [114] of the second statement. As noted, he did not have access to that statement. The statement of 13 September made no reference to the dates during which SW had lived at the Manly Vale premises. Detective Holloway agreed that he must have had assistance from MOD in formulating the particulars of this charge. After having his attention directed to SW’s earlier and inconsistent accounts relating to events at Manly Vale, Detective Holloway agreed that the matter called for explanation. He was asked (at T 2213.8-34):

“Q. And you wouldn’t have preferred charges without having got explanations of a satisfactory character, would you?

A. As I say, it depends on what the explanations were, and how quickly they were proffered.

Q. But without one …

A. No.

Q. … you would not have formed the belief that you regarded as necessary for the laying of charges, would you?

A. Sorry, you are saying, having been aware of these previous two statements …

Q. Yes.

A. The fact that the matters were still disclosed in the statement that related to her would have given rise to suspicion, but perhaps prudence might have dictated a delay.

Q. If I could put it to you in the form I put it to you earlier, you would not have formed the belief that JS was probably guilty of the offence without having first got a satisfactory explanation for the shift, would you?

A. I think it would be fair to say that. No, it is fairly extreme, being guilty of the offence.”

690 Detective Holloway went on to say (at T 2214.26 – 32):

“No. I would say that my terminology would be ‘reasonable cause to believe that they had committed an offence’, not that they were guilty of it. That’s a matter for a court; quite simply, to put the matter before a magistrate or other jurisdiction to have that determination made. There was sufficient evidence to do that.”

691 Detective Holloway’s attention was directed to OLC 5508/2, the charge that alleged that JS had sexual intercourse with SW at Mona Vale in the period between 27 January and 31 July 1993. This material is set out in paragraphs [11] - [14] of the third statement. Again, in that statement SW refers to allegations made in her second statement. Relevantly, at paragraph [12] of the later statement she said, referring to the second statement, “I said that LW took me into the bedroom with JW, while JS, EW and JLW stayed in the lounge room. JS didn’t really stay in the lounge room, only EW and JLW did.” It was suggested to Detective Holloway that had he been in truth exercising independent judgment concerning whether or not to prefer a charge against JS arising out of this allegation, he would have wished to see the earlier statement that she corrected in this respect. He did not recall noticing this matter before. He had not sought to obtain confirmation from SW’s siblings who were said to be present on the occasion. Detective Holloway said he was under the impression that JW had been charged with offences and, as I understood it, that in light of that circumstance he would not expect to look for corroborative material from that source. After having his attention directed to the earlier and inconsistent version relating to events at Mona Vale, on the occasion when SW claimed she had been sexually interfered with in the bedroom, Detective Holloway agreed that had he access to that information, it would have caused the need for clarification. It was put to him (at T 2220.24-28):

“Q. Indeed, on the material, if you had both of those versions, you could not have laid charges without further investigation on 15 September 1994?

A. It may have been prudent to seek advice or postpone it, yes.”

692 With respect to the charge preferred against JS relating to events at Beacon Hill between 26 July 1993 and 4 September 1993, Detective Holloway agreed, after being shown SW’s earlier statements, that the variation in her account was such as to require explanation (T 2221.40).

693 Advice had been given to MOD by a solicitor employed in the ODDP that the allegations contained in EW’s interviews of 8 and 10 June relating to JS were an insufficient basis on which to charge her. Detective Holloway was not informed of this advice. Had he been aware that such an opinion had been offered, and had he been made aware of the inconsistent versions that had been given by EW, he said that it was probable that he would have approached the ODPP for advice concerning the matter before proceeding to arrest and charge JS.

694 An examination of MOD’s duty book entry for 15 September provides no explanation for why he did not arrest JS himself. Accepting for present purposes that he was overburdened there is no explanation as to why he procured Detective Holloway for this purpose. Detective Holloway had no involvement in the investigation before the arrest of JS or after it. Detective Yeomans, who had been involved in the investigation from the outset, and who would appear to be the person next to MOD with the greatest knowledge of it, was on duty on 15 September. Indeed, Detective Yeomans drove to the family home in order to point out the location to Detective Holloway, but for reasons that were not explained, took no part in the arrest.

