El-Wasfi v State of New South Wales; Kassas v State of New South Wales

[2017] NSWCA 332

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	El-Wasfi v State of New South Wales; Kassas v State of New South Wales [2017] NSWCA 332
Hearing dates:	15, 16 November 2017
Decision date:	18 December 2017
Before:	Leeming JA at [1]; Simpson JA at [230]; Payne JA at [231]
Decision:	In Mr El-Wasfi’s appeal (2016/295735): 1. Appeal dismissed. 2. Grant leave to the State to cross-appeal, confined to ground 1 of the draft notice of appeal contained at page 68 of the Orange book. 3. Direct the State to file a notice of cross-appeal in accordance with the grant of leave within 7 days, and otherwise dispense with the requirements as to service. 4. Cross-appeal allowed. 5. Set aside the judgment in favour of the third plaintiff Mr El-Wasfi in proceeding 2007/265173 entered on 12 September 2016 and the orders made on 21 October 2016 as to costs and in lieu thereof order that the proceeding be dismissed. 6. In proceeding 2008/289620, set aside the orders as to costs made on 21 October 2016. 7. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 8 February 2018, with a view to remaining issues being decided on the papers.  In the appeal brought by Messrs Kassas, Pound and Ashley Saad (2017/293409), 1. Appeal dismissed. 2. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 8 February 2018, with a view to remaining issues being decided on the papers.
Catchwords:	MALICIOUS PROSECUTION – civil proceedings brought by accused following failed prosecution for murder – challenge to failure to find malice – no appellable error – application of principle in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 – challenge to failure to find absence of reasonable and probable cause – appeal dismissed   POLICE – arrest – claim of wrongful arrest – test of reasonable suspicion – whether primary judge applied wrong test – whether defendant established reasonable suspicion that plaintiff had committed an offence – cross-respondent not permitted to run new case on appeal – cross-appeal allowed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW), ss 316, 341, 352 Director of Public Prosecutions Act 1986 (NSW), ss 9, 10 Evidence Act 1995 (NSW), s 140 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Supreme Court Act 1970 (NSW), ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 35.3, 51.36
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Anderson v Anderson [2017] NSWCA 131 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Crofts v R (unreported, Court of Criminal Appeal, 10 March 1995, CCA 60706 of 1994) Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247 Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales (No 2) [2016] NSWSC 1482 Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449 George v Rockett (1991) 170 CLR 104; [1990] HCA 26 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Morley v Australian Securities and Investments Commission [2010] NSWCA 331; 274 ALR 205 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 Phipps v State Rail Authority of New South Wales (1986) 4 NSWLR 444 Polley v Johnson [2015] NSWCA 256; 253 A Crim R 521 Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Saad v State of New South Wales [2012] NSWSC 940 Saad v State of NSW (No 3) [2014] NSWSC 214 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 State of New South Wales v Zreika [2012] NSWCA 37
Category:	Principal judgment
Parties:	Proceeding 2016/295735 James El-Wasfi (Appellant) State of New South Wales (Respondent)   Proceeding 2017/293409 Sam Kassas (First Appellant) Andrew Pound (Second Appellant) Ashley Saad (Third Appellant) State of New South Wales (Respondent)
Representation:	Counsel: S Wheelhouse SC, C Gregory (Mr El-Wasfi) M Cranitch SC, S Blount (Messrs Kassas, Pound and Saad) I Temby QC, D Villa (State of New South Wales)   Solicitors: Magiotta Solicitors (Appellants) Crown Solicitor’s Office (Respondent)
File Number(s):	2016/295735; 2017/293409
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247 Date of Decision: 12 September 2016 Before: R S Hulme AJ File Number(s): 2007/265173; 2008/20521

Judgment

1. LEEMING JA: These two appeals and cross-appeal, which were heard concurrently, arise out of a series of unsuccessful prosecutions for murder, followed by a series of generally unsuccessful claims for wrongful arrest and malicious prosecution. The principal issues in this Court were whether the primary judge erred (a) in failing to find malice on the part of the prosecutors, (b) in the case of three of the appellants, in failing to find an absence of reasonable and probable cause for the prosecutions, and (c) in finding that one of the appellants was wrongly arrested in August 2002 when he was charged with concealing evidence.

2. The murder occurred nearly 20 years ago, and almost all of the events in question happened more than a decade ago. The background is lengthy and complex, especially in relation to the various criminal prosecutions. The civil proceedings occupied 14 days, and the reasons of the primary judge are lengthy. Before turning, as is unavoidable, to the factual and procedural details, it may assist at the outset to provide the following overview.

Overview

3. Mr Robert McPherson was attacked on the evening of 27 January 1998 in Castlereagh Lane in Redfern. He died the following day. The cause of death was a stab wound through his left chest. However, there were also significant head injuries and many other less serious injuries. It was not suggested that he identified his attackers before he died (other than as “the Lebs” or “the Lebanese”). With him when he was attacked was Mr Leonard Mazzeo, who survived with relatively minor injuries. He was unable to identify the attackers clearly. Shortly thereafter, police installed a listening device in premises occupied by the Saad family nearby, and sound recordings of two conversations, made on 30 January 1998 and 2 February 1998, assumed considerable prominence in the prosecutions and civil proceedings which ensued.

4. It will be necessary in due course to elaborate on the procedural details. At the outset, it will suffice to say that Messrs James El-Wasfi, Sam Kassas, Andrew Pound and Danny Saad were all charged in 2002 or 2003 with Mr McPherson’s murder. Mr Ashley Saad was charged with concealing a serious indictable offence (Crimes Act 1900 (NSW), s 316(1)). Mr Fred Saad was charged as an accessory after the fact of murder. Mr El-Wasfi was arrested and charged with concealing a serious indictable offence in August 2002, and later charged with murder in November 2002.

5. Three of the men, Messrs Pound, Kassas and Danny Saad, had previously been charged with Mr McPherson’s murder in 1998. At that time, Mr Pound was committed to stand trial by the Children’s Court. Mr Gary Roth, who had been a lodger in the Saad premises, was the only witness who gave evidence at the committal. He said that Mr Pound had confessed to him to breaking a baseball bat over Mr McPherson’s head. The magistrate said that Mr Roth was “clearly a rogue” but that she had found him to be “believable and credible”. However, Mr Roth refused to give evidence at the committal of Mr Kassas and Mr Danny Saad, leading to the termination of the committal proceedings and the discontinuance of the proceedings against Mr Pound.

6. The police investigation resumed in 2002 leading to the six men being charged. Proceedings against Mr Ashley Saad were severed in around September 2003, on the basis that, as it was put by his solicitor, “in the event that there was a murder conviction recorded in relation to any of the other offenders he would admit that conviction in respect of any trial against him in terms of concealing a serious offence – murder”. The prosecution of the remaining five accused resulted in a directed acquittal on the murder charge in the case of Mr El-Wasfi on 27 October 2004, verdicts of not guilty in the cases of Messrs Pound, Kassas and Fred Saad, and a hung jury in the case of Mr Danny Saad. Mr Danny Saad was not retried, and proceedings were subsequently withdrawn against Mr Ashley Saad. On 10 January 2005 the Director of Public Prosecutions (the DPP) directed that there be no further proceedings against Mr El-Wasfi on the concealment charge.

Civil proceedings at first instance

7. The failure of the prosecutions led to civil proceedings being commenced in 2007 by five of the men, and in 2008 by Mr Ashley Saad. Both proceedings were heard together. The principal cause of action was malicious prosecution. The claims made by Messrs Fred and Danny Saad were settled prior to the trial, which had originally been listed for seven weeks in early 2014, following a lengthy procedural history, one aspect of which is relevant to the State’s cross-appeal. In somewhat unusual circumstances described in Saad v State of NSW (No 3) [2014] NSWSC 214, the hearing was vacated. The claims brought by the remaining four plaintiffs were eventually heard by the primary judge in February and March 2015 over 14 days, and resulted in a lengthy judgment of 503 paragraphs delivered on 12 September 2016: Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247.

8. By way of overview, the primary judge found that there was no reasonable and probable cause for Mr El-Wasfi to have been charged on 23 August 2002 with concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900 (NSW), nor for being charged with murder on 6 November 2002, and that the lack of reasonable and probable cause continued until he was acquitted: at [363]-[367]. In contrast, the primary judge found that there was reasonable and probable cause for the prosecutions against the remaining three men. However, in relation to all four plaintiffs, the primary judge found that neither the police officer, Sergeant McLennan, who was in charge of the police investigation, nor the three Crown prosecutors, Mr Roger Kimble, Mr Wayne Roser and Mr Terry Thorpe, who had carriage of the prosecution at various times, had been motivated by malice. It followed that all claims for malicious prosecution were dismissed.

9. Messrs El-Wasfi and Pound had also sued for “wrongful arrest”. The primary judge found that the arrest of Mr El-Wasfi on 23 August 2002 when he was charged with concealment of a serious indictable offence was wrongful: at [466], but dismissed the claim brought by Mr Pound: at [469]. Other causes of action were abandoned or dismissed.

10. The result was a judgment in favour of Mr El-Wasfi in the sum of $2,000 with the balance of both proceedings being dismissed. The primary judge gave reasons for that award at [470]-[488]. It was common ground at trial that compensatory damages were to reflect the period from the arrest until Mr El-Wasfi came before a magistrate on 24 August 2002: at [486]. In awarding $2,000, the primary judge had regard to the fact that Mr El-Wasfi “had previously been convicted in the period 1995 to 23 August 2002 of something over 30 offences ranging from offensive language to breaking, entering and stealing”, many of which would have resulted in his arrest, and that on 30 July 2002 he had been charged with supplying drugs on an ongoing basis, for which he was sentenced to imprisonment for 2 years and 3 months including a non-parole period of 14 months: at [484]. Claims for aggravated and exemplary damages were rejected: at [489]-[492].

11. After a further hearing, his Honour gave a reserved judgment as to costs, and made special costs orders the detail of which need not be repeated here: Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales (No 2) [2016] NSWSC 1482.

The appeals to this Court

12. Passing over some procedural irregularities, two appeals have now been brought from those orders. In the first, Mr El-Wasfi challenges the failure to find malice, and the quantum of damages awarded for his wrongful arrest. In the second, Messrs Pound, Kassas and Saad challenge not only the failure to find malice, but also the findings of probable and reasonable cause. Mr Pound also challenges the dismissal of his claim for wrongful arrest.

13. For its part, the State sought leave to cross-appeal against the judgment based on wrongful arrest in favour of Mr El-Wasfi, as well as challenging the costs orders. The State did not challenge by way of notice of contention the finding of an absence of reasonable and probable cause in relation to the prosecution of Mr El-Wasfi. It was common ground that if any aspect of either appeal or cross-appeal succeeded, then the discretion as to costs would need to be re-exercised.

