Edwards v State of New South Wales

[2021] NSWSC 181

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Edwards v State of New South Wales [2021] NSWSC 181

Hearing dates:

30 April 2019;
1-2, 6-9 and 30 May 2019;
19-21 August 2019;
29 May 2020

Date of orders:

4 March 2021

Decision date:

04 March 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following orders:

(1) Judgment for the defendant.

(2) The plaintiff’s further amended statement of claim is dismissed.

(3) The plaintiff to pay the defendant’s costs as agreed or, in default of agreement, as assessed.

Catchwords:

TORTS – further amended statement of claim – malicious prosecution – the identity of prosecutor – reasonable and probable cause – malice – false imprisonment – damages – orders

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Evidence Act1995 (NSW)

Police Act 1990 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

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

Bailey v Director General of Natural Resources [2014] NSWSC 1012

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

Beckett v State of New South Wales [2015] NSWSC 1017

Briginshaw v Briginshaw (1938) 60 CLR 336

Clavel v Savage [2013] NSWSC 775

Clyne v State of New South Wales (No 1) [2011] NSWSC 629

Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18

Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714

Daniels v Telfer (1933) 34 SR (NSW) 99

Davis v Gell (1924) 35 CLR 275; [1924] HCA 56

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208

Edwards v Department of Fair Trading [2019] NSWCATOD 5

Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167

Fernando v Commonwealth of Australia(No 4) [2010] FCA 1475

Gillies v State of New South Wales (No 2) [2014] NSWSC 1598

Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311

Hamod v New South Wales [2011] NSWCA 375

Hamod v State of NSW [2007] NSWSC 600

HD v State of New South Wales [2016] NSWCA 85

Herniman v Smith [1938] AC 305

Ho v Powell (2001) 51 NSWLR 572

Holgate-Mohammed v Duke [1984] AC 437

Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336

Landini v State of New South Wales [2008] NSWSC 1280

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

McCrohon v Harith [2010] NSWCA 67

Mohamed Amin v JogendraBannerjee [1947] AC 322

Mulcahy v The Queen [2012] ACTCA 3

Mutton v Baker [2014] VSCA 43

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

New South Wales v Cuthbertson [2018] NSWCA 320

New South Wales v Delly [2007] NSWCA 303

New South Wales v Robinson (2019) 266 CLR 619 [2019] HCA 46

New South Wales v Zreika [2012] NSWCA 37

Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371

R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540

R v The Associated Northern Collieries (1910) 11 CLR 738

Robinson v State of New South Wales [2018] NSWCA 231

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

Saad v State of New South Wales; Saad v State of New South Wales [2016] NSWSC 1247

Savile v Roberts (1698) 19 ER 1147

Shahade v Bischoff [2015] NSWCA 418

State of New South Wales v Hathaway [2010] NSWCA 184

State of New South Wales v Landini [2010] NSWCA 157

State of New South Wales v Randall [2017] NSWCA 88

State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46

State of New South Wales v Zreika [2012] NSWCA 37

State of NSW v Hathaway [2010] NSWCA 184

The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29

Thomas v State of New South Wales (2008) 74 NSWLR 34

Uren v John Fairfax & Sons (1966) 117 CLR 118

Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31

Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33

Wilkie v The Commonwealth (2017) 263 CLR 487; [2017] HCA 40

Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Wood v State of New South Wales [2018] NSWSC 1247

XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448

Zaravinos v New South Wales (2004) 62 NSWLR 58

Category:

Principal judgment

Parties:

Matthew Edwards (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Cohen (Plaintiff)
A N Williams with T Buterin (Defendant)

Solicitors:
Opara & Singh Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2014/00349652

Judgment

INTRODUCTION

1. HIS HONOUR: By a further amended statement of claim filed on 3 May 2017 (“FASOC”), Mr Matthew Edwards (“the plaintiff”) claimed damages for false imprisonment and malicious prosecution. His claim arose out of his arrest on 25 February 2011, and subsequent prosecution, for causing grievous bodily harm to Mr Daniel Fing (“Mr Fing”) with intent to murder. On 18 February 2013, the plaintiff’s trial commenced. On 26 February 2013, a jury returned a verdict of not guilty.

2. The plaintiff sued the State of New South Wales (“the State”) as being vicariously liable for the actions of (the then) Detective Senior Constable Jason Gill (“DSC Gill”) and the employees, agents and officers of the Office of the Director of Public Prosecutions (“ODPP”). DSC Gill was the Officer-in-Charge of the investigation into the shooting of Mr Fing.

3. The State admitted that it would be vicariously liable for torts committed by DSC Gill or prosecutors within the ODPP, but denied any such alleged torts were committed.

THE PLAINTIFF’S CASE

4. The FASOC was lengthy with the pleadings and particulars extending to 33 paragraphs which, with sub-paragraphs, expanded the pleadings and particulars over about 16 pages. Counsel for the plaintiff also filed a written submission dated 17 September 2019, extending over 68 paragraphs (“the plaintiff’s written submissions”).

5. Based upon the combination of those pleadings and submissions, the case for the plaintiff on liability, in broad terms, ultimately consisted of the following:

1. The plaintiff’s arrest at about 3.15am on 25 February 2011 and subsequent detention was lawful. The plaintiff’s detention became unlawful at about 8.16am that morning by which time DSC Gill “was seized with information which warranted the unarrest of the plaintiff and deferment of any charges”: FASOC at para 9.

2. DSC Gill was the only prosecutor for the purpose of the tort of malicious prosecution.

3. DSC Gill acted without reasonable and probable cause:

1. when initiating the prosecution insofar as he intentionally and falsely stated that the plaintiff had been positively identified as the shooter and intentionally withheld the plaintiff’s alibi;

2. in both a subjective and objective sense, as evidenced by the fact that in cross-examination he said that, as at the day the plaintiff was charged, there was insufficient evidence to obtain a search warrant. From this, the plaintiff says DSC Gill:

1. “when the evidence gathered by police was objectively scrutinised the offence taking place in the manner alleged by the prosecution was impossible”;

2. intentionally failed to properly investigate the crime scene and facts relating to the charges; and

3. DSC Gill acted without reasonable and probable cause and with malice when maintaining the prosecution insofar as he knew that the plaintiff was innocent and that the complaint against the plaintiff was not genuine.