695 Detective Yeomans acknowledged that while the arrest of JS was effected by Detective Holloway, he understood that it was carried out at the direction of MOD (T 1269.34). He agreed that he would have expected MOD as the officer in charge to have carried out the arrest of JS. MOD did not discuss with him his reasons for arranging for Detective Holloway to attend to this task.

696 In the result, the decision to arrest JS was made by an officer on the basis of information supplied to him by MOD that was to the knowledge of MOD incomplete and misleading. MOD’s verbal briefing that the information was “reasonably consistent” was grossly misleading. To have provided Detective Holloway with this selective and incomplete summary of the investigation with the invitation that he make up his own mind was disingenuous. Detective Holloway did not exercise an independent discretion in arriving at the decision to arrest JS. The defendant has not established that the arrest and detention of JS on 15 September was lawful.

JS’ claim in malicious prosecution

697 JS pleaded causes of action in malicious prosecution and, in the alternative, in abuse of process.

Reasonable and probable cause

698 I turn to JS’ claim of malicious prosecution. The first question is whether JS has established the absence of reasonable and probable cause with respect to the institution of proceedings against her on 15 September for the eight offences. The only evidence available to support each of the charges was the unsupported account of SW and EW respectively. Both had given inconsistent accounts on earlier occasions when under an obligation to tell the truth. EW had admitted to fabricating serious allegations against both her parents.

699 Detective Holloway was not challenged as to his belief at the time he charged JS that the probability of her guilt was such that on general grounds of justice the charges against her were warranted. As noted, his belief was based upon an incomplete knowledge of the investigation. I am satisfied that MOD made the decision that JS would be charged with the eight offences. He was the person responsible for the institution of the prosecution of JS in respect of each of these offences.

700 It is necessary to bear in mind the nature of the allegations. Sexual offences are frequently committed in circumstances in which there will be no witnesses available to corroborate the complainant’s account. The circumstance that a complainant comes forward with a complaint months or years after the incident not having made any complaint at the time does not necessarily bear on the credibility of the account. It is recognised that there may be good reasons why the victims of sexual offences do not complain.

701 MOD was not prepared to charge JS with criminal offences based on the allegations made by EW. He said that he would not take action against JS without some information tending to provide support for EW’s allegations. Although the account given by SW in her third statement was not likely to be admissible in support of a prosecution based on EW’s allegations, nonetheless I accept that the fact that she, too, alleged that her grandmother was involved in acts of sexual abuse was a matter that was open to a prudent investigator to take into account in deciding whether to prosecute JS on the allegations made by EW or SW. However, SW’s account in the third statement seems to me to have been so unsatisfactory in light of the matters to which I have already referred that objectively a person of ordinary prudence and judgment would not have concluded that a prosecution of JS upon her allegations was warranted. I am of the same opinion with respect to a prosecution upon the allegations made by EW.

702 I am not persuaded that MOD believed that upon general grounds of justice that the prosecution of JS on these eight charges was warranted. There was absent reasonable and probable cause for the prosecution of JS on the charges preferred against her on 15 September.

Malice

703 It remains to consider whether MOD has been shown to have been actuated by some collateral or improper purpose such that his decision to institute the prosecution of her on these charges can be characterised as malicious. One motive advanced by the plaintiffs as MOD’s reason for instituting the prosecution against JS was his desire to avoid the complainants being cross-examined in the apprehended personal violence order proceedings. It is clear that MOD discussed this issue with John Boyd and Jill Cash of the ODPP. However, it seems to me to be a speculative leap to move from this to a conclusion that he was motivated to charge JS with these offences in order to avoid that result.

704 MOD’s conduct in arranging for Detective Holloway to arrest JS and to be named as the informant in respect of the charges that he, MOD, had drafted, has not been satisfactorily explained. MOD gave evidence that he had involved Detective Holloway in the arrest of JS because the investigation had grown into a very large one and he was not able to undertake this task himself. I do not accept that account. As I have noted, Detective Holloway had no role other than as the token informant.

705 I am unable to say what MOD’s motive was in procuring the charging of JS with the eight offences on 15 September. I am persuaded that it was a motive other than one borne of MOD’s belief in the probability of her guilt such that he considered upon general grounds of justice that the prosecution was justified. Had he been of that view he would not have engaged in the artifice of bringing Detective Holloway into the investigation and misleading him as to the strength of the evidence against JS. The selective briefing afforded to Detective Holloway seems to me of itself to evidence malice in the sense that MOD had some improper or collateral purpose for instituting the prosecution. I am satisfied that JS has made good her cause of action for malicious prosecution in relation to the prosecution of each of the eight offences with which she was charged on 15 September.