14. Accordingly, the principal issues arising in this Court are:

1. Whether there was appellable error in the primary judge failing to find malice in relation to the prosecution of all four men;

2. Whether the primary judge erred in finding that there was reasonable and probable cause to prosecute Messrs Pound, Kassas and Ashley Saad, and

3. Whether the arrest of Mr El-Wasfi on 23 August 2002 was lawful.

15. Depending on the resolution of those issues, there are further issues relating to quantum and costs.

Miscellaneous matters

16. It is necessary to clarify some names. The spelling of Mr El-Wasfi’s name varies in the documents. In what follows, the form used in his notice of appeal and evidentiary statements has been followed, and the different spelling used by the primary judge and in some of the transcript has been corrected throughout. Mr El-Wasfi was also known as “Camel” and sometimes “Kamil”.

17. Mr Pound was a youth at the time of the murder, and was referred to as “AH” throughout the criminal proceedings, in accordance with the Children (Criminal Proceedings) Act 1987 (NSW) and an order made by Sully J on 13 September 2004. The primary judge recorded that with the consent of all parties he revoked that order, and referred to him as Mr Pound. These reasons follow the same course, although some documents refer to him as Andrew Hoogwerf and he was sometimes known as “Shorty”.

18. The paragraph numbering in the version certified by the primary judge’s Associate and that published on Caselaw diverges. References in what follow are to the paragraphs as published on Caselaw.

Circumstances surrounding the murder

19. Shortly before 10pm on 27 January 1998, Mr McPherson and Mr Mazzeo were attacked by a group of men in James Street, Redfern, at or near its corner with Castlereagh Lane. The contemporaneous evidence was set out in detail by the primary judge at [36]-[84]; what follows is a summary of that evidence.

20. At the time of the murder, the Saad family, including Messrs Danny and Fred Saad, lived at 262 Chalmers Street. Those premises extended to Castlereagh Lane. Prior to 27 January 1998, one or other of the Saad family had leased a garage at the rear of 60 Great Buckingham Street. That garage faced onto Castlereagh Lane opposite the rear of 262 Chalmers Street. It was not in dispute that members of the family and friends and acquaintances often gathered in and adjacent to the garage.

21. Mr Mazzeo described the events of 27 January 1998 as follows. Mr McPherson and Mr Mazzeo had been drinking. They walked down Castlereagh Lane into James Street to buy some whisky at a nearby hotel. In James Street, a red utility accelerated hard and just missed them. Mr McPherson called out, “Take it easy you idiot” and offered to take on both its occupants. The utility sped off. While Mr McPherson and Mr Mazzeo were walking back along James Street near Castlereagh Lane, the red utility and a “blue XB Ford” pulled up in front of them and about six people alighted from the vehicles. Mr Mazzeo was grabbed and hit with a stick. He broke free and ran to 234 Chalmers Street calling out for help for Mr McPherson. Returning almost immediately he saw four persons get off Mr McPherson who stood up and said that he had been stabbed.

22. Mr McPherson died the following day. The report of the post-mortem examination indicated that Mr McPherson had suffered from one stab wound, significant head injuries and many other less serious injuries, including lacerations or abrasions across the deceased’s back and shoulders that could well have been inflicted by a chain.

23. There was no doubt that Mr McPherson had been murdered. There was no doubt that the stab wound was the cause of his death. At issue was whether the appellants and other members of the Saad family were part of that group.

24. Two neighbours described the attackers as all, or mostly, Lebanese. Another resident, whose premises backed onto Castlereagh Lane, said that at about 5.30pm he saw six males go into what would seem to have been the Saad garage, four of these males being “Aussies, whiter than me”. In a statement of 2 February 1998, Mr Rupert Olivera, who attended on Mr McPherson prior to the police or ambulance officers, said that he asked the deceased who did it and the deceased replied, “The Lebs, when I come back from the bottle shop”. Shortly afterwards, Mr Olivera saw a utility he described as “orange” going around the corner from Castlereagh Lane into James Street and Danny Saad running down towards the garage opposite his place. Another witness, Mr Woodings, who saw the deceased staggering down Chalmers Street after the attack, also recounted hearing the deceased say, “Lebanese”.

25. In a later statement made on 9 July 2002 Mr Olivera recorded that on the night of the murder he had seen Danny Saad in the laneway but had not mentioned this in his earlier statement because he was scared and did not want to become involved. In the later statement, he also said that some days later, Danny Saad said to him, “What happened, happened. We got away with it.”

26. Another witness, Mr Aron Ezzy, made two statements dated 28 January and 4 March 1998. He said he heard Mr Mazzeo call out that Mr McPherson was in a fight and that he and others then ran to the location. He said that he saw nine Lebanese males standing next to a red utility, throwing bottles at Mr McPherson and Mr Mazzeo, one of the males being Danny Saad. A further witness, Mr Craig Spicer, said in a statement dated 5 July 2002 that he saw the front of a utility sticking out of Castlereagh Lane into James Street that was either a ZF or XD model Ford. Other statements corroborated Mr Mazzeo’s account of the presence of two vehicles.

27. There was evidence that Mr Danny Saad was suffering from injuries to his right leg on 29 January 1998, and received treatment from a Dr Duggin on that day. Dr Duggin did not think the injuries were consistent with Danny Saad’s description that he had fallen onto some rocks on the beach.

28. There was evidence that Mr Danny Saad owned a red Holden utility. On 2 February 1998 the red utility was found by police near Botany Drive in the Eastlakes area in “pristine” condition. The vehicle was photographed and examined; a presumptive test (presumably for blood) to a small mark on the driver’s seat gave a positive result but there was no evidence as to what happened to the swab.

29. There was evidence that Mr Fred Saad owned a grey or blue Ford Falcon. During the night of 28 January, the Falcon was deliberately burnt in a street in Surry Hills.

30. In his statement of 1 April 1998, Mr Roth said that the day after the murder Danny referred to having had a heated argument and a fight during which the bloke “bit me on the leg”, and that Fred Saad told him that he had burnt his Ford sedan. Mr Roth also referred to Eddie (another person said to have been in the laneway) and “Shorty” [Mr Pound] burning the broken handle of a baseball bat, and to Danny saying that he had to get rid of the ute and talking to someone about going over the whole car from top to bottom with “Armorall” to get rid of fingerprints (the significance of the reference to the brand will be returned to below). In his statement of 16 April 1998, Mr Roth said that on the morning “after the killing” he asked Fred, “Where’s the Ford” to which Fred replied, “We burnt it to get rid of our fingerprints.”

19. Mr Roth also said in that first statement that he heard persons calling to him from the laneway on the night of the murder. Soon after the fight, he said that:

“Eddie and Sam Kassas came up the stairs” and then “we went back down to the laneway”. In the laneway were “Eddie, Danny, Sam, “Shorty”, but not Fred. The boys started talking in the course of which Sam said, “I stabbed him in the stomach and in the back”, and Shorty [Andrew Pound] said “I broke the baseball bat over his head.”

32. On 30 January 1998, the police conducted searches of 262 Chalmers Street and the garage behind. Nothing indicating the involvement of the appellants in the murder of Mr McPherson was found.

33. On 2 April 1998, the police conducted another search of the premises and a chain attached to a piece of wood with U-bolts through its links was located in the garage. The chain appeared to be consistent with the marks found on Mr McPherson’s back. Mr Roth’s statement of 1 April 1998 stated that he had seen a chain of similar description picked up and thrown down by Danny Saad in the laneway some weeks after Mr McPherson’s murder and that he had seen it sometime later in the garage. When questioned by police, Danny Saad denied having seen the instrument.

34. There was considerable difficulty in identifying the men that took part in the attack. On 18 February 1998, Mr Mazzeo was unable to identify any of the accused in the three videotapes shown to him by Detective Moubarak. In a videotaped walk-around on 10 May 2002, Mr Mazzeo identified two of the attackers as Mr Danny Saad and Mr Kassas, although at the time of the attack in 1998 he did not know their names. Redfern police officers deposed to knowing the identity and voices of the speakers in the Listening Device records. Constable McDonald, in a statement of 27 October 2003, referred to the area around 262 Chalmers Street as being a crime “hot spot” and said he had had extensive dealings with Danny, Fred and Donna Saad, Sam Kassas, James El-Wasfi, Andrew Hoogwerf [Mr Pound] and Garry Roth over a period of 2½ years.

Criminal proceedings up to 2002

35. On 2 April 1998 Messrs Danny Saad, Sam Kassas and Andrew Pound were arrested and charged with murder.

36. On 14 July 1998 Mr Pound was committed to stand trial for murder before Magistrate Gilmour at the Bidura Children’s Court. Mr Roth gave evidence at the committal hearing.

37. On 27 October 1998 committal proceedings against Mr Danny Saad and Mr Kassas were withdrawn after Mr Roth refused to give evidence. Subsequently, on 19 January 1999, the DPP presented a no‑bill in relation to Mr Pound. There the matter seems to have rested until 2002.

The roles of Sergeant McLennan and the DPP officers

38. The police investigation into Mr McPherson’s death was re-opened on 1 May 2002. It was styled “Taskforce Gatton”. Sergeant McLennan was appointed to head that investigation.

39. Sergeant McLennan drafted the operational orders which led to the arrest of Mr Kassas and Messrs Danny, Fred and Ashley Saad on 9 August 2002. He was the informant for the charging of Mr El-Wasfi on 23 August 2002.

40. It was common ground that the prosecutions were “taken over” and carried on by the Director of Public Prosecutions, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW), very shortly after charges were laid (although the notices required by s 10 to this effect were not in evidence). There was a committal hearing in late 2002 and early 2003 before Magistrate Orchiston. A trial before Newman AJ and a jury commenced in August 2004, but the jury was discharged before verdict. A second trial, before Sully J, commenced on 13 September 2004. Mr Kimble represented the Crown in the committal proceedings before Orchiston LCM, Mr Roser was Deputy Senior Crown Prosecutor who appeared in the hearing and trial before Newman AJ, and Mr Thorpe appeared as Crown Prosecutor in the trial before Sully J.

The 2002 arrests and prosecutions

41. Pursuant to a controlled operation, an undercover operative made one purchase of heroin from Mr Danny Saad and four from Mr El-Wasfi. Sergeant McLennan then arranged for Mr El-Wasfi to be examined before the New South Wales Crime Commission. Sergeant McLennan gave evidence that he had hoped this would result in incriminatory calls on phones that had been intercepted.

42. On 30 July 2002 Mr El-Wasfi was interviewed by the NSW Crime Commission. He denied any knowledge in relation to Mr McPherson’s murder. He said that in 1998 he had been in a fight with Mr Roth, and that he (El-Wasfi) had been armed first with a knife, and then with a metal pipe. The Crime Commission notes record that “He offers this fight as an explanation of the LD [Listening Device] transcript that he remembers having seen”.

43. On 6 August 2002, Ms Michelle and Mr Jeffrey Holland made incriminatory statements. Mrs and Mr Holland were acquaintances of the Saad family and had been to their house in Chalmers Street. Mr Holland bought heroin from the Saads and had been in a relationship with their sister, Caroline Saad. Both statements claimed that Danny Saad had confessed to killing Mr McPherson. Ms Holland’s statement claimed that he had told her that he had “stabbed the black bastard” in the presence of Ashley Saad, Carlie, Shorty, Jeffrey and Braydon, who were laughing about it.

