Carrie Peters (a Pseudonym) v State of Victoria
[2023] VCC 1791
•31 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| CARRIE PETERS (a Pseudonym) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
---
JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13, 14, 17, 18, 19, 24 and 25 July 2023 | |
DATE OF JUDGMENT: | 31 October 2023 | |
CASE MAY BE CITED AS: | Carrie Peters (a Pseudonym) v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1791 | |
REASONS FOR JUDGMENT
---
Subject:INTENTIONAL TORTS – FALSE IMPRISONMENT
Catchwords: False imprisonment – psychiatric injury – whether police officers had actual belief that plaintiff committed sexual offence against a child – whether belief was on reasonable grounds – damages – whether plaintiff is required to comply with Part VBA of the Wrongs Act – significant injury – whether plaintiff’s injury falls within an exception under s28LC – whether false imprisonment carries intent to cause injury – failure to comply with s28LT(2) of the Wrongs Act – prescribed information – whether defendant’s right to refer to Medical Panel is enlivened
Legislation Cited: Wrongs Act 1958; Crimes Act 1958; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); Civil Liability Act 2022 (NSW);
Cases Cited:Adams v Kennedy (2000) 49 NSWLR 78;
DPP v Farmer (2010) 56 MVR 137;
DPP v Hollis (2019) 58 VR 695
Dumbell v Roberts [1944] 1 All ER 326;
Gebrehiwot (who sues by his litigation guardian Tamar Hopkins) v State of Victoria (Ruling No 2) [2019] VCC 1229;
Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311;
George v Rockett (1990) 170 CLR 104;
Hyder v Commonwealth of Australia (2012) 217 A Crim R 571;
Kaplan v State of Victoria (No 2) [2022] FCA 679;
Lamb v Cotogno (1987) 74 ALR 188
Loughnan v Magistrates’ Court of Victoria [1993] 1 VR 685 at 696;
Myer Stores Ltd v Soo [1991] 2 VR 597;
NSW Crime Commission v Vu [2008] NSWCA 349;
O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286;
Prior v Mole [2017] HCA 10;
Re Bolton; Ex parte Beane (1987) 162 CLR 514;
Redline Towing and Salvage Pty Ltd v The Convenor of Medical Panels [2012] VSC 472;
R v Tillett; Ex parte Newton (1969) 14 FLR 101;
Ruddock v Taylor [2005] HCA 48
Snell v State of Victoria (Department of Education and Training) (2022) 404 ALR 1
State of New South Wales v Ibbett [2005] NSWCA 445
State of New South Wales v Robinson (2019) 266 CLR 619;
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118;
Williams v The Queen (1986) 161 CLR 278
Judgment: Judgment for the plaintiff.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P J Doyle SC with Y Al-Azzawi | Robinson Gill Lawyers |
| For the Defendant | R Kaye KC with | Victorian Government Solicitor’s Office |
HER HONOUR:
1This is a case about an ambiguous photograph and what happened when police decided it showed a woman sexually assaulting a ten year old child.
2On 4 February 2019, Carrie Peters (a pseudonym), then and now a serving member of Victoria Police, was arrested “for committing a sexual offence against a child under 16”.[1]
[1]Statement of Claim at page 4, paragraph 10
3Police escorted Peters to her workplace at the Victorian Police Centre where she was interviewed by officers. At the conclusion of the interview, Peters was released without charge and subsequently exonerated. Police accepted that the photograph actually showed Peters and her husband, then aged 32.
4Peters says for the period of 4 hours and 37 minutes, during which she was under arrest, she was falsely imprisoned, as the police had no reasonable grounds to believe that she had committed an indictable offence. As a result of the false imprisonment, she alleges she has suffered loss and damage.
5There is no dispute that Peters was arrested at about 7.40am and detained until about 12.17pm. There is no dispute that she was released without charge and subsequently exonerated. The burden of establishing that the arrest was lawful rests on the State.[2]
[2]Myer Stores Ltd v Soo [1991] 2 VR 597 at 625
Issues
6The issues in this case are:
(a) whether the arresting officer and the officer who subsequently detained Peters had an actual belief that she had committed a sexual offence against a child;
(b) if so, whether that belief was on reasonable grounds;
(c) if the State cannot prove there was an actual belief, or that the belief was on reasonable grounds, what damages, if any, should be awarded for false imprisonment.
7There is a dispute as to whether Peters has an entitlement to damages for the psychiatric injury she says she suffered as a consequence of the arrest. This raises the following issues:
(a) whether Peters is required to comply with Part VBA of the Wrongs Act 1958 (‘Wrongs Act’) or whether she falls within an exception under s28LC;
(b) if the Wrongs Act does apply, whether the fact that she has not served the prescribed information in the prescribed form pursuant to s28LT(2) precludes her from claiming damages.
Decision
8For the reasons that follow, I find that police did not have a belief on reasonable grounds that Peters had committed an indictable offence. She was unlawfully arrested and, for the period of her detention, she was falsely imprisoned. The State is liable for the damages caused by her false imprisonment, including aggravated damages.
9Peters is entitled to claim damages for personal injury. Her claim does not fall within an exception under s28LC and she is required to comply with the terms of Part VBA of the Wrongs Act.
10I will hear the parties further in relation to recovery of damages for non-pecuniary loss.
Note on titles
11Most of the witnesses who gave evidence were current or former police officers, including Peters. Where relevant, I will note the police rank in these reasons but otherwise I will refer to witnesses by pseudonym or surname.
Background facts
12Peters joined the police force in 2009 at the age of 18. It was her first “real” job after school. She says as a child she always wanted to be the “cop” in games of “cops and robbers”, and this interest firmed as she went through high school. She graduated from the police academy in March 2005. For a time she worked at a local Police Station,[3] before joining a specialised team in August 2014. The specialised team responds to jobs outside the realms of general police duties. She undertook further training and developed a subspeciality within that team in 2017. She hoped to join a specialised squad within Victoria Police and was scheduled to undertake a secondment to that squad in early 2019.
[3]Transcript (“T”) 267, Lines (“L”) 13
13She met Joseph Hills (a pseudonym) when she was 17, and they married in 2016 when she was 25. He was her first and only boyfriend. Hills worked in information technology at a secondary school. Peters and Hills have a son, AB (a pseudonym) born in December 2016.
The investigation into Hills
14On 22 November 2018, Peters was called into her office at work. Her Inspector said words to the effect “No-one’s died but this isn’t going to be pleasant”. He told her that Hills had been arrested as a result of an allegation made by a 10 year old. He told her that the police wanted to execute a search warrant at her home address. She was asked whether she was happy to participate in that search warrant. She responded “Absolutely”.[4]
[4]T138, L20
15She described her state upon hearing of her husband’s arrest as “shock and just completely numb”.[5] She got changed and drove straight home and met the detectives outside the front door of her home. She was handed the warrant which specified police were entitled to seize Nerf guns (a type of toy). She told the detectives where the Nerf guns were. She explained to police that Hills’ young relative, James (a pseudonym), had given Hills some Nerf guns. She found out, either during the execution of the search warrant or at a later time, that the 10 year old boy next door, David (a pseudonym), had said he had left a Nerf gun at the house.[6]
[5]T138, L23-L24
[6]T139, L8-L19
16She said police at that stage were not looking for anything other than the Nerf guns and did not seize any other items. She said “I honestly couldn’t have been more helpful. I didn’t know what they were after but I was just trying to give them everything that they asked for and everything that they needed”.[7]
[7]T140, L2-L5
17She was told the Department of Health and Human Services (DHHS) would need to speak with her.
18When Hills came home, he told her that David had made an allegation that Hills had sexually touched him. He told Peters he did not do it. She said “the way he reacted sort of said to me that he was innocent, and he said it was innocent and he said that for a long time afterwards as well”.[8]
[8]T144, L22-L25
Ms Peters’ assistance with investigation of Hills
19The following day, Peters organised to meet the police at the Multidisciplinary Centre in Dandenong as she had “no idea what was going on” and her “world was spinning”.[9] She spoke with investigators, including Courtney Guerin who, at that time, was an Acting Detective Sergeant at Dandenong Sexual Offences and Child Abuse Investigation Team (“SOCIT”).
[9]T140, L13-L14
20Peters did not yet know the precise nature of the allegations. Guerin’s diary notes from 23 November 2018 record Peters saying “we don’t believe the allegations to be true”.[10] Peters told Guerin about other children Hills had access to, including James. She provided extensive details of Hills’ contact with James. She gave intimate details of her sex life. She said:
“I was totally open with them, like really embarrassed, but obviously the situation that I was in, I wanted to – if – if he was innocent, I wanted to assist them with that information and I – at that time I had no reason to believe he wasn’t, but the information that I gave them wouldn’t change because it’s the truth.”[11]
[10]Amended Joint Court Book “AJCB” 170; Diary notes of Detective Acting Sergeant Courtney Guerin
[11]T146, L23-L29
21On 5 December 2018, Peters was at the marital home with her mother and her son, while DHHS were conducting an on-site assessment. Police officers, including Guerin, came to her door with a second search warrant. Guerin told Peters that the allegations made by David had been substantiated. Peters explained:
“Prior to this I said to them [the police] like ‘I can’t discount what police are saying but you haven’t provided me with any physical evidence’. Like I’m a police officer. I’m looking for evidence. Um, and I even remember it – explained to my ex that what I’m looking for is, you know, if you’ve got a victim statement that can describe the shape of his penis or says that he’s got a flesh mole somewhere. That’s the sort of stuff that would tell me that they’re – they’re not lying, because that’s what [Hills] said this kid was doing: he was lying about – potentially not it had happened to him, but that [Hills] was the offender.”[12]
[12]T147, L26 – T148, L7
22Peters said Guerin told her “in no uncertain terms” that they had evidence to substantiate the allegations sufficient to charge Hills.[13] David had given Video and Audio Recorded Evidence (VARE) in which he alleged that Hills had sexually assaulted him during a game with Nerf guns. Guerin told Peters that police had also found an image on Hills’ phone.
[13]T147, L11
23Peters said she was happy to help with the search warrant, which was for electronic devices and storage devices. She showed the police where she and Hills stored things. Hills had numerous devices set up in different rooms, a tower in the theatre room, multiple hard drives, and an external drive that was plugged into the back of a computer. She remembered helping the police find everything they needed. The Property Seizure Record,[14] shows that 34 items were seized that day, including a number of mobile phones, USB storage devices, and various hard drives. A note next to a number of the items identified that the items were “directed and shown by [Peters]”. Guerin confirmed that the items identified in this way had been pointed out by Peters.