706 The charges against JS were returnable before the Manly Local Court on 5 October 1994. No evidence was led concerning the conduct of the proceedings on that day. The appearance recorded on behalf of the informant on the charge sheet was not the subject of evidence. On 26 October 1994 the charges were again before the Local Court. On that occasion the charge sheets record that “Cash” appeared. In light of the evidence concerning Ms Cash and the acknowledgment that she was at the time in the employ of the ODPP, I infer that not later than 26 October 1994 the Director had taken over the prosecution of the charges against JS. For the reasons earlier given, I do not find that MOD was responsible for the maintenance of the prosecution after that date.

The further charge preferred against LW – the assault on the night of JLW’s eleventh birthday

707 In her third statement SW gave an expanded account of events in the family home on the night of JLW’s eleventh birthday. I have referred to these in paragraph [663] above. Either on or before 30 January 1995 a charge was preferred against LW arising out of these allegations. It was a charge under s 61J(1) of having sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5159/20). This charge was returnable before the St James Local Court on 30 January 1995. It will be recalled that Michael was present at the family home on this occasion for at least some of the celebrations associated with JLW’s birthday. His attention was not directed to the matter in the interviews conducted with him by Detective Yeomans and MOD. There was nothing to support SW’s extraordinary and inconsistent account. For the reasons that I have earlier given I consider that there was absent reasonable and probable cause for instituting the prosecution of LW in respect of this charge.

708 MOD was named on the charge sheet as the informant in respect of this charge. He was named as the informant in respect of all the charges preferred against LW. This is so in the case of charges that were laid in court during the currency of the committal proceedings. The transcript of the committal proceedings on 18 March 1996 records that the Crown Prosecutor foreshadowed that some additional charges would be laid and that some charges would be withdrawn and other charges substituted for them. She noted that there had been a number of amendments to the Crimes Act relating to sexual offences and that it had become clear that some charges had been preferred under the incorrect provision (transcript of the committal hearing 18 March 1996, 9 -10).

709 The defendant submitted that I would be satisfied that as at 30 January 1995 the Director had taken over the prosecution of all charges against the plaintiffs and that the inference to be drawn was that MOD did not exercise an independent discretion in preferring this further charge against LW. The charge married up with the one preferred against JS relating to the same incident. The only reasonable inference was that those responsible for the conduct of the prosecution of all charges were responsible for the decision to prefer this charge. In support of this counsel drew attention to MOD’s duty book entry for 30 January 1995. This would suggest that MOD was on rest days on that day and the preceding two days. This does not mean that he could not have been the moving force behind the institution of LW’s prosecution on this charge. However, I note that the entries in his duty book in the days leading up to 30 January tend to support the inference for which the defendant contends, in that it appears MOD’s duties were no longer focussed on inquiries associated with Task Force Maitland.

710 I have concluded that it is probable that the decision to prefer the charge against LW on or before 30 January 1995 arising out of the allegations made by SW in her third statement was made by a person having responsibility for the overall prosecution of the charges against the three plaintiffs.

Conclusion – further charges and abuse of process

711 For the reasons that I have given I do not find that MOD or any of the police officers were responsible for the institution of the fresh charges at the committal hearing against any of the plaintiffs. The determination to do so was that of the Director.

712 I am not satisfied that AW has established his causes of action in false imprisonment or malicious prosecution.

713 AW also pleads a cause of action in the tort of abuse of process. This claim is particularised in the three respects that I have set out at paragraph [35] above. No submissions were advanced to explain how the cause of action in abuse of process was put on AW’s behalf. This cause of action must fail. I am not persuaded that the criminal process was used in an effort to justify his unlawful arrest. While I consider aspects of the investigation to have been poorly conducted, I am not persuaded that the criminal process was used in an effort to conceal an earlier negligent or improper investigation. I have not found that MOD utilised the criminal process in order to conceal and foster his illicit relationship with SW.