44. Both statements, insofar as they concern Mr El-Wasfi, are peculiar. In Ms Holland’s statement, Mr El-Wasfi is mentioned only in the last two paragraphs:

“16. Last week I read a newspaper article in the Daily Telegraph about Camel being arrested for selling drugs. I don’t know Camel’s real name, I know he’s Egyptian, about 22 years old. Camel was selling drugs for the SAAD’s, and Jeffrey had been as well.

17. Because of this newspaper article I decided to ring Redfern Police and tell them what I knew about the murder.”

45. Mr Jeffrey Holland’s statement claimed that James “Camel” El-Wasfi used to hang out at the Saad premises, and that:

“I used to score heroin in the laneway at the back of the SAADs from Camel, Danny and this old bloke and I think his name was ‘Um’ or something.”

46. Mr Holland’s statement, particularly the reference to the unnamed “old bloke”, does not have the appearance of having been carefully checked.

47. Mr Roth made two additional statements on 7 July 2002 and 7 August 2002. One stated that he was now willing to give evidence again. The other confirmed that he had had a fight with a person he knew only as Camel around one month before Mr McPherson was killed.

48. On 9 August 2002, Mr Kassas was arrested and charged with the murder of Mr McPherson and assault of Mr Mazzeo occasioning actual bodily harm (at the time Mr Kassas was in custody for unrelated offences). Mr Ashley Saad was arrested and charged with concealing a serious offence (as well as further unrelated crimes). Mr Danny Saad was arrested and charged with the murder of Mr McPherson. Mr Fred Saad was arrested and charged with being an accessory after the fact to murder.

49. On 23 August 2002 Mr El-Wasfi was arrested and charged with concealing a serious offence. Later in these reasons is set out the contemporaneous documents and testimonial evidence relating to that arrest, which was found by the primary judge to be unlawful, and which was the subject of the State’s cross-appeal.

Committal hearing before Orchiston LCM

50. On 4 November 2002 committal proceedings before Magistrate Orchiston commenced against Messrs Danny, Fred and Ashley Saad, Kassas and El-Wasfi.

51. Also on this date, Ms Holland gave an additional statement. She said that she recalled Mr El-Wasfi coming to her home in Dolls Point a few days after Mr McPherson’s murder, and that he had said:

“The two black blokes were walking up and they were carrying alcohol, and one of the boys asked why they were walking up the lane. The other guys were mouthing off and he knocked the mirror on the car and a fight broke out. We had him on the ground and we were all kicking him and booting him in the head. The other guy took off. Sam was just going off his head. Then Danny turned around and stabbed him. When the police came we all took off.”

52. Her statement recorded that “Camel” had also been present when, according to her earlier statement, Mr Danny Saad had admitted that he had stabbed Mr McPherson. It said:

“I forgot about ‘Camel’ being there, because when I knew him, he was quiet and not using drugs. I have since thought about that day, and remember ‘Camel’ being there.”

53. On 6 November 2002 Mr El-Wasfi was charged with murder. On 27 March 2003, all five men were committed to stand trial. On 11 April 2003 Mr Pound was arrested and charged with murder.

54. On 2 May 2003 the DPP presented an indictment charging Mr Danny Saad, Mr Kassas, Mr El-Wasfi and Mr Pound with murder, Mr Fred Saad with being an accessory after the fact and Mr Ashley Saad with concealing a serious offence. Each accused pleaded not guilty. (The DPP and Mr Ashley Saad agreed in around September 2003 that the charge against him should be severed from the indictment.)

55. On 3 October 2003 a further indictment charged Messrs Danny Saad, Kassas, El-Wasfi and Pound with murder and Mr Fred Saad with being an accessory after the fact.

First trial before Newman AJ

56. On 13 October 2003 a voir dire before Newman AJ commenced on the admissibility of evidence in the trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound. Judgment was delivered on 21 November 2003 (R v Andrew John Hoogwerf (aka Pound); R v Sam Kassas; R v James El-Wasfi; R v Fred Saad; R v Danny Saad, unreported, Supreme Court of New South Wales). His Honour rejected a submission that the listening device material be rejected under s 137 of the Evidence Act: at [46]-[48].

57. On 16 August 2004 the first trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound commenced. The trial terminated on 30 August 2004. The primary judge recorded at [30] that this occurred after Mr Roth had volunteered in the presence of the jury that some of the accused men were selling heroin.

Second trial before Sully J

58. The second trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound before Sully J commenced with a series of pre-trial applications on 13 September 2004, including a challenge to the listening device material. On 15 September, the Crown advised that:

“on a further closer listening of those tapes it became clear there were a number of errors in the transcription. ... There were a number of such examples where material, which at first blush might attract some attention, when listened to carefully some other word could be discerned. in one case in particular a whole line of conversation had been left out which dramatically altered the context of what was said.”

59. Justice Sully declined to admit the listening device material into evidence (R v Sam Kassas; R v Andrew Hoogwerf (aka Pound) – [A.H]; R v Danny Saad; R v Fred Saad; R v James El-Wasfi, unreported,16 September 2004, Supreme Court of New South Wales). His Honour’s reasons for doing so were that the quality of the recording “is almost indecipherable to the untrained ear”, and that there were gaps such that “the transcripts, viewed fairly, overall comprise disconnected passages, and sometimes sentences, interspersed with passages of matter which are simply indecipherable”. His Honour’s reasons do not address any particular recording. Instead he ruled that considerations of practical justice and fairness meant that they had to be excluded in their entirety. That global approach may reflect the way the argument was run on that occasion.

60. On 29 September 2004 an indictment was presented to the Supreme Court before Justice Sully charging Messrs Danny Saad, Kassas, El-Wasfi and Pound with murder and Mr Fred Saad with being an accessory after the fact; each accused pleaded not guilty.

61. On 14 October 2004, during the course of the trial, the Crown applied to cross-examine Ms Holland pursuant to s 38 of the Evidence Act, on the ground that it was likely that she would give evidence contrary to two statements she had earlier made. Sully J refused leave. He did so on the basis that the statements only amounted to proof that Ms Holland had made prior inconsistent statements. A similar ruling was made in the case of Mr Holland. The Crown elected not to call either of those persons. At the end of the Crown case, it was conceded that there was no case against Mr El-Wasfi, in light of the decision not to call the Hollands. Sully J then directed the jury to find Mr El-Wasfi not guilty.

62. The jury retired on 8 November 2004 and on or after 18 November the jury returned verdicts that Fred Saad, Sam Kassas and Andrew Pound were not guilty. The jury could not reach agreement on Danny Saad.

63. On 10 January 2005 the DPP advised that no further proceedings would be brought against Danny Saad. The outstanding charges against Messrs Ashley Saad, El-Wasfi and Kassas were withdrawn by 18 January 2005.

Problems with the evidence

The Listening Device tapes

64. A number of listening devices were installed in the Saad premises on around 30 January 1998. The one that mattered was installed in the garage. The primary judge observed at [139]:

“The one in the garage was monitored 24 hours a day and a recording device was continuously running. Conversations detected by those devices were listened to by police officers as they occurred and also recorded on a second ‘highlight tape’ if they seemed significant. (The device suffered from the disadvantages that its presence was discovered and anything that was transmitted suffered from the difficulty that the device had been installed in or near the cage of a noisy bird.)”

65. There is a considerable amount of evidence referring to what was heard. What follows is directed to two recordings, known as Listening Device tapes “4bjl” and “57bjl”, and the transcripts which were made of them in 1998, upon which the civil litigation, both before the primary judge and on appeal, was focussed. The transcripts were themselves repeated in the documents in the renewed investigation in 2002, and plainly enough were relied on by Sergeant McLennan and the DPP officers at the time. However, it is important to bear in mind, especially in relation to the criticisms made as to the identification of the voices on those tapes, that there was a vast quantity of material to which little or no attention was given during the appeal. Some of that material was entirely unincriminating, but nevertheless would have been apt to affect the reliability of voice identification, especially where a particular speaker identified himself in terms. And some was (subject to the submissions as to the importance of context and the need to identify the speakers) incriminating. For example, a transcript of a recording made on 13 February 1998 includes Mr Pound saying “It doesn’t matter see, if I got done for murder I’ll still go to Reiby, you know what I mean”. (To be clear, I have not listened to that recording, nor relied on it for the purposes of this judgment; my purpose is to emphasise the limitations flowing from the selective reference to a large body of material in the way this appeal was run.)

66. As at July 1998 there were difficulties with the quality of the Listening Device tapes. The solicitors then acting for Mr Pound advised on that date that the 12 cassette tapes were “unintelligible”.

67. Handwritten records, which bear the appearance of being made at the same time the voices were heard, were in evidence. Their nature varied. Some purported to record actual conversations, while others were more descriptive. Many purported to identify some of the voices, although the reliability of the identification is difficult to assess.

68. It seems likely that the following two pages of handwritten records relate to Listening Device tapes 4 bjl and 57 bjl. The first was dated around 12.37 on 30 January 2008 and is as follows:

“That’s how much blood there was.

6 or 7 sets of prints.

Report the car abandoned the chances are [illegible] want to be any [sic] near that car [illegible] San Souci job

Get a bucket of amarald go over the whole care use gloves even do the diff gearbox everything (KASSIS) Burn the car out (SAAD F) No one to leave fingerprint I drive it (KASSIS) No I will (F SAAD) No you can’t get caught (KASSIS) I not getting done for murder (Garry) makes ref to the murder and what to do with the car and that if caught will have to do the runner.”

69. A different hand recorded the following at 22.16 on 2 February 1998, shortly after an annotation “Change tape to No 57”:

“Discussion about fight and hitting person with sticks (Shorty, Mandeze). Reference to had knife and he body slammed me. He had thick legs (Sam)?”

Listening Device tape 4bjl – 30 January 1998

70. The transcript included the following (emphasis added):

“SAM KASSIS: ... on the records that number plate of the car, all right, that’s what their fucking records say, print the car, we got six, seven, eight sets of prints, match them against the boys, whose ones are they ... Kassas, William Rodrigues, Eric Rodgrigues ... Rodgrigues, hit them all up. I’m telling you Fred, you’ve got six cunts in this –

MALE VOICE? .................................

SAM KASSIS: I’m telling you Fred .... fucking history, I’m telling you ... no Cop shop, I’m telling you. I’ll keep that fucking ute, mate, under fucking segregation, beautiful mate, you’ll still be able to go there ten years later and see your prints on ... don’t try and tell me nothing that things got to go bye, bye. Don’t worry about, I’m telling ya, listen to me mate, I’ve .....

MALE VOICE ? Everything, Armourall the interior, Exactly Armourall the interior. ...

...

SAM KASSAS: Yeah that’s what I was thinking... looks abandoned, someone rings up straight away, trust me the chances are someone will report it abandoned or shifty, because someone – the Cops will be down there like...

(Inaudible conversation)

SAM KASSAS: ... it’s an abandoned car Gary ... They can almost can see we’ve done it, ... and no one’s gone near it, give ‘em fifty bucks two Armourall bottles and a bucket of water, two tea towels... bucket, two of them over the whole interior... two hands on top of the engine. Over the seats, over the steering wheel, the column, the ignition, the doors and the windows...

(Inaudible conversation)

EL-WASFI: What about underneath it, the diff and ... they won’t get prints off there man.”

