Bayliss v Cassidy

[1998] QSC 186

IN THE SUPREME COURT  

OF QUEENSLAND
  No 4786 of 1988
Before Mr Justice Muir

[Bayliss v Cassidy & Ors]

BETWEEN:

PETER JOHN BAYLISS     

Plaintiff

AND:

ROBERT BERNARD CASSIDY  

First Defendant
AND:

NEVILLE JOHN HARPER

Second Defendant
AND:

DESMOND GORDON STURGESS

Third Defendant
AND:

STATE OF QUEENSLAND

Fourth Defendant

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 18 September 1998

CATCHWORDS: TORT - malicious prosecution - malice - whether arresting and prosecuting officers made proper enquiry - existence of reasonable and probable cause - whether reasonable to believe plaintiff medical practitioner was carrying out terminations of pregnancy for purpose other than for the preservation of mother's life - ss. 224 and 282 of Criminal Code - liability as prosecutor of persons aiding, abetting or procuring a malicious arrest or a malicious prosecution - want of jurisdiction of Magistrate to issue search warrant - operation of s. 69(10 of Police Act 1937 (Qld) - false imprisonment - trespass to goods - seizure of goods during police raid outside terms of search warrant - common law powers of seizure - evidence - application of principle in Jones v Dunkel - s. 11 Limitation of Actions Act 1974 (Qld) - damages - exemplary damages.

Counsel:Mr R. R. Stitt Q.C., with him Mr G.H. Brandis for the plaintiff

Mr C.E.K. Hampson Q.C., with him Ms R.G. Atkinson for the first, second, third and fourth defendants

Solicitors:Gadens Lawyers for the plaintiff

Crown Solicitor for the first, second, third and fourth defendants

Hearing date:               13 July to 17 August 1998
IN THE SUPREME COURT  

OF QUEENSLAND
  No 4786 of 1988
Before Mr Justice Muir

[Bayliss v Cassidy & Ors]

BETWEEN:

PETER JOHN BAYLISS     

Plaintiff
AND:

ROBERT BERNARD CASSIDY  

First Defendant
AND:

NEVILLE JOHN HARPER

Second Defendant
AND:

DESMOND GORDON STURGESS

Third Defendant
AND:

STATE OF QUEENSLAND

Fourth Defendant

REASONS FOR JUDGMENT - MUIR J.

Judgment delivered 18 September 1998

Introductory observations

On 20 May 1995 police officers, purportedly acting on the authority of search warrants, entered a premises situated at 687 Logan Road, Greenslopes, and an adjoining premises at 8 Ridge Street, in which the plaintiff, in association with a Dr Errey, was carrying on a medical practice under the name “Fertility Control Clinic (Qld)”. The police proceeded to interview the plaintiff, patients and staff and to seize and take away medical records, other documents and various items of equipment. Whilst being interviewed by the investigating officer, the plaintiff revealed that he proposed to carry out further terminations of pregnancy that day. The investigating officer, after speaking to a superior officer and to the Director of Prosecutions, arrested the plaintiff. The plaintiff was taken by police car to the Woolloongabba police station where he conferred with his solicitor. From there he was taken to the Holland Park watch house and charged with conspiring with a person or persons unknown unlawfully to use force with intent to procure the miscarriage of women between 30 April 1981 and 21 May 1985 at Brisbane. He appeared before a magistrate at 2.15 pm that day and was granted bail.

From about 2.30 pm on 20 May 1985 Mr Desmond Sturgess, then Director of Prosecutions, took over the conduct of the proceedings against the plaintiff pursuant to s.10 of the Director of Prosecutions Act 1984 (Qld).

On 25 June 1985 the Full Court of the Supreme Court of Queensland quashed the search warrants. As a consequence, materials seized as a result of the execution of the warrants, which had not already been returned, were  returned to the plaintiff. At the next appearance of the plaintiff at the Holland Park Magistrates Court on 14 July 1985, no evidence was offered by the Crown and the plaintiff was discharged. There was no subsequent prosecution. The plaintiff's claims in this action arise out of those events.

The plaintiff's claims

The principal allegations in the statement of claim are that -

(a)the arrest of the plaintiff was caused or effected maliciously and without reasonable and probable cause by the first defendant (Superintendent Cassidy), the second defendant (Mr Sturgess) and the third defendant (Mr Harper);

(b)the institution of the prosecution of the plaintiff was caused or effected maliciously and without reasonable and probable cause by the first, second and third defendants;

(c)the first, second and third defendants maliciously and without reasonable cause continued to prosecute the charge against the plaintiff;

(d)the imprisonment of the plaintiff was unlawful in that the first, second and third defendants  did not believe on reasonable grounds that the offence charged had been committed;

(e)the search warrants were obtained by the first defendant maliciously and without reasonable and probable cause;

(f)by virtue of the matter alleged in (e) and as a result of the Full Court of the Supreme Court of Queensland holding on 25 June 1985 that the warrants were unlawful so far as they related to the seizure of documents, the plaintiff was at all times entitled to possession of the material seized purportedly under the warrants;

(g)by virtue of the above matters the plaintiff was wrongfully imprisoned and -

“he was greatly injured in his credit, character, personal and professional reputation. He suffered invasion of his privacy by being paraded before the media (including camera crews from television stations), fingerprinted, photographed, and being deprived of personal property and professional equipment. He suffered significant and considerable mental pain and anguish, as an eminent medical practitioner in the field of fertility control, and he has been put to considerable trouble, inconvenience, anxiety and expense. He has thereby suffered loss and damage, excluding loss of income. ”

3             The plaintiff claims exemplary damages by reason of the malicious conduct of the first, second and third defendants.

The plaintiff's claims, as particularised and as presented, were based on extremely narrow foundations. In the case of the alleged malicious prosecution on the part of Sergeant Cassidy, the thrust of the argument was that, although Sergeant Cassidy may have had available to him at the time of the arrest and commencement of the prosecution of the plaintiff ample evidence to support a belief on his part that the plaintiff was probably guilty of the offence for which he was arrested and charged, Sergeant Cassidy had failed to inform himself of the contents of such material and/or  had failed to pursue other enquiries which he ought reasonably to have pursued. It followed from this, it was argued, that there was no reasonable and probable cause for the arrest and prosecution of the plaintiff, at least insofar as Sergeant Cassidy was concerned. The case in relation to malicious prosecution against Mr Sturgess is based largely on the contention that Mr Sturgess advised the bringing of the conspiracy charge and continued its prosecution for the illegitimate purpose of curtailing media comment and had no intention of prosecuting that charge to finality. As against Mr Harper, the case was based on the premise that, by authorising and having a general involvement in the charging of the plaintiff, he had rendered himself liable as if he was, in fact, a prosecutor.

Something of the flavour of the way in which the plaintiff's case was conducted may be gleaned from the submission that critical events must be viewed in the context of the factual matrix of the case. That matrix was said to include the following -

“-its genesis was a political decision, not a policing decision

-the raid upon Dr. Bayliss' clinic took place in the absence of any complaint from any person in possession of any material evidence that Dr. Bayliss had acted unlawfully;

-the raid took place after Dr. Bayliss had been practising medicine at his clinic, without interference, for many years;

-the operation itself, involving some 54 personnel in what was nominally merely the execution of a search warrant, was itself extraordinary;

-the Director of Prosecutions was closely and continuously involved in the police planning of the operation and the making of operational decisions;

-on the Plaintiff's case, the critical decision, i.e. the decision to charge Dr. Bayliss with conspiracy, was made in the expectation that the raid would generate extensive publicity and media coverage; it was one of the central objectives, in the preparation and execution of the raid, to manage that publicity, in particular by curtailing comment adverse to the defendants, while at the same time displaying the plaintiff in an unfavourable light;

-that course of action, the deliberate use of the criminal law as a tool of media management, had the express authorisation of the Attorney-General of the day.”

The impression sought to be created by the opening of the plaintiff's case was that Mr Harper, following a Cabinet directive, had decided that the plaintiff should be prosecuted and that Mr Sturgess and Sergeant Cassidy, in acting as they did, were responding to political imperatives without giving proper consideration to their respective duties. The plaintiff also sought to make out a case of a deliberate attempt on the part of the defendants to use the media in support of a political agenda by alerting the media to the proposed police operation and by deliberately subjecting the plaintiff to what was described as a “media walk”.

The plaintiff's case, as pleaded and particularised, was rather more confined.

In broad terms, it was that -

(a)there was no “reasonable and probable” cause for the arrest or prosecution of the plaintiff because of “the absence of any fact matter or circumstance reasonably capable of founding a belief that the offence of conspiracy had been committed by the plaintiff”; and

(b)the arrest and prosecution were “malicious” as being for the improper purpose, disclosed in the 17 May 1985 memorandum of Mr Sturgess to Mr Harper, of curtailing media comment and because it was not intended to prosecute the conspiracy charge, laid or to be laid, to finality, but to prosecute a substantive charge or charges of procuring a miscarriage or miscarriages.

It was thus not part of the plaintiff's pleaded case that either Sergeant Cassidy or Mr Sturgess, in acting as they did, were following some political directive. It was, however, alleged in the statement of claim that the first, second and third defendants arranged the publicity for the police operation.

The course of the action and identification of the principal protagonists and witnesses

The action was commenced by writ of summons on 22 December 1988. A statement of claim was delivered on the same day and the first defendant delivered his defence on 3 March 1989. After that the other defendants were joined and the action had a rather tortured progress involving many interlocutory applications.

The trial of the action finally commenced on 13 July 1998. Mr Stitt QC, who with Mr Brandis, appeared for the plaintiff, renewed the application to amend the statement of claim, by inserting proposed new paragraphs 5A through to 5AE inclusive, which had been considered and rejected by me on 16 June 1996. That application failed, but I acceded to an application to make some other amendments to the statement of claim, remarking -

“... that I propose to allow the amendments now being dealt with provisionally and to leave the door open to the defendants to make an application in relation to whether the amendments should be disallowed at a subsequent date, if it appears in the course of the trial that it becomes impossible or virtually impossible for the defendants to properly address some or all of the new allegations.”

No such application was made.

Mr Stitt opened the plaintiff's case on the first day and on the morning of the second day of the trial and, in so doing, tendered some 65 documents and groups of documents. Included in the material tendered were video tapes and an audio tape. The plaintiff's case was closed on the afternoon of the second day of the trial, the plaintiff choosing not to give evidence himself or to call witnesses.