[14]AJCB 178-183; Exhibit P5: Property seizure record from 5 December 2018
24Peters said that after hearing the allegations had been validated she told Guerin “my support for [Hills] is done”,[15] and asked what the police needed from her. Hills had been staying with his parents since his initial arrest. While the warrant was being executed at Peters’ house she became aware that Hills was refusing to answer the door at his parents’ house to enable a warrant to be executed at that address. She told Guerin that she knew the code to the door of Hills’ parents’ house and would let them in. However, on the way to the parents’ house, Hills answered the door so her assistance was not needed.
[15]T151, L20
25Peters volunteered to make a statement to police. When asked why she made that offer she said:
“cause that was the stage that, yeah, I realised that my ex was lying to me, um, and obviously had been for some time, but as – not even as a police officer, but just with the moral compass that I have, I don’t want anything to do with someone like that. Um, I’d always made it pretty clear over the years my opinion of people who offend against children, um, and that’s been strengthened by my position as a police officer as well. But, yeah, I don’t – I don’t want anything to do with someone like that and I don’t wanna help them and I’d be happy to, I guess, sink them, um, in the legal sense, um, as best I can.”[16]
[16]T152, L14-L24
26That same day, 5 December 2018, she went to Hills’ parents’ house to speak with Hills. She said she was “sick of being lied to” and planned to confront him about those lies.[17] She intended to record the conversation.
[17]T152, L31 – L153, L9
27In her car she pressed “record” on her phone and then went to see Hills. They walked down the street a short distance. She said:
“I basically cautioned him as you are taught to do in an interview as a police officer, in a casual setting, and then I asked him questions about what he had done. He again denied it, denied it, denied it. I think the – I don’t know how long the recording goes for, but it felt like forever and then I tried to stay as emotionless as I could. A few times got a little bit upset but I knew in my head the goal was to get him to talk to me, um, and I – honestly, I remember it from the academy that detectives say the more admissions you get from a defendant, the less time a victim has to spend in the box, and that helped.”[18]
[18]T153, L17 - L2
28Eventually, Hills admitted to some of the offending with which he was ultimately charged, including touching David on the genitals and filming James while in the shower.
29Peters provided the recording to police. She found two additional electronic storage devices at the marital home that had not been seized during the execution of the warrant the previous day. These were an 8GB USB and a 100GB Laptop hard drive. She attended Dandenong Multidisciplinary Centre and handed over these two additional items.
30On 24 January 2019, she provided police with a copy of the recording of Hills making admissions. She also provided a 36GB SD Card storage device used in digital cameras. This had been missed in the original seizure of property on 5 December 2018. She said she provided this item to police because:
“If these allegations have been substantiated and there’s various different mediums that child abuse [material] could be stored, I just wanted to make sure it – anything that was saved from [Hills] was analysed and used and that anything that was fine could come back. I wanted to help with the investigation.”[19]
[19]T156, L25-L31
31On 24 January 2019, she made a detailed witness statement to police.
The arrest
32On Monday, 4 February 2019, Peters was staying with her parents. She had a rostered day off and had arranged a dentist appointment. Peters’ parents had left for work and her sister was due to come over to mind AB at about 9.30am. . Peters was in the process of doing her hair. She answered a knock at the door with AB, then aged two, in her arms.
33At the door were a number of police officers including Eric Harbis, then and now a Detective Senior Sergeant at the Professional Standards Command (PSC). She recognised them immediately as detectives. Harbis introduced himself, and told her that she had appeared in an image in relation to the investigation into Hills and she was under arrest for sexual assault on a child under 16.
34She described herself as “honestly just in shock”,[20] and said:
“with the work that I’d done for so many years I know that emotions don’t go well with good decision-making so I always try to, I guess, compartmentalise as best I can, so I sort of said ‘okay do you want to come in’, because I assumed there would be obviously more to it than just that’.”[21]
[20]T159, L24
[21]T159, L26-L31
35She said that, although she knew she had not touched any children inappropriately, “a million possibilities” were going through her head,[22] such as that she was in the background when Hills had recorded himself doing something inappropriate with a child, or that she was implicated because the devices upon which Hills had stored child abuse material (CAM) were shared devices. She said she knew from her experience that there is “always a notification to DHS … because of the nature of this allegation there definitely would have been one so [AB] would have been taken away from me”.[23]
[22]T160, L10
[23]T160, L15-L18
36She remained with the police at the house for about 40 minutes until her mother returned home to take care of AB. During that time, she asked police if she was allowed to know the identity of the child she was alleged to have assaulted. She recalls the police saying words to the effect “we were hoping you could tell us”, which she interpreted as a “police line for we don’t want to talk off-tape”.[24] When her mother returned home, her mother told her she needed to get a lawyer, but Peters said she did not need a lawyer as she had done nothing wrong and did not need:
“[A] lawyer to tell me to say no comment because I’ve got no reason to say no comment. I don’t even know what the allegation is, apart from what they’ve placed me under arrest for, but I’ve got no context at all.”[25]
[24]T161, L11-L13
[25]T161, L29 – L162, T2
37She handed over her phone and passcode. Police also seized a laptop which was on the counter.[26] Another laptop was seized from the lounge room.[27]
[26]T759, L19
[27]AJCB 204; Exhibit P33: Detective Senior Sergeant Harbis Diary Entires January/February 2019
38No other devices were seized and it appears that there was no real search of the premises. Peters describes “heaps” of electronic devices that were not seized, including hard drives, USBs, three terabytes of data on a media computer, and storage devices attached to the television. She had all her USBs from high school in her bedroom and may have had some hard drives there as well. She does not think her bedroom was searched.
39She was taken by two police officers, Stephen Phelan, a Detective Sergeant with PSC and Amanda Jones, to the marital home where they executed another search warrant. She opened the house for them and describes a “cursory search”,[28] but has little other recall of what occurred at that address. Phelan could not recall if any items were seized from the marital home.[29]
[28]T165, L3
[29]T479, L10-L11
40Peters was taken to the Victoria Police Centre in Melbourne. She says when she realised where she was being taken she was “just dreading going there” because it was her own workplace and she knew she would see people that she worked with and “then they’d find out”.[30] She says she had tried to keep private what was happening with Hills but:
“was losing control of that but then for people to find out that I’d been arrested for being a paedophile and involved in that, not that I was, but that’s what the arrest says, I didn’t want my colleagues to know that, I didn’t want anyone to know that, and hearing that we were gonna literally go to the building that I work in for me to be processed, yeah, I was terrified.”[31]
[30]T1016, L4-L6
[31]T1066, L7-L14
41In the carpark used by members of her specialist team, Phelan said if they saw anyone Peters worked with in the carpark, they could stay in the car until that person passed.
42There was some dispute in the evidence about the layout of the lift well and whether it was in a public concourse. For the purposes of this case it is not necessary to resolve that dispute, as it was apparent from all the evidence that the lift well was visible to members of the public and other police officers, and Peters’ evidence that she saw a colleague while waiting at the lift well was not disputed. She describes feeling so embarrassed that she was unable to maintain eye contact, and looked at the ground.
43Although she was not in handcuffs and the detectives with her were in plain clothes, Peters felt it was obvious she was not attending for work. She was not wearing what she would ordinarily wear to work, her hair was not done, and she was not wearing makeup. She was in the custody of two people who, to a police eye, would be easily identifiable as detectives.
44She was taken up to PSC to be interviewed. Her senior sergeant was there. Peters said “she said she had been notified and was involved for my welfare, but I remember seeing the look on her face when she saw me come through those doors, and was just – it wasn’t sympathetic … just disbelief in – I don’t even know if she knew what the allegation was but just that I had done something so wrong that I’ve been arrested.”[32]
[32]T168, L31 – L169, L5
45She described waiting alone for a few minutes before the interview commenced, and feeling lost while the “endless” possibilities of what had happened went around in her head.[33]
[33]T169, L19
46Prior to the interview commencing, Peters indicated that she did not want a lawyer. Nevertheless a police association lawyer was called on her behalf. She was told in general terms that, unless she had a “rock solid alibi” she should make no comment as she did not want to be tied to a statement. Despite this advice, Peters said she had never intended to make no comment because she was not hiding anything and wanted to be as cooperative as possible.[34]
[34]T169, L24-L29
The interview
47The interview was taped and shown in Court.[35] What happened in that interview is important and, consequently, significant detail will be included in these reasons.
[35]Exhibit P8: Video recording of police interview dated 4 February 2019 between plaintiff and Detective Sergeant Phelan and Detective Sergeant Lindsey Stephens
48The interview started at 11.59am. At the start of the interview, Peters was cautioned and told her rights. She was told by Phelan that as a result of the seizure of material in connection with the investigation into Hills, “there was one image that appears to depict yourself with a young child”. She was asked whether she knew anything about that. She said she did not. She was then told the image was found on a Seagate hard disk drive (sic) four terabyte. This was one of the items she had pointed out to police during the execution of the second search warrant in relation to Hills’ offending. The route directory was:
Basic data partition/route/[Hills’ photos]/2018/[Carrie private]/super private. (“Super Private folder”)
49Peters was asked whether she knew anything about that file pathway. She said “Usually, like I keep nude selfies and things in a private folder”.
50She was then shown two photographs of herself for identification purposes – one when pregnant and another taken 12 months after her pregnancy.[36] She agreed that those photos were of her.
[36]AJCB 310; Ex P11: Two photos of plaintiff, one while pregnant
51She was shown the subject image. I will set out here the relevant parts of the exchange as I make them out on the recording. There are some words that are not included in the original transcript which are, in my view, audible in the recording and which I have inserted here and identified using italics. I have also added gestures I observed in round brackets where they are relevant. Square brackets denote a pseudonym:[37]
[37]AJCB 253-272; Exhibit D8: Transcript of Record of Interview with the plaintiff dated 4 February 2019
“Phelan: Now, can you tell me anything about that?
Peters: So that’s [Joseph] and that’s -
Phelan: Yeah. –
Peters: - - me.
Phelan: O.K.
Peters: And there’s no children in there at all.
Phelan: O.K. Is that [Joseph]?
Peters: Yeah, that’s [Joseph].
Phelan: O.K., yeah. I’m just looking at the - (Phelan demonstrates with his pen over the right side of the photo)
Peters: That’s his wedding ring.
Phelan: Yeah.
Peters: He’s got a scar. I can give you the original photo
Phelan: Yeah.
Peters: Actually I deleted – sorry I deleted that photo off my phone a couple of weeks ago, but, yeah, it there would be a deleted copy of it on my –
Phelan: O.K.