Listening Device tape 57bjl – 2 February 1998

71. The transcript included the following:

“MALE VOICE?: Look, the last time he had a pole he went for the legs...

EL-WASFI: Yeah, ‘cause fucking that was Gaz –

HOOGWERF: That’s even fucking more reason to go for the fucking head. He’s a fucking machine. I was trying to fight with a robot.

EL-WASFI: He’s a robot that cunt, I’m telling ya –

HOOGWERF: You know what he done, he bent one of his fucking fluid fucking things that’s... one of his hydraulic fluid caddies, I saw him bend it mate I swear. Ruptured it a bit.

...

HOOGWERF: Yeah man, have you seen his leg, tree trunks man, go hit a tree trunk to see what you do to it.

EL-WASFI: No but honestly, Gaz knows mate, cause... I got him across there, he would have known about it mate. No you hit em on the kneecap I got him there, that much I needed there.

HOOGWERF: How did you miss, you obviously tried to miss, ‘cause it’s impossible to miss, especially the way you were going too, fucking lined it up in fucking ten seconds.

KASSIS: And then he went for the knee, like this.

EL-WASFI: No I was in two minds man. I didn’t know what to do.

HOOGWERF: You fucking should have known.

EL-WASFI: Whether to get him over the top or the legs, or body blow I didn’t know.

HOOGWERF: Even if you just fucking chopped him here mate

-

ASHLEY SAAD: Is that enough Shorty man …….

EL-WASFI: I should have just come over the top, just aimed for the leg –

HOOGWERF: Fucking second hand jobs.

ELWASFI: ... ‘cause you can’t miss ... off the head, the shoulder, but you won’t ... the arm, bring his arm down, break his arm, it’s just all bone, straight bone there.

KASSIS: Hey, I had a knife right, this cunt launches at me, I’m wrestling with him with the knife, he just body slams me. I don’t know what done so boom, body slams me. I had the knife in my hand and ... he’s trying to fucking ... could have just gone boom, boom, boom.

MALE VOICE? Fucking dangerous scene there.”

72. As mentioned above, three judicial officers have heard argument as to their admissibility. Newman AJ received them into evidence at the first criminal trial, Sully J rejected them in their entirety at the second criminal trial, and the primary judge (who said he had listed to the recordings around 20 times) said that some were audible and others were not.

73. Senior counsel for Messrs Kassas, Pound and Saad, who had not appeared before the primary judge, in a document supplied on the second day of the appeal in purported and belated compliance with UCPR r 51.36(2), which requires identification of any challenges to findings of fact, submitted that the court should listen to the recordings so as to assess whether the primary judge’s opinions as to their audibility were correct. Nothing had been said in counsel’s written submissions as to this. One of the criticisms expressed in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [32] and [116] was the failure to articulate the matters sought to be derived from viewing a recording (in that case, a video recording of the complainant’s evidence) over and above what emerged from the transcript.

74. Nevertheless, in the absence of any opposition from the State, and given that the recordings were brief and central to the submissions advanced on the appeal, the appellants were permitted to rely on the document. It is best to deal with this discrete aspect of the appeal immediately.

75. The particular passage of the reasons of the primary judge to which challenge was made was [423]:

“It was also submitted that, given their poor quality, reliance on the Listening Device tapes was also an indication of malice. However, there was incriminating material able to be heard and the fact that there were other parts that could not was not a reason for disclaiming use of the material that could be heard, certainly in the absence of some reason to think that there was some significant possibility that what could be heard was qualified by what could not. Thus, I do not regard the poor quality or the use of the tapes or, I might add, acceptance of the method of attribution, as arguing for the existence of malice.”

76. I have listened, twice, to both recordings, and repeatedly to particular aspects of them. I have disregarded Mr Cranitch SC’s submission that I should do so without regard to the transcripts. I am quite conscious that the transcripts may be suggestive and are often provided only as an aide memoire. On the other hand, I am also conscious of the submissions which were made, both as to the words which were said, and as to the identification of the different voices, and it is impossible to evaluate them without comparing the recording with the transcript. Further, and consistently with the stance adopted at trial, but contrary to Mr Cranitch’s submission, I consider that it is appropriate to have regard to the transcripts, in order to assess the strength of the inferential case against Sergeant McLennan and the DPP officers, all of whom had in their possession the transcripts.

77. Mr Cranitch’s submission was also contrary to the way the case was run below (to which the Court was not referred when the submission was made). This issue was debated on 2 March 2015 where the submission was initially made that the primary judge should listen to the tapes unassisted by the transcript, but then (T 195.21) counsel for the plaintiffs stated:

“Your Honour, can I withdraw my previous submission, your Honour, which was that your Honour ought not to have regard to the transcript? I will submit your Honour is entitled to have regard to the transcript as it is now an exhibit ...”.

78. Listening Device tape 57bjl is quite clear, such that essentially all of the words transcribed can be heard. Listening Device tape 4bjl is much less clear, in part because of the background noise of a chirping bird, in part because of an aircraft overhead, in part because the voices move around in the room. Some of the conversation is in another language, perhaps Arabic. The first and third paragraphs attributed to Sam Kassas are audible, however the fourth is much less so. Like the primary judge, I have not been able to identify the words, “They can almost can see we’ve done it” although I can discern the words preceding and following those words, and hear that something was said at that point in the conversation.

The key Crown witnesses, Mr Roth and Mr and Ms Holland

79. The difficulties with the Crown case were not confined to the Listening Device tapes and transcripts. There were also problems with the most important Crown witnesses, Mr Roth and Mr and Ms Holland. The Court was directed to a very large quantity of evidence relating to this, which need not be summarised. It suffices to note (a) the fluctuating content of the witness statements, and fluctuating willingness to give evidence on the part of Mr Roth and Ms Holland mentioned above, (b) Mr Roth had a lengthy criminal history including offences of violence; (c) Ms Holland had serious psychiatric conditions, so much so that she was, when making her statements in August and November 2002, residing in a psychiatric hospital, and (d) Ms Holland said that she and Mr Holland used to go to the Saad’s place to buy heroin for Jeffrey and to buy and sell stolen items.

80. The Crown also relied on evidence from Mr Darren Byrne which suffered from similar defects. He too had a lengthy criminal record, including offences of supplying prohibited drugs, making false instruments, larceny and breaking and entering. The primary judge noted at [243] that “The offence in August was one of breaking, entering and stealing committed on 11 August 2003 and was in the midst of the interviews he was having with police in order to make his statements.” It will not be necessary, in order to resolve these appeals, to summarise in any more detail the evidence proposed to be led from Mr Byrne.

The failure to find malice

81. Grounds 1, 1A and 2 of Mr El-Wasfi’s appeal were reformulated, without objection, by a further amended notice of appeal supplied at the commencement of the appeal. Those grounds were as follows:

“Ground 1

In the circumstances where:

a.   The Trial Judge found that central to the Crown's case against the Appellant for the charge of murder was the evidence of Michelle Holland (‘Holland’);

b.   The Trial Judge found at Judgment 342 and 343, that Holland was a witness whose evidence was not entitled to weight, was plainly unreliable and who had retracted the entirety of her evidence against the Appellant; and

c.   None of the officers from the Office of the Director of Public Prosecutions, Mr Kimble, Mr Roser and Mr Thorpe (the ‘DPP Officers’) who were responsible for the maintenance of the prosecution of the charge of murder against the Appellant gave evidence at the trial;

the Trial Judge erred in failing to infer malice on the part of the of the DPP Officers by reason that the prosecution of the Appellant was instituted and maintained on glaringly insufficient material.

Ground 1A

The Trial Judge erred in failing to find malice against Sergeant McLennan and that he was relevantly a prosecutor until the commencement of the trial before the Honourable Mr Justice Sully on 13 September 2004.

Ground 2

The Trial Judge erred in failing to make a finding of malice against Sergeant McLennan and the DPP Officers and alternatively finding that the conduct of the DPP Officers in instituting and maintaining the prosecution against the Appellant was explained by ‘indications of incompetence, negligence, lack of attention to evidentiary difficulties or lack of appreciation of law on the part of each of the DPP Officers’ (Judgment 460) in circumstances where there was no evidence to support such a finding at trial, no submission was made on behalf of each of the DPP Officers to that effect, and none of the DPP Officers gave evidence denying malice. Further, the determination of the Trial Judge was contrary to Queen v Baden-Clay (2016) 258 CLR 308.”

82. These three grounds overlap. Grounds 1 and 2 recognise the limitations of the appellate process and the markedly different burdens faced by the appellants’ challenges to the failure to find malice (a) on the part of Sergeant McLennan, and (b) on the part of the DPP officers. The former was cross-examined extensively; none of the DPP officers gave evidence.

83. Ground 1 is confined to the DPP officers, and is a challenge to the primary judge’s process of inferential reasoning. Ground 2 extends to Sergeant McLennan, but is much more limited. Recognising the difficulties of challenging a nuanced finding which was inevitably based in part upon his Honour’s assessment of Sergeant McLennan in the witness box, ground 2 much more narrowly focusses attention on the distinction between negligence and malice. However, Ground 1A, which combines challenges to the failure to find malice and his status as a prosecutor, is not so limited.

84. The grounds in the appeal brought by Messrs Kassas, Pound and Ashley Saad addressing malice were grounds 4 and 5:

“4. The trial judge made an error of law in finding that the prosecutions instigated by Sergeant McLennan against the first and third appellants on 9 August 2002; and maintained against the first appellant after 27 March 2003 or alternatively after 21 November 2003 or alternatively after 27 October 2004; and maintained against the second appellant after 21 November 2003 or alternatively after 27 October 2004; and maintained against the third appellant after 4 November 2002, or alternatively after 27 March 2003 or alternatively after 21 November 2003 or alternatively 27 October 2004; was not malicious in circumstances where there was evidence before the trial judge capable of sustaining a finding of malice and, following Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, Sergeant McLennan expressly denied his investigation was incompetent and the Crown advanced the case that Sergeant McLennan was an ordinary investigator of some experience.

5. The trial judge made an error of law in finding that the prosecutions instigated by ex officio indictment on the recommendation of a DPP prosecutor against the second appellant and maintained by DPP prosecutors against the first appellant after 27 March 2003 or alternatively after 21 November 2003 or alternatively after 27 October 2004; and maintained by DPP prosecutors against the second appellant after 21 November 2003 or alternatively after 27 October 2004; and maintained by DPP prosecutors against the third appellant after 4 November 2002, or alternatively after 27 March 2003 or alternatively after 21 November 2003 or alternatively after 27 October 2004 was not malicious in circumstances where: the available evidence of guilt of murder against the first and second appellants could not have resulted in a safe conviction for murder and the available evidence of guilt of concealing against the third appellant could not have resulted in a safe conviction for concealing; the DPP prosecutors declined to give evidence; and, following Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the Crown advanced the case that the DPP prosecutors were not less than of ‘decent competence.’”

85. The reason for confining these grounds to errors of law in an appeal by way of rehearing pursuant to s 101 of the Supreme Court Act 1970 (NSW) is not apparent to me. Both grounds amount in substance to ground 2 of Mr El-Wasfi’s appeal, and are directed to the failure to find malice in relation to Sergeant McLennan (ground 4) and the DPP officers (ground 5) in respect of the prosecutions of Messrs Kassas, Pound and Ashley Saad.