RELIEF

6. The plaintiff seeks the following relief:

1. General damages in respect of and the amount of:

1. Economic loss past and future $1,456,000 or in such other amount as determined by the Court.

2. For physical, psychological and psychiatric hurt, curtailment of liberty, injury to reputation and disruption to life and enjoyment of life and generally $1,441,200 or such other amount as the Court determines.

2. Aggravated damages for injured feelings, insult and humiliation arising from the facts and circumstances of the case as between 25 February 2011 to 25 February 2015 in the sum of $250,000 or such other amount as determined by the Court.

3. Exemplary damages as arising the facts and circumstances as pleaded in an amount to be determined by the Court.

4. Interest.

5. Costs.

THE PRINCIPLES OF LAW

Malicious Prosecution

7. The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322.

8. The constituent elements of the tort were stated by the plurality of the High Court in an extensive decision on the topic in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A v NSW”) at [1] (per Gleeson CJ, Gummow, Kirby Hayne, Heydon and Crennan JJ). These were succinctly reformulated by the High Court in Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 (“Beckett”) at [4], as follows:

1. the prosecution was initiated by the defendant;

2. the prosecution terminated favourably to the plaintiff;

3. the defendant acted with malice in bringing or maintaining the prosecution; and

4. the prosecution was brought or maintained without reasonable and probable cause.

9. In these proceedings, issues arise as to the third and fourth step.

10. The conduct on which the tort focuses is the taking of an “active step” by the relevant prosecutor. A mere omission to act is not an active step. Nor is a state of affairs.

11. The principles and authorities were summarised by the Court of Appeal in State of New South Wales v Landini [2010] NSWCA 157 (“Landini”) at [52]-[59] (per Macfarlan JA, with Tobias JA agreeing at [1], Sackville AJA agreeing at [119]). There, the Court of Appeal said:

[52] To deal with these submissions, it is necessary to refer to authorities relating to the acts which are capable of constituting the maintenance of a prosecution for the purposes of the tort of malicious prosecution.

[53] In Daniels v Telfer the plaintiff alleged that shortly after the defendants procured the issue of a warrant for the arrest of the plaintiff on a charge of larceny, the defendants became aware that the plaintiff was innocent of that charge. The plaintiff’s Declaration filed in those proceedings alleged that the defendants “falsely and maliciously and without reasonable and probable cause refrained from taking any steps to prevent the execution of the said warrant and to prevent the plaintiff from being arrested thereunder” (Daniels v Telfer at 99). On demurrer, the Court held that the Declaration was defective as it did not allege that the defendants maliciously took any active step to continue the prosecution.

[54] Harvey ACJ made the following observations:

“In my opinion malicious prosecution connotes an active prosecution of the plaintiff. It must be shown that at some time when the defendants took some steps towards pressing on the prosecution they were actuated by malice. Mere saying nothing, taking no part in pressing on the execution, in my opinion is no breach of any duty which the defendants owed to the plaintiff. They must at the time when they do something by way of prosecution of the defendant be actuated by malice and without reasonable or probable cause. All that is alleged here is that after the warrant had been properly issued they refrained from taking steps to withdraw the warrant. In my opinion that gives no cause of action. Had they taken any steps such as by way of giving evidence in support of the prosecution, had they actively prevented the giving of evidence by persons who were qualified to give evidence, had they suppressed evidence, then I think on the authorities on the cases which have been cited to us, particularly the case of Fitzjohn v [Mackinder] (8 C.B. (N.S.) 592 and 9 C.B. (N.S.) 505)[,] I think the Court is justified in saying that they took an active step actuated by malice without reasonable and probable cause sufficient to establish malicious prosecution; but mere abstaining from doing or taking any action at all is not, in my opinion, malicious prosecution” (at 102).

[55] James and Halse Rogers JJ concurred. Halse Rogers J added the following observation:

“The only matter that has caused me any doubt is that in the course of the history the pleader alleges that the defendants procured a further adjournment of the hearing. That in itself of course was an active step and in my opinion in a declaration properly framed, if the plaintiff declared that after the arrest the defendants knowing of the innocence of the plaintiff maliciously and without reasonable and probable cause suppressed from the magistrate their knowledge of the innocence of the plaintiff and procured an adjournment and caused damage to the plaintiff, in my opinion that would give them ground for action …” (at 103).

[56] In Fitzjohn v Mackinder, a decision of the Court of Exchequer Chamber referred to by Harvey ACJ, the defendant gave false evidence in civil proceedings that the plaintiff had signed an acknowledgement. The plaintiff denied that the signature was his, but he was disbelieved by the County Court judge who determined the civil claim. The judge, on his own motion, bound the defendant over to prosecute the plaintiff for perjury. This the defendant did by preferring a bill of indictment, but the plaintiff was ultimately acquitted.

[57] The plaintiff was non-suited in his subsequent action against the defendant for malicious prosecution, but he succeeded in obtaining a verdict on appeal (Cockburn CJ, Bramwell and Channell BB agreeing, Blackburn and Wightman JJ dissenting). Cockburn CJ, with whom Channell B concurred, said this (9 CB (NS) 505 at 531; 142 ER 199 at 210):

“In my opinion … a prosecution, though in the outset not malicious, as having been undertaken at the dictation of a judge or a magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide relief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused. Take, for instance, the case of a prosecutor, who, after the commitment of a prisoner, and before going before the grand jury, chanced to discover the clearest proof of the prisoner’s innocence, and yet went on with the indictment and prosecution, suppressing the newly-ascertained facts, and supporting the case against the prisoner by evidence either absolutely false or rendered so by the suppression of facts which would have shewn the innocence of the accused. Can it be said that to prefer an indictment under such circumstances, to be followed up by such a course of proceeding as I have referred to, would not be a malicious prosecution, for which the man whose life or liberty had been put in peril by it should have a remedy by civil action?”.