Peters: - phone. I took it, ah I guess this is gonna be in court. We organised a threesome in March last year –
Phelan: Yep
Peters: - and I took that photo and sent it to the guy that we were gonna sleep with.
Phelan: Ok
Peters: But that’s definitely [Joseph] (short laugh)
Phelan: Ok. It’s what – what brought us to the attention– what – what seems strange is there’s just no hair anywhere. (Phelan moves his pen up and down the area of the photo where the arm is depicted)
Peters: Yeah. I – he shaved.
Phelan: Has he?
Peters: Yeah. I don’t like body hair.
Phelan: Ok
Peters: So he usually shaves his chest. Gets lazy and doesn’t do it and it annoys me. Well, used to annoy me.
Phelan: Yeah.
Peters: But, yeah, I used to help him do it and –
Phelan: Yeah
Peters: ‘cause he had hair all over his body.
Phelan: O.K.
Peters: Used just the clippers at home and –
Phelan: OK
Peters: -shave him.
Phelan: Now, does he have a bent (Phelan turns the image about 90 degrees and points with his pen to the middle finger of the hand without the wedding ring)
Peters: Yeah, so he broke his finger
Phelan: OK
Peters: At hockey
Phelan: yeah
Peters: Maybe three or four years ago.
Phelan: O.K.
Peters: Got hit by two sticks.
Phelan: Yeah.
Peters: And it - it - he realised it was broken about a week or so after it happened, so -
Phelan: Yeah. –
Peters: -they couldn’t fix it. So it’s permanently bent.
Phelan: OK
Peters: Yeah. He’s-
Phelan: He- -
Peters: - got little mounds on the tops of his fingers from –
Phelan: Yeah.
Peters: - - warts and calluses and things like that.
Phelan: O.K.
Peters: So you can see that on the top of his -
Phelan: Yeah. As I said -
Peters: - finger there
Phelan: - the image isn’t great
Peters: Yeah. –
Phelan: - because it’s printed off –
Peters: Yeah
Phelan: a photocopier –
Peters: Yeah
Phelan: -sort of thing
Peters: The
Phelan: It’s not
Peters: Yeah. I –
Phelan: - fantastic.
Peters: - can tell you the original is better quality
Phelan: Yeah, yeah, yeah. I’ve seen it on there and we couldn’t really tell because there’s – there’s just no hair anywhere.
Peters: Yeah
Phelan: And just the, the, the distance in the arms – we thought –
Peters: It looks like a child
Phelan: It just looked –
Peters: O.K that’s fine
Phelan: - short. You – do you understand what we –
Peters: That’s a relief
Phelan: Yeah
Peters: O.K. No that’s definitely
Phelan: Yeah
Peters: [Joseph]. That’s definitely me in the photo.
Phelan: O.K.”
52There was some discussion about where and when the photograph was taken. Peters said it was taken in March 2018. The metadata attached to the photograph shows 18 April 2018 as the creation date, but it is understood that this records the date it was uploaded to the directory on which it was located.
53The interview then continued:
“Phelan: Just one other thing. The wedding ring from the photo – I’ve seen the original photo, too.
Peters: Yeah.
Phelan: on the screen. And it looks huge.
Peters: Yeah?
Phelan: Is that just - was it always too big for him or was it just -
Peters: I think he’s got big knuckles, but - - -
Phelan: The fingers ......
Peters: Yeah, I don’t - like, it’s not enormous, but -
Phelan: OK it just looked - like, it was - like, you know, that sort of thing (Phelan demonstrates by making a circle with his thumb and index finger to represent the ring, and puts the index finger of his other hand into the circle, as if to demonstrate the comparative size of the ring and the finger in the photograph)
Peters: Yeah
Phelan: Might be just because he’s pressing –
Peters: Yeah
Phelan: - his hands.
Peters: Might’ve just been his hands.
Phelan: Yeah.
Peters: But
Phelan: All right.
Stephens: And does he not wear his wedding ring on - on -
Phelan: Or is it - (Phelan moves his hands across each other as if to indicate turning something over)
Stephens: - his left hand? Or it is
Peters: It’s a selfie camera, so it’s been flipped.
Stephens: Oh, it’s flipped.
Phelan: Yep.”
54At this point Phelan removed the subject image from view and put it with the rest of his papers. There was discussion about what devices would contain a copy of this image. Phelan gathered his papers together. While doing this Peters said:
“Peters: But yeah, it’s definitely me, it’s definitely [Joseph] and he was – would’ve been 30 – 31 or 32 at the time.
Phelan: OK and is it a regular thing, just to shave down, Like, you
Peters: Yeah
Phelan: Don’t like body hair, so –
Peters: I don’t like it, so –
Phelan: - all gone?
Peters: Yeah
Phelan: Yeah, all right. Would you – would you describe him as fair or olive skin or –
Peters: I – Caucasian, dark hair
Phelan: But actual skin complexion. What – what would you say?
Peters: Yeah probably just fair.
Phelan: Yeah
Peters: Yeah
Phelan: All right
Peters: He’s got a scar that goes just above his belly button down to his groin –
Phelan: OK
Peters: - ‘cause he had an operation years ago. So you
Phelan: Yeah. Well I did see that.
Peters: - may be able to see that in the –
Phelan: - Well, I
Peters: - better quality
Phelan: He –
Peters: - one
Phelan: Yeah. You can possibly see it, but not on this –
Peters: Yeah.
Phelan: very well. But again when skin’s squashed – compressed –
Peters: Yeah
Phelan: -it can crease up. So we’re just –
Peters: Yeah so he does have a scar there which, if it helps identify him
Phelan: OK. But that, that knuckle there –
Peters: Yeah
Phelan: - that, that’s right hand. So his second finger on the right hand
Peters: Yep
Phelan: That’s got a permanent bend?
Peters: Yeah, so on my phone there might even be an x-ray of his actual finger
Phelan: OK
Peters: In a pictures folder
Phelan: All right, no worries.”
55Shortly after this, Phelan suspended the interview. From the time the formalities commenced when the tape was turned on until the suspension of the interview, 10 minutes and 39 seconds elapse. The interview recommenced at 12.11pm.
56Phelan told Peters that he would conclude the interview and that her explanation had explained “a lot to us, thank God, which is really good. We’re happy, you’re happy”. He told her that there would be no further investigation unless something arises “from the analysis which is going on”. Stephens asked for details of the medical centre where Hills’ broken finger was treated and x-rayed. The interview then concluded.
57During the period while the interview was suspended, Peters said she used a work computer or a police computer to log onto Facebook. There was some dispute between the witnesses as to whether she had used a police computer or had been given access to her phone to perform this task. It is not clear to me that it matters. In any event, Peters was able to locate Hills’ public Facebook page. On that page was a photo of Hills with Peters and a group of friends at the beach (“the beach photo”).[38] In that photo, Hills has a cleanshaven chest and a scar descending from his belly button. Also on Hills’ public Facebook page was a photo of Hills with Peters, James and James’ sister. James is sitting on Hills’ lap and Hills’ right hand is resting on his stomach in the forefront of the photo (“the airport photo”). The bend in the distal phalange of Hills’ right index finger is visible in that photo.
[38]AJCB 308; Exhibit P9: Two photographs of Hills provided by plaintiff on 4 February 2019
58Ms Peters said it took her “all of five minutes” to find these two photographs.
The aftermath
59After being released, Peters was driven home. Two days later her mobile phone was returned.
60Some months later, she received a letter informing her that she was exonerated.
The law
61The powers of arrest afforded to police must balance two competing considerations: the high value the law places on personal liberty and the public interest in detecting crime and bringing criminals to justice.
62The State must prove on the balance of probabilities that the police acted with lawful justification in arresting and detaining Peters.
63Section 459(1)(a) of the Crimes Act 1958 (‘Crimes Act’) provides:
“(1)In addition to exercising any of the powers conferred by section 458 or by or under any other Act a police officer, or a protective services officer on duty at a designated place, may at any time without warrant apprehend any person –
(a)he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily)”
64The legislation requires two things: the arresting officer must have an actual belief that the person to be arrested has committed an indictable offence; and that belief must be on reasonable grounds.
65The clear absence of a belief would be sufficient to render the arrest unlawful. However, in a case such as this, where all the police witnesses unequivocally and repeatedly asserted the existence of their belief, it is more difficult to assess whether what existed in the mind of the arresting officer was a “belief” or something that did not reach the level of belief – for example, a suspicion or concern or question.
66For the purposes of this case, the relevant belief is that of Harbis in relation to the arrest, and Phelan in relation to the ongoing detention. It is apparent from the evidence that Phelan had control of the detention from the time he attended the parents’ house after Peters had been placed under arrest. If Harbis cannot establish he had an actual belief, the plaintiff will succeed. If Phelan cannot establish he had an actual belief for the ongoing detention, the plaintiff will succeed in relation to her detention from the point of Phelan’s arrival.
67However, belief on its own is insufficient for the defendant to defeat the plaintiff’s case. The belief must be on reasonable grounds. The belief of other officers is, or may be, relevant to the reasonableness of the belief of Harbis and Phelan.
68A court should not judge “reasonable grounds” with the benefit of hindsight. Whether the belief is reasonable depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances.[39]
[39]Hyder v Commonwealth of Australia (2012) 217 A Crim R 571 at paragraph [15(8)] per McColl JA
69Some of the factors to consider in assessing whether an arresting officer formed a belief on reasonable grounds include the following:
(a) Whether there are facts which are sufficient to induce that state of mind in a reasonable person. That is, there must be some factual basis for the belief.[40]
(b) The belief may be based on hearsay, or inadmissible materials but those materials must have some probative value. They must be sufficiently pertinent to found the requisite state of mind.