Mr Hampson QC, who with Ms Atkinson appeared for the defendants, opened the defendants' case on 16 July and proceeded to call some 31 witnesses, including the defendants themselves. As the evidence in chief of all of the witnesses called, apart from relatively short supplementary oral evidence led from time to time, was in statement form, the great bulk of the time spent during the trial outside of opening, and closing addresses was devoted to cross-examination by the plaintiff's counsel of the defendants and witnesses called on behalf of the defendants. Lengthy oral addresses were supplemented by extensive written submissions. The trial occupied some 21 sitting days.

For some years prior to 1985 the plaintiff, Peter John Bayliss, had run a clinic located in adjoining buildings at 687 Logan Road and 8 Ridge Street Greenslopes, in conjunction with other medical practitioners. The practice was conducted under the name “Fertility Control Clinic (Qld)”. Records in the office of the Commissioner for Corporate Affairs showed that the proprietors of the business were the plaintiff and a Dr Errey. For the sake of convenience I will refer to the clinic as the “Greenslopes Clinic” or “the Clinic”.

The first defendant in the action is Robert Bernard Cassidy, a Chief Superintendent in the Queensland Police Service. At relevant times he was a Detective Sergeant First Class in the metropolitan Criminal Investigation Branch attached to the South Brisbane area office. For the sake of convenience, when referring to him in the context of events in 1985, I will refer to him as “Sergeant” Cassidy. He was appointed principal investigating officer in respect of investigation into the plaintiff's conduct at the Greenslopes Clinic.

The second defendant, Neville John Harper, is now retired. He was first elected to the Queensland Legislative Assembly on 29 November 1990. Prior to his election he was the State Vice President of the National Party. He became Minister for Justice and Attorney-General on 19 August 1983 and held that office at relevant times.

The third defendant, Desmond Gordon Sturgess, was appointed Director of Prosecutions on 15 January 1985. He held that position at relevant times. Prior to his appointment he had had a great deal of experience in criminal law. He is and was a respected  barrister.

Brian Patrick Webb retired from the Queensland Police Force on 13 December 1987. In May 1985 he was a Detective Inspector of Police attached to the Criminal Investigation Branch, Brisbane. By the end of 1984 he had been a detective for about 25 years. He was in charge of the police investigations into the Greenslopes clinic.

Marshall Irwin, now an officer of the National Crime Authority, was Deputy Director of Prosecutions stationed in Townsville at relevant times.

William John McArthur retired from the Queensland Police Force on 6 January 1986. At relevant times he was Assistant Commissioner (Crime and Services).

Graham James Williams, Assistant Commissioner, Queensland Police Service. At relevant times he was a Detective Senior Sergeant stationed at the Criminal Investigation Branch, Cleveland. He executed the search warrant in respect of 8 Ridge Street and acted as “exhibits officer” at that location.

Daniel Stanley McDonald, is now Senior Investigator with Queensland Rail. At relevant times he was a Detective Senior Constable of Police stationed at the Criminal Investigation Branch, South Brisbane. He was instructed by Inspector Sommer to assist Sergeant Cassidy in the investigation.

James Edward Sommer, who was Chief of the Metropolitan Criminal Investigation Branch at the time of his retirement from the Queensland Police Force on 21 December 1989. At relevant times he was a Detective Inspector of Police stationed at the South Brisbane area office Woolloongabba.

Robert Green was the Government Medical Officer at the time of the police operation. He is now retired and was not called as a witness.

Narrative of events prior to the commencement of police investigations

The fact that abortions were amongst the medical procedures performed at the Clinic was well known in the community and had generated a considerable degree of publicity in the print and television media. The plaintiff had given interviews in which he made his views on abortion quite plain. In essence, he had publicly asserted a strongly held belief that the woman concerned should be the sole judge of whether or not there should be a termination of pregnancy and that the State had no right to restrict or interfere with a woman's choice or conduct in that regard.

Sections 224 and 282 of the Criminal Code then provided that -

“ 224 Attempts to procure abortion. Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment with hard labour for 14 years.”

“282 Surgical operations. A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient's benefit, or upon an unborn child for the preservation of the mother's life, if the performance of the operation is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

The questions of whether abortion was or ought be illegal had attracted considerable community interest and debate, the degree of intensity of which fluctuated. Bodies such as the Right to Life Association were concerned to keep the issue a live one and to exert pressure on politicians and law enforcement authorities to enforce the law or, at least, what they perceived the law to be. For example, on 17 August 1983 solicitors acting for the Right to Life Association Queensland wrote to the then Solicitor-General stating inter alia -

“Our client is concerned that an interpretation of the word ‘life’ in the phrase ‘for the preservation of the mother's life’ in section 282 of the Code as extending to serious risk to mental or physical health, is proving to be a serious impediment to the launching of prosecutions against abortionists.”

Enclosed with the letter were copies of opinions from three prominent Queen's Counsel. With reference to the contents of the opinions, the letter concluded -

“Our clients believe that this interpretation of the law should be prosecuted to the  courts by the police as a matter of the gravest urgency in view of the number of abortions being openly performed in the State. ”

On the same date the solicitors sent a letter to the Premier of Queensland notifying him that they had written to the Solicitor-General. Further copies of the opinions were enclosed with that letter. Those opinions expressed the view that the words “for the preservation of the mother's life” in s.282, being without technical meaning, should be given their normal meaning in everyday speech.

Indeed, the conclusion reached in one of those opinions and accepted by another, was that the expression “unborn child” in s.282 probably refers to a case where “a woman is about to be delivered of a child”. On that construction, s.282 would be capable of providing legal protection to medical practitioners performing abortions only in quite limited circumstances. The view was expressed in the third opinion that “unborn child” probably refers “to a child who has moved in the womb, which I understand usually happens in about the 20th week”. That construction, if correct, would also greatly confine the practical application of s.282.

There was also a body of opinion that s.282 afforded extensive protection to a medical practitioner performing an abortion. It derived much of its support from R v Bourne [1939] 1 KB 867. In that case McNaughten J, in summing up to the jury, said of the words, “for the purpose of preserving the life of the mother” -

“... if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequences of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor who, under the circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the mother”.

In K v T [1983] 1 Qd R 396 G.N. Williams J made the obiter dictum observation at 398 that -

“At such a trial [ a prosecution of a medical practitioner accused of a breach of s.224 of the Criminal Code] the jury would be instructed in accordance with R. v. Bourne [1939] 1 K.B. 687, as applied by Menhennitt J in R. v. Davidson [1969] V.R. 667.”

It is not necessary for me to determine the correct interpretation of s.282. Sergeant Cassidy swore that as a result of his research (which included reading the three opinions) and discussions with Messrs Sturgess and Irwin, he concluded that abortions were “illegal unless performed to preserve the mother's life”. It was implicit in Mr Sturgess' evidence that he held the same opinion at relevant times. It was not suggested to either of these defendants (and nor could it have been suggested sensibly) that such views were not reasonable.

The police had conducted investigations into the Greenslopes Clinic prior to 1985, but these investigations had not resulted in any prosecution.

On 30 April 1984 Mr Gunn, the Deputy Premier and Minister assisting the Treasurer, presented a petition signed by some 10,000 persons opposed to abortion to a cabinet meeting at Caloundra. Minutes of the meeting refer to the presentation of the petition and state -

“... it was agreed that the Honourable the Minister for Justice and Attorney-General re-examine the police report in connection with the operation of the clinic with a view to having prosecution action initiated if possible.”

The clinic to which reference was made was a clinic in Townsville operated by a Dr Grundman. On 7 or 8 February 1985 Mr Sturgess met with Mr Harper in Townsville. Two Townsville police officers were also present at the meeting. In the course of it Mr Harper informed those present that Cabinet had decided that abortion clinics in Brisbane and Townsville should be investigated and that prosecutions should be commenced if the evidence warranted that course. Mr Harper said that he had been asked by Cabinet to take responsibility for the matter and asked Mr Sturgess to provide legal advice on the matter to himself and the police, where necessary. Mr Sturgess told Mr Harper that a Mr Marshall Irwin was in charge of the Townsville prosecutions office and said, in effect, that he would liaise with him in respect of the Townsville operation.

The police investigations and actions prior to 20 May 1985.

On 5 March 1985 Assistant Commissioner McArthur sent a memorandum to Inspector Thompson notifying the latter that the Commissioner -

“... has directed that an investigation be made in relation to an abortion clinic which is alleged to be operating at Logan Rd, Greenslopes. He directs that this enquiry be carried out in a manner similar to the one at present in Townsville. Evidence gathered is to be prepared to be passed to the C.I. Branch with a view to prosecution.”

As the above narrative suggests, police investigations into the Townsville Clinic were in progress prior to the date of this memorandum. Mr McArthur's notebook records a conversation with another police officer on 11 February 1985 in which the names of Mr Sturgess and Mr Harper were mentioned in connection with police activity relating to that Clinic.

In early 1985 Brian Patrick Webb  had been a detective for 25 years. He knew Mr Sturgess quite well and had considerable respect for his abilities as a lawyer. He was told by the Assistant Commissioner (Crime) Mr McArthur, in late February 1985 that the Minister wanted an investigation carried out into the abortion clinics operating in Queensland. Assistant Commissioner McArthur instructed him to take appropriate investigative action and to prefer charges if the necessary evidence was forthcoming.

Shortly after receiving those instructions, Inspector Webb attended a meeting with Mr Harper at which Mr Sturgess was present. The discussion at the meeting was general in nature. Mr Harper mentioned that at a Cabinet meeting in Caloundra there had been discussion on the subject of abortion clinics. The possibility of criminal proceedings being initiated against persons operating abortion clinics was mentioned. Inspector Webb expressed the opinion that the institution of any such proceedings would give rise to adverse publicity, to which Mr Harper responded that he was not concerned about that.

Over the ensuing weeks Inspector Webb and Mr Sturgess met fairly frequently to discuss a variety of different matters on which they were working in their respective roles. In the course of such meetings they had a number of discussions relating to the task given to Inspector Webb, including the evidence which would be required to permit successful prosecutions. The investigation into the Greenslopes and Townsville Clinics was far from being the main focus of Mr Sturgess's attention as Director of Prosecutions. He described the matter as being a “side wind” as far as he was concerned. Inspector Webb perused police files and newspaper articles in relation to abortion and abortion clinics. Mr Sturgess arranged for him to meet Mr Kerr, whom he said had information about abortion. In the course of a meeting or meetings with Mr Kerr, Inspector Webb was given a number of documents relating to abortion.