[58] Daniels v Telfer was followed in Coleman v Buckingham’s Ltd where it was held that allegations that the plaintiff had maliciously and without reasonable and probable cause continued the prosecution of a civil proceeding by taking certain identified steps were capable of establishing the commission of the tort. The steps alleged to have been taken comprised the procuring of an order to proceed, and of a judgment, “by falsely and maliciously representing to the court by a false affidavit certain facts” (at 178).

[59] The joint judgment in A v New South Wales pointed out that “[t]he identification of the appropriate defendant in a case of malicious prosecution is not always straightforward. ‘To incur liability, the defendant must play an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion’” (at [34] citing John G Fleming, The Law of Torts, 9^th ed (1998) LBC Information Services at p 676). Their Honours continued:

“[35] In Martin v Watson ([1996] AC 74), a woman made an allegation that her neighbour had indecently exposed himself to her whilst standing on a ladder in his garden. She went to a police station and complained. A detective constable laid an information against the neighbour. At a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. The House of Lords held that, since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had ‘in substance procured the prosecution’ ([1996] AC 74 at 89). The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation ([1996] AC 74 at 89). Lord Keith of Kinkel quoted with approval a statement by McMullin J in the Court of Appeal of New Zealand (Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 207-208), that a person may be regarded as the prosecutor if he puts the police in possession of information which virtually compels an officer to bring a charge”.

12. In the context of the tort of malicious prosecution, a prosecution is not initiated by an arrest. Rather, it is not initiated until the process of a court is invoked. As the Victorian Court of Appeal held in Mutton v Baker [2014] VSCA 43 at [37]:

[37] In the present case, there is simply no allegation in the statement of claim that the defendant has invoked or commenced the processes of any court. The statement of claim alleges nothing more than that a complaint was made to the police and that the police arrested the plaintiff. That conduct is insufficient by itself to ground an action in malicious prosecution. That part of the claim has no real prospect of success. In my opinion, the judge was right to dismiss it.

13. The tort has what the High Court has described as a “temporal dimension”: A v NSW at [59]. The High Court said:

[59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.

14. Thus, what is relevant, however, is what the plaintiff proves about the material that the prosecutor had available for consideration, first when deciding whether to commence the proceedings, and thereafter from time-to-time during the maintenance of the prosecution, as opposed to any material that may have come to light subsequently: see also, A v NSW at [58].

15. The “temporal dimension” of the tort makes it critically important to identify the time at which each active step of initiation or maintenance occurred. It is at that time that the issue of malice and the issue of absence of reasonable and probable cause are to be assessed.

16. The High Court reinforced this temporal dimension in Beckett at [4]. There, the High Court said:

[4] … One aspect of that consideration which assumes importance in this appeal is the discussion of the temporal dimension of the tort: proof of the absence of reasonable and probable cause directs attention to the state of affairs at the time the defendant is alleged to have instigated or maintained the prosecution. Evidence bearing on the existence of reasonable and probable cause is confined to the material available to the defendant at the time the prosecution was commenced or maintained.

[Footnotes omitted.]

17. In Wood v State of New South Wales [2018] NSWSC 1247 (“Wood”), Fullerton J said (at [246]):

[246] In an action for malicious prosecution the need for a close focus on what are contended to be deficiencies in the evidence is allied with the importance of recognising the temporal dimension to that enquiry. An enquiry into the question of the absence of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged the prosecution was maintained. Moreover, as the High Court observed at [59] in A v NSW, the enquiry necessarily directs attention to the material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not any material that may have come to light thereafter.

18. This Court has repeatedly emphasised the importance of the temporal dimension: see, eg, Bailey v Director General of Natural Resources [2014] NSWSC 1012 (“Bailey”) at [307] and [346] (per Fullerton J); Hamod v State of NSW [2007] NSWSC 600 at [19] (per Simpson J); Clyne v State of New South Wales (No 1) [2011] NSWSC 629 at [56] (per Fullerton J).

19. The onus of establishing absence of reasonable and probable cause is on the plaintiff, and that typically gives rise to forensic difficulties. As the High Court said in A v NSW at [60]:

[60] It is important to recognise that, in an action for malicious prosecution, the plaintiff must establish a negative (the absence of reasonable and probable cause). The forensic difficulty of proving a negative is well known. At least some of the questions presented in this appeal arise because there is an inevitable tendency to translate the negative question — whether the defendant prosecutor acted without reasonable and probable cause — into the different question — what will constitute reasonable and probable cause to institute criminal proceedings. The logical relationship between the two forms of question tends to obscure first, the importance of the burden of proof, and secondly, the variety of factual and forensic circumstances in which the questions may arise.

20. The High Court dealt with the test for absence of reasonable and probable cause throughout A v NSW. However, the following propositions from A v NSW warrant particular notice. At [77], the High Court stated:

[77] There are three critical points. First, it is the negative proposition that must be established: more probably than not the defendant prosecutor acted without reasonable and probable cause. Secondly, that proposition may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief. …

21. The plaintiff bears the onus of proving a negative with respect to absence of reasonable and probable cause. That onus is normally met, at least in part, by the tender of the brief of evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [33]; State of NSW v Hathaway [2010] NSWCA 184 (“Hathaway”) at [180] (per Tobias, McColl and Macfarlan JJA). Thus, if the plaintiff presses on the Court some analytical approach to the evidence available in aid of a submission that there was an objective deficiency, then the plaintiff would normally tender all of the material available to the prosecutor.

22. It may also be noted that during closing submissions, in reply to the contents of the State as to the appropriate test to be applied, counsel for the plaintiff submitted:

Our position is fundamentally that subjectively there was a lack of reasonable and probable cause subjectively on the basis that simply Mr Gill had no genuine belief in the validity of the proceedings, or at least if he did have a belief they were valid in the sense was for the Court to determine the issue. That in itself would not be a legitimate belief.

23. Notwithstanding that clarification of position, the plaintiff submitted “in any event objectively the material would not amount to reasonable and probable cause”.

24. The plaintiff did not, however, identify with any certainty how that contention was advanced, or tender, the brief of evidence from the criminal proceedings in this civil action. An index to the prosecution brief of evidence was tendered by the plaintiff in his case.