714 By her third further amended statement of claim LW also pleads a cause of action in abuse of process. This too is particularised in the three respects that I have set out at paragraph [35] above. LW has succeeded on her causes of action for false imprisonment arising out of her unlawful arrest and detention and in her cause of action for malicious prosecution with respect to the institution of proceedings against her for the two offences on 19 April and their maintenance until 23 June but not otherwise. Her claim pleaded in the alternative of abuse of process particularised in paragraph 30 (b) and (c) of her third further amended statement of claim has not been made good for the same reasons as I have stated with respect to AW’s claim.

DAMAGES

Principles in awarding damages

715 I turn to a consideration of principles with respect to the award of damages for the torts of false imprisonment and malicious prosecution. The principles with respect to the former were discussed by Clarke JA in Spautz v Butterworth (1996) 41 NSWLR 1 at 12-18. In that case his Honour drew attention to the risk of blurring the distinction between ordinary and aggravated compensatory damages (at 15.A). These observations have equal force when dealing with damages for malicious prosecution.

716 False imprisonment and malicious prosecution are both torts which touch not only upon the individual’s liberty, but on her or his reputation, and it is appropriate that this be reflected in the calculation of damages. In Ruddock v Taylor [2003] NSWCA 262 Spigelman CJ observed at [49]:

Thompson v Commissioner of Police of the Metropolis

717 Aggravated damages are compensatory in their nature and it is necessary to avoid double counting: State of NSW v Riley (2003) 57 NSWLR 496 per Hodgson JA at 528-529. In that case his Honour noted:

“This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages to the upper end of the available range.”

718 Exemplary damages are awarded in order to punish the wrongdoer and to deter others from like conduct: Gray v Motor Accident Commission (1998) 196 CLR 1.

719 In Spautz, Clarke JA held that where a plaintiff is entitled to compensatory damages for wrongful arrest and false imprisonment that it is appropriate that the court in assessing ordinary compensatory damages take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person’s feelings. In an appropriate case this may include the absence of an apology and the reaffirmation of the truth of the matters. This is not a case in which I consider it appropriate to take considerations of this character into account. It is not meaningful to attempt to assess the measure of hurt to feelings brought about by the absence of an apology in this case where LW was charged with a large number of related offences in respect of which I am not persuaded that her prosecution was malicious.

Damages - LW

720 I have concluded that LW has succeeded on her claim for false imprisonment arising out of her unlawful detention on 19 April and for malicious prosecution with respect to the two charges preferred against her on that day. LW’s unlawful detention commenced around 4:05 pm. She was charged with both offences at 9:19 pm. She was released on bail around 11:00 pm. After the conclusion of the ERISP LW was taken to the charge room of the police station. She was fingerprinted and her photograph was taken. She was placed in the dock. LW had not previously been in a police station. She hated the experience.

721 On her return to the family home she found that her children had been taken into care by DOCS. When asked how she felt about this she said that it was hard to describe. It was clear that LW’s distress at that time, and in the months that followed, was in part as the result of actions taken by DOCS rather than by the police. Nonetheless, the experience of being arrested, fingerprinted, photographed and charged with having sexual intercourse with her daughter was plainly of itself a source of considerable distress to LW.

722 LW gave some evidence that ultimately she lost her employment at the school canteen as a consequence of the prosecution of the charges. This occurred nearly a year after her arrest. It followed the appointment of a new principal to the school, who told her that she would have to leave because she was viewed as being a danger to children. This had made her feel awful. Since that time LW had done some ironing work at home for a while and had obtained part-time work in the canteen at a retirement village.

723 Her loss of employment and the impairment in her earning capacity did not arise from the prosecution of her on the two charges preferred against her on 19 April or the maintenance of the prosecution between that date and 23 June.

724 In the period following her arrest LW did not have contact with her children. This was a source of distress to her. Her bail conditions included a restriction on contact with the children. She was only able to regain contact with the children as the result of a bail application in this Court. Following this she was able to see the three children in a room at the Manly DOCS office in the presence of a DOCS officer and two lawyers. Her mother and AW were also present. This contact visit lasted for about two hours. LW said that she had missed the children and felt awful as the result of the enforced separation.

725 Following LW’s arrest and the removal of the children she suffered from depression. Dr Blom, her general practitioner, described her as “chronically depressed and in a constant state of grieving over her loss” (report dated 1 May 2000).