The probative value of the Listening Device tapes

86. There were two threshold issues relating to the listening device tapes: their intelligibility, and identification of the speakers.

87. Sergeant McLennan gave evidence that he had not, prior to being allocated to Operation Gatton, had dealings with the Saad family. However, the evidence available to Sergeant McLennan summarised by the primary judge at [171]-[180] included the following:

1. In a statement dated 10 July 1998 a police officer said that on 6 July 1998 he listened to ten audio cassette tapes and recognised certain voices whilst listening. His Honour gave by way of examples:

“On tape number 2, I recognised the voices of Fred Saad, Donna Saad, Sam Kassis and Ashley Saad”

2. and

“On tape number 3 I recognised the voices of Sam Kassis, Fred Saad and Ashley Saad.”

3. A statement of a detective who said:

“On many occasions I was occupying the Listening Post, I heard a distinct adolescent male voice. I recognise this voice as Shorty. On Highlight tape 214 I recognise Shorty’s voice as saying, ‘If I got done for murder.’ I know this voice to be Shorty’s voice because I have heard others refer to the voice as Shorty.”

4. A third police officer’s statement indicated that he had monitored conversations on 2 days and recognised the voice of a number of persons, although that statement referred to production of the logs and tapes but did not in terms identify the speakers.

5. Those three officers referred to in (1), (2) and (3) above were cross-examined extensively before Magistrate Orchiston and later before Newman AJ, from which it emerged that there were no transcripts at the time Constable McDonald made his voice identification. According to Detective Rudens, in the preparation of the transcripts, ‘numerous’ other police officers including Constable Schott purported to identify one or other of the speakers.

6. Further statements were then prepared. A fourth officer made a statement on 12 September 2002 that he had listened to the two CDs and read the corresponding transcripts which he said were accurate. He said that he recognised the voices of, inter alia, Fred, Donna, Caroline and Ashley Saad, Sam Kassas, James El-Wasfi and Gary Roth having previously spoken to them. He said that “during the period November 1996 to March 1999 he had extensive dealings with, inter alia, Danny, Fred and Donna Saad, Sam Kassas, James El-Wasfi, Andrew Hoogwerf and Gary Roth and recalled arresting most of them”.

7. The primary judge referred to a statement made by a fifth officer in November 2003 in which he said he was familiar with the voices of most of the Plaintiffs, having spoken to each of Danny and Fred Saad, Sam Kassas and James El-Wasfi on at least forty occasions and to Andrew Hoogwerf on no more than twenty occasions.

8. Finally, his Honour referred to the contemporaneous notes made by police in Listening Device Logs in some of which they purported to identify persons present or speaking. His Honour said that “those logs add something but not much to the identification evidence to which I have referred”.

88. His Honour then concluded at [181]-[182]:

“When all of this evidence is taken into account, there is clear justification for taking the view that the authors of the statements recorded on the Listening Devices were those nominated in the transcripts and that that fact could be proved. The matter is not so obvious if the time of any judgment is earlier than October and November 2003. However, even at the time of Exhibit U, August 2002, those responsible for the prosecution might reasonably have inferred from the statements of Constables Rudens and McDonald that the identification was based on familiarity with the speakers and the transcripts accurately recorded the speakers and those matters could be established. Constable Hollingsworth said so in his statement of 12 September 2002.

And although I do not need to rely on it, when regard is had to Sergeant McLennan’s association with that station, to the fact that his investigation was centred around Redfern and to the attention of Redfern police that the Saads and their associates had obviously attracted, I would readily infer that Sergeant McDonald almost certainly became aware of that attention and its incidents, including familiarity with at least many voices. I would not be deterred from this conclusion by Sergeant McLennan’s evidence that before the McPherson matter he had never dealt with the Saads.”

89. That aspect of his Honour’s analysis was not directly challenged in either appeal.

The findings as to malice on the part of Sergeant McLennan

90. The primary judge saw Sergeant McLennan give evidence on the 5th, 6th, 7th, 8th, 9th and 10th days of the trial. Most of his evidence was about events which had occurred more than a decade earlier, and, plainly, there were some matters which he could not explain. The primary judge addressed the question of Sergeant McLennan’s state of mind extensively, at [390]-[444]. The result was a calibrated rejection of malice, which included the following points.

91. First, at [392], his Honour referred to:

“an unreal view of prosecuting. The police or the DPP do not choose the persons who witness offences or admissions and many of whom do have personal deficiencies and attributes of unreliability. Whether their accounts should be accepted in a particular case is primarily for a court or jury. Accordingly, the mere fact that a prosecution, depending for its success on witnesses easily discredited or not able to be corroborated, is continued, while obviously relevant to the issue of reasonable and probable cause, says little or nothing otherwise on whether the prosecution was motivated by malice.”

92. Secondly at [396], his Honour accepted Sergeant McLennan’s evidence that “he had never dealt with the Saads before. He added that he had no reason to approach the case with other than an open mind”.

93. Thirdly at [396], and expressly independently of that finding, his Honour said that:

“it seems to me inevitable that a consideration of the material available at the time of Sergeant McLennan’s first involvement would inevitably have led to a firm and not unjustified view that Danny Saad and Mr Kassas were two of the participants in the attack on Mr McPherson, that the other participants were relatives, friends or acquaintances of Messrs Danny Saad and Kassas and possibly included Mr Pound and that others including Mr El-Wasfi and Fred Saad at least had information as to the identity of persons who had been participants in the attack. Particularly significant in this connection was the evidence against Danny Saad, the destruction of Fred Saad’s Falcon, the Listening Device material, Mr Roth’s statements, his evidence at the first committal proceedings and the Magistrate’s remarks at the conclusion of those proceedings.”

94. Fourthly, his Honour noted at [398] that possibly the strongest aspects of the attack on Sergeant McLennan concerned his reliance on witnesses of doubtful credibility, particularly Mr Roth, Ms Holland and Mr Byrne, and what was submitted to have been his failure promptly to produce information adverse to their credibility. His Honour criticised the way in which Sergeant McLennan disclosed a further statement from Mr Roth dated 5 November 2002 dealing with much of his past including psychiatric treatment, drinking problems and medication, although his Honour noted that because of Mr Roth’s association with most of the appellants, it was “an almost inevitable inference that, without being told anything by the police or DPP, they would have had some significant knowledge of Mr Roth’s past”: at [407]. His Honour also criticised the failure fully to disclose Mr and Ms Holland’s credibility difficulties, especially Ms Holland’s psychiatric treatment. There was a particular aspect of his Honour’s reasoning at [417] which warrants reproducing:

“On the question of malice, it is also appropriate to bear in mind the continuation and indeed what might be described as the exacerbation of proceedings against Mr El-Wasfi following on Ms Holland’s statement of 4 November 2002. I have already indicated that I do not regard that statement as entitled to any appreciable weight in favour of the prosecution and indeed it throws doubt on Ms Holland’s credibility and thus on her earlier statement that formed the basis of the concealment charges against Mr El-Wasfi and Ashley Saad. There is much to be said for the view that after the 4 November statement, Ms Holland should not have been relied upon. However if, as Sergeant McLennan asserted, and I am disposed to accept, the fresh charge against Mr El-Wasfi was on the instruction of Mr Kimble, I would not infer that that event was evidence of malice on the part of Sergeant McLennan.”

95. Fifthly, in relation to the Listening Device tapes, the primary judge addressed these at [419]-[423], and concluded that:

“[T]here was incriminating material able to be heard and the fact that there were other parts that could not was not a reason for disclaiming use of the material that could be heard, certainly in the absence of some reason to think that there was some significant possibility that what could be heard was qualified by what could not. Thus, I do not regard the poor quality or the use of the tapes or, I might add, acceptance of the method of attribution, as arguing for the existence of malice.”

96. Sixthly, his Honour collected at some length aspects of Sergeant McLennan’s evidence at [424] which he regarded as “less than satisfactory”. His Honour said at [440] that he could see no adequate explanation for some of the deficiencies, and added:

“That may be because of the passage of time. Some are likely to be the product of negligence or incompetence.”

97. At the end of a lengthy analysis, his Honour’s dispositive finding as to malice on the part of Sergeant McLennan were at [442]-[444]:

“I return to the actions of Sergeant McLennan that strike me as most inexplicable - his concealment of, or failure to timeously produce, information concerning incentives of which Mr Roth was advised and information concerning Ms Holland’s mental issues and hospitalisation. As I have indicated, Sergeant McLennan provided no explanation as to why this information was not provided, or provided earlier.

Given the extent of disclosure that did occur and what Sergeant McLennan must have known would be likely to emerge, I am hesitant to infer that he practised deliberate concealment but if he did, the most likely reason was to increase the chances of conviction of persons he thought guilty and who should be convicted and against whom there was some appreciable evidence. Even if that conclusion be drawn, I am satisfied that it was not, so far as he was concerned, a dominant purpose in the commencement and maintenance of the prosecution and thus did not constitute malice - A v State of New South Wales at [91].

I am certainly not persuaded that Sergeant McLennan had a closed mind, that he had any purpose or motive, dominant or otherwise, to secure a conviction at all costs or was guilty of any of particulars of malice set out at the beginning of this section of these reasons.”

The findings as to malice on the part of the DPP officers

98. The primary judge dealt with this more concisely, at [445]-[463]. Of course, there was much less to say, because none of the DPP officers gave evidence.

99. His Honour observed at [445] that each plaintiff acknowledged that, aside from the prosecutions for the murder of Mr McPherson, none of the DPP officers had had any contact with any of them.

100. In the case of Mr Kimble, his Honour referred to:

1. the rapid charging of Mr El-Wasfi without due consideration of the material, particularly the November statement from Ms Holland;

2. the failure to give due attention to Ms Holland’s mental state (including her bipolar disorder and the need for corroboration);

3. the failure to confer with Sergeant McLennan concerning Ms Holland’s demeanour when she made her statements; and

4. the fact that the Crown could not establish that the contents of her statements of 6 August and 4 November were reliable.

101. Mr Kimble had made documents in April 2003 (a recommendation and a post committal summary and checklist) which did not refer to those matters, or to deficiencies in the Listening Device evidence and attribution, or to the possibility and evidence that Listening Device tape 57bjl referred to events other than the attack on Mr McPherson, or to matters impinging on the evidence of Mr Roth. Of the latter, his Honour said at [448]:

“it is impossible to avoid the conclusion that the checklist was a very superficial document if, as may reasonably be inferred, it was intended to fairly or comprehensively reflect the strength and weakness of the prosecution case. It is difficult to pick the document’s greatest failings but perhaps they include the inherent unbelieveability of Ms Holland’s second statement and her explanation for not having mentioned Mr Elwasfi in her first statement, the impact of Lee’s case in light [of] her repudiation of her statements and the issue of ‘without reasonable excuse’.”