25. The State correctly submitted that it is readily apparent that the material otherwise tendered is not the same as that included in that index. As a consequence of this failure, it was contended, again with some force, there is an inference that the plaintiff is not able to demonstrate absence of reasonable and probable cause, at least objectively.

26. As an example, during the cross-examination of DSC Gill, the following exchange occurred on 27 August 2019:

T404.49

Q. Well it doesn’t show that, sir. What it says is initial inquiries with Telstra through iASK indicated that Telstra would be able to provide connection details …

T405

... in relation to time and dates of internet connections—

Well, the brief of evidence will have the initial iASK I submitted to Telstra back in March 2011, so we could track it that way.

Q. Well, sir, I haven’t seen a copy of any initial iASK.

A. Well it’s in the brief of evidence. Hence why – the whole reason the laptop went to SEEB was because Telstra couldn’t give me the information.

Q. Sir, in fact you actually never asked for that information—

A. That’s ridiculous.

Q. And you intentionally never asked for that information?

A. On what grounds would I not ask. Why would I ask for all his mobile phone tower information and not the internet? I was crucial to the brief, either way.

27. While it was suggested by counsel for the plaintiff that DSC Gill never asked for information from Telstra, relevant parts of the brief of evidence were not before the Court referable to that issue and, in particular, DSC Gill’s evidence as to an “original” iASK request. It was not established that initial request was not in the brief of evidence.

28. As to the standard of proof, s 140(1) of the Evidence Act1995 (NSW) states that the case must be proved on the balance of probabilities. However, under
    s 140(2), the Court is to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The allegations now made against DSC Gill are grave within the meaning of s 140(2) and of the utmost seriousness having regard to the statements of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 362 (per Dixon J). This is particularly so given that, at para 20 of the plaintiff’s written submissions, the plaintiff submitted that the shortfalls in DSC Gill’s investigation were intentional, rather than a product of incompetence. If proved, they would constitute, among other things:

1. criminal conduct contrary to, see example, s 319 of the Crimes Act 1900 (NSW) (general offence of perverting the course of justice), which carries with it a term of 14 years’ imprisonment; and

2. breaches of DSC Gill’s professional ethical duties.

29. The burden of proof on the plaintiff is, therefore, an onerous one because of the allegations of impropriety that the actions entail: Landini v State of New South Wales [2008] NSWSC 1280 at [45] (per Hall J) (it may be noted the relevant passage was not disturbed on appeal), referring to Dixon J’s judgment in Briginshaw; see also Hathaway at [259]-[273]. That is, in order for the plaintiff to make good his case against DSC Gill, clear and cogent evidence is required: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; Briginshaw at 361-362 (proof to the state of reasonable satisfaction cannot be produced by “inexact proofs, indefinite testimony, or indirect inferences”, where the nature and consequences of the facts to be proved are grave and inherently unlikely).

30. In Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 (“Fernando”), the Federal Court at [129]-[130] held:

[129] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, a Full Court of this court considered the standard of proof required in civil proceedings in the light of Briginshaw and the requirements of s 140. The Court said (at 480 [32]) that:

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

The Full Court continued (at 482 [37]), saying that:

Ultimately, because this is a civil, not criminal, proceeding the civil standard of proof applies. Thus, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability, that [the impugned conduct had occurred].

[130] A finding that a Commonwealth Government Minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly to be characterised as grave. The legal consequences are potentially serious as too is the effect on the Minister’s reputation. In circumstances in which, on the facts found, conflicting inferences are open and one of those inferences is favourable to the respondent, the court will not be satisfied that the applicant’s case has been proved to the necessary standard. For the reasons which we have explained this is such a case.

31. In Wood at [30]-[31], Fullerton J did not accept the Court’s observations in Fernando as being authority for the proposition that the plaintiff must exclude any hypothesis available or open on the evidence before finding an unfavourable hypothesis proved. Rather, her Honour noted:

[30] … Competing hypotheses may be “open” but one of greater probability than another will allow a conclusion to be reached that, having regard to the matters to which reference must be made in s 140(2), it has been made out to the level of reasonable satisfaction.

[31] Proper consideration of the conclusion expressed at [130] in Fernando, when considered in the context of what the Full Court of the Federal Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466; [2007] FCAFC 132, and which was extracted at [129] of Fernando, reveals that the Court was concerned with conflicting “open” hypotheses for conduct where those hypotheses were of equal degrees of probability. To accept, as I understand the defendant to submit, that Fernando is authority for the proposition that an open and favourable hypothesis must be excluded before accepting a competing open and unfavourable hypothesis, even if it is less likely, would be, in my view, to alter the applicable standard of proof.

32. The onus is on the plaintiff in respect of each element is particularly important when a solely inferential case is mounted. Where a case relies on inferences, the onus of proof is discharged only if the circumstances “do more than give rise to conflicting inferences of equal degrees of probability”: Luxton v Vines (1952) 85 CLR 352 at 358 (per Dixon, Fullagar and Kitto JJ).

33. Particulars play an important role in a malicious prosecution case. Allegations of malice and absence of reasonable and probable cause are serious allegations and there is a special need for distinct pleading and clear proof. This is no more than an application of the general principle that an opposite party should always be fairly apprised of the nature of the of the case he is called upon to meet: R v The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 (per Isaacs J).

34. These general principles are fortified by rr 15.3 and 15.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 15.3 states: “A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies”.

35. Rule 15.4 states:

15.4  Allegations as to condition of mind

(cf SCR Part 16, rule 3; DCR Part 9, rule 21)

(1) A pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies.

(2) In subrule (1), condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.

36. The effect of these rules, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given.

37. As regards absence of reasonable and probable cause, the High Court’s decision in A v NSW described the content of the “absence of reasonable and probable cause” element.

38. The Court identified two ways in which absence of reasonable and probable cause might be established, which are commonly described as “subjective” and “objective” aspects of the element. Those two aspects appear in [58] of the judgment, where their Honours said:

[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.