Inspector Webb concluded that he should appoint an officer to carry out the investigations and make any arrest which proved to be warranted. Because the Greenslopes Clinic was in the area of responsibility of the South Brisbane area office, he approached Detective Inspector Sommer, the officer in charge. Inspector Sommer recommended Sergeant Cassidy for the role. He was then a detective sergeant and the only sergeant first class stationed in the South Brisbane area office. Inspector Webb had not previously worked with Sergeant Cassidy but knew of him by reputation as a competent police officer. The first meeting between Sergeant Cassidy and Inspector Webb in connection with the investigation was at a meeting at CIB headquarters on 24 April 1985. The meeting was chaired by Inspector Webb. Other persons present included Detective Sergeant Moskwa and Dr Green, Government Medical Officer. In the course of the meeting Inspector Webb told those present that -

·the Attorney-General had directed or advised that investigations be undertaken with a view to considering the institution of criminal proceedings against abortion clinics in Brisbane and Townsville;

·Mr Sturgess, the Director of Prosecutions, was liaising with the police department in relation to the matter;

·Mr Sturgess had directed that search warrants be executed simultaneously in Brisbane and Townsville;

·Inspector Webb had overall control of the investigation;

·Sergeant Cassidy and Sergeant Gorrie were to act as principal investigating officers in relation to any offences detected at the Greenslopes Clinic;

·the Bureau of Criminal Investigation was conducting surveillance of the Greenslopes Clinic.

There was some discussion at the meeting about the law relating to abortions and difficulties in obtaining evidence on which to base prosecutions. After the meeting Sergeant Cassidy went to Inspector Webb's office in order to further discuss the proposed operation. Inspector Webb then handed Sergeant Cassidy a bundle of papers relating to abortion. Some of them had been given to him by Mr Kerr and some may have been passed on by Mr Sturgess to Inspector Webb. That material included -

·a copy of a report in the “Courier-Mail” newspaper of 1 May 1984 concerning, inter alia, the Government's attitude to initiating prosecutions in respect of a “Townsville abortion clinic”;

·a number of opinions of Senior Counsel dealing with the provisions of the Criminal Code relating to abortion;

·a memorandum in relation to abortion prosecutions.

Officers of the Bureau of Criminal Intelligence conducted surveillance operations at the Greenslopes Clinic between 10 March 1985 and 20 May 1985. The persons undertaking the surveillance were generally stationed in unmarked police vehicles within view of the premises. One officer took photographs whilst another officer made notes concerning persons entering and leaving the premises. The quality of the note taking improved in the course of the surveillance operations and, eventually, persons entering and leaving were identified by number. It then became reasonably easy to ascertain the time for which a person had remained at the Clinic.

On 3 May 1985 Sergeant Cassidy, Inspector Webb and Detective McDonald met with Mr Kerr, a solicitor and office bearer in the Right to Life organisation, and another solicitor for the organisation, Mr Quinn. At the meeting Mr Kerr provided a paper clipping from the “Courier-Mail” of 23 May 1985 and two videos, one of an interview with the plaintiff on “Nationwide” on 24 March 1983 and one of “The Silent Scream”. After the conclusion of the meeting with Messrs Kerr and Quinn, Sergeant Cassidy and Inspector Webb further discussed the execution of a search warrant, and the personnel to be involved in that exercise. Sergeant Cassidy was advised that any women involved would be given indemnification from prosecution.

On 5 May  Sergeant Cassidy drafted search warrants with a view to seizing patient records and other materials at the Greenslopes Clinic. Separate warrants were prepared for 687 Logan Road and 8 Ridge Street. On a later date, Sergeant Cassidy discussed a draft of at least one of the search warrants with Inspector Webb and Mr Sturgess and received Mr Sturgess' approval of it.

On 8 May 1985 Inspector Webb chaired a conference at Criminal Investigation Branch headquarters. Present were Messrs Sturgess and Irwin and various police officers including Sergeant Cassidy. In a memorandum to the Detective Superintendent Metropolitan CI Branch dated 13 May 1985, Inspector Webb said of this conference -

“The duties of the police in this most delicate matter were clearly spelt out and it was announced by Mr Sturgess that an indemnity against prosecution would be granted to the persons who had been aborted.”

In the course of the meeting there was a briefing on the proposed raid which included a discussion concerning the execution of search warrants and the gathering of evidence to support any subsequent prosecution which might be decided upon. Some emphasis was given to the need to maintain confidentiality and the appropriate treatment of women at the Clinic.

At the conclusion of that meeting, a further meeting was held between persons including Messrs Sturgess and Irwin, Sergeants Cassidy and Patterson, and Inspector Webb. Inspector Webb said of this meeting in his memorandum of 13 May 1985 -

“The matter of prosecution was raised and it was decided that to obviate the huge volume of media coverage which is expected to follow the raid, a decision will be made as soon as practicable for charges to be laid so the matter can be correctly referred to as sub-judice. Both Mr Sturgess and Mr Irwin have placed themselves strategically available to the Principal Investigator following the raids.”

It seems that Senior Constable McDonald was also present on that occasion. Sergeant Cassidy raised the possibility of bringing substantive charges should any offences be detected as a result of the raid. The view expressed by Mr Sturgess was that a conspiracy charge was the appropriate one to bring and Mr Cassidy and those present accepted that advice. It is probable that Mr Sturgess gave reasons for his conclusions.

Sergeant Cassidy's log book records of this conference -

“Informed that cabinet had directed that both abortion clinics @ Greenslopes and T'vlle respectively had to be proceeded against.

Mr Des Sturgess, Director of Public Prosecutions, had directed that both jobs had to be done simultaneously.

... Det. Inspt. Webb has the file.

Myself and Det. Sgt. 2/C Leigh Gorrie, are ultimately to make any arrest.”

His diary entries for that date include “discussed poss of ‘conspiracy’ as charge”.

Mr Sturgess either wrote out a draft of a proposed conspiracy charge in his own handwriting or dictated words of a draft which were written by another person present.

There was discussion of proceeding by way of complaint and summons rather than by arrest. Mr Sturgess advised that it would be better to proceed by way of complaint and summons and that advice was accepted by Inspector Webb and Sergeant Cassidy.

On 6, 9, 11 and 15 May, Sergeant Cassidy went to the Bureau of Criminal Investigation (“BCI”) where he spoke to an officer or officers responsible for surveillance at the Greenslopes Clinic and perused materials produced in the course of surveillance activities.

On 13 May 1985 operational orders were prepared by Inspector Webb for the proposed operation. Under the heading “GROUNDS FOR SEARCH WARRANT” appeared the following -

“Detective Sergeant 1/c R B CASSIDY, S.B.A.O.

The grounds for Search Warrant include continuing newspaper reports relating to the termination of pregnancies at the Fertility Control Clinic at Greenslopes with statements alleged to have been made by Dr Peter BAYLISS. Video recordings of various references made by Dr BAYLISS concerning termination of pregnancies at his Clinic including his knowledge of the provisions of Section 282 of the Criminal Code which gives him authority to terminate pregnancies. Also information that the premises are known by repute as a place where abortions can be obtained. Surveillance duties by the B.C.I. showing arrival and departure times of women who remain on the premises for a period of over two hours. Photographs have been taken of these women upon their arrival and departure. No action has been taken against the media for the publication of these reports by Dr BAYLISS.”

The body of the orders then stipulated the police officers and others to participate in the operation and their respective roles. Persons who had designated roles included four commissioned officers including Inspectors Webb and Sommer, approximately 40 other police officers, Dr Green, the Government Medical Officer, a pathologist Dr Ansford, a biologist, an anaesthetist, a gynaecologist, two nurses and Mr Hawthorn, a police media officer. The orders in respect of the Government Medical Officer stated -

“No police officer is to interview any person at the premises until authority has been given by the Government Medical Officer.
The G.M.O. will have the responsibility of identifying any surgical instruments or machines to be taken possession of.”

Under the heading “General information” the following appeared -

“It has been impressed upon all personnel that this exercise is of an extremely delicate nature with the gravest of consequences expected from any display of force or unwarranted behaviour.”

Under the heading “MEDIA OFFICER” the orders stated  “A Media Officer will be responsible for all press releases.”

Other parts of the orders of particular relevance for present purposes are as follows -

“The execution of the search warrant for the premises at 8 Ridge Street Greenslopes will be made by Detective Senior Sergeant Williams ...

The Exhibit Officers will record and label all property seized as exhibits. No property shall be taken from the premises without reference to the Exhibit Officers.”

The list of persons to whom the orders were to be distributed included the Commissioner of Police, the Deputy Commissioner of Police, Inspector Webb, Sergeants Cassidy and Paterson and the police media relations officer.

On 14 May 1985 Sergeant Cassidy laid before Mr Webster SM the information in relation to both complaints. The search warrants were subsequently issued.

On 15 May Mr McArthur, then Assistant Commissioner (Crime and Services), had a meeting with Mr Hatcher, a media officer employed in the police department, with a view to having Mr Hatcher prepare a draft press release in relation to the planned police operation. Assistant Commissioner McArthur and other senior officers involved in the proposed operation, including Inspector Webb, thought it likely that it would attract considerable media attention. Assistant Commissioner McArthur's purpose in preparing a media release was to ensure that an accurate version of events was received by the media and also to facilitate the management of media enquiries, in the event that the expected degree of media interest eventuated.

Mr Sturgess' advice to Mr Harper and Mr Harper's approval of the bringing of conspiracy charges

On 17 May 1985 Mr Sturgess, in a memorandum to Mr Harper, confirmed that it was the intention of the police to execute warrants in respect of the Greenslopes and Townsville Clinics on 20 May. As the memorandum is a significant one, it is desirable that I quote most of it.

“As I have advised orally it is the intention of the police on Monday next to execute warrants to enter and search premises at Brisbane and Townsville.

It is anticipated much evidence will be collected and this will have to be carefully examined by this office before we can advise the police what substantive charges should be brought. A great amount of media comment concerning the activities lying beyond the raids can be guaranteed and, consequently, there is the danger such comment might unfairly affect later proceedings in court. To avoid or reduce such danger I have advised the police charges of conspiracy should be laid on the same day as the raids as this will curtail such comment. In all probability I shall later advise that other charges should be substituted for the conspiracy charges.

In view of the foregoing I advise that the police be given permission to proceed with such charges and I enclose an appropriate letter for despatch to the Commissioner of Police.”

