Fred Saad v State of New South Wales; Ashley Saad v State of New South Wales

[2016] NSWSC 1247

Supreme Court

New South Wales

Medium Neutral Citation:	Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247
Hearing dates:	23 February 2015 – 13 March 2015
Date of orders:	12 December 2016
Decision date:	12 September 2016
Jurisdiction:	Common Law
Before:	R S Hulme AJ
Decision:	In proceedings 2007/265163 (i) Verdict for Mr James Elwasfi in the sum of $2000; (ii) Otherwise proceedings dismissed; (iii) Judgment accordingly. In proceedings 2008/289620 (i) Suit dismissed.
Catchwords:	Malicious prosecution – false imprisonment
Legislation Cited:	Crimes Act 1900 (NSW) Children (Criminal Proceedings) Act 1987 Director of Public Prosecutions Act 1986 Evidence Act 1995 (NSW) Inebriates Act 1912 Limitation Act 1969 Mental Health Act 1990
Cases Cited:	A v State of New South Wales [2007] HCA 230: CLR 500 Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 Beckett v State of New South Wales [2015] NSWSC 1017 Cassell & Co Ltd v Broom [1972] AC 1027 Diamond v Minter (1941) 1 KB 656 George v Rockett (1990) 170 CLR 104 Gibbs v Rea [1998] AC 786 Glinski v McIver [1962] AC 726 Jones v Dunkel (1959) 101 CLR 298 Lee v The Queen (1998) 195 CLR 554 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 Spautz v Butterworth (1996) 41 NSWLR 1 Sykes v DPP [1962] AC 528 Thomas v State of New South Wales [2008] NSWCA 316
Texts Cited:	Clerk and Lindsell on Torts, 20th ed Macgregor on Damages, 19th ed
Category:	Principal judgment
Parties:	James Elwasfi (First Plaintiff) Sam Kassis (Second Plaintiff) Andrew Pound (Third Plaintiff) Ashley Saad (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: S Wheelhouse SC, C Gregory (Plaintiffs) I Temby QC, D Villa (Defendant) Solicitors: Margiotta Solicitors (Plaintiffs) IV Knight Crown Solicitor (Defendant)
File Number(s):	2007/265173; 2008/289620
Publication restriction:	No

Judgment

Introduction

1. R S HULME AJ: It is convenient to consider the issues and evidence in these proceedings under a number of headings:

Introduction                  Paragraph 1

Resurrection of the Investigation         Paragraph 23

Issues and Evidence             Paragraph 36

Exhibit U                  Paragraph 41

Mr Roth’s Statements            Paragraph 76

Mr Roth’s Evidence               Paragraph 85

Mr Roth – Circumstances of statements      Paragraph 91

Mr Roth – Criminal and Psychiatric History   Paragraph 98

Mr Roth and Mr Shepherd            Paragraph 127

Mr Roth – Other Matters            Paragraph 133

Listening Device Evidence            Paragraph 139

Speaker Identification            Paragraph 171

Michelle Holland               Paragraph189

Geoffrey Holland               Paragraph 209

Circumstances of Ms Holland’s statement   Paragraph 215

Darren Byrne                  Paragraph 238

Other Witnesses               Paragraph 247

Sergeant McLennan and Police Investigation   Paragraph 254

Prosecutors                  Paragraph 283

The Law                  Paragraph 295

Consideration               Paragraph 305

Reasonable & Probable Cause         Paragraph 353

Reasonable & Probable Cause (Second Test)   Paragraph 378

Malice – Sergeant McLennan         Paragraph 389

Malice – DPP Prosecutors            Paragraph 444

Wrongful Arrest               Paragraph 463

Damages                  Paragraph 469

The Use of Evidence            Paragraph 492

Orders                  Paragraph 502

2. By Statement of Claim filed on 23 October 2007 Fred Saad, Danny Saad, James Elwasfi, Sam Kassis and Andrew Pound commenced proceedings against the State of New South Wales and others claiming damages for malicious prosecution. These proceedings were numbered 2007/265173.

3. There have been a number of amendments to these Statements of Claim. By the Third Amended Statement of Claim filed on 1 November 2012, the above Plaintiffs claimed for “wrongful arrest and malicious prosecution”. Counsel for the Plaintiffs identified as the balance of the pleadings in that action, an Amended Defence filed on 16 August 2013 and a Reply filed on 5 December 2012.

4. By Statement of Claim filed on 26 November 2008, Ashley Saad sued the State of New South Wales for damages for wrongful arrest, false imprisonment, malicious prosecution and misfeasance in public office. These proceedings were numbered 2008/289620. Mr Ashley Saad’s claim is now the subject of a Second Amended Statement of Claim filed on 1 November 2012, in which damages are claimed for “wrongful arrest, false imprisonment and malicious prosecution”. Counsel for the Plaintiff identified as the balance of the pleadings in this action an Amended Defence filed on 16 August 2013 and a Reply filed on 7 December 2012.

5. At one stage the Limitation Act 1969 and the passage of time were raised by way of Defence but these have been abandoned. It accordingly becomes unnecessary to me to pursue those topics further.

6. The claims of Fred and Danny Saad have been settled and hence it becomes unnecessary to consider their situation except incidentally. That said, some of the evidence against them remains relevant. The claims of the other four Plaintiffs were heard together.

7. A further qualification to the pleadings is that, as counsel for the Plaintiff advised, it is only two of the Plaintiffs who now pursue their claims for wrongful arrest. These two are Messrs Elwasfi and Pound.