726 LW was assessed by Dr Roberts, a psychiatrist. He described her as presenting as a distressed, depressed person. He considered that she had suffered a significant degree of depression and anxiety arising out of what he described as “her involvement in this matter”. Dr Roberts was of the opinion that LW had, as the result of these events, become a profoundly impaired person within the criteria for that condition specified in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (3rd ed). Dr Roberts considers that LW suffers significant impairment in daily living, social functioning, concentration and adaptation. Her capacity to enjoy, to function and to obtain satisfaction from her children (and potentially grandchildren) in Dr Roberts’ opinion has been ruined.

727 The medical evidence addressed LW’s condition in the context of events that include the sudden removal of her children from her care, the circumstance that each child was for a time to make allegations of sexual impropriety against her and her husband and the institution and maintenance of the charges preferred against LW on 23 June.

728 As I have observed, I am concerned with the award of damages to compensate LW for her false imprisonment and the malicious prosecution of charges 5159/1 and 5159/2 for the period 19 April until 23 June 1994.

729 By her third further amended statement of claim LW claims damages for “nervous shock, loss of humour, energy and enthusiasm, anxiety, stress and sequelae, personality changes” together with medical costs, both past and future, general damages and damages to her reputation, together with special damages relating to legal expenses, telephone calls and travelling expenses and both aggravated compensatory damages and exemplary damages.

730 No evidence was led with respect to the particulars of special damage. In light of my finding that LW has failed with respect to so much of her claim as relates to the institution and maintenance of the prosecution of the charges on 23 June and the later charges preferred at court in January 1995 and March 1996, the claim for legal expenses and the other particulars of special damage would, in any event, have largely failed.

731 There was no evidence with respect to LW’s past medical costs, nor is there any basis identified in the evidence in light of my findings for an award for future medical expenses.

732 LW was unlawfully detained for a period of approximately seven hours. Her arrest and the subsequent institution of proceedings against her on two counts of having sexual intercourse with her daughter without the daughter’s consent, in the absence of any evidence to support either count, was carried out with a high-handed disregard for LW’s rights. In addition to ordinary compensatory damages for injury to LW’s feelings this is an appropriate case in which to include a component for aggravated damages to reflect the humiliation and indignity to which she was subject.

733 The defendant submitted that an award of exemplary damages should not be made in a case such as this where the wrongdoer is not a defendant and where liability is vicarious. Such a contention does not seem to me to accord with the reasoning of the Court of Appeal in Adams v Kennedy [2000] NSWCA 152 per Priestley JA at [36]:

“The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.”

734 I consider that an award of exemplary damages is appropriate in order to mark the Court’s disapproval of the conduct and to deter police officers from abusing power in the way that MOD did. It remains appropriate that the award exhibit restraint: H Luntz, Assessment of Damages for Personal Injury and Death (Sydney: Butterworths, 4th ed, 2002) at [1.7.6]; Commonwealth of Australia v Murray (1988) Aust Torts Reps 80-207, 680-038 at per Priestley JA at 680-052.

735 For these reasons I propose an award of damages for the second plaintiff, LW, made up as follows:

In respect of her false imprisonment on 19 April 1994:

(i) $15,000 by way of general and aggravated compensatory damages;

(ii) $20,000 exemplary damages.

For her malicious prosecution on OLC 5159/1 and 5159/2 the sum of:

(i) $20,000 in general and aggravated compensatory damages

(ii) $45,000 in exemplary damages.

Damages – the estate of the late JS

736 JS’ causes of action survive for the benefit of her estate pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1944.

737 JS said that she had been placed in a room at the Dee Why Police Station in which there were little bars in front of her. The door had not been closed and there had been other persons present in the room. She described a counter and persons standing at it. I understood JS to be describing a period during which she was seated in the dock in the charge room of the police station. Her fingerprints were taken and her shoes were removed.

738 When asked how long she had been detained at the police station, JS said that it had seemed to be all day, but that it may have been about an hour or so. Her son had come and collected her from the police station. While she was at the police station a police officer inspected the contents of her handbag. From the time she was informed of her arrest to the time her son collected her from the police station she said that she had felt “awful, terrible” (T 136.1).

739 JS also felt terrible when she attended Manly Court and was charged in court with the various offences.

740 JS suffered asthma and panic attacks in association with her arrest and charging. She was prescribed sleeping tablets. Prior to her arrest she had not taken sleeping tablets.