Mr Sturgess probably took the memorandum himself to Mr Harper and discussed its contents. Of his discussion with Mr Harper, Mr Sturgess said in evidence in chief -

“My concern was to introduce this dispute into the courts with as little public uncontrolled discussion as was possible. I anticipated that there would be a great deal of public discussion and a lot of it ill-informed and I felt it my duty as director of prosecutions to do what I could to moderate that public discussion, to introduce the matter as quickly as I could into the courts.”

Mr Harper sought advice on the matter from the then Acting Solicitor-General, Mr Mackenzie (now a judge of this Court), who made the following notation on the foot of the letter -

“In my opinion, there would, in principle, be a basis for laying conspiracy charges in the circumstances described.”

He signed under his notation on 17 May. Mr Harper then wrote “Approved” at the foot of the document, initialled and dated it, also on 17 May.

Mr Harper's approval was sought by Mr Sturgess as a result of a mistaken belief on his part that Cabinet, at an earlier date, had resolved that no conspiracy charges should be brought and prosecuted in Queensland without the prior approval of the Attorney-General. In fact, the requirement was for the prior approval of the Solicitor-General. At the time of noting his approval on the memorandum of 17 May, Mr Harper caused to be sent a letter to the Commissioner of Police in the form of the draft attached to the memorandum. The letter provided -

“I have discussed with the Director of Prosecutions the subject of certain investigations into activities at premises at Brisbane and Townsville that will be conducted by your officers on Monday next.

I authorise the bringing of a conspiracy charge against each person in charge of the premises. Mr Sturgess will advise Inspector Webb of the details of the charges.”

Events on 20 May 1985 prior to the arrest of the plaintiff 

The majority of personnel to be involved in the operation attended a briefing at Criminal Investigation Branch on the morning of 20 May. After the briefing the police officers and others involved in the raid, numbering 54 in all, departed by bus and other vehicles to the Greenslopes Clinic, arriving at approximately 10.25 a.m. By the time they arrived at the premises at least one camera team from a television channel was already in position. The numbers of media personnel present outside both premises increased considerably within the next hour.

Sergeant Cassidy, Inspector Webb, Sergeant Paterson, Dr Green, Constable McDonald and Constable Adams entered the premises at about 10.25 a.m. Constables Dickson and Stalley, who had been detailed to record any dealings between Sergeant Cassidy and Dr Bayliss, entered the premises shortly afterwards and operated a video camera. After entering the Logan Road premises, Sergeant Cassidy spoke to Dr Bayliss, explained that the police were there for the purpose of executing search warrants and produced at least one of the warrants to Dr Bayliss who read it. Dr Bayliss told Sergeant Cassidy quite early in the first discussion that took place between them that “therapeutic terminations of pregnancy” were being carried out at the premises “under the law”. He said that five or six such procedures had been carried out that morning. He was asked if he would give the reasons for the operations and replied “No, they were all well documented.” Sergeant Cassidy then asked if Dr Bayliss had “those documents here” and Dr Bayliss responded in the affirmative. This exchange occurred -

“Sergeant Cassidy:       ... would any of the operations you've done this morning, the therapeutic terminations ... would any of them have been necessary to ... save the woman's life?

Bayliss:Yes, all of them.

Cassidy ...

Bayliss:Under the relevant section of the Criminal Code.

Cassidy:All for the preservation of the woman's life.

Bayliss:Yes.

Cassidy:So there was, the woman's life was in danger.

Bayliss:Yes.

Cassidy:That's what you're saying. In each particular case.

Bayliss:That's in my opinion and the opinion of other doctors.

Cassidy:Right. Well could you just elaborate on that a little bit.

Bayliss:Not at this point in time. I've told you, they were medically indicated, and that, that was my opinion at the time.

Cassidy:That the operations were necessary ...

Bayliss:Necessary for the ...

Cassidy:For the preservation of the woman's life.

Bayliss:Under the relevant section of the Criminal Code.”

A little later in the interview Sergeant Cassidy came back to the question of why the life of women who had undergone procedures that morning were said to have been in danger. Dr Bayliss responded that he was not prepared to discuss with non-qualified people his actions or reasons for his actions. Dr Green, who was present, commented, “I think he will have that documented on your, on the histories” and Dr Bayliss replied, “Yes, that's right”. Dr Bayliss then said “if, now you wish to charge me, that's fine. If you don't wish to charge me, I'd suggest you carry out the terms of your search warrant.” At about 10.37 a.m. Dr Bayliss gave Dr Green the patient cards of five patients who had had abortions that morning. For purpose of maintaining the privacy of these women they have been identified in evidence as patients one, two, three, four and five. Other patients referred to in the course of evidence were similarly identified by number.

At about 10.45 a.m. Dr Bayliss expressed an intention to perform a sterilization operation which he said would take 20 minutes. Sergeant Cassidy said “Well perhaps while he is doing that  we can interview these other people, that ah he's indicated to be ... therapeutic terminations”. There was then identification of these women waiting for abortions who were said not to be under medication.

Between 10.46 and 10.47 a.m. Sergeant Cassidy asked another person, possibly Dr Green, if he could get Inspector Sommer to detail somebody to interview the three women awaiting  abortions (they were referred to in evidence as patients 6, 7 and 8). At about 10.48 a.m. Sergeant Cassidy said that Detective Senior Constable McDonald had the cards in respect of the six women who had already had abortions that morning. At about 10.49 a.m. Inspector Sommer allocated  one of the patients awaiting abortion to Constable Adams to interview. Constable Adams was  requested to get “Johnno” to interview another. The audio tape was turned off at 10.50 a.m. and restarted at 11.12 a.m.

Mr Sturgess' advice to Inspector Webb and Sergeant Cassidy.

Whilst the audio tape was turned off, Inspector Webb spoke briefly to Mr Sturgess, who was in his office, over the telephone.

Inspector Webb informed Mr Sturgess that he was at the Greenslopes Clinic and said words to the effect that -

·the plaintiff said he was going to continue to perform abortions;

·the women awaiting abortions that day had been spoken to and there was no evidence that the life of any of them was in danger or that any of them would become physical or mental wrecks if the abortion was not carried out;

·ample evidence had been found to establish that a large number of abortions were being regularly performed and there was no evidence to suggest that there was a legal excuse for them;

·the police, in the view of Inspector Webb, were left in a situation in which they had no choice to arrest the plaintiff.

Inspector Webb asked Mr Sturgess what he thought and Mr Sturgess indicated agreement with Inspector Webb's views.  

At the conclusion of the conversation Inspector Webb handed the telephone to Sergeant Cassidy. Mr Sturgess said in the course of his evidence -

“... The impression that I was left with as the result of these conversations was it was, your know, a lot of unlawful abortions had been and were being committed over there at Greenslopes.”

The question of the arrest of Dr Bayliss was raised. It was said to Mr Sturgess that Dr Bayliss had, in effect, expressed an intention to continue with abortions which the police officers believed to be unlawful. Mr Sturgess gave his approval to the course of conduct proposed by the police officers, namely that Dr Bayliss should be arrested.

Of his conversation with Mr Sturgess, Sergeant Cassidy swore -

“I informed him that five terminations had been performed that morning and that Dr Bayliss intended to proceed with further terminations. I may have read the information contained in the medical cards to Mr Sturgess. I informed him that none of the terminations were for the preservation of the mother's life and that none of the patients were in immediate danger. I informed Mr Sturgess that I intended to arrest Dr Bayliss and asked him for his advice. Mr Sturgess asked some questions for clarification ...”

In cross-examination Sergeant Cassidy was asked “What was the purpose of that  consultation?”. He responded -

“I provided Mr Sturgess with a summary of what had transpired, of my views of the evidence available and the collective matters that you have referred to. I also advised him of the situation in relation to Dr Bayliss's stated intention to continue with the operations and that I felt that it placed me in a position where I could do nothing else but arrest to prevent the continuation of offences.”

That passage followed lengthy cross-examination about the information on the patient record cards. Included in the description “collective matters that you have referred to” was Sergeant Cassidy's perusal of the cards and his interpretation of them.

Sergeant Cassidy arrested the plaintiff at about 11.25 a.m. The time is able to be established by a clock shown on the police videotape, made clearer on another videotape by application of a digital enhancement technique.

Information gained in the course of the police operation prior to the arrest of the plaintiff.

Inspector Webb spoke to Sergeant Cassidy from time to time and imparted information to him concerning the investigation and proposed operation. It is now impossible to identify with any degree of precision the full extent and detail of the information imparted but I find that Inspector Webb informed Sergeant Cassidy of the substance of his discussions with some of the police officers interviewing patients and staff.

Sergeant Cassidy examined most if not all of the patient cards for patients 1 to 8 with a view to ascertaining whether or not the abortions which had been performed already were for the purpose of preservation of the mothers' lives. In performing the task of interpreting the patient record cards he did not seek the assistance of any of the medical practitioners then present. Sergeant Cassidy also received other information from interviewing police officers.

The patient cards

Each of the sets of records pertaining to abortions performed or to be performed on 20 May included a card, the front and back of which contained the following printed notations:

Front

“          D.O.B. AGE               PHONE

DATE OCCUPATION LN.M.P. P.V. BLEED PREV. PREG  M/C/ T.O.P. OBST. HISTORY GYNAE ALLERGIES PAP MED. HIS SURG. HIST. ANAES. PHYS. EXAM
C.V.S
B.P.     PULSE
PULM
ABDO
PERIPH P.V. URINE
H.C.G.
GROUP
Hb
SCAN
RESP.
E.C.G.
PAP SWAB PULM
HAEM
RH.F
ASTHMA
DIABETES
H/T
HEPATITIS
V.D.
DRUGS
STEROIDS
SMOKE/DAY MEDICARE NC

Back
REFERRAL:  POST-OP
FOLLOW UP:
CONTRA AT INCEPTION:
FUTURE CONTRA:
1ST OPINION:
2ND OPINION:”

Accompanying each card was: a written report by a social welfare counsellor; generally, a letter of referral from a general practitioner; a printed notice of referral to a specialist or consultant physician; a printed form entitled “Legal status governing therapeutic terminations”; a printed form entitled “Operative and post-operative data”, and a printed form headed “Fertility Control Clinic” which was described in evidence as “pathology”..

Against the words “1ST OPINION” and “2ND OPINION” on each card appeared a handwritten notation by a doctor employed at the Clinic, except that in two cases, only one written opinion appeared. I do not intend to set out the text of all of the opinions or of the letters of referral. Three of them will suffice for the purpose of providing a sufficient understanding for present purposes of the nature of the opinions, counsellors assessments and letters of referral.