102. However, his Honour concluded at [452] that:

“the matters of which complaint is made do not persuade me of the existence of malice on the part of Mr Kimble. Rather do they argue far more convincingly of incompetence by him and/or in the setting of standards for documents such as he prepared that than [sic] of wilful or reckless failings. Indeed the tenor of a large portion of the 16 or so pages of the Post-committal Summary and Checklist, if that was what it was intended to be, argues in that direction.”

103. The primary judge said of the other two DPP officers at [454] that:

“Given the problems with Ms Holland’s statements and her evidence at the committal proceedings and subsequently, the likely impact of Lee’s case, and the requirement for an absence of reasonable excuse in the case of Messrs Elwasfi and Ashley Saad, Messrs Roser and Thorpe should also have addressed the issues to which I have referred. However again incompetence rather than wilful or reckless failings or a determination to secure convictions at any cost seems to me a more likely explanation for the continuation of the prosecutions without examination of the issues.”

104. The primary judge also recorded submissions based on Mr Roser’s written submissions, on his recommendation for an ex officio indictment against Fred Saad for murder, of the fact that Mr Roth’s evidence before Newman AJ (including that which led to the termination of the trial) “would have persuaded any honest prosecutor to abandon use of him to establish that any of Messrs Kassas, El-Wasfi or Pound was guilty of murder”, with much the same submissions being made in respect of Mr El-Wasfi insofar as his prosecution for murder depended upon the evidence of Ms Holland. His Honour rejected the submission insofar as it was based upon Mr Roth, in light of the Listening Device evidence. His Honour regarded the evidence of Ms Holland differently, saying at [460]:

“Continued reliance on Ms Holland after the statement of 4 November was unjustified, even more so after she had repudiated her statements. I do not base those conclusions on the evidence of her medical condition but on the lack of credibility demonstrated by the 4 November statement and her evidence given in the committal proceedings and later. However the questions remain whether and why one should infer malice from this reliance.”

105. The dispositive paragraphs in relation to all three DPP officers were at [461]-[462]:

“As I have indicated, none of the three Crown prosecutors gave evidence and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was relied on in support of the proposition that I should therefore more readily draw the inference of malice. However, I am not inclined to do so. I see no reason why the prosecutors should have pursued any of the Plaintiffs for an improper purpose and no evidence of any such purpose other than that the suggested weaknesses in the Crown case (assuming those weaknesses can be such evidence). Quite apart from the continued reliance on doubtful evidence and witnesses, there are sufficient indications of incompetence, negligence, lack of attention to evidentiary difficulties or lack of appreciation of the law on the part of each of the DPP prosecutors to incline me to the view that such factors are far more likely explanations for what occurred than malice, even on the Plaintiffs expanded definition of that term.

I have also considered the conduct of Mr Thorpe in continuing the proceedings after Sully J had rejected the Listening Device evidence. From that time, the only significant evidence against Messrs Kassas and Pound consisted of what I have referred to as the evidence against Danny Saad, the evidence of association and the uncorroborated evidence of Mr Roth. The Crown case was weak. However, even if one takes the view that the further continuation of the proceedings against Messrs Kassas and Pound was without reasonable and probable cause, it does not inspire me to conclude that the continuation was motivated by malice.”

The appellants’ Baden-Clay submission

106. The references in ground 2 of Mr El-Wasfi’s appeal and grounds 4 and 5 of the other appeal to R v Baden-Clay turned on the propositions that there was a binary choice to be made between findings of malice as opposed to incompetence, and because the State had “disavowed” (as it was repeatedly said) incompetence, there was appellable error in failing to find malice.

107. The submission was advanced by reference to A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [88]-[91]:

“Malice

There remains for separate consideration the question of what will constitute malice.  When it is said that malice is demonstrated by showing that the prosecutor acted for purposes other than a proper purpose of instituting criminal proceedings, what kinds of extraneous purpose suffice to show malice?

Fleming rightly said that ‘“[m]alice” has proved a slippery word in the law of torts’.  It will be recalled that Lord Davey, in the passage of his speech in Allen v Flood set out earlier in these reasons, had spoken of the law giving protection to prosecutors even where there is no reasonable and probable cause for the prosecution, but losing that protection ‘if the person abuses his privilege for the indulgence of his personal spite’.  To the same general effect, Fleming said, of the use of the word ‘malice’ in relation to this tort that:

‘At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.’

‘Malice’ in malicious prosecution is a separate element of the tort.  It is to be contrasted with ‘malice in law’ – what Kitto J described, citing Shearer v Shields, as ‘the unlawful intent which is present whenever an injurious act is done intentionally and without just cause or excuse’.

No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism – like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause – may very well mislead.  Proof of particular facts may supply evidence of both elements.  For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated.

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.” (Footnotes omitted, emphasis added.)

108. Particular emphasis was placed on the emphasised words from [90] reproduced above. Although acknowledging that they fell short of mandating a finding of malice, Mr EI-Wasfi urged, repeatedly, that if malice was not to be inferred in a case so (it was said) glaringly misconceived as that brought against Mr El-Wasfi, then the passage was an empty vessel.

109. Thus, the submission was advanced orally as follows:

“Hulme J seems to have constructed a case all around the idea that the DPP officers were likely to have been incompetent and that was the explanation rather than malice, but our submission was that was not a case that was available because that was not a case that was put.

In effect what my learned friend, Mr Temby, put was a no case submission. So we said once you showed the glaringly insufficient material we had come within the ‘may’ of A v State of New South Wales, we had in effect established what we would submit was a prima facie case, and then it was not answered by any officer of the DPP giving evidence. No officer stood up and explained how he dealt with this material. No officer stood up and said, ‘I deny that I was motivated by a dishonest purpose.’ No officer said, ‘I misunderstood R v Lee because I didn't understand I could not prove out of Court confessional statements that had been retracted by cross examining the witness to whom the confession had been made’ ...

So we had no evidence of that type. My submission was it was not open to the trial Judge to construct ... some thesis around some case that was not put at trial. It simply was not put. It wasn’t put evidentially in the sense that no DPP officer was called to explain his conduct. No DPP officer was called to say, ‘I deny I had malice.’ No submission was made about the various deficiency in the recommendation prepared by Mr Kimble that the judge focuses greatly on as demonstrating incompetence. Our submission was the starting position is A v State of New South Wales.”

110. These submissions cannot be accepted, for a number of reasons.

The pleadings and the way the trial was run

111. The starting point is the pleadings and the way the case was run. The statement of claim alleged malice on the part of Sergeant McLennan and the DPP officers:

“The plaintiffs rely upon the entirety of the material facts pleaded in respect of absence of reasonable and probable cause and the plaintiffs assert either directly or by inference that all the prosecutions were instigated and maintained for the improper purpose of convicting the plaintiffs and thereby securing lengthy custodial sentences.”

112. The allegation of itself is problematic, for there is nothing improper about commencing and maintaining a murder prosecution for the purpose of achieving a conviction. The particulars clarified that the essence of the allegation was that Sergeant McLennan and the DPP officers were “motivated with achieving a prosecution against the plaintiffs at any cost”, and it was in that sense that submissions were advanced on appeal.

113. The allegation of malice was denied by the State. That left it to the plaintiffs to establish malice. Mr El-Wasfi acknowledged, correctly, that given the seriousness of the impropriety, s 140 of the Evidence Act 1995 (NSW) reflecting the considerations in Briginshaw v Briginshaw attended the finding he asked this Court to make.

114. Consistently with the way malice had been particularised, the case was opened to the primary judge as follows:

“Your Honour, as I stand here, I am highly conscious of what a serious allegation that is to make against senior officers of the DPP; this is not something I brought with any pleasure, nor do I put it lightly. It’s a matter about which I have given – personally, a great deal of consideration, and your Honour, I make the submission that this evidence is so glaringly deficient that it is evidence of the next step which is malice, which is the overzealotry, the complete failure to corroborate these dreadful witnesses, they’re all drug addicts and informers and motivated by reward. It’s the worst collection of witnesses you could imagine, your Honour ...”

115. Throughout the trial, including from two pages of the transcript after the extract from the plaintiffs’ opening reproduced above, the primary judge made it clear that another possible inference was incompetence:

“HIS HONOUR: That’s [consistent] with incompetence.

WHEELHOUSE: Yes.

HIS HONOUR: As distinct from malice.

WHEELHOUSE: Yes. Your Honour, one might make a submission that it’s negligent or incompetent, but one has to look at the expertise involved, and the nature of the process.

HIS HONOUR: I’m conscious that you’re conscious of the distinction, it’s just one thing you, no doubt, have to deal with.”

116. In closing address, the primary judge reiterated the same concern (“Why shouldn’t one draw the conclusion [the prosecutor] was just incompetent?”). In response to a statement that the primary judge never ceased to be amazed that “things have happened which I find inexplicable”, counsel submitted:

“The deficiency of this evidence is not something that’s going to be overlooked through incompetence. it is so glaring, with great respect. You could imagine a grey area where incompetence may come into bear, failing to issue a notice or something like that. Your Honour, we say here this insufficiency, to use the words from A, was so glaring that it could not be explained by incompetence and if it was going to be explained by incompetence then the relevant person ought to have been called to say that.”

117. In closing submissions from the State, senior counsel responded to the repeated criticisms expressed by the primary judge, saying that the judge “was entitled to say that it is the common experience of judges of this Court that some Crown Prosecutors sometimes display a deal less than decent competence”. However, he immediately added “of course you couldn’t properly say that with respect to any of the individuals who have been mentioned in this case”. This was the “disavowal” of which much was made. But context matters. Senior counsel immediately added:

“You couldn’t say that in your experience Mr [Thorpe] is a fabulously gifted and diligent prosecutor because if you had such a strong view about him you probably wouldn’t be presiding over this case but when it comes to a more generalised notion of the common experience of the group, admittedly elevate group to which you belong that sometimes some Crown Prosecutors display less than a decent level of competence, that is, we submit, a view that you do not have to discard at the door of the Court room”.

118. He added:

“[N]aturally, in deciding if there is an absence of reasonable and probable cause in some respect, in deciding whether that is due to malice, the Court will have to consider alternative explanations.

The range of such explanations is not, of course, it is not an either/or situation of malice or negligence. It might be malice or imperfect performance of functions falling short of malice – there is a whole range of alternative possibilities of which the Court will naturally have to be cognisant, and we suggest bear anxiously in mind, because malice is not a conclusion that would be likely drawn in any case.”

119. Thus it was that the “disavowal” of negligence was confined to the failure to plead a positive case, and a single statement in closing submissions which was more directed to the difference between taking judicial notice of the characteristics of the class of Crown prosecutors as opposed to the impropriety of taking judicial notice of the characteristics of three individual Crown prosecutors.

No error in failing to find malice

120. The principal submission on appeal was to the effect that if negligence or incompetence were excluded, it was wrong for the primary judge not to find malice. That is just not so.

121. The plaintiffs had undertaken the difficult forensic task of demonstrating malice on the part of a police officer and three DPP officers in prosecutions more than a decade previously. Senior counsel who appeared for the plaintiffs at trial was evidently conscious of the heaviness of the burden. But it was open to the Court not to reach a state of satisfaction that any of the men were motivated by malice.