39. The High Court returned to these two aspects at [70]-[71] of the judgment, where their Honours stated:

[70] There are several questions bound up in the proposition that absence of reasonable and probable cause requires an examination of what the prosecution "made" or "should have made" of the material available to the prosecutor when he or she decided to prosecute, or to maintain an existing prosecution. As has already been noted, two kinds of inquiry are postulated: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material). Does proof of the absence of reasonable and probable cause require proof of the absence of a state of persuasion (a "belief") in the mind of the prosecutor? What is the subject-matter of the state of persuasion that is to be considered? Is it a persuasion about the likelihood of a particular outcome of the prosecution (the conviction of the person prosecuted)? Is it a persuasion about what the material considered by the prosecutor reveals ("guilt" or "probable guilt" of the person prosecuted)? Or is it a persuasion about that material's sufficiency to warrant setting the processes of the criminal law in motion? What, if any, weight may be given by the prosecutor to the existence of various checks and balances, like the interposition of committal proceedings and the assignment of particular functions to the Director of Public Prosecutions, that form an integral part of the system of criminal justice?

[71] Those questions should be answered as follows. If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the defendant prosecutor's state of persuasion. The subject-matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the processes of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies (as was certainly the case in Sharp v Biggs) the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt (as the plaintiff alleged in Mitchell v John Heine) the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff.

40. At [80], the High Court identified two negative conditions for this element of the tort, the first of which relates to the subjective aspect of this element and the second of which relates to the objective aspect. Their Honour said:

[80] … But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established.

41. As to malice, it is well-established that the malicious purpose must be the sole or dominant purpose of the prosecutor. In Av NSW at [91], the High Court said:

[91] What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor.

42. The High Court continued at [93]:

[93] Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to "purposes other than a proper purpose" might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with the principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.

43. The plaintiff must therefore prove – not just raise conjecture or suspicion – that the sole or dominant purpose of DSC Gill at the time of the taking of each active step was some purpose other than the proper invocation of the criminal law.

The Prosecutor

44. The plaintiff contended DSC Gill as the only prosecutor for the purposes of the tort of malicious prosecution. This is notwithstanding his pleading that “the Office of the DPP” conducted and maintained the prosecution and the parties’ prior agreement that, on Wednesday, 2 March 2011, the DPP took over the conduct of the prosecution.

45. As to the latter consideration, an agreed fact in these proceedings, as set out in the Joint Memorandum of Agreed Facts and Issues in Dispute filed 3 October 2018, dealt directly with the issue of the real prosecutor as follows (at para 3(d)(xii)):

xii. the proceedings following the charging of the plaintiff were commenced by Detective Senior Constable Gill, the prosecution was taken over by the Director of Public Prosecutions on 2 March 2011, and the prosecution was conducted thereafter by the Director of Public Prosecutions.

46. I pause to record that I accept the submission by the State that, in light of the reformulation of the plaintiff’s case, any reference in the FASOC to the DPP (including Mr Pincott, Crown Prosecutor), or any other police officer (including DSC Selkirk) conducting, maintaining or otherwise having any responsibility for the conduct or maintenance of the prosecution ought to be struck out.

46. Mr Jonathan Cohen of counsel for the plaintiff contended that DSC Gill remained the prosecutor after 2 March 2011 based upon the following:

1. DSC Gill was the Officer-in-Charge and it was his decision to charge the plaintiff;

2. DSC Gill was personally involved in the prosecution: he took statements of evidence, “caused evidence to be made”, and dealt with experts;

3. DSC Gill carried out the investigation and made all the important decisions in relation to the investigation;

4. DSC Gill liaised with the DPP and the police expert witnesses;

5. Mr Pincott’s evidence was that by the time the matter came to him he was duty bound to run the case and all the important decisions had been made;

6. there was no specific evidence in relation to the role of the DPP and its employed solicitors and the defendant led no evidence to suggest anyone else was the prosecutor for the purposes of the tort and the Court can make a Jones v Dunkel inference in the regard;

7. the mere fact the Crown Prosecutor proceeds with the prosecution is not determinative of the prosecutor;

8. there may be more than one prosecutor for the purposes of the tort; and

9. Reference was also made to portions of the FASOC to DSC Gill maintaining the prosecution after 2 March 2011.

48. During oral submissions, the plaintiff further submitted:

1. The DPP is not the prosecutor for the purposes of this tort. Whilst the DPP is the legal prosecutor, “the legal prosecutor is not the same prosecutor for the purposes of the tort”. Reliance was placed upon the authority of Wood v State of NSW.

2. As to any contention that the plaintiff conceded the DPP was the prosecutor, in an agreed statement of fact, it was submitted: “That concession was only a technical concession in the sense that the Director of Public Prosecutions was the legal prosecutor not for the purposes of the tort”. (It was also noted that no claim was brought against the “DPP” and the pleading only refer to the “ODPP”).

49. As Fullerton J in Wood observed, citing Bailey and A v NSW, it is important for the plaintiff to establish the identity of a prosecutor against whom it is said he was prosecuted maliciously.

50. The identity of the prosecutor is significant because it is that individual’s state of mind, and conduct, that is relevant for determining whether the tort of malicious prosecution is made out. In Wood at [580], Fullerton J remarked on the importance of properly identifying the prosecutor:

[580] In Bailey I expressed the importance of the plaintiff establishing the identity of a prosecutor against whom it is said he was prosecuted maliciously as follows:

[284] In A’s case the High Court was not concerned with a general enquiry into the identity of those to whom responsibility or accountability for the tort of malicious prosecution might be extended. This much is clear from what was said at [36]-[38]. What the Court did emphasise was that it is important to properly identify the prosecutor in proceedings brought to recover damages for the tort of malicious prosecution in order to ground and focus the critical enquiry into whether the plaintiff has proved that person (or, if more than one prosecutor, those people) acted maliciously and without reasonable and probable cause in initiating and maintaining the proceedings and, as the Court said at [38], in focusing attention upon those critical questions, whether those who “effectively set the proceedings in motion” acted tortiously.

[285] At [38] the Court said:

For the reasons explained by the House of Lords in Glinski v McIver [1962] AC 726, justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.

51. Her Honour in Wood also noted at [146]:

[146] Since the accountability imposed by the tort of malicious prosecution is only imposed on a person who plays an active role in the conduct of the proceedings by effectively instigating or setting them in motion (see A v NSW [37]-[38]), it is necessary in this case to identify who the prosecutor is (or who the prosecutors are if there be more than one) as a discrete issue.