(c) The state of mind must be formed by the arresting officer and cannot be discharged upon the “bald assertion” of the informant. However, the arresting officer is entitled to form a belief based on what they are told. For obvious and practical reasons, police officers must be able to rely on each other in taking decisions about whom to arrest. The arresting officer does not have to be in possession of all the information, but must have sufficient information to form a reasonable belief before exercising the power of arrest.[41]
(d) A reasonable belief can be based on information that turns out to be wrong. Whether the information considered by the arresting officer provided reasonable grounds for the belief will depend on the source of the information and the whole of the surrounding circumstances.[42]
(e) The belief does not have to be “on the balance of probabilities” but the circumstances must point “more clearly” to the subject matter of the belief. Belief can be based on something less than proof.[43] A belief must be something more than suspicion but does not need to be certainty.[44]
(f) Belief is “an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.[45]
(g) What constitutes reasonable grounds must be judged against what was known or reasonably capable of being known at the time.[46]
(h) Whether the arresting officer had reasonable grounds for forming a belief must be determined by objective criteria, not according to the subjective beliefs of the police at the time.[47]
(i) Where a particular source is identified, a court will ordinarily be able to assess the weight to be given to the basis for the expressed belief and to decide whether reasonable grounds for the belief exist.[48]
[40]George v Rockett [1990] 170 CLR 104
[41](Ibid) at 112 quoting R v Tillett Ex Parte Newton (1969) 14 FLR 101 at 106
[42]O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC 286 at 298
[43]George v Rockett (supra) at 116
[44]DPP v Farmer (2010) 56 MVR 137 at 138
[45]George v Rockett (supra) at 116
[46]Ruddock v Taylor [2005] HCA 48 at paragraph [40]
[47]Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 at 714
[48]NSW Crime Commission v Vu [2008] NSWCA 349
70In Hyder v Commonwealth (‘Hyder’),[49] the appellant was arrested after having been identified by the Australian Tax Office (“ATO”) as someone involved in a sophisticated fraud. A number of bank accounts had been set up and fraudulent tax returns lodged to deal with the proceeds of crime. The arresting officer had relied on information from the ATO that the appellant was a member of a criminal fraud syndicate involved in tax and internet bank fraud. In perpetration of the fraud, false identity papers, false employers, and false medical expenses had also been created. The appellant said, given that false identities had been created, the arresting officer should have drawn the conclusion that all the identification documents involved in the fraud were of questionable reliability, including the documents that showed that the appellant had opened bank accounts and lodged fraudulent tax returns. In fact the appellant had had his “identity stolen” for the purposes of the fraud and was not involved in the creation of the fraudulent accounts.
[49][2012] NSWCA 336
71In that case, the court was satisfied that the ATO had undertaken a detailed investigation in an attempt to unravel a complex fraud with many details in order to identify its perpetrators. The Court found that the arresting officer was not required to reject the evidence provided by the ATO or to make his own enquiries into the accuracy of the conclusion reached by the ATO. A reasonable person in the position of the arresting officer was entitled to take into account the apparent thoroughness of the ATO investigation which had involved obtaining, examining and analysing a significant number of primary records in relation to the scheme.
72The Court held that it will be a matter of fact in each case as to whether the materials the relevant person was considering were such as to prompt other enquiries before the relevant state of mind could be formed.[50]
[50](Ibid) at paragraph [17]
73In his dissenting judgment, Basten JA held that the arresting officer, was entitled to rely on the information supplied in the affidavits in order to form his own belief, but the fact that other officers may have held similar beliefs could not provide reasonable grounds for his belief if the grounds of their beliefs were not available to him.[51] If further information that was not in the affidavit was necessary to provide reasonable grounds for the belief, an unsupported expression of belief by another officer could not fill the gap.[52]
[51](Ibid) at paragraph [62]
[52](Ibid) at paragraph [63]
74In O’Hara, the Court held that the application of the objective test does not require the Court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds. All that the objective test requires is that these grounds be objectively examined and that they be judged at the time when the power was exercised.
75The authorities are clear that the arresting officer can rely on information provided to them, and reasonable grounds may exist even when that information is wrong.
76The task for the Court is to examine the information provided and determine whether, assessed objectively, it provides reasonable grounds for the belief.
Did Harbis have an actual belief that Peters committed an indictable offence?
77Harbis says he formed a belief based on the subject image itself and the information he was given by Phelan.
78Harbis says he saw the subject image and believed it was a child. He formed a view that the person in the subject image would be about 12 or 14. He was briefed on the subject image by Phelan who mentioned a “number of things” that he also took into consideration in forming his belief. One of them was that Phelan said that an “independent expert advised him that they also believed it was a child” and another was “the fact the husband had been charged with possession of child abuse material or sex acts”.[53]
[53]T732, L12-L16
79The belief that Peters had committed an indictable offence is indistinguishable from the belief that the subject image depicted a child. If the subject image depicted a child, then the image was evidence that Peters had committed an indictable offence, being the sexual assault of a child. If the subject image did not depict a child, there was no other evidence that Peters had committed an offence against a child.
80Harbis regarded the subject image as sufficient evidence that Peters had committed an indictable offence.[54]
[54]T738, L8-L10
81Harbis was adamant that his state of mind was a belief that Peters had committed an indictable offence, rather than just a suspicion.
82Weighing against his evidence that he had an actual belief are the following matters:
(a) His lack of questioning of Phelan, or anyone else, when told that the image was not of a child. He did not challenge Phelan when told the image was of Peters’ husband.[55] He did not know whether Phelan conducted any further investigations. Peters says if Harbis had truly believed the image depicted a child, he would have been incredulous when told the image depicted a 32 year old man, and would have challenged Phelan or asked for an explanation. The State says Harbis did not ask further questions because he was satisfied that Phelan, a competent police officer, would have conducted such investigations or asked such questions to satisfy himself of the identity of the person in the image. In those circumstances, there was no need for Harbis to challenge Phelan’s finding, and this says nothing about the genuineness of his subjective belief.
(b) Neither Harbis nor any other officer notified DHHS, even though Peters had custody of her two year old son. Peters says if Harbis genuinely believed she had sexually assaulted a child, he would have ensured that DHHS was notified in order to protect her son. The State says it was the intention of the police to notify DHHS, but there was nothing unusual in the fact that this was not done prior to or at the time of the arrest. The State says in the end, there was no need to notify DHHS and nothing can be inferred from this as to the genuineness of the belief.
(c) Police delayed arresting Peters until 4 February 2019, despite becoming aware of the subject image on 30 January 2019. Peters was away on 30 January 2019, but returned to Melbourne on 31 January 2019. No attempt to arrest her was made over the weekend, apparently due to staffing arrangements.[56] Peters says that if Harbis had truly believed she had sexually assaulted a child, he would have arrested her as a matter of urgency. The State says no inference that the belief was not genuine can be drawn from the delay in arresting Peters, as this arose as a matter of operational logistics and not because of the existence in Harbis of any state of mind less than belief.
(d) Numerous electronic and storage devices were not seized from the house at the time of Peters’ arrest. Peters says if Harbis truly believed she had assaulted a child and taken a picture of it, there would be a real prospect that she had taken other photographs of her offending, or had images of child abuse material on other devices which would need to be carefully investigated. The police’s half-hearted search of the premises and the failure to seize numerous electronic storage devices suggests they did not expect there to be other child abuse material, and this raises doubt that Harbis held an actual belief and tends to a conclusion that he had a mere suspicion.
[55]T737, L17-L20
[56]T545, L16-L22
Finding on Harbis’ actual belief
83I do not draw any conclusion from Harbis’ lack of challenge to Phelan when he was told the subject image was of Hills. There are a number of reasons why he might have reacted like this – he may be incurious, he may have retained no particular interest in the outcome after his role was complete, or he may simply have such faith in Phelan that he required no further explanation. I cannot conclude that his reaction establishes that he did not have an actual belief at the time of the arrest.
84Similarly, I cannot conclude that the failure to notify DHHS before or at the time of the arrest shows Harbis did not have an actual belief. There was no evidence of the usual practice in the timing of DHHS notifications.
85The delay in arresting Peters and the failure to seize storage devices each weigh against Harbis’ assertion that he had an actual belief that Peters had committed an offence. I infer that the failure to seize all the electronic items was based on an assumption that these could be removed later, pending the outcome of the interview with Peters. This tends towards a conclusion that the police had a suspicion, rather than an actual belief, that Peters had committed sexual assault of a child and were waiting to see what transpired in the interview before seizing more items pursuant to the warrant.
86Missing a few items while conducting a search can be explained by incomplete or inadequate execution of the warrant, but a failure to seize the majority of storage devices in the house is not consistent with a belief that the person the subject of the search warrant had engaged in sexual assault of a child, had photographed that assault, and had retained an image of that assault on a hard drive.
87In comparison, police executing the second search warrant in relation to the allegations against Hills seized 34 items, though they still missed two or three devices. This search warrant was executed in circumstances where police had a VARE alleging sexual assault from David, evidence supporting David’s allegation in the form of a Nerf gun seized during a previous search warrant, and an image from Hills’ phone that apparently confirmed the allegations.[57] The seizure of 34 items gives some indication of the manner in which police execute a search warrant when they have a belief based on evidence that a suspect has committed an indictable offence.
[57]T148, L11-L12
88By seizing just Peters’ personal phone and a couple of laptops the question arises as to whether Harbis had a suspicion or a question that required further investigation, rather than an actual belief.
89Similarly, there was no satisfactory explanation, other than staffing arrangements, to explain the reason why, having formed the view that the subject image showed a child on 30 January 2017, police delayed until 4 February 2017 to arrest her.
90I do not accept the explanations provided by various witnesses that, although they had a “strong belief” that the subject image showed Peters engaged in a sexual act with a very young child,[58] they did not consider she posed a risk to her own young son because there was no suggestion she was having sexual relations with her son, and the child in the subject image appeared older than her son. There was no suggestion that Hills had engaged in sexual relations with his son, and the children Hills offended against were considerably older than his son. Nevertheless, he was considered to pose a risk to his son.
[58]Defendant’s closing submissions at paragraph 4
91If police had the strong belief, they professed that Peters had sexually assaulted a child of 10, it is difficult to accept that staffing issues prevented her immediate arrest.
92Again, this conduct tends to suggest the police had a suspicion, a concern, or a question that needed to be further investigated, rather than an actual belief.
93However, although these factors weigh against a finding that Harbis had an actual belief, I am not able to conclude that, in spite of these factors, he did not have such a belief. The failure to undertake an adequate search and to seize items could be due to police prioritising questioning Peters over seizing items, rather than an absence of belief. The failure to arrest Peters earlier similarly could be explained by staff availability and prioritisation of duties, rather than an absence of belief.
94I need only be satisfied that Harbis genuinely and honestly had “an inclination of the mind toward assenting to rather than rejecting” the proposition that Peters had committed the offence.
95In addition to his impression of the subject image, Harbis believed that “independent experts” had concluded the image showed a child, and that Hills had been charged with offences against a child.
96Accordingly, I accept that Harbis did have such an inclination of mind and therefore he believed that Peters had committed an indictable offence.
Did Phelan have an actual belief that Peters had committed an indictable offence?
97Phelan’s belief was primarily formed by viewing the subject image at SOCIT, in circumstances where he was told by SOCIT officers that they had found child abuse material involving Peters.