PATIENT 1

Opinions on patient card

“1ST OPINION : ... has 2 very young children. Could not cope with another baby at present I recommend TOP. ...”

2ND OPINION: .. has 2 young children. She feels unable to cope physically or emotionally with another child. I recommend TOP. ...”

Counsellor's report

“Pleasant young woman, distressed by circumstances. T.O.P. is indicated to prevent further psychological problems which would adversely affect ... future welfare/Consent/legal/pre and post-op inst. Contra: Pill. Check-up ...”.

Letter of referral

“14.5.85
Dear Dr Bayliss,
Thanks for seeing ... who is six weeks pregnant & would like a termination.
Yours faithfully ...”.

PATIENT 2

Opinions on patient card

“1ST OPINION: ... has two very young children. Could not cope with another. I recommend TOP ...”

2ND OPINION: ... has 2 young children. Youngest 10/12 She feels unable to cope with another child. I recommend TOP. ...”

Counsellor's report

“... is 28, married, and works as a nurse. She feels she couldn't cope with anymore children, she already has two under 3 years of age. She feels that the emotional & financial strain on her & her husband would be very damaging for the family as a whole. They are only just getting on their feet financially at the moment. [indecipherable] would harm the family's ... stability. [indecipherable].

Letter of referral

“Greenslopes Clinic. 16/5/82
Dear Doctor
... is about 10 wks pregnant. She has two children ages 2 yrs and 10 months. She is unable to manage another child at this stage and has requested termination. Please have a look at her and help her.
Thankyou ...”.

PATIENT 7

Opinions on patient card

“1ST OPINION: feels unable to cope financially with another child at present. I feel TOP is warranted.”

2ND OPINION: ... has 2 children already and financially would not cope with another. I recommend TOP. ...”

Counsellor's report

“... is 23 single, has two children and is on the pension. She works part time also to provide for her children. She is... of financial debt at the moment and is finding it difficult to cope with her two children. She doesn't feel she could cope with a 3rd child on her own. The guy involved is an old boyfriend. They had a one night stand and he is not interested in taking any responsibility for a child. In the circumstances, continuation of the pregnancy would have a detrimental effect on ... children and her own future well-being. Procedure, legal, ..., consent, .. 20.5.85.

Letter of referral

No text of any letter of referral of this patient seems to have been included in the documents tendered.

In no case did a medical opinion or letter of referral state that it was the view of a medical practitioner that the operation was necessary “for the preservation of the mother's life” or that the purpose of the operation was “for the preservation of the mother's life”. In all cases, in my view, it was possible for a person, acting reasonably, to infer from a combination of what was expressed and omitted in the cards that none of the medical practitioners concerned thought the procedure carried out or to be carried out was for the preservation of the mother's life.

The media walk

It was submitted on behalf of the plaintiff that the police had subjected the plaintiff to a “media walk” on 20 May and that -

“There was no attempt to protect Dr Bayliss's privacy by removing him from the premises by a back door - the police knew that the media were gathered outside, but Dr Bayliss did not. The clinic was gratuitously advertised as a ‘crime scene’, it was Webb's evidence that he had made the decision to have the police tape taken on the raid in advance. The police walked Dr Bayliss in front of the cameras, and in front of the ‘crime scene’ sign, knowing and apparently not caring that he would be displayed in the media in that light.”

I do not find that the plaintiff was unaware of the media presence outside the Clinic. I think it more likely than not that he observed it himself or was informed of it by a member of his staff. The media presence was a matter which was likely to provoke comment by Clinic staff.

It seems that the term “media walk” is one which has been used in New South Wales to describe the effecting of an arrest by police in the full glare of media publicity arranged in advance by those responsible for, or participating in, the arrest. Part of the process is to “parade” the arrested person before media representatives. The “media walk” allegations were vigorously pursued in the cross-examination of a number of witnesses including Sergeant Cassidy and Inspector Webb. All persons present on the police operation to whom it was put that a media walk had taken place, strongly denied the allegations. I accept their evidence in this regard. Before the commencement of the operation, Mr Sturgess, Inspector Webb, Superintendent McArthur and Sergeant Cassidy were all apprehensive about the degree of media attention which they thought the operation was likely to attract. It was not the intention of any of them to encourage such publicity or to expose the plaintiff to any more media publicity than was the inevitable result of the police action against the plaintiff.

In the course of the operation the police media officer, Mr Hawthorne, who accompanied the police party to the Greenslopes Clinic, telephoned Assistant Commissioner McArthur and informed him that representatives of the media had been at the Clinic awaiting the arrival of the police. The Assistant Commissioner then decided to issue the press release and gave instructions that that take place. An issue arose in the course of the trial as to when the media release was first made and as to its initial form. Mr Glasson, in a letter to Mr Harper in June 1985 asserted that information on the raids was not released by the police department's media relations officer to media outlets until 10.40 a.m. In a report to the Superintendent of the Metropolitan Criminal Investigation Branch dated 28 June 1985 Inspector Webb recorded -

“Inquiries from the police media section establish that the telex was released for media outlets simultaneously in Townsville and Brisbane at 10.40 a.m.”

The defendants' contention was that both of these documents contained erroneous information derived from the police media section. To support the conclusion that no release to the media was made until 12.13 p.m., the defendants rely on the evidence of Assistant Commissioner McArthur which is to the effect that the draft telex which became Ex.32 was only a draft and was never released. It has written on it “11.00 released 20/5/85”. The Assistant Commissioner swore that the “11.00” was not in his handwriting but that the other words and figures were. That document contains the paragraph -

“No arrests were made during the raids. Any legal action against any person will be taken by summons in the near future.”

On the exhibit that paragraph has been crossed out and the Assistant Commissioner swears to having done that in the process of creating a final draft document. He also swears to having inserted the words “from police” in the final paragraph which commences “Memo editors”. Exhibit 134 is a telex dated 20 May 1985 from Ian Hatcher, Police Media Officer, Police Hqs addressed to “John Keenan, Minister's Press Secretary”. It contains the words -

“Amendment to previous telex -

Attn: All News Editors and Chiefs of Staff.

Police raids in two cities over alleged abortions.”

The text of the document is in the same form as Ex.32 as amended by Assistant Commissioner McArthur. Exhibit 34 is a telex, again signed by Ian Hatcher, Media Officer, Police Hqs, dated 20 May 1985. It has written against the date “12.13 pm” and is addressed -

“Attn: All News Editors and Chief of Staff.

Police raids in 2 cities over alleged abortions.”

The text of that telex is also in the form of Ex.32 as amended. Exhibit 135 supports the defendants' version of events. It is a copy of a telex dated 20 May 1985 from the Department of Justice to Mr Hatcher which sets out a copy of a telex to “News Editors/Chiefs of Staff” which states -

“Memo instructions at the foot of Med pol telex in this matter should be disregarded.
Any subsequent updated information or comment will be available through the Minister for Justice and Attorney-General of Queensland ...”

The telex was expressed to be from Mr Glasson and Mr Harper.

On balance, I am inclined to think that the conclusions arrived at by police media officers in June 1985 in response to enquiries of a serious nature are likely to be more accurate than an attempt to piece together a sequence of events some 13 years after the event with the aid of some surviving documents and Assistant Commissioner McArthur's recollection. I should add that I do not doubt that the Assistance Commissioner gave his evidence honestly and carefully.

Whether a document in the form of Ex.32 was sent to media outlets at 10.40 a.m. or whether the first communication received by media outlets on 20 May was  Ex.34, in my view, does not matter a great deal either way. As I have observed earlier, there was no sinister purpose behind the press release whenever its publication was first authorised. That was certainly after police were aware of a media presence at the Greenslopes Clinic.

It is true that the plaintiff, after his arrest, was ushered out of the Greenslopes Clinic by the front door and across the front yard of the Clinic to the police car parked in a driveway in the full view of members of the media present. It may have been possible to have effected the plaintiff's departure in a less obtrusive way by leading him out through the Ridge Street part of the premises. However, the evidence does not clearly establish what the practicalities were in this regard and the evidence is that there was also a media presence outside Ridge Street. At all times the police behaved with courtesy. There was no attempt at “posing” or scene setting for the benefit of the media.

Quite early in the course of the operation, the police had secured the site, inter alia, by placing a chain across the driveway of 687 Logan Road. It was a matter of complaint that the chain had a sign on it bearing the words “Crime scene investigation no entry”. At least one television camera operator took footage of the plaintiff in front of the sign and an article in the Telegraph published on 21 May was accompanied by a photograph showing police officers in the vicinity of the sign. I doubt though that any of the police officers engaged in the operation attached any significance to the sign, if they had regard to it at all. I also doubt that any depiction of the sign was likely to have affected the attitude to the plaintiff of those watching television programmes or reading newspapers. The plaintiff put forward no evidence in that regard. The appreciation which most persons would be likely to have had, having regard to matters to which I adverted earlier, would be that the police had conducted a raid on the Greenslopes Clinic with a view to attempting to establish that the plaintiff was unlawfully procuring abortions, but that the plaintiff would continue to assert that the activities conducted at the Clinic were lawful and morally justified. There is no evidence to suggest that the plaintiff was averse to media exposure in connection with his medical practice or that he suffered any distress as a result of it. On the contrary, he sought publicity for his Clinic and for his views on abortion. So far as one is able to tell from the evidence, he was composed and seemingly confident throughout the events of 20 May.

There is also no evidence to support the allegation that the defendants were responsible for arranging for a media presence at the Greenslopes Clinic. An internal police investigation into the source of the leak to the media could find no evidence implicating any police officer. The decision to issue the police press release on 20 May was taken by Assistance Commissioner McArthur without reference to any of the defendants.

The execution of search warrants, the seizure of property and subsequent events on 20 May

In accordance with the operational orders, Detective Sergeant Williams acted as Exhibits Officer at 8 Ridge Street and Detective Sergeant Trost acted as Exhibits Officer at 687 Logan Road, Greenslopes. As such, they had the responsibility of recording and securing exhibits seized pursuant to the warrants. Sergeant Williams also executed the search warrant for 8 Ridge Street. Sergeant Cassidy did not enter that part of the premises.