52. As this Court recently observed Ea v Diaconu [2019] NSWSC 795 (“Diaconu”) at [60] (per R A Hulme), citing Clark v State of New South Wales [2016] NSWSC 808 at [59], even where the State is alleged to be vicariously liable for the tort of a prosecutor in a public prosecution, it remains necessary to identify the individual who is alleged to have committed the tort.

53. The Court, in Diaconu, summarily dismissed the plaintiff’s statement of claim, which alleged the torts of misfeasance in public office and malicious prosecution. That decision was the subject of an application for leave to appeal: Ea v Diaconu [2020] NSWCA 127. I note that the applicant ultimately did not press the appeal insofar as it related to malicious prosecution. That is, the application proceeded on the basis of misfeasance in public office alone and the appeal was allowed against the first and third respondents.

54. It is well-established that the inquiry as to the prosecutor is one of substance. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ said that the law “looks beyond legal theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor”.

55. The inquiry is therefore into the person or persons who, at each time, are instrumental in prosecuting the accused.

56. It follows that the pleadings and the agreed statement of fact cannot be determinative of the question raised by the parties, namely, was DSC Gill the prosecutor or a prosecutor after 2 March 2011?

57. The New South Wales Court of Appeal has recently cautioned against assuming that the officer-in-charge of an investigation is ipso facto a prosecutor. In HD v State of New South Wales [2016] NSWCA 85 (“HD”), the Court of Appeal observed (at [74]-[76]):

[74] Claims for malicious prosecution are commonly brought against the prosecutor and sometimes against additional defendants. As the High Court explained in A v New South Wales at [34]: “To incur liability, the defendant must play an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion” (citing John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services) at p 676).

[75] In State of New South Wales v Landini [2010] NSWCA 157, Macfarlan JA (Tobias JA and Sackville AJA agreeing) at [52]-[59] referred to the type of acts which are capable of constituting the “maintenance” of a prosecution for the purposes of the tort of malicious prosecution. It is unnecessary to repeat what is there stated. The common feature in the authorities is the requirement that the defendant, by some positive conduct, maintain the prosecution.

[76] For the purposes of the appeal, it may be assumed, without deciding, since no argument was advanced to the contrary, that Detective Cameron is to be taken to be a prosecutor in relation to both the assault charge and the ADVO proceedings. In proceeding on this basis, I would hasten to add that it should not be assumed that, as a general proposition, all investigating police, let alone those named as “officer-in-charge” of the investigation, are to be treated as the real prosecutor. In all cases, it will depend on the circumstances.

58. Section 9 of the Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”) at the relevant time provided:

9 Taking over prosecutions or proceedings

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

(a) carry on the prosecution or proceeding;

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

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

(d) conduct, as respondent, an appeal in any court in respect of the offence.

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

(a) the offence is a prescribed summary offence, or

(b) a person otherwise responsible for the matter has consented in writing.

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

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

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

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

(5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.

59. Section 10 provides for the Director to give notice when he or she takes over a matter under s 9. The effect of s 9(4)(a) is to deem the DPP to be the prosecutor (not a prosecutor) in connection with the prosecution. There does not appear to be evidence as to such notice.

60. In light of those principles, an inquiry which should properly be made concerning whether, on the evidence, DSC Gill had some decision-making responsibility in relation to the prosecution, such as whether it should proceed or be terminated; what evidence and what charges it might be based upon; or what case theory might be pursued: Diaconu at [81].

61. In my view, when based on that analysis and what follows below, the evidence reveals that DSC Gill did not take active steps in maintaining the prosecution from 2 March 2011. In fact, his own view was that the DPP had complete carriage of the matter: T391.43-44.

62. Given the DPP’s role pursuant to s 9, after 2 March 2011, DSC Gill had no further decision-making role as to composition or formulation of the charges to be presented against the plaintiff, nor was he able to cause the charges to be withdrawn. That is, he ceased to be a prosecutor as and from that date. This is because he was not responsible for, and took no active steps in, maintaining the prosecution. This may be contrasted to the plaintiff’s case predicated on DSC Gill’s omissions or failures in the course of his investigation during this period. The situation can be contrasted with that which was before the Court of Appeal in Landini.

63. Mr Landini was arrested and charged with supplying heroin. He pleaded guilty to those charges and then received a sentence of 15 years’ imprisonment. During a Royal Commission into the New South Wales Police Service, evidence was given by one of Mr Landini’s arresting officer (Mr Knox) that the evidence in support of Mr Landini’s charge was fabricated in that the heroin was planted in Mr Landini’s vehicle.

64. During the prosecution of Mr Landini, Mr Knox prepared, and handed up to Court, a “Facts and Antecedents” document headed “Facts in relation to Henry Charles Landini charged supply heroin”. The document described the arrest, including that Mr Landini was found in possession of heroin. The Court of Appeal found that this, amongst other conduct, was conduct which constituted “maintaining” the prosecution for the purposes of the tort. Macfarlan JA, with whom Tobias JA and Sackville AJA agreed, held (at [67]-[69]):

[67] In my view these matters indicate that on 19 March 1984 Mr Knox in the relevant sense “maintained” the prosecution of the respondent. At first instance the respondent established that Mr Knox did so maliciously and without reasonable and probable cause. He did so because the judge found that Mr Knox had participated in the fabrication of the critical evidence against the respondent. Mr Knox therefore knew on 19 March 1984 of the falsity of the charge against the respondent.

[68] Mr Knox was present at the District Court when the document that he had prepared and that he knew contained false information was tendered to the Court as material, and probably essential, support for the conviction and sentencing of the respondent. Mr Knox was not present in court simply as a spectator but was there to support the prosecution of the respondent by giving evidence to the effect of what was contained in the “Facts and Antecedents” document in the event that its veracity was challenged. The Crown Prosecutor who tendered the document was in the same position as the police officer in Martin v Watson [1996] AC 74 (described in A v New South Wales…). As in that case, the facts relating to the alleged offence were not here within the Crown Prosecutor’s knowledge and in progressing the prosecution of the respondent on 19 March 1984 he “could not have exercised any independent discretion” (see A v New South Wales at [35]…). By making the document available for use by the Crown Prosecutor, Mr Knox put the Crown in possession of information which “virtually compel[led]” the Crown Prosecutor to press the charge (see ibid at [35]).