98Phelan said he had formed a belief that Peters had committed a serious indictable offence and she needed to be arrested.[59]
[59]T472-T473
99Although he could not recall being told by Guerin that Hills had been excluded, he assumed SOCIT had excluded Hills, and Guerin gave evidence that she had told Phelan that Hills had been excluded.
100The factors that weigh against his having an actual belief are:
(a) the delay in arresting Peters;
(b) that DHHS was not notified;
(c) the cursory execution of the search warrant;
(d) the readiness with which he accepted Peters’ explanation during the interview.
Finding on Phelan’s actual belief
101For the same reasons as set out in relation to Harbis, I do not consider the lack of notification of DHHS and the delay in arresting Peters show Phelan did not have an actual belief.
102Phelan was not involved in the search warrant of the parents’ house. He did execute the search warrant at the marital home. However, by this stage, two search warrants had already been executed on that address in relation to the Hills’ investigation. It was probably reasonable to assume that all electronic storage devices had already been seized, and I cannot be satisfied that this cursory search demonstrates lack of actual belief by Phelan.
103The interview demonstrates that Phelan immediately accepted Peters’ explanation for the subject image. Though counsel for the State submits that the plaintiff was exonerated “based on much more than just her telling the PSC officers during the interview that it was her husband in the photograph”,[60] it was clear to me that as soon as Peters said “that’s [Joseph]”, the way in which Phelan considered the photograph changed.
[60]Defendant’s closing submissions at paragraph 71
104Though he said he still looks at the subject image and says it looks like a 10-year-old boy,[61] he conceded that he readily accepted Peters’ explanation.
“Well firstly, once the photograph was shown to [Carrie], you could see the full relief on her face and she just went, um, ‘yep, that’s his finger and there’s his scar there from a child’, straight away, there was no hesitation.”[62]
[61]T505, L5-L7
[62]T486, L1-L6
105He said that the look on her face and her evident relief, indicated to him that she was telling the truth.[63]
[63]T486, L10-L14
106Counsel for the State submitted that it was not until the plaintiff had identified the scar, the bent finger, explained about the ring, the selfie, the shaving of body hair and provided corroborating evidence in the form of photographs and x-rays that she was exonerated.
107However, it is apparent that the process of identifying those aspects was more in the way of “ticking off” a check list of concerns or issues. None of those matters was seriously interrogated, disputed or doubted by Phelan.
108I accept that this ready acceptance of Peters’ explanation does cast doubt on the veracity of Phelan’s assertions that he had an actual belief, as opposed to a suspicion, that the subject image was of a child. I am, however, not able to conclude that he did not have such a belief.
109The subject image is ambiguous. He was told it depicted child abuse material and did not question that information or his own initial impression, until forced to do so by Peters during the interview, when he readily accepted that impression was wrong.
110That ready acceptance does not establish that he did not have an actual belief at the time of the arrest.
111His lack of interrogation of that initial impression and his failure to investigate further go to the reasonableness of the belief, not the belief itself.
112I accept on the evidence that, at the time of the arrest, Phelan had an actual belief that the subject image depicted child abuse material and that Peters had committed an indictable offence.
The subject image
113The subject image was located by police in SOCIT in the Super Private folder on a hard drive seized under warrant. The subject image was one of 34 photographs in that folder. Other images depict Peters naked or partially naked, some other adults naked or partially naked, and some images of adult genitals, including images of adult genitals with pubic hair entirely removed, or clipped pubic hair.
114As was established in the police interview set out above, the subject image is flipped and therefore what appears to be on the left is actually on the right and vice versa. The subject image depicts a naked woman, Peters, sitting astride another person. That person is Hills although his face is not visible. Hills also appears to be naked, although as his groin and pubic area are not visible it is not possible to know whether he is wearing underwear. Also not visible are Hills’ right (actually left) shoulder, neck, face or head. Hills is lying flat on what appears to be a bed (a mattress protector and doona are partially visible) with his arms outstretched and his hands on Peters’ breasts. On the ring finger of his right (actually left) hand, he wears a plain ring. It is not clear whether the ring is silver or gold. There may be a gap between the arc of the ring and the skin of the proximal phalange, though it is not entirely clear as the ring is metal and is reflecting light and shadow on its surface. What appears to be a gap may just be reflection.
115The top joint of Hills’ left (actually right) index finger is noticeably bent. The tops of the index, ring and little fingers are slightly blurred in the image.
116Ms Peters sits astride Hills’ lower abdomen, facing towards him. Only the lower portion of her face is visible – her upper teeth, bottom lip and chin. Her arms disappear out of frame toward the lens of the camera. Her right (actually left) shoulder is out of frame. Peters has no visible body hair. Hills has no chest hair. There is a dispute as to whether some shading on his forearms is hair or shadow. There is no visible hair on his legs.
117The State says that in a number of aspects the photograph gave rise to a belief on reasonable grounds that it depicted a child.
Chest and body size
118All the police witnesses called by the State said that the size of the body in the image was an important factor in forming their view that it depicted a child.
119Craig Gye, a Detective Senior Sergeant in the SOCIT, said he was told that Peters was “diminutive” and that his belief “that her being diminutive, that almost certainly had to be a child because of the size and the proportions matched together”.[64]
[64]T392, L14-L16
120He went on to say that specifically the “torso, the lower part of the body, looking out behind the legs, the size comparison” led him to believe that “whoever is underneath is smaller than the person on top”.[65] He considered there was “no real musculature that I could define anywhere”.[66] He said “I formed the belief it was a child purely on the lack of musculature, the size, the proportions”.[67]
[65]T393, L1-L2
[66]T393, L8-L9
[67]T394, L10-L11
121Phelan said the “torso and the arms” were quite short in the subject image and the body looked similar to his own son who was 10 years old at the time.[68]
[68]T467, L28-L30
122Guerin said in the photograph that Peters “looks proportionate to what I know [Carrie Peters] to be”,[69] and the other person “looks small”.[70]
[69]T711, L27-L28
[70]T713, L20-L21
123Harbis gave evidence that when he first saw the photograph “I believed that it was a child or young person”.[71] He formed this belief because of the small stature of the person, the size of the body and the lack of hair. He had also been told by Phelan that the image was that of a child and “independent experts” at SOCIT had also concluded that it was a child.
[71]T730, L31 – T731, L1
124Inspector Martin, at the time an Inspector at PSC, said his belief that the subject image showed a child was based on “just, I suppose, the size, the fact that – just looking at the photo, it just looks like a young person to me”.[72]
[72]T785, L10-L13
Body Hair
125The absence of visible body hair was a relevant factor in the assessment of all the police officers who gave evidence that the subject image depicted a child.
126Gye cited the absence of body hair first.[73] Gye said he would not have expected to see body hair on the parts of Peters’ body that were visible,[74] and although he was aware that men also removed body hair, he had not turned his mind to that possibility to explain the absence of body hair on Hills. He considered the absence of body hair “to be what my premise was, that that was a child”.[75]
[73]T393, L7-L8
[74]T436, L15-L16
[75]T437, L5-L6
127Phelan gave evidence “there was no body hair at all, so it wasn’t even a suggestion it was an adult male”.[76] He said “It was a hairless body. So it was a 10-year-old’s body in that photograph”.[77]
[76]T485, L17-L19
[77]T504, L11-L12
128He said his comment to Peters in the interview that “we couldn’t really tell because there’s - there’s just no hair anywhere” meant that PSC or SOCIT could not tell the image was of Hills or an adult because there was no hair.[78] He said he had noted the absence of body hair on Peters but considered it “quite normal” for a female to “not have hair – mass amounts of hair coming up from the groin area”.[79] He agreed that men as well as women remove body hair, but said he did not know “it was a possibility” that body hair had been removed “at that time” because “we identified a 10-year-old boy at that time”.[80] He said the body looked “unblemished; not being out in the sun or not – no body hair, so nothing had been shaved off to form pimples or similar features”.[81]
[78]T510, L20-L21
[79]T517, L28-L30
[80]T518, L10-L11
[81]T467, L21-L23
129Guerin said the bare chest was one of the reasons she formed the view the image was of a child.[82] She said the absence of hair and the small nipples were consistent with other children that she had seen “at that age” being “prepubescent teen so anywhere between 10 to 16, depending on the different child”.[83] She considered the image showed a child within the lower age range of 10 to 13 years.[84]
[82]T656, L22-L24
[83]T657, L1-L2
[84]T657, L6-L7
130She said the chest in the subject image did not “look like a shaved chest hair, it looked like a bare chest, that it hadn’t been – it hadn’t grown yet”.[85]
[85]T722, L23-L25
131She did not recall any discussion that shading on the arm in the subject image could be hair.
132Harbis said he formed a belief that the subject image showed a child because of the small stature and “there was no hair visible, no pubic hair that I could see. The size of the body, really, and the lack of hair led me to believe that it was a child”.[86]
[86]T731, L12-L15
133It is not possible to determine whether the person in the subject image had pubic hair as Peters is sitting astride him and obscuring his pubic region from view. It appears likely that Hills did have close cropped pubic hair at that time, given other photographs in the Super Private folder which depict his pubic area apparently taken on the same date. Whether child or adult, pubic hair would not be visible in the subject image.
134None of the police witnesses turned their minds to the possibility that hair removal could explain the lack of body hair.
Nipples
135Two witnesses cited the appearance of the nipples as factors that contributed to their belief that the subject image showed a child.
136Gye said the nipples did not “look well formed”,[87] and did not look like adult nipples. He was not able to clearly articulate what he would expect to see in an adult nipple. He said “more emphasis on the top part of the nipple, they look sort of blurred, not – not well-formed. They look flatter”.[88]
[87]T444, L30
[88]T445, L13-L16
137Guerin said the nipples “from this picture, this angle, they don’t look, um the whole image of the chest, the nipples, doesn’t look fully formed”.[89] When asked how she would expect adult nipples to look, she said “Well, many different people have different size nipples and things. I can’t really answer that question, I’m sorry”.[90]
[89]T709, L16-L18
[90]T709, L19-L22
138She then ventured that “they look more like a child’s nipples in my opinion”.[91] When pressed on what a child’s nipple would look like she said “small”.[92]
[91]T710, L2-L3
[92]T710, L5
Small hands and size of wedding ring
139The size of the hands in the image was the subject of some evidence.
140Harbis said the small hands, amongst other things, played into his conclusion that the image was of a child.