122. It was of course necessary, in order for the appellants to have succeeded on this issue, for the primary judge to have applied s 140 of the Evidence Act and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34:

The matters to which I have referred as providing an excuse for Mr El-Wasfi to decline to provide information to police, must all have been known to Sergeant McLennan and there is nothing to suggest that he had any contrary information. It follows that there was no reasonable and probable cause for Mr El-Wasfi to have been charged on 23 August 2002 with conceal serious offence.”

193. At [365] and [366], the primary judge addressed Mr El-Wasfi’s arrest and charging with murder on 6 November 2002. At that time, the additional evidence was Ms Holland’s statement of 4 November 2002, which his Honour considered provided no reasonable basis to bring a murder charge. For that reason, his Honour concluded that there was an absence of reasonable and probable cause in respect of both charges which continued until Mr El-Wasfi was acquitted. The evidence relating to the reliability of Ms Holland was not one-sided (for example, a treating psychiatrist who conducted three interviews with her in late 2002 and early 2003 advised that it was “highly probable that Ms Holland had an abnormal state of mind on 6/8/02” but also that “it was probable that the evidence she gave [on 4 November 2002] would be less affected by her abnormal state of mind and may be more reliable”. However, no challenge was made by the State (which would have required a notice of contention) to that finding.

194. That portion of his Honour’s reasons addressed an element of malicious prosecution. The entirety of his Honour’s reasoning on wrongful arrest was at [465]-[466]:

“I have set out the relevant terms of s 352 of the Crimes Act 1900 above. The issue presently for determination is whether either of those Plaintiffs has established that at the time of his arrest he was not someone whom the arresting officer ‘with reasonable cause, suspect(ed) of having committed’ the relevant crime.

I have also set out above the evidence available to police at the time of Mr El-Wasfi’s arrest on 23 August 2002 and recorded my view that that while there was reasonable evidence of Mr El-Wasfi having material information and declining to provide it there was no basis for concluding that he had no reasonable excuse. There was thus no reasonable cause for concluding that he had committed the offence charged and hence Mr El-Wasfi was wrongfully arrested.”

Error by the primary judge is established

195. The State maintained that the decision of the primary judge had been procedurally unfair, ordering judgment against it on a basis that had not been pleaded, nor particularised, nor opened, nor put to Sergeant McLennan, nor the subject of submissions.

196. The State also said that the finding was plainly wrong as a matter of law.

197. The result of a finding of failure to accord procedural fairness, without more, is ordinarily a retrial. The State made it plain that it wished to avoid that outcome. While there is force in the submission, given that it is quite clear that the reasons which were in fact given disclose error, it is convenient to pass directly to the latter matter.

198. The first of the dispositive paragraphs, [465], correctly stated the test under (former) s 352 of the Crimes Act 1900. The second, [466], applied the finding made in connection with an element of Mr El-Wasfi’s claim for malicious prosecution as dispositive of the test. That is wrong. It is one thing for there to be an absence of reasonable and probable cause to commence or maintain the prosecution. It is another thing entirely for a police officer exercising a power of arrest to have suspected, with reasonable cause, someone of having committed a crime. As Mr Temby submitted:

“at [363] what is being spoken of is reasonable and probable cause for the laying of a charge. That is an element of the test for malicious prosecution which has apparently been conflated with the suspicion test that arises under s 352.

Reasonable and probable cause to charge differs from and is greater than suspicion with reasonable cause of having committed an offence, and it's the latter and the latter only which is the test under s 352.”

199. The distinction is familiar. A unanimous High Court said in George v Rockett (1991) 170 CLR 104 at 115; [1990] HCA 26:

“Suspicion, as Lord Devlin said in Hussey and Hussien v Chong Fook Kan, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”’ The fact which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.” (Citations omitted.)

200. Mr Wheelhouse SC maintained that the primary judge applied the correct test, but had “just made a typographical error” (Transcript, 16 November 2017, p 108). On behalf of Mr El-Wasfi all that could be said in support of the reasons of the primary judge was said (p 109):

“WHEELHOUSE: … What he has done is set out the right section, namely 352. He understands the test, he's just used the wrong words. When one goes to 465 he says, ‘There was thus no reasonable cause for concluding that he had committed the offence charged.’ In other words, what his Honour is applying at the most

SIMPSON JA: ‘Concluding’ should be ‘suspecting’.

WHEELHOUSE: Yes. So his Honour's got the right section, he’s applying the right logic, he’s just adopted the wrong word.

PAYNE JA: But even the reference back to what he’d earlier found was in a context where what he says at 465 makes perfect sense, namely, conclusion rather than suspicions. So he's incorporating by reference the wrong material, isn’t he? Or at least material judged by the wrong standard.

WHEELHOUSE: With respect, at 464 he’s adopting the right standard. He’s adopting a suspicion test.

PAYNE JA: I understand that, but I am talking about his conclusion in 465.

WHEELHOUSE: He should have said that there was no basis for McLennan to suspect he had reasonable excuse. The point being, your Honours, that

SIMPSON JA: He uses the ‘concluding’ again the next sentence.

WHEELHOUSE: If one looks at the structure of his judgment, the fact that he specifically refers to s 352 which is the section that deals with what an arresting a police officer is required to have in his mind at the time of the arrest without a warrant, namely a reasonable suspicion that the offence has been committed. The conclusion he reaches is, in my respectful submission, the correct conclusion, that there was an evidentiary failure on the part of the defendant not the plaintiff.”

201. It is very much to be doubted this is a mere “typographical” error. The change of language from suspicion in [464], and the repetition of the correct test at [468] in connection with Mr Pound’s claim for wrongful arrest, contrasts with the repeated language of “concluded” in the dispositive paragraph [465]. Moreover, the primary judge was expressly incorporating by reference his reasoning process in relation to malicious prosecution in order to resolve this separate cause of action advanced by Mr El-Wasfi, and that earlier reasoning had, entirely correctly, been framed at the level of conclusion rather than a suspicion. If his Honour meant what he said, then it is clear error. If, alternatively, there was some “typographical” error at [465], then his Honour’s reasons disclose no explanation of why Sergeant McLennan lacked a reasonably held suspicion that Mr El-Wasfi was concealing evidence of murder.

202. It follows that his Honour’s finding that the arrest was unlawful was made on an incorrect basis. It falls to this Court, if it can, to make a primary finding of fact, as is authorised by s 75A(10) of the Supreme Court Act 1970 (NSW), as to whether there was a reasonable suspicion that Mr El-Wasfi had committed an offence.

Remaining submissions on appeal

203. The balance of the State’s submissions on appeal were essentially twofold. First, they complained that there had been a denial of procedural fairness in a finding based on the absence of a reasonable and probable basis for the absence of any reasonable excuse. The State submitted that:

“Sgt McLennan was not asked questions about the absence of otherwise of a ‘reasonable excuse’. No such case was advanced in the pleadings, particulars, or in opening. It is barely discernible (if at all) in closing submissions. Certainly there was no evidence from El-Wasfi himself about any such fear. [That is, of self incrimination.]

These matters lead to the inevitable conclusion that SNSW was denied procedural fairness in not being given an opportunity to address the case ultimately found against it, either by evidence or by submission, and the finding cannot stand.”

204. The State’s submissions added that the case could not have been conducted on the basis of Mr El-Wasfi’s evidence, because his case was that he knew nothing about the murder that he had not disclosed in his interview with the Crime Commission. Orally, Mr Temby submitted that:

“[I]t’s apparent that the primary judge has pursued an issue impermissibly which was not raised or dealt with in the case at trial, whether in the pleadings, the opening, the cross examination of McLennan or the closing submissions.”

205. Secondly, the State submitted that the absence of “reasonable excuse” was not an element of the offence. Rather it was a defence available to the accused, as to which the accused bore the onus. It submitted that the burden of proof of a reasonable excuse lay upon the accused, on the balance of probabilities: Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449. Further, even if the Crown bore the onus, if no excuse were proffered, then the element would be made out: Phipps v State Rail Authority of New South Wales (1986) 4 NSWLR 444 at 447-8. And in any event, there was a difference between the proof required on a prosecution of the offence, as opposed to the suspicion which was sufficient to make the arrest lawful.

206. Mr El-Wasfi accepted that in a prosecution for the offence created by s 316, there would have been an evidentiary onus upon him to raise an issue that he had reasonable cause not to disclose what he knew. However, he insisted that, when called upon to justify the lawfulness of an arrest, based on a reasonable suspicion of his having committed that offence, it was necessary for the arresting officer to demonstrate a suspicion that Mr El-Wasfi did not have reasonable cause not to disclose the information. It was said that the onus lay on the arresting officer to justify the arrest, that it was necessary for the arresting officer to suspect that each element of the offence had been committed, and that the absence of reasonable cause was an element.

“In a wrongful arrest case, the State of New South Wales has the evidentiary onus of establishing that the arresting officer did have a reasonable suspicion that the plaintiff did not have a reasonable excuse. Now that’s completely different to a case where a person is being prosecuted for a breach of s 316. In that case, where the person is being directly prosecuted, then the accused has an evidentiary burden of establishing the reasonable excuse.”

207. It was said on behalf of Mr El-Wasfi that, contrary to the State’s submission, this point had been raised before the primary judge:

“I made a submission, as I said, that he inherently did have a reasonable excuse, and I drew the court’s attention to R v Petty at great length and I think I have put those in the submissions fairly clearly.”

208. It was then said:

“WHEELHOUSE: Your Honour, I made a very strong submission which was strongly put about the misuse of 316, namely it shouldn’t be used in the way that it was being used which is to force the rollover and unless he had the right to remain silent, and that is

PAYNE JA: Where is that, because that’s not dealt with under wrongful arrest as far as I can see.

...

WHEELHOUSE: It starts at 463 in the passages at 465. As I cross examined the sergeant to try and establish that he couldn’t have a reasonable suspicion that El-Wasfi had further evidence because his plan failed, and I cross examined him to establish that he headed off to charge El-Wasfi out of frustration because he believed at all times that that El-Wasfi was guilty of involvement, so I could make the submission El-Wasfi had a reasonable excuse because he had a right to remain silent and he was using the charge under 316 to force a confession out of El-Wasfi as part of his general procedure.”

209. Finally, it was said that counsel had deliberately not cross-examined Sergeant McLennan about his reasonable suspicion.

“So McLennan was never called to say ‘I had a suspicion he didn't have a reasonable excuse’. Of course I had no reason to cross examine McLennan, because all I would have done if I had done that was in fact created evidence that my learned friend omitted to bring into the trial.”

Mr El-Wasfi also submitted that on its proper construction, the absence of a reasonable excuse was an element of the offence created by s 316.

210. The State submitted that the reference to Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 was in an entirely different context. It was put thus:

“Mr Wheelhouse informed the Court that he had referred to the decision in Petty v R, he did so and it is to be found at black 2, p 627. He did so, however in the context of an argument concerning malice, having referred to Law Reform Commission reports, having quoted from R v Petty, my learned friend said at 627 U, that in fact the malice is absolutely abundant. That’s the context in which Petty was being referred to.”

Conclusion on the cross-appeal

211. The State is correct to submit that the point now sought to be relied upon cannot, in accordance with Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, be taken on appeal.