[69] This conduct of Mr Knox satisfied the requirement that, to be liable for malicious prosecution, a defendant “must play an active role in the conduct of the proceedings” (A v New South Wales at [34]…). 

65. The Court of Appeal has since observed that, with respect to maintaining a prosecution, the common feature in the authorities is the “defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false”: Shahade v Bischoff [2015] NSWCA 418 at [121] (per Gleeson JA, with whom Basten JA and Beech-Jones J agreed).

66. The plaintiff tendered in his case, without limitation, a number of contemporaneous statements made by various police officers, including DSC Gill. Taking that evidence, and DSC Gill’s evidence in cross-examination into consideration, the evidence (and my impression of DSC Gill’s evidence) does not support a conclusion that he was acting on the basis of any animosity towards the plaintiff, or through some partiality towards Mr Fing. The evidence does not reveal DSC Gill having taken any active steps (in the Landini sense) in the prosecution. Rather, it shows that DSC Gill did little more than banal tasks of collation and following up experts (which largely corresponded to the extent of any claim by the plaintiff as to DSC Gill’s involvement). As the State put it, the factual investigation was front loaded given the events of the night in question. This might be contrasted with Detective Jacob in Wood, who was far more actively involved in that prosecution, but was still found not to be a prosecutor for the purposes of the tort.

67. I reject the submission that a Jones v Dunkel inference may be drawn regarding the State’s “failure” to call evidence of DSC Gill’s interaction with the DPP. The difficulty with the contention is the onus borne by the plaintiff and a failure by counsel for the plaintiff to raise such issues in his cross-examination of DSC Gill or the Crown Prosecutor. As Mr Adrian Williams, counsel for the State, submitted, “it would be an astonishing finding… [for there to be] some inference against the defendant about a matter entirely unexplored and where … you would assume [the communications] to be privileged”.

68. The State was under no onus to prove the identity of the prosecutor for the purposes of the tort, and no adverse inference ought to be drawn in this regard. In any event, the plaintiff’s case against the DPP was not directed at any individual and had no content. The plaintiff did not identify the content of the inference he invites the Court to draw.

69. As to Mr Pincott being bound to run the prosecution, the evidence was merely hypothetical. He was not asked specifically about the trial or the plaintiff and whether any such issue arose at or before the trial. His evidence was to the effect that there was processes to be gone through and “By the time I receive [a] brief all of those processes are generally gone through” (T345).

70. On the view that DSC Gill ceased being a prosecutor on about 2 March 2011, then all that falls for assessment on the plaintiff’s case is whether DSC Gill acted with an absence of reasonable and probable cause, and with malice, in initiating the prosecution. This is because the plaintiff’s contention that DSC Gill was the prosecutor for the purposes of maintaining the prosecution is wrong at law. I shall nonetheless later deal with reasonable and probable cause as if maintenance were an active consideration both under the heading “Factual Background and Issues in Dispute” and “Reasonable and Probable Cause”.

False Imprisonment

71. A false imprisonment is an intentional, total and direct restraint on a person’s liberty. There is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140] (per Kirby J, in dissent but not on this principle).

72. Mr Cohen of counsel who appeared on the plaintiff was correct to submit false imprisonment is the unlawful arrest or detaining of any person: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714. A significant difference between false imprisonment and malicious prosecution is that with false imprisonment, if the detaining or arrest was unlawful, the tort is established. The intent of the person doing the detaining is not relevant. See Ruddock v Taylor at [140].

73. Counsel for the plaintiff was also correct to submit that in Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 the concept of imprisonment was given a broad meaning to include circumstances where a person is led to believe that if a person attempts for example to leave, they would be compelled by force to remain.

74. The power to arrest is given by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), which provides:

99  Power of police officers to arrest without warrant

(cf Crimes Act 1900, s 352, Cth Act, s 3W)

(1) A police officer may, without a warrant, arrest a person if—

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

531. I agree with the submissions of the State that the evidence of the plaintiff is deficient so far as it seem to prove very significant emotional trauma. This may be illustrated by the plaintiff’s evidence below:

Q. And in terms of those letters there, do you agree that you were concerned about those issues, that are letters A to J, the issues that concerned you while you were in custody?

A. They were certainly issues of being in custody, and they were also issues that were constantly on my mind, yes.

Q. Can I just take you to J.? I don't want you to look at it, sir, if you can just tell me how you were feeling while you were in custody?

A. Well, essentially I was, I guess it would say beyond just being in custody for the first time, it was a sense of being in there for something that I had completely no knowledge of. So, my whole time in custody was essentially from when I was released from my cell at any one time, I'd be on the phone trying to organise what I could organise, to call my father for help, my lifeline.

Q. Yes, but just going back to the first point you made about something you had no knowledge of, can you explain to the Court what you mean by that?

A. I mean well I was completely innocent of the charges. I had no knowledge of any shooting, and that was the basis of my feelings when they were more than just simply being in custody for the first time, and what would go with it.

540. Further, the plaintiff’s Record Inmate Interview at Cessnock Correctional Centre, as recorded in the CCC record, does cast doubt as to the extent the plaintiff was in fact experiencing emotional distress.

541. It is also relevant that the plaintiff does not challenge the legality of his arrest. Thus, to the extent the plaintiff does suffer psychological sequelae, it is at least in part attributable to lawful conduct. For example, at para 76 of Exhibit 2, the plaintiff says that “still to this day [he has] clear flash backs of been [sic] cable tied and arrested”.

542. Although the plaintiff had served expert medical evidence in these proceedings (see paras 57–59 of the plaintiff’s Statement of Particulars), he did not to tender any such material.

543. For this reason, my findings would be restricted to findings made with respect to effect the plaintiff’s time in custody (25 February 2011 – 5 May 2011) had on him. Without expert evidence, the Court cannot be satisfied that the injuries and losses set out at paras 10–43 and 46–49 of the plaintiff’s Statement of Particulars were, in any event, caused by the alleged malicious prosecution.