141Gye said he made no particular observation about the hands, other than they looked too small for the ring which “looked a little big”.[93] He did not compare the size of the ring with the size of the knuckles in the image.[94]
[93]T393, L30-L31
[94]T435, L22-L23
142Phelan said the ring looked quite large for the hands and looked like someone had put an adult ring on a child’s finger.[95] He maintained that, compared to the size of the knuckles, “the ring looks huge”.[96]
[95]T468, L6-L7
[96]T512, L25
143Guerin rejected the suggestion that the hands of the person were disproportionately large compared with the body (as a consequence of being closer to the camera). Guerin said “I believed the hands looked quite small and that was one of the considerations I took into account when I was looking at the photo”.[97] She said the ring looked too big for the finger. She said she had not looked at the knuckles to compare their comparative size with the size of the ring as she was not “fixated on the knuckles”.[98] She said she did not know whether the middle knuckle is often the widest part of the finger.
[97]T713, L2-L5
[98]T767, L28
Findings on the subject image
Camera lens and angle has a distorting effect on the subject image
144It is apparent that the angle from which the photograph is taken had a distorting impact on the subject image.
145This is most clearly seen in relation to Peters. Her mouth, which is partly open and smiling in the photograph, takes up about the same width in the photograph as the distance between the nipples on Hills’ chest. Logic tells any viewer that this is a distortion caused by the comparative distance of those objects from the camera lens.
146Similarly Peters’ shoulders appear so broad in the image that one of them is completely out of frame. In contrast her hips take up only about half the width of the photograph.
147This comparative analysis does not require any sophisticated understanding of physics, or cameras and lenses, or angles. Any lay person who has ever viewed a photograph, or any two dimensional depiction of a three dimensional subject, will have a ready understanding that the appearance of three dimensions in a two dimensional form is achieved by the use of perspective – that is, to make things further from the eye appear smaller and things closer to the eye seem larger.
148Some of the police witnesses cited the size of the hands as contributing to their belief. The hands fully and easily cover each of Peters’ breasts. There are prominent knuckles, particularly on the ring finger of the right (actually left) hand.
149It is not the task of the Court to replace its opinion with that of the police officers. Nevertheless, the evidence about the size of the hands given by the police witnesses was unpersuasive.
150The police witnesses did not concede the middle knuckle is often the widest part of the finger, saying they did not know or could not speculate. They did not accept that, when compared with the size of Peters’ torso and breasts, the hands are not small, although an objective assessment of the photograph demonstrates that the hands easily cover the entirety of Peters’ breasts and extend beyond the breast toward the shoulder.
151The right (actually left) thigh of the body underneath Peters appears to be of a similar size to Peters’ thigh. Peters is a fit and muscular woman, as demonstrated by other photographs in evidence. A pre-pubescent child could not be expected to have thighs of a similar size to an adult, muscular woman.
152The left (actually right) arm shows a clearly defined musculature. Although all the police witnesses denied its existence, the subject image demonstrates development of the musculature of the upper arm. While the arm itself appears relatively thin by comparison with what is visible of Peters’ arm, it is apparent, as soon as one takes into account the perspective of the camera, that this is because of the distance of Hills’ arms from the lens compared with Peters.
153The distinct musculature, although not appearing to be bulky in the way one might expect of an adult man, is also not in keeping with what one would expect of a pre-pubescent child.
154The camera lens has produced a distorted image. At first glance, the torso appears small, the arms thin and the legs small. As soon as one appreciates that distorting effect and readjusts the assumptions made about the comparative size of body parts depicted – the hands easily cover an adult woman’s breasts, the thigh size is comparable to a muscular adult woman, the left (actually right) arm has obvious musculature – the brain appreciates that the eye cannot be trusted.
Did the police consider the distorting effect when analysing the subject image?
155When asked to agree with the proposition that things closer to the lens of the camera appear larger than things further away from the lens, Guerin said “I’m not a camera expert so I – I can’t comment on angles and cameras and what camera was used”.[99]
[99]T712, L6-L7
156Guerin said that SOCIT had discussed the camera angle and believed that it needed “further investigation”.[100] The “further investigation” contemplated by Guerin was the arrest of Peters in order to question her. It does not appear to have occurred to Guerin that the distorting effect of the lens could have created an image that appeared to be child abuse material but was not.
[100]T712, L13-L14
157Gye agreed that he had formed a “very quick impression” of the subject image, and that impression has never left his mind.[101] He said he had no obligation to “consider more seriously what the alternatives might have been”.[102] Although he accepted that the proportions of the person whom Peters was astride would look proportionally smaller than the person who was closer to the camera, he said this had not occurred to him at the time. He said he did not go into a “deep analysis”,[103] and that it had not occurred to him that the angle of the camera would impact the appearance of the image.[104]
[101]T449, L20-L23
[102]T449, L29-L31
[103]T439, L21-L23
[104]T440, L9-L12
158Gye was taken through the process of comparing the size in the subject image of Peters’ teeth, lips and upper torso with her hips and thighs. In the subject image, those parts of Peters’ body closer to the camera appear significantly larger than those parts of her body further away from the camera.
159He was asked whether, having gone through that exercise, he was now thinking a little differently about the image than he did at the time. He said “No, I’m not. I still believe that’s a child. I believe what I believed at the time.”[105]
[105]T440, L17-L18
160Phelan said he did not know the subject image was a selfie and “didn’t really know about selfies as such”.[106] He said he had considered the angle of the photograph and that body parts closer to the camera appeared larger than body parts further away,[107] but the torso “just looked like a small torso”.[108] The prospect that the torso appeared smaller than it was because of the distorting effect of the camera had not crossed his mind “because it looks like a child’s body”.[109] It had not occurred to him at the time that the impression of a small torso might be a distortion caused by the angle from which the photo was taken.[110] I do not accept that he had considered the angle of the photograph and the fact that body parts further from the lens can appear smaller when deciding that the subject image showed a child.
[106]T496, L3-L4
[107]T514, L2-L6
[108]T514, L24-L25
[109]L514, L29-L30
[110]T515, L1-L3
161Harbis said “I saw the photo on face value, I didn’t interpret anything other than what it depicted or what I believed it depicted”.[111] When asked to explain what he meant by “face value”, he said “Well, whether it was distorted or had been in any way tampered with or photographically enhanced or anything like that, I didn’t consider that”.[112]
[111]T775, L24-L26
[112]T775, L27-L30
162The police did not take into account the distorting effect of the camera lens when assessing the subject image and forming the conclusion that it showed a child.
Other aspects of the photograph that contributed to the belief it was a child
Body Hair
163The absence of body hair was cited by all police witnesses as contributing to their belief that the subject image showed a child. The torso is hairless. It is not possible to know whether the absence of body hair extends to the pubic region, as this is covered by Peters’ body. It is not possible to tell from the subject image whether there is hair on the forearms, or whether there is shadowing or shading on the forearms. One could not be confident ruling out the presence of hair on the forearms.
164All police witnesses acknowledged that body hair can be removed, and that Peters’ body hair had been removed in the subject image. Despite this, none of the witnesses had considered the possibility that the absence of body hair could be explained by its deliberate removal. The reason for not considering this was, in all cases, because the body looked like that of a child.
165Guerin said even if she had seen other images of Hills with a bare chest “it still wouldn’t have relieved my belief that that was a child in the image”.[113] She agreed that images of Hills with a bare chest would “potentially” have indicated that he was a man who, from time to time removed his body hair, but did not think Hills’ practice of body hair removal was “a point of interest for our case at SOCIT”.[114]
[113]T707, L9-L11
[114]T722, L30-L31
166Harbis agreed that men as well as women removed body hair, but had not thought at the time of viewing the subject image that body hair removal might explain the absence of body hair.[115] He did not know whether SOCIT members had any particular expertise in the prevalence of body hair in adult males.[116]
[115]T754, L1-L2
[116]T754, L21-L22
167He said the photograph “didn’t sort of give me the impression it was an adult that had been shaved down. The photo gave me the impression that it was a young child – a young person or a child”,[117] and this was because of other features of the photograph.
[117]T774, L21-L25
168Although both Phelan and Guerin gave evidence that the body in the image did not appear to be that of someone who had removed hair but rather someone who had never grown hair, there was no evidence of the visual distinction between a freshly shaved chest and a chest upon which hair had never grown. It is not apparent to me that such a distinction could be made in this photograph. Other photographs in evidence showing Hills with a shaved chest do not show stubble on the chest, and it is not possible to tell from those photos whether Hills has shaved or did not grow chest hair. Photographs in the Super Private folder showing other men with no chest hair also do not show stubble. There are no visible pimples or blemishes that would mark those chests from which hair has been removed from those chests on which hair has never grown.
169Had the subject image shown a hairy chest this might have “flipped the switch” in the brain assessing the image to appreciate the image was an adult and not a child. Conversely, had the torso looked more obviously adult, the absence of hair would not have resulted in anyone forming the belief that the image was that of a child.
The ring was too big
170Phelan considered the ring looked “huge” on the finger, although during the police interview he appears to have come to his own conclusion that what appears to be a gap between the ring and the finger might be because the ring is pushing against flesh underneath. As noted above, it is not clear from the subject image whether there is a gap or an appearance of a gap due to the reflective surface of the ring.
171The ring itself looks like a plain wedding band and does not appear disproportionate to the finger having regard to the size of the knuckle over which the ring must fit.
The nipples
172Gye and Guerin both cited the apparent child-like appearance of the nipples as contributing to the belief that the image depicted a child. This opinion was not expressed by Harbis or apparently communicated to Harbis, and is arguably irrelevant. However, Harbis did rely on the apparent expertise of SOCIT members in forming his own belief.
173The evidence about the “child-like” appearance of the nipples was unpersuasive. Neither witness could articulate what was child-like about the nipples other than their apparent smallness, which was a feature of the distortion of the lens. In relation to the size of the chest they appear perfectly proportionate. It is not clear what was meant by the evidence that the nipples did not look “well formed” or “fully formed” or how this would tend towards a conclusion that the nipples belonged to a child or an adult.
174I am not persuaded that anything about the nipples could contribute to a reasonable belief that they belonged to a child.
Does the subject image alone provide reasonable grounds for the belief?
175A proper analysis of the image does not provide a reasonable basis to conclude it shows a child. It is an ambiguous image which required more than a cursory glance before any conclusions could be reached.
176It was incumbent upon police to take into consideration the perspective of the camera and the potential that the camera lens had a distorting effect on the resulting image, when analysing the image and forming a conclusion. Had the perspective of the photograph been considered, it would have been readily apparent that the image required further investigation before a reasonable belief could be formed that it showed a child.