212. It is true that very substantial efforts were taken in the days and weeks prior to the trial, when new counsel had been briefed, to salvage the plaintiff’s position from the position which emerged from the pleadings – where the arrest was alleged to have occurred on the wrong date, the detention on the wrong dates, and there was a failure to allege that Mr El-Wasfi’s arrest was wrongful. The revised particulars cured those factual errors, and unambiguously advanced a new case, namely, that Mr El-Wasfi’s detention was confined to 23 and 24 August 2002, and his arrest was wrongful because of an absence of evidence to sustain a reasonable suspicion of his having committed the offence of concealing evidence.

213. The case was opened on that basis, and Sergeant McLennan was cross-examined on that basis. It would be unfair in the extreme to make a finding now in 2017 to the effect that Sergeant McLennan believed that Mr El-Wasfi was entitled not to speak, in the circumstances of this case, or did not have a reasonable suspicion that El-Wasfi was not entitled to remain silent lest he incriminate himself. It was not merely that the issue had never been pleaded. The issues debated at trial were determined by reference to the particulars supplied in February 2015. The case there advanced was that the evidence of El-Wasfi’s knowledge of the murder was so weak that it did not suffice to give rise to a suspicion. Sergeant McLennan was cross-examined on that basis. But it is now said that the reason there could be no reasonable suspicion that Mr El-Wasfi was concealing evidence was that there was strong evidence that he had been involved in the murder.

214. The references to Petty and the criticisms of the use of s 316 by police were directed, expressly, to the inferential case of malice which Mr El-Wasfi sought to advance.

215. Mr El-Wasfi cannot now be permitted to run an unpleaded and unparticularised case which not only is different from that which was run at trial but which in fact is inconsistent with the way the case was run at trial.

216. Further, this Court can comfortably find that the arrest was lawful. Sergeant McLennan had without objection been permitted to give evidence that he had a reasonable suspicion that each of the men arrested and charged had committed the offence with which they were charged. He had also made it plain that his recollection of events more than a decade before was diminished.

217. In the absence of any cross-examination on that paragraph, and notwithstanding the criticisms made by the primary judge of Sergeant McLennan, it would be unfair not to find in accordance with that evidence, consistent as it is with the material available to him at the time (notably, the transcripts purporting to have Mr El-Wasfi discussing the assault, the belief on the part of the Crime Commission that Mr El-Wasfi was very well prepared for his interview, and his question as to whether he was being threatened). The consequence is that the arrest was lawful.

218. That is sufficient to resolve this ground of the cross-appeal. That said, there appear to be sound reasons to doubt the legal submissions advanced by Mr El-Wasfi.

219. The first way in which the submission relied upon by Mr El-Wasfi may be seen to be wrong is the inconsistency which arises. It seems, to say the least, unlikely that in a criminal prosecution, the accused bears an evidentiary onus in the absence of which there will be no issue as to reasonable cause, but in civil proceedings, the defendant bears an onus to demonstrate a reasonable suspicion of a negative, namely, the absence of reasonable excuse.

220. The position adopted by El-Wasfi, if accepted, would mean that any police officer contemplating an arrest for an offence against s 316 would be obliged to hypothesize or anticipate any potential or possible excuse that the suspect may subsequently advance for non-disclosure. The proposition seems implausible.

221. Further, it seems unlikely that it is necessary for an arresting officer to have a suspicion that a person does not have a reasonable excuse for not conveying the information. The power is conferred upon police officers, who will be making decisions based on material available to them, not all of which may ultimately be held to be admissible; such considerations were considered by Simpson JA in Polley v Johnson [2015] NSWCA 256; 253 A Crim R 521 at [44]-[51]. And the question is whether there is a suspicion that an offence has been committed, not whether the person might have (and might seek) to discharge an evidentiary burden of raising reasonable excuse. The matter may be tested this way: it may be that the arresting officer has no information, one way or the other, as to whether there was a reasonable excuse for withholding information. It seems unlikely, to say the least, that that would render an arrest unlawful.

222. No submissions were made as to the common law offence which was supplanted by s 316. No submissions were made as to the elements of the offence, or the question of onus, in other jurisdictions. Indeed, no reference was even made by any party to the fact that this Court had, in Crofts, flagged difficulties of this nature. Crofts is unreported, but is readily found in various annotated services to the Crimes Act. In an appeal in which nothing turns on the point, and in which the focus of the parties’ attention was elsewhere, I would prefer to follow the approach in Crofts and decline to express a concluded view on the construction of s 316.

Remaining grounds

223. Ground 3 of Mr El-Wasfi’s appeal, challenging the award of compensatory damages, was not pressed.

224. Ground 4 maintained that there was appellable error in the failure to award exemplary damages for Mr El-Wasfi’s wrongful arrest. This ground does not arise. In theory, it would be possible to consider whether, on the findings made by the primary judge, there was appellable error in failing to order exemplary damages. I find it very difficult to see how, having failed to establish malice on the part of Sergeant McLennan, there could be the requisite conscious and contumelious disregard of Mr El-Wasfi’s rights as explained in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [7] and State of New South Wales v Zreika [2012] NSWCA 37 at [61]-[62]. The written submissions of Mr El-Wasfi on this ground (which were adopted by the other appellants) occupied less than two pages, and there were no oral submissions.

223. Ground 6 of the other appellants’ appeal maintained that the primary judge erred in finding (at [469]) that Mr Pound’s arrest on suspicion of murder on 11 April 2003 was lawful, because it was wrong in principle to find that the Listening Device evidence was capable of corroborating Mr Roth’s statement of 1 April 1998. For the reasons given at [136], [137] and [139] above, this submission must be rejected. Further, in finding at [468] that there was reasonable cause for Sergeant McLennan to suspect Mr Pound of having committed murder, the primary judge also relied on Ms Holland’s statement of 6 August 2002. No error has been demonstrated.

224. There is no occasion to consider the elaborately framed grounds 2-6 of the State’s cross-appeal, which were directed to costs, and which were not addressed orally. The success of ground 1 of the cross-appeal means that the costs discretion will have to be re-exercised.

Orders

227. For those reasons, the appeals should be dismissed, the State’s cross-appeal allowed, and the judgment obtained by Mr El-Wasfi set aside, in lieu of which there should be judgment for the State.

228. Although it is ordinarily desirable for this Court to hear submissions on all issues, including costs, so that a further hearing is unnecessary, the State submitted that the preferable course was for there to be an opportunity to be heard as to costs following the resolution of all other grounds. There was no opposition to that course from any of the appellants.

229. Accordingly, I propose the following formal orders, whose effect is for both proceedings at first instance to be dismissed, and to make provision for the parties to be heard further as to the costs at first instance and on appeal:

In Mr El-Wasfi’s appeal (2016/295735):

1. Appeal dismissed.

2. Grant leave to the State to cross-appeal, confined to ground 1 of the draft notice of appeal contained at page 68 of the Orange book.

3. Direct the State to file a notice of cross-appeal in accordance with the grant of leave within 7 days, and otherwise dispense with the requirements as to service.

4. Cross-appeal allowed.

5. Set aside the judgment in favour of the third plaintiff Mr El-Wasfi in proceeding 2007/265173 entered on 12 September 2016 and the orders made on 21 October 2016 as to costs and in lieu thereof order that the proceeding be dismissed.

6. In proceeding 2008/289620, set aside the orders as to costs made on 21 October 2016.

7. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 8 February 2018, with a view to remaining issues being decided on the papers.

In the appeal brought by Messrs Kassas, Pound and Ashley Saad (2017/293409),

1. Appeal dismissed.

2. Direct the parties to supply agreed orders as to costs, or in default of agreement, written submissions as to costs not exceeding five pages, by 9 February 2018, with a view to remaining issues being decided on the papers.

230. SIMPSON JA: I agree with the orders proposed by Leeming JA for the reasons given by him. I also agree with the additional observations of Payne JA.

231. PAYNE JA: I have had the privilege of reading the decision of Leeming JA in draft. I agree with his Honour’s reasons and with the orders his Honour proposes. I wish only to add a few additional observations.

232. On the subject of malice, the appellants’ submissions misunderstand the effect of A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [88]-[95]. In paragraph [90], which was heavily relied upon by the appellants, the High Court was explaining that no little difficulty arises if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. Judicial attempts to reduce that relationship to an aphorism may very well mislead. Proof of particular facts may supply evidence of both elements. A prosecution launched on obviously insufficient material may support an inference of malice but no universal rule relating to proof of the separate elements can or should be stated.

233. Consideration of the evidence in this case, which Leeming JA has set out at length, does not lead to a conclusion that any of the prosecutors acted for a purpose other than the proper invocation of the criminal law. Far less does that evidence compel such a conclusion. As Leeming JA demonstrates, the appellant’s attack on Sergeant McLennan’s evidence failed to address the detailed and quite nuanced findings made by the primary judge. The primary judge was correct to reject the suggestion of malice made about Sergeant McLennan. In relation to Messrs Kimble, Roser and Thorpe, the appellants’ submission that the primary judge should have inferred malice is wholly based on an assertion that the prosecution case here was so weak that it must be concluded that the prosecutors acted for a purpose other than the proper invocation of the criminal law – being an illegitimate and oblique motive.

234. I do not regard the case against Messrs Kassas and Pound as weak at all. The listening device evidence, which I have also listened to, makes this case one far removed from one so weak that it should be concluded that the prosecutors acted for a purpose other than the proper invocation of the criminal law. Even after the rejection of that evidence, a matter reasonable judicial minds may differ about, the case against each man was objectively sufficient to be left to the jury. The primary judge was correct to reject the conclusion that the prosecutors acted for a purpose other than the proper invocation of the criminal law. In relation to Ashley Saad, the prosecution case was perhaps less strong, although the listening device evidence relating to Ashley Saad was compelling. Further, in the absence of any evidence from Ashley Saad of his reasonable excuse for failing to provide information about the murder, I do not regard the case against him so weak that an inference should be drawn that any of the prosecutors acted for a purpose other than the proper invocation of the criminal law. The case against Mr El-Wasfi was weaker, particularly after the evidential rulings by Sully J, however it seems to me to be a case where an inference should not be drawn that any of the prosecutors acted for an illegitimate and oblique motive. There was no error shown in the conclusion of the primary judge that he was not satisfied to the high standard required of the existence of malice.

235. I would be reluctant to find an absence of reasonable and probable cause in the case of Messrs Kassas and Pound in circumstances where the case against each man was objectively sufficient to be left to the jury. I agree, however, with Leeming JA that it is unnecessary to determine this issue here.

236. I also agree with Leeming JA that as Mr El-Wasfi failed to raise any potential or possible excuse at the trial, the State of NSW was not required to negative any possible excuse he may have for non-disclosure. Mr El-Wasfi cannot now be permitted to advance on appeal an unpleaded and unparticularised case which is wholly inconsistent with the way the case was run at trial. The cross-appeal must be upheld.

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Amendments

20 December 2017 - Coversheet - second Supreme Court Act entry deleted

[4] - "Crimes Act 1901" changed to "Crimes Act 1900"

[152] - "without reasonable cause" changed to "without reasonable excuse"

[221] - location of end bracket moved to after "seek to"; "not" in final sentence deleted

Decision last updated: 20 December 2017