As mentioned earlier in these reasons, the plaintiff was taken by police car to the Woolloongabba police station. Sergeant Cassidy, who was driving, entered the building via a side driveway in order to avoid any media representative who may have been positioned at the front of the building. Immediately on arrival at the police station, the plaintiff saw his solicitor and remained in his company for virtually the whole of the period of approximately one hour that the plaintiff was there. The plaintiff was then taken to the Holland Park watch house in an unmarked police car. No representatives of the media were present when the plaintiff entered the watch house. The plaintiff was charged by Sergeant Cassidy at the watch house counter at approximately 12.40 pm and left in the custody of the watch house keeper. At the watch house the plaintiff was photographed and fingerprinted. Sergeant Cassidy played no part in these activities. The prosecution of the plaintiff was taken over by Mr Sturgess when the plaintiff was arraigned at the Holland Park Magistrates Court at about 2.30 pm on 20 May.

Events after 20 May 1985

At least some of the police officers who participated in the operation on 20 May attended a debriefing on 21 May. On that day Mr Sturgess called at CIB headquarters and obtained from Sergeant Cassidy patient cards which the latter selected from the patient cards seized on 20 May, with a view to using them as evidence that abortions performed or to be performed were based on reasons other than need for preservation of the mother's life. The information on the cards did not suggest that the subject abortions had been performed for the purposes of preserving the mother's life.

No direct evidence was given to the effect that Mr Sturgess perused these cards, but I infer that he did. On the following day Sergeant Cassidy spent some time with Mr Sturgess discussing matters which included an application to be made on Thursday 23 May to the Supreme Court by the Director of Prosecutions for an order that conditions of bail granted to the plaintiff be varied to include a condition that the plaintiff cease the performance of all surgical operations with intent  to procure the miscarriage of women. Sergeant Cassidy swore an affidavit in support of the application. Exhibited to his affidavit were copies of the cards in respect of patients 1 to 8 inclusive and copies of six further patient cards, which Sergeant Cassidy swore were “fair samples of the records generally”. On 23 May 1985 Sergeant Cassidy informed the plaintiff's solicitors that records seized relating to matters other than abortions were “available to be returned”. The solicitors intimated they would collect the records on 24 May 1985 but subsequently requested that the records be delivered to 687 Logan Road.

On 24 May 1985 the application to vary bail conditions was dismissed.

On 29 May 1985 Mr Harper wrote to the Premier stating inter alia -

“Following detailed discussion by Cabinet at its Caloundra meeting last year I was given the task of closing any so-called ‘abortion clinics’ if they were operating illegally - of ‘giving effect to the law as it exists’.

This responsibility fell to me possibly because our colleague the Minister for Police was absent from the meeting, overseas attending to the Forestry element of his portfolio.

On his return, I discussed the decision with Mr. Glasson who assured me of his co-operation and authorised me to speak with his police officers as necessary.
...
Several discussions were held by me with senior police officers in Townsville. Dominant was concern that any action taken should not endanger the health of patients at the clinic.

As a result it was agreed that an effort should be made to obtain evidence of possible illegal practices other than by entering the premises under authority of a search warrant.

Police, at one stage, believed they were close to achieving such evidence but a spate of media publicity deprived them of the evidence on that occasion.

Accordingly, it was finally decided to seek evidence of alleged breaches of the Criminal Code by way of search warrants.

Paramount in the planning of those searches was the need to ensure that no patient's health suffered in the exercise.
...
The files of patients who underwent pregnancy terminations are held in a private vault under conditions of extremely strict security. Two experienced police officers are checking the files as part of the police investigations but those investigations have no interest in patients' names.

...

It was a matter of great concern to me, and to the Police Minister as well as his senior officers, that the media was made aware of the police operation in advance. I have asked Mr. Glasson to take action which would seem appropriate in this regard.
...
When police investigations into the Fertility Clinics are completed a brief will be considered by the Director of Prosecutions after which decisions will be taken in regard to action appropriate to the circumstances disclosed by those investigations.

I suggest there is a need for balanced assessment of the Cabinet decision and resultant action in an atmosphere divorced from emotionalism and misconception engendered by ‘headline grabbing’ media stories.”

On 25 June 1985 the Full Court of the Supreme Court of Queensland ordered that the “search warrant be quashed” and that “the medical files seized” by Sergeant Cassidy “at the appellant's premises” be delivered up to the plaintiff.

On 26 June 1985 Mr Sturgess, in a memorandum to Mr Harper, advised -

“With the return of the records [ie. records seized in the course of the police operation on 20 May] I am of the opinion it will not be possible to proceed with the conspiracy charges and on the 4th July at Brisbane and the 8th July at Townsville the charges will be withdrawn;

in my opinion on the information and material collected by the police, which will be unaffected by the return of the documents, there are very good prospects of presenting a strong prima facie case or strong prima facie cases of unlawful abortion against Bayliss. ... The police advised they can deliver full briefs to me by ... 1st July. ...”

On 27 June 1985 the plaintiff signed an acknowledgement of receipt of “all medical files removed from” Greenslopes Clinic.

On 28 June 1985 Mr Harper wrote to Mr Glasson requesting him to ensure that copies of any records seized on the police operation “and any details or notes which may have been taken from them be destroyed forthwith”.

On 1 July 1985 Mr Sturgess, in a memorandum to Mr Harper, recommended that prosecutions be instituted against the plaintiff in respect of three specified abortions. The memorandum noted that Mr Irwin agreed with the opinion.

On 1 July 1985 Mr Harper wrote to the Commissioner of Police stating that, although Mr Sturgess had advised that there was a prima facie case against the plaintiff, it was his intention that, if the plaintiff were committed to trial, the trial should not proceed. The letter stated inter alia -

“However, he [Mr Sturgess] has also advised me that it is his opinion that it will be impossible for any trial to be conducted in a calm and dispassionate manner having regard to the extent and degree of publicity and comment that has been given to the question.

You will know about the views expressed by both sides in the debate indicate a wide division of opinion amongst the public. It is a fundamental requirement that any trial be fair both to the accused and the Crown. As things stand at present, it would in my opinion, be impossible to ensure a fair trial. ...”

Relevant Principles of Law
The elements of malicious prosecution

The elements of the tort of malicious prosecution which a plaintiff is required to prove are-

1.the prosecution of the plaintiff by the defendant;

2.that the proceedings complained of terminated in the plaintiff's favour;

3.that the prosecution was instituted without any reasonable and probable cause;

4.that the defendant instituted or continued the proceedings maliciously:

45 Halsbury's Laws of England 4th ed. para. 1371; Little v The Institute of Vic [1990] VR 257 at 262; Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 350-1 per Starke J.

The defendants concede that the proceedings terminated in the plaintiff's favour.

Malice in this context was said Gibbs v Rea [1998] 3 WLR 72 at 80 to have the special meaning common to other torts and covers not only spite and ill-will but also improper motive.
Similarly, in Arbrath v North Eastern Railway Co (1883) 11 QBD 440 Bowen LJ equated malice with the initiation of a prosecution “from an indirect and improper motive, and not in furtherance of justice”.

The tort of malicious prosecution developed out of the medieval law of conspiracy. This has been traced to the Statue of Conspirators, an Act of the Parliament of Edward 1 (21 Ed. 1), Winfield, “The Writ of Conspiracy” (1917) 23 LQR 28. The conspiracy, which was civilly actionable as both a species of trespass upon the case, and punishable as a crime, consisted of combining with others in order to set the law falsely into motion against an innocent man. A second statute of Edward 1 (33 Ed.1) outlawed conspiracies of two kinds: the laying of false and malicious indictments (i.e., wrongly setting the criminal law into motion); (2) falsely moving or maintaining pleas (i.e., wrongly setting the civil law into motion). See Winfield, The History of Conspiracy and Abuse of Legal Procedure (1921), p. 60. By Tudor times, the former of the two classes of case had become the action upon the case for malicious prosecution, while the latter had developed into the tort of maintenance, ibid, pp. 112, 118-9; Winfield, A Text-Book of the Law of Tort, 4th ed (1948), p. 427. See also Harrison, Conspiracy as a Crime and as a Tort in English Law (1924), p. 52; Stephen, The Law Relating to Actions for Malicious Prosecution (1888), pp. 20ff.; Ramamoorthy, Law of Malicious Prosecution and Defamation (1976), pp. 1-3.

In Gibbs v Rea (supra) the view was expressed in the Judgment of the Court that the true foundation of the torts of malicious prosecution and maliciously procuring an arrest was “intentional abuse of the processes of the court”. In Mohammed Amin v Jagendra Kumarbanner Jee [1947] AC 322 (PC) it was put this way -

“The foundation of the action lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose.”

It is also an essential element of an action for malicious legal proceedings that the plaintiff suffer damage: Davis v Gell (1924) 35 CLR 275 at 285 and Little v Law Institute of Victoria (supra) at 265.

Malicious prosecution - reasonable and probable cause

Jordan CJ, in Mitchell v John Heine & Son Ltd (1938) 38 SR NSW 466 at 469, asserted that for a person to have reasonable and probable cause for prosecuting another, the following conditions should exist:

“(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.”

In Glinski v McIver [1962] AC 726 at 768 Lord Devlin said -

“Six points are settled about the question of reasonable and probable cause. First, the question is a double one: did the prosecutor actually believe and did he reasonably believe that he had cause for prosecution? Secondly, provided that the defendant has made sufficient enquiry, the facts on the basis of which the question has to be answered are those, and only those, known to the defendant at the material times.”

The remaining four “points” have relevance only to trials by jury. It will be seen that Lord Devlin's points one and two correspond generally with Jordan CJ's conditions (1) (2) (3) and (4). Although Jordan CJ's formulation provides a useful check list or starting point for an enquiry into the existence of reasonable and probable cause, resort to the authorities, both earlier and later, demonstrates that some of the six conditions require qualification or further elaboration. Lord Devlin, in Glinski v McIver (supra) pointed out at 766-767 that, in considering the question of the prosecutor's belief in the guilt of the accused, the prosecutor is not required to believe in the probability of conviction. He said -

“The prosecutor has not got to test the full strength of the defence; he is

concerned only with the question of whether there is a case fit to be tried.”

He then went on to quote the following passage from the judgment of Dixon J (as he then was) in Sharp v Biggs (1932) 48 CLR 81 -.

“... the probability of the accused's guilt is such that upon general grounds of justice a charge against him is warranted.”

That passage, which was preceded by the words “reasonable and probable cause does not exist if the prosecutor does not at least believe that”, was approved by Evatt and McTiernan JJ in Commonwealth Life Assurance Society Ltd v Brain (supra).