177The police did not turn their minds to a consideration that was open to them – that body hair existed but had been removed – because they had failed to consider that the apparent small body size could be a distorting effect of the camera.
178A challenge to that first assumption – that the body is too small to be an adult – was made by Peters in the police interview. As soon as Peters identified Hills, it is obvious that Phelan immediately began to reassess the assumptions he had made about other features of the photograph. He readily accepted the explanation that Hills shaved his body hair. He pointed out the bend in the finger, not as a feature that pointed to the age of the person, but as a means of identifying Hills. He then explained to Peters why he and others thought the image was of a child:
397I am satisfied that Victoria Police inform the media when a police officer is suspended or arrested, and this is an appropriate mechanism for ensuring transparency. The media release was drafted in accordance with this policy but was not released. Acknowledging the organisational risks if a member is arrested for sexual offences against a child is appropriate, and does not create a presumption that the organisation placed its own reputation above Peters’ rights.
398Aspects of police conduct deserve criticism:
(a) the failure to concede that they had made a mistake or could learn anything from the situation;
(b) the failure to acknowledge they should have done anything differently in the investigation;
(c) the misguided assumption that police procedure in some way required Peters’ arrest and that questioning her without arrest was not an option.
399However, I am not persuaded that these matters demonstrate contumelious disregard or are sufficiently reckless to warrant a punitive award against the State.
Does Peters have an entitlement to claim damages for psychiatric injury?
400Part VBA of the Wrongs Act applies to claims for injury, and imposes restrictions on the recovery of damages for non-economic loss. A person cannot recover damages for injury unless they have a significant injury, or fall within a relevant exception to the operation of Part VBA.
401Under s28LB “injury” includes:
(a) pre-natal injury; and
(b) psychological or psychiatric injury; and
(c) disease; and
(d) aggravation, acceleration or recurrence of an injury or disease.
Does Peters’ psychiatric injury fall within an exception to the operation of Part VBA?
402Section 28LC provides exceptions to the application of Part VBA.
403The relevant exception in this case is:
“(2)(a)A claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct.”
404Peters says s28LC(2)(a) applies because the tort of false imprisonment is an intentional act done with intent to cause injury.
405The State says Peters failed to plead both an intention to falsely imprison her and an intention to cause her harm and cannot now rely on s28LC(2)(a). In any event, the State says s28LC(2)(a) does not apply because there is no evidence of an intention to cause injury, as is required by the authorities.
406In Kaplan v State of Victoria (No 2) (‘Kaplan’), the Court held that, where an intentional tort is pleaded, the plaintiff must establish both the intention to commit the tort and the intention to cause the injury.[255] That case involved allegations of bullying within a school.
[255][2022] FCA 679 at paragraph [17]
407The State submits that Snell v State of Victoria (Department of Education and Training) (‘Snell’), supports the proposition that s28LC(2)(a) requires a subjective intention to cause the injury. [256] In Snell, the relevant torts were battery, assault and false imprisonment.
[256][2022] FCA 5
408The Court rejected an argument that the requisite intent could be inferred,[257] and held that the plaintiff would have to plead and make out the allegation that the tortfeasor had an actual intention to cause injury.[258]
[257](Ibid) at paragraph [43]
[258](Ibid) at paragraph [44]
409Peters seeks to distinguish Kaplan and Snell, and says a claim for false imprisonment is itself a tort that carries with it the intent to cause harm, being the loss of liberty.
410She relies on the case of Gebrehiwot (who sues by his litigation guardian Tamar Hopkins) v State of Victoria (Ruling No 2) (‘Gebrehiwot’) where, in a claim for damages for a psychiatric injury arising from battery and false imprisonment by police officers, that court held that s28LC(2)(a) applied and a certificate was not required. [259]
[259][2019] VCC 1229
411Peters also relies on the NSW cases of State of NSW v Ibbett (‘Ibbett’),[260] and Hamilton v State of New South Wales (No 13) (‘Hamilton’),[261] and submits “injury” in s3B(1)(a), the NSW equivalent of s28LC(2)(a), should be given its natural and ordinary meaning,[262] which would include anxiety and distress resulting from false imprisonment.[263]
[260][2005] NSWCA 445 (‘Ibbett’)
[261][2016] NSWSC 1311 (‘Hamilton’)
[262]Ibbett (supra) at paragraph [11]
[263]Ibbett (supra) at paragraph [125]
412I am not persuaded that any of the cases relied on by the plaintiff demonstrate that s28LC(2)(a) provides an exception for the tort of false imprisonment to the operation of Part VBA.
413In Ibbett, the intentional tort alleged was assault. The Court held that the police action (pointing a gun at the plaintiff and screaming at her) was intended to cause an apprehension of physical violence in order to coerce the plaintiff into a particular action. The intention to cause the harm – the apprehension of physical violence and the psychiatric injury that flowed from it – are contained within the tort alleged and did not need to be separately pleaded.
414In Hamilton, the plaintiff was forced into a concrete wall and onto the pavement in the course of his arrest, resulting in physical injuries to his face, neck and ribs as well as Post-Traumatic Stress Disorder.[264] The physical assault that was part of the arrest was sufficient to show an intent to cause injury during the intentional tort of false imprisonment.[265]
[264](Supra) at paragraph [2]
[265](Supra) at paragraph [169]
415Likewise, in Gebrehiwot, each of the alleged torts involved the deliberate application of force to the plaintiff’s body to result in pain and submission to the will of the police member.[266] Those deliberate actions brought the claimed tort within the exception.
[266](Supra) at paragraph [188]
416I do not accept that Gebrehiwot stands for the proposition that deprivation of liberty itself constitutes an injury for the purposes of the Act.
417The words “done with intent to cause injury” must have some work to do.
418For s28LC(2)(a) to apply, Peters must establish not only that there was an intentional tort, but that the tort was committed with an intent to cause harm.
419There is no evidence that the arresting officers not only intended to arrest her, but also intended to harm her by causing a psychological injury. While it is true that a plaintiff is not in a position to know the subjective “intent” of an arresting officer, intent can be inferred from action, as is apparent from Gebrehiwot, Ibbett and Hamilton. I do not accept the submission that requiring an intent to cause injury by the intentional tort presents an unworkable and insurmountable burden for plaintiffs.
420To the extent that Ibbett and Hamilton stand for the proposition that “injury” must be given its ordinary meaning and can include injuries such as stress and anxiety, I note that the comparative NSW legislation (Part 1 of Civil Liability Act 2022 (NSW)) does not include a definition of personal injury, in contrast to the Wrongs Act which, for the purposes of this part, defines injury as a personal or bodily injury including psychological or psychiatric injury.
421I do not accept that the stress and anxiety that is likely to be induced by an arrest and could therefore be considered an “intentional” part of the act, amounts to a personal or bodily injury that falls within the definition.
422Accordingly Peters claim does not fall within any exception under s28LC, and Part VBA applies to her claim for damages for her psychiatric injury.
Is Peters precluded from recovering non-economic loss damages by reason of her failure to serve the prescribed information?
423Section 28LE provides that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another, unless the person injured has suffered a significant injury.
424Section 28LF defines what, for the purposes of this Part of the Act, constitutes a significant injury. In summary, a significant injury is an injury that has been assessed by an approved medical practitioner as satisfying the relevant threshold level.
425Section 28LG deals with how the assessment of impairment must be undertaken. Relevantly, it provides that the impairment must be assessed by an approved medical practitioner in accordance with the AMA Guides.
426Under s28LN, an approved medical practitioner who makes an assessment of impairment must provide to the person seeking the assessment a certificate of assessment. That certificate must state whether the degree of impairment satisfies the threshold level.
427Division 4 of the Wrongs Act then provides the procedure by which a claimant can claim non-economic loss.
428In summary, the claimant must serve the certificate of assessment (‘the certificate’) on the respondent. The claimant must also serve the “prescribed information” in the prescribed form.
429Once served with both the certificate of assessment and the prescribed information, the respondent has 60 days in which to respond to the claimant. The respondent can, relevantly, either accept the assessment or refer the claimant to the Medical Panel for assessment. The Medical Panel assessment of impairment is binding on all parties and the Court.
430If a respondent does not refer the claimant within 60 days, the respondent is deemed to have accepted the assessment and the claimant is deemed to have a significant injury for the purposes of claiming non-economic loss.[267]
[267]Section 27LW(4) of the Wrongs Act 1958
431The prescribed information includes the name of the claimant, the injury claimed, and the medical practitioners who have treated the injury.[268] The information is intended to assist the respondent to decide whether to accept the assessment or make a referral to the Medical Panel.
[268]Regulation 8 of the Wrongs Act (Part VBA Claims) Regulations 2015
432In this case, Peters was assessed by Associate Professor Paoletti on 28 February 2020. She sent that report to the solicitors for the State on 1 September 2020, well prior to issuing proceedings.
433On 15 November 2021, she served her writ and statement of claim on the State.
434On 4 February 2022, solicitors for the State wrote to the solicitors for Peters noting they had not been provided with the certificate and “accompanying materials”. They asked whether Peters intended to rely on a certificate for the purposes of seeking non-economic damages. Peters did not respond to that letter.
435On 10 February 2022, the State filed its defence and pleaded that Peters was precluded from recovering non-economic loss damages because her injury had not been assessed, and she had not sustained a significant injury pursuant to the Wrongs Act.
436On 20 October 2022, Peters provided the certificate to the defendant. It was not accompanied by the prescribed information and the prescribed information has not been provided at any time. Nevertheless, the State had Peters assessed for medicolegal purposes by Associate Professor Doherty on 5 April 2023 and 11 May 2023. It says this was because Peters had included a claim for economic loss (subsequently not pressed) and a psychiatric assessment would be relevant to that part of her claim.
437Shortly before the trial, on 4 July 2023, the State wrote to Peters’ solicitors, informing them that Peters was not entitled to any award of damages for personal injury because she had not served the prescribed information.
The State’s submissions on Peters’ entitlement to claim non-economic loss
438The State submitted that the failure by Peters to serve the prescribed information precludes her from claiming damages. Her right to claim damages is not enlivened because she has not established that she has a significant injury.
439A significant injury can only exist once the procedure under s28LT has been followed and one of the following occurs:
(a) the certificate is accepted;
(b) the significant injury is deemed; or
(c) the Medical Panel has assessed the claimant and made a determination that the claimant meets the threshold.
440In this case, because the prescribed information has not been served, the 60-day period in which the State could accept the certificate or refer Peters to the Medical Panel has never commenced.
441Accordingly, Peters’ certificate has not been accepted, her injury has not been deemed significant, and the Medical Panel has not made an assessment.