544. The plaintiff led no evidence, and made no submissions, as to reputational loss. No amount is allowed in that respect.

Damage to property (legal costs)

545. At para 44 of the Statement of Particulars, the plaintiff claims as out-of-pocket expenses, the costs for legal representation. The plaintiff makes no submission with respect to the claim. In any event, there is no evidence of legal costs, or a liability for reimbursement of legal costs, having been incurred by the plaintiff. There has certainly been no attempt to quantify that amount.

546. I would have rejected the claim.

Economic loss

547. The plaintiff submitted he “should also receive a lump sum cushion for economic loss”. In my view, the State is correct to submit that the plaintiff should not receive any award for economic loss in light of the insufficient proof offered to the Court on that question.

548. The plaintiff did not tender any notice of assessments issued to him by the Australian Taxation Office, despite having purportedly lodged returns over the years. In his oral testimony on the topic, he referred back to a summary prepared by his then accountant, Mr Edward Dixon. Mr Dixon was not called to give evidence and the tender of his summary (which initially appeared at p 49 of Ex 88) was not pressed: T218.13; T219.47-220.4. That being the case, the extent of the evidence is those tax returns which appear within Ex 88 and the plaintiff’s oral evidence on the topic: T104-6.

549. I place limited weight on the plaintiff’s evidence of past earnings. Further, there is no objective evidence with which the Court can satisfy itself of the accuracy of either the information contained within the returns that form part of Ex 88, or the plaintiff’s oral testimony.

550. There was evidence that the plaintiff was bankrupt from 2007 to 2010. It may be inferred that the plaintiff’s earnings for the years immediately following his discharge were modest.

551. In any event, the evidence (T141.11-T143.50) reveals that:

1. in March 2011, the plaintiff had a security license revoked (Exhibit 3);

2. the plaintiff has not applied for the reinstatement of his security license;

3. the plaintiff had maintained an electrical license for some 20 years and, in 2013 he applied for (while in custody on tax offences) and was issued with a further electrical license;

4. in 2017, the license was revoked on the basis that the plaintiff failed to disclose his tax conviction;

5. on 2 January 2019, a member of the New South Wales Civil and Administrative Tribunal (“NCAT”) affirmed the decision to refuse the application (Edwards v Department of Fair Trading [2019] NSWCATOD 5); and

6. on 15 August 2019, an appeal panel of NCAT allowed the plaintiff’s appeal and remitted the matter back to a newly constituted panel for further hearing on the issue on whether the plaintiff is a fit and proper person to hold a license (Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208).

552. Unlike with his electrical license, the plaintiff has made no attempt to have his security license reinstated. The evidence rather suggests that the plaintiff would have, and indeed wished to, pursue a career requiring an electrical license and that any difficulty he is experiencing obtaining that license is solely attributable to his tax conviction. As the State submitted, contrary to FASOC para 33, the plaintiff’s inability to return to gainful employment is not caused by anything done or not done by DSC Gill.

553. In the circumstances, the plaintiff has not proved any economic loss. I would not have awarded any amount for economic loss.

Aggravated and exemplary damages

554. Aggravated damages are compensatory in nature and are awarded where the harm done by a wrongful act is “aggravated by the manner in which the act was done”: Uren v John Fairfax & Sons (1966) 117 CLR 118 at 149. The award of aggravated damages particularly recognises any acute insult or humiliation over and above what might ordinarily be expected to occur: Fernando v Commonwealth of Australia(No 4) [2010] FCA 1475 at [3]-[4]. A plaintiff who succeeds in an action for an intentional tort will not necessarily receive either aggravated or exemplary damages. When assessing the plaintiff’s damage it is necessary to ensure that no element is compensated more than once: State of New South Wales v Zreika at [60]-[64].

555. Where a plaintiff has been detained by police but has not been maltreated, or has been dealt with in a polite and courteous manner, it is unlikely aggravated damages will be available: see e.g. New South Wales v Delly [2007] NSWCA 303 (police wrongfully arrested a plaintiff for non-payment of fines, but at all times treated her in a polite and courteous manner); Zaravinos v New South Wales (2004) 62 NSWLR 58 (plaintiff detained at police station after attending for an interview, but he was not maltreated).

556. The plaintiff’s claim for aggravated damages seems to be based on the notion that DSC Gill knew the plaintiff was innocent and that the plaintiff led the plaintiff to believe the charge would be dropped. I have rejected such contentions. Nonetheless, evidence does not properly permit of an award of aggravated damages because the plaintiff has not demonstrated there aggravating features which give rise to a claim for aggravated damages.

557. Exemplary damages are punitive in nature and focus upon the conduct of the defendant, rather than the harm caused to the plaintiff. Typically an award would only be made in circumstances where the defendant’s conduct showed “a conscious and contumelious disregard” for the rights of the plaintiff: XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 at 471; New South Wales v Cuthbertson [2018] NSWCA 320 at [124], [150].

558. There is no evidence that DSC Gill acted in bad faith or otherwise than in accordance with what he considered was appropriate in the circumstances. There is no evidence anyone acted with a conscious and contumelious disregard for the plaintiff’s rights.

559. In these circumstances, the plaintiff has not made out a case for aggravated or exemplary damages.

False Imprisonment

560. Any false imprisonment claim can only be for a period of less than 4 hours. The plaintiff says the arrest should have been withdrawn by 8.16am and he was brought before a magistrate that morning. In those circumstances, if any such claim is made out, an award of no more than $10,000 would be justified.

Conclusion: Damages

561. If I had ruled upon the issue of damages, I would have made provision for damages for person or liberty and false imprisonment, but otherwise rejected the claim for damages for the reasons given above.

CONCLUSION

562. The plaintiff’s claim should be dismissed, with costs.

ORDERS

563. The Court makes the following orders:

1. Judgment for the defendant.

2. The plaintiff’s further amended statement of claim is dismissed.

3. The plaintiff to pay the defendant’s costs as agreed or, in default of agreement, as assessed.

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Amendments

21 June 2021 - Publication restricted lifted. Redactions made to published form of judgment. Further order to adjust slip: [563(1)].

Decision last updated: 21 June 2021