741 Dr Roberts, psychiatrist, conducted a medico-legal examination of JS on 13 February 2003. In his report he detailed her history, including that she had been diagnosed with bronchiectasis in 1988-1989 and that she suffered from emphysema and asthma. She had a number of additional physical complaints, including osteoporosis, arthritis and a goitre which she described as obstructing her respiration, but which she was not in a sufficiently fit state to undergo surgery to relieve. At the time of Dr Roberts’ examination JS was receiving oxygen supplementation on a fulltime basis. She gave an account of sleep disturbance, breathing difficulties and sensations of panic. She described a distressing incident that she said had happened when she was at court, when she had been compared to Fred West, a man who had killed a number of people in the United Kingdom. Dr Roberts noted that JS had not undergone specialist psychiatric treatment, but that her family doctor had prescribed sleeping pills for her.

742 Dr Roberts went on to express the opinion that:

“She is clearly distressed on considering these matters – it is difficult to separate certain physiological concomitants that would be found in a reactive state from her other physical conditions.

adjustment disorder with anxiety and depressive mood

743 Dr Roberts considered JS’ adjustment disorder to be chronic because the effect of the prosecution upon JS and the family remained unaltered. In this respect he referred to the permanent alteration that had been worked between JS and her grandchildren and the disruption associated with one of her sons and his family. I understood the latter reference to be to PS and YS.

744 To the extent that Dr Roberts considered JS to have developed an adjustment disorder with anxiety and depressive mood arising out of the “matters under consideration”, it is apparent that he was expressing an opinion taking into account the break-up of the family following the DOCS decision to take the children into care and the course of the prosecution against her.

745 I am concerned to award damages to the estate of JS in respect of her causes of action for false imprisonment on 15 September, being an occasion on which she was detained for something of the order of one and a half hours, and the institution of the prosecution against her for offences of a sexual nature involving her granddaughters, SW and EW. This does not involve compensation for the maintenance of the prosecution between 26 October and the termination of the proceedings in her favour on 21 June 1996.

746 MOD’s conduct in procuring the arrest of JS and in instituting the prosecution of this elderly woman for sexual offences on her granddaughters was a high-handed and most humiliating interference with her rights. The fourth further amended statement of claim brought by LW as trustee for the estate of the late JS includes claims for out of pocket expenses and exemplary damages. As to the latter I note the provisions of s (2)(a)(i) of the Law Reform (Miscellaneous Provisions) Act 1944. No evidence was led of out of pocket expenses or of the special damage pleaded in paragraph [33].

747 The estate of JS is entitled to general and aggravated compensatory damages on her causes of action in false imprisonment and malicious prosecution. Taking into account JS’ age and frail health at the date of her unlawful detention and the effect upon her of being charged with sexual offences involving sexual intercourse with her granddaughters I consider an appropriate award to be:

For wrongful arrest and false imprisonment the sum of $25,000 by way of general damages and aggravated compensatory damages.

For the malicious institution of the prosecution against her of charges of sexual offences against her granddaughters, SW and EW, general damages and aggravated compensatory damages in the amount of $40,000.

748 For these reasons I make the following orders:

1. Verdict and judgment for the defendant on each of the claims brought by the first plaintiff;

2. Verdict and judgment for the second plaintiff in the sum of $35,000 with respect to her claim for false imprisonment and $65,000 with respect to her claim for malicious prosecution;

3. Verdict and judgment for the estate of the third plaintiff in the sum of $25,000 for her claim brought for false imprisonment and $40,000 for her claim for malicious prosecution;

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06/07/2005 - typrographical errors - Paragraph(s) 1

06/07/2005 - Typographical errors - Paragraph(s) 47, 78, 97, 310, 326, 451, 455, 470, 536, 557, 558