442The State says it is not until both the certificate and the prescribed information are served that its ability to make a referral to the Medical Panel is enlivened.
443The State had no capacity to refer Peters to the Medical Panel. The certificate has not been accepted, Peters cannot be deemed to have a significant injury, and therefore she has not satisfied the requirements of Part VBA. She is precluded from bringing a claim for non-economic loss for personal injury.
444The State says the fact that it could have sought a stay of proceedings under s28LZMA, which provides the Court with power to stay a proceeding until a certificate and other information is served, is not to the point. The State could have elected to seek a stay, or it could elect, as it did, to rely on its pleading that Peters has no entitlement to non-economic damages.
445The State submits that, if the Court does not accept that Peters is precluded from claiming non-economic loss damages, it retains its entitlement to refer her to the Medical Panel.
Peters’ submissions on Peters’ entitlement to claim non-economic loss
446Peters says Part VBA provides a threshold which a claimant must meet in order to enliven an entitlement to claim non-economic damages.
447In this case, by serving the certificate, Peters has enlivened her entitlement.
448Once that entitlement is enlivened, the onus is on a respondent, the State, to seek a stay of proceedings if they are not provided with the material they require to make a referral to the Medical Panel.
449Peters relies on the explanatory memorandum which sets out that the Court has a discretion to stay proceedings until the claimant serves the respondent with the certificate and other information. This, Peters submits, demonstrates that the intention of the part is not to preclude a claimant from claiming non-economic damages, but rather to ensure compliance by granting the Court the power to stay proceedings where there is non-compliance. The explanatory memorandum notes that “granting power to the Court to require this material is intended to improve the efficiency of the claims process”.[269]
[269]Explanatory Memorandum, Wrongs Amendment Bill 2015 (Vic) at 11, clause 12
450Peters says the lack of prescribed information does not damage the validity of the certificate, and the power of the State to refer her to the Medical Panel was enlivened by the service of the certificate. Peters relies on Redline Towing and Salvage Pty Ltd v The Convenor of Medical Panels[270] as authority for the proposition that the Medical Panel retains jurisdiction despite a failure of compliance with s28LT.[271]
[270][2012] VSC 472
[271][2012] VSC 472
451Peters says she has an entitlement to claim damages for non-economic loss, and that entitlement has not been extinguished by the failure to serve the prescribed information.
452In the event that the Court agrees that she had an entitlement to damages for non-economic loss, counsel reserved Peters’ right to be heard on whether it was now open to the State to refer her to the Medical Panel.
Analysis of Part VBA
453The first question to determine is whether Part VBA precludes Peters from claiming non-economic damages.
454Part VBA is titled “Thresholds in relation to recovery of damages for non-economic loss”. Division 2 of that Part is titled “Restrictions on recovery of damages for non-economic loss”.
455The use of the word “recovery” is deliberate and must have work to do. Unlike claimants injured in transport accidents or at work, who must establish they meet the threshold for “serious injury” before they are entitled to make a common law claim for damages, this part of the Wrongs Act is directed specifically to recovery of damages.
456Peters is not precluded from claiming damages for non-economic loss because she did not plead that she had a significant injury pursuant to the Wrongs Act. She pleaded that she had suffered injury, loss and damage, particularised as “unspecified anxiety disorder and hurt and humiliation”.
457An “unspecified anxiety disorder” is clearly a personal injury.
458There is nothing in Part VBA that precludes an individual claiming damages for non-economic loss. Rather, it operates to preclude recovery of damages if the claimant cannot meet the relevant threshold for significant injury.
459The insertion of s28LZMA, which provides the Court power to stay a proceeding until the claimant has served on the respondent the certificate of assessment and any other information that is required, envisages that a proceeding may be commenced for non-economic loss damages without the claimant having served either the certificate or the prescribed information.
460The question then becomes, when must a claimant establish the existence of a significant injury?
461The legislation does not specify a time by which a claim for non-economic loss damages must be made except that, pursuant to s28LZM, the claimant must file the certificate of assessment with the Court “before the determination of the claim”.
462There is nothing in the legislation to preclude a claimant from claiming non-economic damages, even up to and including the date of trial.
463The power for a respondent to seek, and the Court to order, a stay, is designed to avoid the exact situation that has arisen here.
464There has been no explanation provided to the Court as to why Peters did not serve the required information.
465As to why the State did not seek a stay, counsel submitted that the State elected not to seek a stay, and to proceed on the basis that Peters was either not claiming non-economic loss damages or was precluded from claiming non-economic loss damages.
466The State says it was entitled to assume that Peters was not claiming non-economic loss damages because:
(a) It had pleaded in its defence that the plaintiff was not entitled to non-economic loss damages and the plaintiff had not filed a reply.
(b) It did not receive a response to its letter of 4 February 2022. In that letter, the State asked whether Peters intended to rely on a certificate of assessment referred to in the report of Associate Paoletti (which had been served).
(c) On 4 July 2023, the State wrote to Peters’ solicitors and said it would rely on its defence and the fact that the plaintiff had failed to follow the procedures in Part VBA of the Wrongs Act, including by failing to serve the certificate of assessment and prescribed information as required under s28LT.
467I note that Professor Paoletti’s report (without the medical certificate) was provided prior to the writ and statement of claim being filed.
468At the time the defence was filed, the defendant had not received the certificate which was subsequently provided. Similarly, at the time of the 4 February 2022 letter, the certificate had not yet been provided. That certificate was provided in October 2022. Whether, in the context of a certificate, the State was entitled to presume that Peters was not claiming non-economic damages is doubtful.
469I am satisfied on the balance of probabilities that the State did know that Peters was claiming non-economic damages as there is no reason she would otherwise have served the certificate of assessment. The State could have sought a stay given it had not received the prescribed information.
470It is apparent from the affidavit material that many other matters were being dealt with by parties in the period leading up to trial. The solicitor with conduct of the matter for the plaintiff had taken over from another solicitor only in January 2023, and may not have been aware that the prescribed information had not been served, given that the State had not raised the issue since the service of the certificate, and had not sought a stay. A lengthy and time-consuming issue arose about access to Peters’ Police Psychology Unit records, as well as requests for further discovery, and the exchange by both sides of further medical material. In this context, the parties may have overlooked the provision of the prescribed information and the opportunity to seek a stay.
471In my view, there is nothing in the legislation that precludes Peters from claiming non-economic loss damages. She has included a claim for psychiatric injury in her statement of claim, and obtained and provided a certificate.
472It is at least arguable that, as the certificate of assessment was filed with the Court, Peters’ claim for non-economic damages can be determined pursuant to s28LZM.
473However, this does not mean that any damages awarded can be recovered.
474In Redline Towing, Pagone J held that the obligation imposed by s28LT is to ensure that the information required to be provided is identified with precision.[272] It is not for the defendant to infer or assume from other material what the prescribed information might be. He said that the terms should be construed so as to give them a reasonable and practical operation, and envisaged that the prescribed information might “accompany” the certificate in the relevant sense by being provided in a covering letter.[273] That was not the case in Redline Towing, and nor is it the case here.
[272](Supra) at paragraph [10]
[273](Supra) at paragraph [10]
475It is not for the defendant to try to discern from medical records and other material what injury Peters claims or which medical practitioner has treated her.
476In Redline Towing, the claimant argued that her injury was “deemed” significant, as more than 60 days had passed since she had served the certificate, and the prescribed information had effectively been provided, though not in the prescribed form.
477The Court held that the 60 days in which to refer the claimant to the Medical Panel did not start until service of both the certificate and the prescribed information, and therefore the injury was not “deemed” significant.
478The same principle applies here. The prescribed information was not served in the prescribed form and therefore the time under s28LW has not commenced.
479Both sides made submissions as to whether, in the absence of the prescribed information, the Medical Panel would nevertheless have jurisdiction to convene and assess a claimant.
480The State submitted that its entitlement to refer Peters to the Medical Panel is enlivened only after receiving the certificate and the required information under s28LWE. Division 5 provides the appropriate procedure for referring a matter to the Medical Panel. Section 28LZA mandates that a respondent referring a medical question to a Medical Panel must submit a:
(a) notice in writing and in the prescribed form setting out:
(i)the medical question; and
(ii)any other prescribed information; and
(b) a copy of any relevant certificate of assessment served on the respondent by the claimant under s28LT.
481The State submits that this supports an interpretation that it is only after receipt of both the certificate and the prescribed information that it can refer a matter to the Medical Panel, and the Medical Panel’s jurisdiction to make an assessment is enlivened.
482On the other hand, s28LZA(3) provides that the Medical Panel may refuse to proceed to consider a medical question if it is not provided with the documents required. This envisages that the Medical Panel could proceed and therefore could both accept a referral and convene, in circumstances where not all the documents required have been provided.
483This is in keeping with Redline Towing, where the Court held that, although the provision of material by the claimant was mandatory, that did not mean that the respondent could not “waive strict compliance or that the Panel will lack jurisdiction to consider a question referred to it”.[274]
[274](Supra) at paragraph [8]
484In other words, the mandatory nature of the provisions prevents the party whose obligation it is to provide material from getting a benefit if there has not been strict compliance, but allows the party who is entitled to receive the material to waive strict compliance.
485In this case, even in the absence of the prescribed information, the State could, and perhaps should, have referred Peters to the Medical Panel. However, they did not do so. What then flows from the fact that they did not make such a referral?
486Pursuant to Redline Towing, it cannot be said that the significant injury is deemed or that the time for referral has expired.
487The situation is far from ideal and has arisen because of the failure of Peters to provide the prescribed information and failure of the State, a model litigant, to seek the prescribed information or obtain a stay.
488This has resulted in an unusual and unhappy situation where the trial of the proceeding does not finalise all issues in dispute.
489Had a stay been sought, it is highly likely the prescribed information would have been promptly provided, the plaintiff would have been referred to the Medical Panel, and this issue would not have been left to the trial.
490Whatever the reason, the State did not seek a stay, and the issue did not come before the Court until the first day of trial. Both parties sought that the matter proceed, and the issue be revisited, if necessary, at the end of the trial.
491Proceeding with the trial as scheduled avoided significant wasted costs for both parties, the waste of Court resources, and the additional stress and anxiety that would have been caused to Peters and the police witnesses had the matter been adjourned.
Findings on whether Peters is precluded from recovering non-economic loss
492I am satisfied that Peters is not precluded from claiming non-economic loss damages and is not precluded from recovering those damages if she is able to prove she has a significant injury.
493I will hear from the parties as to the appropriate course in relation to the Part VBA claim.
23
0