In Glinski v McIver, Lord Denning expressed a similar concept at 758 saying -

“In the first place, the word ‘guilty’ is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict, whereas in truth he has only to be satisfied that there is a proper case to lay before the court, or in the words of Lord Mansfield, that there is a probable cause ‘to bring the [accused] ‘to a fair and impartial trial’.”

It seems to be implicit in Jordan CJ's condition (2), when read in conjunction with condition (3), that any relevant belief on the part of the prosecutor must be based on material in the possession of the prosecutor to which the prosecutor adverted in forming any relevant state of mind. The preponderance of authority clearly supports that conclusion. In Herniman v Smith [1938] AC 305 at 317, Lord Atkin said -

“The facts upon which the prosecutor acted should be ascertained; in principle, other facts upon which he did not act appear to be irrelevant. When the judge knows the facts operating on the prosecutor's mind, he must then decide whether they afford reasonable or probable cause for prosecuting the accused.”

See also Glinski v McIver [1962] AC 726 at 772.

Although absence of reasonable and probable cause does not establish malice, the commencement of a prosecution without reasonable and probable cause is evidence from which malice may be inferred: Hicks v Faulkner (1878) 8 QBD 167, at 175 and Glinski v McIver at 752 and 765.

A prosecutor is justified in acting on information about the facts given to him by a reliable witness and may accept advice on the law given by a competent lawyer. The extent to which a prosecutor derives protection from reliance on legal advice will depend on the extent to which the prosecutor has put all relevant facts known to him or her before the person giving the legal advice. Glinski v McIver at 745.

Malicious prosecution - the requirement of taking reasonable care by the prosecutor to inform himself

The role and the sufficiency, or otherwise of the prosecutor's enquiries in determining the existence of reasonable and probable cause is one which often gives rise to difficulties of application.

In Arbrath v North Eastern Railway Company (supra) Brett MR expressed the view at 450-51 that whether reasonable care has or has not been taken by a prosecutor to inform himself of the real state of the case was -

“... a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want or reasonable and probable cause”.  

Brett MR had earlier observed -

“But it signifies not what statements were laid before those who instituted the prosecution, if they received them carelessly, or if they did not take reasonable care to inform themselves of other facts with which they might have made themselves acquainted. It has been decided that the question whether reasonable care has been taken by those who instituted the proceedings, to inform themselves of the true state of the case, must be determined one way or the other, in order to enable the judge to give his opinion. Therefore, it becomes a necessary part of the question whether there was an absence of reasonable cause, to determine whether reasonable care was taken by the defendants to inform themselves of the true state of the facts. The question, whether reasonable care has or has not been taken by a prosecutor to inform himself of the real state of the case, is not merely a piece of evidence to prove some fact, but it is a question which is itself to be decided by evidence, and upon which evidence to prove and disprove it may be given. It is a necessary part of the question whether there was reasonable and probable cause, because if there has been a want of reasonable care on the part of the prosecutor to inform himself of the true state of the case, then there must be a want of reasonable and probable cause.”

1. In my reasons, referring to para.  6C, I said -

   “The pleaded allegations thus extend, not only to seizure by Sergeant Cassidy, but to seizures caused by him. However, as I remarked earlier, they are limited to patient records, surgical instruments and equipment. I find that no surgical instruments or equipment was taken which fell outside the terms of the search warrant or Sergeant Cassidy's common law powers.”

2. I will now deal in turn with each of arguments advanced on behalf of the plaintiff.

   The word “equipment” is sufficiently broad to cover the goods described on pp.  81 and 82 of the reasons.  Alternatively, the plaintiff should have leave to amend the statement of claim so that the trespass allegations extend to all the goods taken from the clinic in the course of the police operation.

3. Mr Brandis submitted, inter alia -

   “The word ‘equipment’ is one of wide import; it includes not merely items of a mechanical nature, but everything with which the surgery was ‘equipped’.  The ‘equipment’ of a hospital has been held to include everything which is used to equip a premises to operate as a hospital: see re Unite (1906) 75 L.J. (Ch.  D.)  163 (Kekewich J.). Recent English and Scottish decisions have identified the functional relationship between a thing, and the use to which the thing is put, as being the determinant of whether the thing is to be considered as ‘equipment’.  In Ralston -v-  GreaterGlasgow Health Board (1987) S.L.T. 386, the Court of Session (Lord Kincraig) considered that equipment means anything used in equipping; and equip means merely ‘to furnish what is requisite for action’. In Knowles -v- Liverpool City Council [1993] 4 All ER 321, the House of Lords held that inert materials (in that case, flagstones) were ‘equipment’. See also Coltman -v- Bibby Tankers Ltd [1988] AC 276 (House of Lords) and Mayne Nickless -v- Federal Commissioner of Taxation (1990) 20 ATC 1826 (Supreme Court of Victoria, Marks J.). That inclusive interpretation of the word is consistent with the definition given by the Oxford English Dictionary and the Macquarie Dictionary.”

4. Mr Brandis also relied on the following Dictionary definitions -

   “equipment noun.  1.  anything used in or provided for equipping.  2. the act of equipping.  3.  the state of being equipped. ... 5.  a collection of necessary implements (such as tools).”  (Macquarie Dictionary)

   “equip v. ... 2.  In wider sense: ‘To furnish for service’ (T.); to provide with what is requisite for efficient action, as arms, instruments, or apparatus of any kind.  Hence fig.  to furnish with the physical or mental qualifications necessary for any task.  Cons.  with.  Also of things; to constitute the equipment of.”  (Oxford English Dictionary).

   “equipment ... 2.  concr.  Anything used in equipping; furniture; outfit; warlike apparatus; necessaries for an expedition or voyage. (Oxford English Dictionary).”

5. Whilst I do not doubt that in many contexts the word “equipment” is capable of describing a broad range of items, the question for my determination is whether “equipment” in the statement of claim ought reasonably to have been understood by the parties as extending to items such as coin bags, a portrait wrapped in brown paper, an envelope containing travel documents, documents relating to banking, conference documents and insurance documents.

6. In my view, the word “equipment”, when used with reference to property at a clinic, as a matter of normal language usage, does not extend to books, documents and records used in the course of the operation of the business of the clinic.  The word in the context of paragraphs 6C and 6D, in my view, refers to items of the nature of plant, furniture and apparatus.  On the plaintiff’s argument the words “patient records” and “surgical instruments” are surplusage.

7. In submissions after the trial, neither side was concerned to draw any distinction between classes of goods seized.  The main thrust of the plaintiff’s case in the course of the trial and in argument was in the allegations of malicious prosecution.  Related, but less significant aspects of the case, were the claims of malicious procuration and issue of a search warrant and malicious arrest.  The trespass claim, as the pleading itself suggests, was something of an adjunct to the search warrant claims.  The case in respect of trespass to goods was the simple one that, in effect, the property seized pursuant to the search warrants had been taken without lawful excuse as the search warrants had been obtained wrongfully.  It did not seek to take any point about the scope of the search warrants.

8. The plaintiff’s counsel did not raise any question about whether the goods seized came within the scope of the search warrants in their pre-trial statement of issues.  The width of the search warrants and the scope of common law powers of seizure were raised, however, in the statement of issues delivered by the defendants’ counsel.

9. In opening the plaintiff’s case Mr Stitt QC did not intimate that, in relation to the matter now under consideration, the plaintiff’s case was intended to go beyond the pleaded case.  He said relevantly -

   “... the way in which we put the trespass to goods case, is that because of the invalidity of the search warrants there is a valid cause of action for trespass of goods in relation to those items from the time when they were seized, and further, from the time of the order - the Full Court’s order, there could be no justification for retaining any of the property whatsoever.”

10. At the conclusion of the lengthy cross-examination of the first defendant he was cross-examined briefly on the scope of the material seized on the police operation.  Four items were referred to by Mr Stitt in the course of the cross-examination:  a picture wrapped in brown paper, keys, medicines and video cassettes.  There was no objection to the cross-examination on the grounds of relevance.  That is readily explicable though, having regard to the way in which the plaintiff’s case was opened and conducted.  The plaintiff attempted to show that the defendants acted maliciously, with studied contempt for his rights.  The cross-examination was clearly in furtherance of that objective.  There was no cross-examination of Senior Sergeant Williams, the exhibits officer at the Ridge Street premises, on the point.

11. Senior Sergeant Trost, the exhibits officer at the Logan Road premises was briefly cross-examined about whether items seized fell within the scope of the search warrant.  He conceded that the picture would not have been within the scope of the warrant but said he did not remember seeing it.

12. The indemnity receipt referred to on p.81 of the reasons was put to him and he was asked if he recalled whether the items described in it matched the property “seized under your supervision and control”.  He responded -

    “A lot of the stuff here - I see what you mean, sir, on page 642 about the small portrait wrapped in brown paper and the other matters there.  None of that, to my memory, is anything to do with the property that I took possession of.”

13. In their written submissions the plaintiff’s counsel submitted that the property seized was beyond the terms of the search warrants.  The defendants’ counsel, in their written submissions, dealt with the scope of the first defendant’s powers of seizure under the warrants and at common law in a general way.  The matter of the picture though was addressed specifically.  It was submitted, somewhat ambitiously, “However, no evidence was given as to what this portrait was and therefore it is hard to draw any conclusion as to whether or not it was within the terms of  the search warrant”.  The submission continued -

    “In any event, there is absolutely no evidence that it was seized by Detective Sergeant Cassidy [T 468] so the Statement of Claim does not support any action for damages in respect of it.  It was suggested that ‘it might have been an original Norman Lindsay’ but there was no evidence to substantiate this suggestion [T 723] and in any event it is clear that those materials were returned to Dr Errey.  There is no evidence that it was Dr Bayliss’ property.”

14. What seems to have happened is that the parties, being concerned with the major issues in the case, gave only limited attention to the scope of the trespass allegations and to the matters needed to prove or rebut the plaintiff’s case in that regard.  Instead of attempting to confine the plaintiff to his pleaded case the defendants, themselves, first raised the question as to the scope of the search warrants.  No objection was taken when the plaintiff’s written submissions alleged that some of the property seized fell outside the scope of the search warrants and the defendants’ own submissions addressed the point in the limited manner I have indicated.

15. In Banque Commerciale S.A., In Liquidation v.  Akhil Holdings Limited (1990) 169 CLR 279 at 286-7, Mason CJ and Gaudron J, after observing that “the function of pleadings is to state with sufficient clarity the case that must be met” so as to enable procedural fairness said -

    “Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for determination of their respective rights and liabilities ...

    Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted.”

16. Although I have concluded that the defendants should not now be permitted to take any point about the description of the property seized in paras. 6C and D, I doubt that the defendants by their conduct, in the circumstances I have outlined, acquiesced in the plaintiff’s presenting an additional claim that some of the goods seized were outside the scope of the search warrant.  The point is a debatable one and, having regard to the matter decided under the next heading, it is not necessary for me to decide it.

    “The first defendant “caused” the relevant property to be seized although he was not the exhibits officer at either premises.  Alternatively, leave should be given to amend the statement  of claim to permit an allegation that the fourth defendant is vicariously liable for the conduct of the two exhibits officers, Sgts Trost and Williams.”

17. I have little doubt that the first defendant did not cause any goods to be seized from the Ridge Street premises.  The first defendant did not execute the search warrant at the premises nor did he act as “exhibits officer” at that location.  In my reasons I pointed out that -

    “Sergeant Cassidy, in fact, issued no orders concerning the seizure of property by other police officers. The warrants were directed to “The Principal Police Officer at Brisbane and all other Police officers in the said State”. The officers who took possession of property were acting pursuant to the operational orders which applied to Sergeant Cassidy also. Sergeant Trost was the exhibits officer at Logan Road and Sergeant Williams was the exhibits officer at Ridge Street. They respectively recorded and took possession of the materials seized at the premises for which they were responsible.”

    Both Trost and Williams were senior sergeants at relevant times.  At the time the first defendant was a detective sergeant first class and thus junior to the exhibits officers.  Detective Sergeant Paterson was appointed principal investigating officer in respect of Ridge Street.  In the course of Mr Stitt’s cross-examination of Assistant Commissioner Williams, the following exchanges occurred -

    “... but I am really exploring the duties of an exhibits officer when an execution of search warrant is being performed.  You’ll understand that ? -- Yes, the duties of the exhibit officer is to ensure that all relevant exhibits are removed from the premises and that the police officers who remove them have the ability to remember where they got them from.”

    Mr Stitt later referred to the witness statement in which one witness had said -

    “As exhibits were being taken possession of, I recorded them in an official police department exhibits book giving each a particular number, a description of the property taken possession of, time and date found, where found and by whom.”

    The following exchange then occurred -

    “Now, just stopping there, is that paragraph true and correct? -- Well, it is basically true.  I say I took possession of a number of boxes, the date, time, and where they were found - where they were found, the surgery.”

18. There was no suggestion that the first defendant took possession of the material or that he directed or controlled Assistant Commissioner Williams in any way. In those circumstances there can be little doubt that the first defendant did not cause any property at Ridge Street to be seized.

19. Mr Trost said in the course of his cross-examination -

    “I think 12.45 was the last time I entered in the exhibits book that I took possession of property.”

    He was then asked “and you then had to carry all those exhibits away and put them in police vehicles?” He responded “I didn’t, I directed that they be carried out”.  There was no evidence directed to showing that he was answerable to the first defendant in respect of the property which  he claimed to have in his possession.  Mr Brandis argued that, in relation to the Logan Road premises, Sergeant Cassidy was not only the investigating officer but was also appointed the person to execute the search warrant.  He submitted that the question of whether the first defendant caused the property to be taken should be “judged from a practical, commonsense stand point: March v.  E & M H Stramare Pty Ltd (1990-91) 171 CLR 506”.

20. The notion that the person executing the warrant should be regarded as the person who causes the seizure of the relevant property has much to commend it.  But, in my view, there is insufficient evidence of the respective roles of the first defendant on the one hand and the exhibits officers on the other to allow me to come to that conclusion.  There is ample evidence that the exhibits officers took physical possession of the seized property.  The clear inference to be drawn from the evidence is that, in acting as they did, they were not answerable in any way to the first defendant.  Their instructions certainly did not come from him.  The warrants were directed to  all Queensland police officers and, as I have pointed out, the exhibits officers were senior in rank to the first defendant.  There is the added feature that there was an even more senior officer present, Inspector Webb, exercising an overall supervisory role.  That does not exhaust the plaintiff’s difficulties on this point.

21. No attempt was made in evidence to show which of the documents outside the scope of the warrants came from which premises.  The bulk of the relevant documents are listed in the “indemnity receipt” dated 19 June 1985 signed by Dr Errey.  It does not attempt to list the source of the documents.  Each exhibits officer, however, listed on the back of a copy of the search warrant the property taken into possession pursuant to the warrant.  The listing was in a very generalised form, e.g. -

    “3.  Documents found left hand side receptionist table;
    ...
    5.  Documents from shelves in reception;
    ...
    10.  Documents taken from small office desk and shelf.”

    A perusal of the two lists reveals that -

    a.the great bulk of the patient cards came from Ridge Street;

    b.most of the general office records, correspondence, bank books and the like came from Logan Road.

22. The evidence of Mr Trost, which I quoted earlier, makes it difficult to form any conclusions in respect of particular items of property.  Moreover, I am not prepared, in the absence of appropriate evidence, to make the assumption that the plaintiff was entitled to possession of all of the material listed in the indemnity receipt merely because that material came from one or other of the premises.  Some of it may have had nothing to do with a partnership in which the plaintiff was concerned.  For example, “the plastic bag containing one key” could have  belonged to Dr Errey or, for that matter, to a staff member.  On the balance of probabilities though, I find that the plaintiff was entitled to possession of the great bulk of the property listed in the indemnity receipt.

23. In conclusion, on this aspect of the matter, I find that it has not been established that the first defendant caused property, outside the scope of the search warrants and outside the scope of the common law powers of seizure, to be seized.

24. In my view, it is not appropriate that I give leave to amend the statement of claim in order to permit the plaintiff to allege the vicarious liability of the fourth defendant for the conduct of the exhibits officers.  I am conscious of the principles expressed in cases such as The State of Queensland v.  J.L. Holdings (1996-97) 189 CLR 146 and in Cropper v.  Smith (1884) 26 Ch D 700, but to give the leave sought would be unjust and unfairly prejudice the defendants. The plaintiff’s case was a narrowly focused one of a highly technical nature. In it the plaintiff sought to bring to book persons whom, in his perception, had acted wrongfully in relation to him. They were the first defendant (the investigating and arresting officer), the second defendant (he Attorney-General) and the third defendant (the Director of Prosecutions).

25. It was expressly and deliberately pleaded that the fourth defendant (State of Queensland) was liable in respect of the conduct of each of the first, second and third defendants.  The pleading was so framed because the trespass allegations were an adjunct to and by-product of the core allegations of malicious prosecution, malicious procuration and issue of search warrants and wrongful arrest. The way in which the pleading was expressed ensured that, in preparing their case in relation to the trespass issue, the defendants would concentrate on the role of the first defendant and his responsibility for relevant documents rather than the roles of the exhibits officers, other than with a view to showing that possession of seized material had been taken by the exhibits officers rather than the first defendant.

26. The defendants, in their defence, denied the allegations in para.  6C of the statement of claim, thereby squarely taking issue with the allegation that the first defendant had caused the relevant property to be seized.  In their statement of issues delivered prior to the trial of the action, the defendants stated as an issue that -

    “An allegation of trespass to goods is made against the first defendant.  However, the first defendant himself was only responsible for the taking of five medical cards which he did not himself take from the premises.”

    The document then went on to deal with the role of the exhibits officers and the fact that the warrants were addressed to “The principal police officer at Brisbane and all other police officers in Queensland”.

27. The plaintiff elected to proceed with the lengthy trial on the basis of these clearly defined issues.  In my view, it would be unjust to permit the plaintiff to change the basis of his claims having litigated on his chosen basis and lost, particularly having regard to the history of the action.  It is submitted on behalf of the defendants that -

    “If it had been an issue at the trial that Sergeants Williams and Trost had been responsible for the seizure of the property, it is likely that the focus of their evidence both in chief and cross-examination would have been different and that the preparation for the trial in relation to the involvement of Sergeants Williams and Trost would have different.”

    I consider it possible that the defendants’ case may have been conducted differently if the pleadings had contained the allegations now sought to be raised.  I refuse the application for leave to amend.

    “The plaintiff is entitled to damages for trespass to goods in respect of:

    (a)the delay, between 23rd May 1985 and 17th June 1985, in returning the property the subject of the 17th June indemnity receipt; and

    (b)the delay, between 25th June 1985 and 3rd July 1985, in returning the other property, save for:

    (i)the property the subject of the 17th June indemnity receipt;

    (ii)the property the subject of the 19th June indemnity receipt; and

    (iii)the therapeutic termination cards.”

1. It is submitted on behalf of the plaintiff that the trespass to goods claim in respect of the post 20 May events is open on paras. 6C, 6G and 7 of the existing pleading.  Alternatively, it is submitted that if I take the view that the matter was not sufficiently raised on the pleadings, then leave to amend should be given in order to raise those matters.

2. It is submitted on behalf of the defendants that the question of the delay in the return of the goods was not raised in the pleadings and that, if it had been, the defendants would have adduced evidence dealing with the explanation for the delay and the plaintiff’s contribution to that delay.  In my view, the delay in return of goods was not a matter raised on the pleadings.  The clear thrust of the plaintiff’s complaint was -

   a.wrongful seizure under invalid warrants (6C);

   b.the plaintiff’s entitlement to possession of the seized goods (6D);

   c.an order for return of the goods by the Full Court of Supreme Court of Queensland demonstrating that possession of the goods by the first defendant was unlawful (6G).

3. No point was made of any delay in or failure to return goods after the court order.  That was a matter which needed to be alleged expressly if the defendants were to have an inkling that the case they were to meet involved a failure to promptly deliver up goods which had been held by them lawfully.  The plaintiff’s case, quite plainly, was that property had been seized wrongfully under invalid warrants.

4. I accept the submissions made on behalf of the defendants.  It would be unjust to permit the plaintiff to rely on the point now.  I note that the point was raised on p.73 of the plaintiff’s written submissions.  The defendants’ written submissions in reply do not take objection to the plaintiff’s raising the unpleaded point and I do not recall if the matter was addressed in oral submissions.  However, I am unable to conclude that the defendant acquiesced in the enlargement in this regard of the issues to be determined.  The more likely conclusion is that the point, being a subsidiary element of a subsidiary matter, was itself overlooked.

5. In conclusion, I find that the plaintiff has not made out his claims of trespass to goods.