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Citations

AW v State of New South Wales [2005] NSWSC 543

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CITATION:	AW & Ors v State of New South Wales [2005] NSWSC 543 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18/8/03, 20/8/03, 21/8/03, 25/8/03, 26/8/03, 27/8/03, 28/8/03, 29/8/03, 1/9/03, 2/9/03, 3/9/03, 4/9/03, 5/9/03, 8/9/03, 9/9/03, 10/9/03, 11/9/03, 16/9/03, 17/9/03, 18/9/03, 22/9/03, 23/9/03, 24/9/03, 25/9/03, 26/9/03, 29/9/03, 30/9/03, 1/10/03, 3/12/03,4/12/03, 5/12/03, 9/12/03, 10/12/03, 11/12/03, 15/12/03, 16/12/03, 17/12/03, 18/12/03, 5/2/04, 3/5/04, 4/5/04, 5/5/04, 6/5/04, 21/5/04, 15/6/04, 16/6/04, 17/6/04, 18/6/04, 22/6/04, 24/6/04, 28/6/04, 29/6/04, 30/6/04, 1/7/04, 2/7/04, 5/7/04, 6/7/04, 7/7/04, 8/7/04, 9/7/04,
JUDGMENT DATE :	5 July 2005
JUDGMENT OF:	Bell J at 1
DECISION:	1. Verdict and judgment for the defendant on each of the claims brought by the first plaintiff; 2. Verdict and judgment for the second plaintiff in the sum of $35,000 with respect to her claim for false imprisonment and $65,000 with respect to her claim for malicious prosecution; 3. Verdict and judgment for the estate of the third plaintiff in the sum of $25,000 for her claim brought for false imprisonment and $40,000 for her claim for malicious prosecution; 4. I will hear from the parties on the question of costs and interest. The proceeding may be relisted for submissions on these two outstanding matters on three days' notice.

CATCHWORDS:	False imprisonment - wrongful arrest - failure to inform of reasons for arrest - malicious prosecution
LEGISLATION CITED:	Children's (Care and Protection) Act 1987 Crimes Act 1900 Crimes (Sexual Assault) Amendment Act 1981 Crown Proceedings Act 1988 (NSW) Crown Prosecutors Act 1986 Director of Public Prosecutions Act 1986 Evidence Act 1995 Law Reform (Vicarious Liability) Act 1983
CASES CITED:	Abrath v North-eastern Railway Co (1883) 11 KBD 440 Adams v Kennedy [2000] NSWCA 152 Birchmeier v Rockdale (1934) 51 WN (NSW) 201 Brown v Hawkes (1981) 2 QB 718 Cassell & Co Ltd v Broome [1972] AC 127 Christie v Leachinsky [1947] AC 573 Commercial Union Assurance Company of New Zealand Ltd v Lamont (1999) Aust Torts Rep 80-236 Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343 Commonwealth of Australia v Murray (1988) Aust Torts Reps 80-207 Davis v Gell (1924) 35 CLR 275 Dent v Standard Life Assurance (1904) 4 SR (NSW) 560 Fleet v District Court of New South Wales [1999] NSWCA 363 Glinski v McIver [1962] AC 726 Gray v Motor Accident Commission (1998) 196 CLR 1 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Herniman v Smith (1938) AC 305 Hicks v Faulkner (1878) 8 QBD 167 Jones v Dunkel (1958-1959) 101 CLR 298 Leibo v Buckman [1952] 2 All ER 1057 Lister v Perryman (1870) LR 4 HL 521 Musgrove v Newell (1837) 1 M&W 582, 150 ER 567 Rapley v Rapley (1930) 30 SR (NSW) 94 Price v Ferris (1994) 34 NSWLR 704 Ruddock v Taylor [2003] NSWCA 262 Sharp v Biggs (1932) 48 CLR 81 Spautz v Butterworth (1996) 41 NSWLR 1 State of NSW v Riley (2003) 57 NSWLR 496 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Tempest v Snowden (1952) 1 KB 130 Tims v John Lewis & Co Ltd (1951) 2 KB 459 Trobridge v Hardy (1955) 94 CLR 147
PARTIES:	AW (First Plaintiff) LW (Second Plaintiff) JS (Third Plaintiff) State of NSW (Defendant)
FILE NUMBER(S):	SC 20218/99
COUNSEL:	A.J. Bartley SC / L Whalan (First Plaintiff) A.J. Bartley SC / D.R. Campbell SC / L. Whalan (Second Plaintiff) D.R. Campbell SC / L. Whalan (Third Plaintiff) B. Donovan QC / C.F. Hodgson (Defendant)
SOLICITORS:	Greg Walsh & Co (First, Second and Third Plaintiffs) Crown Solicitors (Defendant)