8. The individuals presently said to have been responsible for the matters about which the Plaintiffs complain were Detective Sergeant McLennan, Mr Roger Kimble, Mr Wayne Roser and Mr Terry Thorpe. Detective Sergeant McLennan (hereinafter referred to as “Sergeant McLennan”) took over the relevant police investigation on 1 May 2002. Messrs Kimble, Roser and Thorpe were prosecutors employed by the Director of Public Prosecutions (hereinafter referred to as the “DPP”) who effectively had carriage of the prosecution of the Plaintiffs at various times. The Defendant, the State of New South Wales, has accepted that it is vicariously liable for any tortious actions of the four persons named and counsel for the Plaintiffs has indicated that they do not rely on the conduct of other police officers.

9. During the hearing before me, it was admitted by the Defendant that the DPP had taken over the prosecutions of all of the Plaintiffs except Mr Pound shortly after each appeared in court in August 2002. It is clear that the DPP was responsible for the prosecution of Mr Pound from 11 April 2003 when an ex-officio indictment was preferred against him.

10. Before I turn to the details of the evidence before me, it is appropriate to say something about the course the hearing before me took. In large part, reliance was placed on the contents of a Court Bundle contained in 4 lever arch folders and a Court Book, consisting of 24 such folders. Other documents were also tendered and became exhibits in the normal way.

11. Because it seemed likely that many of the documents in the Court Bundle and Court Book were irrelevant, all of those documents did not come into evidence. What was admitted as Exhibit B were nominated pages recorded in six documents marked for identification and in the transcript together with adjacent pages in the Bundle or Book insofar as they enabled understanding of, or qualified, the material the subject of the nominated pages – see T214, 246, 424. The six documents marked for identification that listed pages of the Court Book that came into evidence were:–

3   The Tender Bundle relating to Mr Elwasfi

7   The Tender bundle relating to Mr Kassas;

10   The Tender Bundle relating to Mr Pound;

11   The Tender Bundle relating to Ashley Saad;

14   The Tender Bundle described as “General Documents Information held by Prosecutor;

17   The Tender Bundle described as “Defendant’s Tender Schedule”.

12. Questions arose as to the use that some of the material that came into evidence could be put – questions I answer later in these reasons.

13. The primary event which led to the prosecution of the Plaintiffs was the death of Robert McPherson who was attacked on the evening of 27 January 1998 and died on the following day. It is clear he was murdered, the cause of death being a stab wound through his left chest. The report of the post-mortem examination and photographs of the deceased’s body indicate that he suffered a severe beating. There was one, but only one, stab wound, significant head injuries and many other less serious injuries. Included in the latter were groups of about four to six evenly spaced small lacerations or abrasions, each group forming an approximate straight line across the deceased’s back and shoulders. These could well have been inflicted by a chain to which reference will be made below.

14. On the same occasion a Mr Mazzeo who was with Mr McPherson was assaulted and injured.

15. The proceedings against the Plaintiffs that followed Mr McPherson’s death followed a chequered path. The state of the evidence against them varied from time to time and, given that the complaints relate to the maintenance of the prosecutions and not merely their instigation, it is necessary to reflect on the variations that occurred.

16. Ultimately, Mr Elwasfi was acquitted by direction of Sully J during the course of a trial in late 2004. Messrs Kassas and Pound were acquitted by the jury during the same trial. In the case of Danny Saad, the jury could not agree and on 5 January 2005, the DPP elected to take no further action against him. On 9 December 2004 the proceedings against Ashley Saad were withdrawn.

17. Some of the events of significance prior to that time and to which it will be necessary to refer, can conveniently be summarised in the following table.

27 Jan 1998

Robert McPherson and Leonard Mazzio attacked.

28 Jan 1998

Robert McPherson dies.

2 April 1998

Danny Saad, Sam Kassas and Andrew Pound were arrested and charged with murder.

14 July 1998

At the Bidura Children’s Court before Magistrate Gilmour Andrew Pound was committed to stand trial for murder.

27 Oct 1998

Committal proceedings against Danny Saad and Mr Kassas were withdrawn after an important witness, Gary Roth, refused to give evidence.

19 Jan 1999

In light of Mr Roth’s attitude, the DPP presented a no-bill in relation to Mr Pound.

1 May 2002

Investigations into Mr McPherson’s death were re-activated with Sergeant McLennan in charge.

30 July 2002

Mr Elwasfi gave evidence before the NSW Crime Commission, denying knowledge regarding Mr McPherson’s murder.

6 Aug 2002

Michelle and Jeffrey Holland made statements which on their face were incriminatory of a number of the persons suspected.

9 Aug 2002

The following persons were arrested and charged:-

Danny Saad – with murder & with AOABH on Leonard Mazzio.

Sam Kassas – with murder.

Fred Saad – being an accessory after the fact to murder.

Ashley Saad – concealing a serious offence.

23 Aug 2002

James Elwasfi was arrested and charged with concealing a serious offence.

4 Nov 2002

Committal proceedings before Magistrate Orchiston commenced against Messrs Danny, Fred and Ashley Saad, Sam Kassas and James Elwasfi. After adjournments the proceedings resumed on 13 January 2003, and 24 March 2003 and continued until 27 March 2003.

6 Nov 2002

James Elwasfi charged with murder.

27 Mar 2003

Messrs Danny, Fred and Ashley Saad, Sam Kassas and James Elwasfi were committed to stand trial for murder.

11 Apr 2003

Andrew Pound arrested and charged with murder on ex officio indictment.

2 May 2003

Indictment charging Messrs Danny Saad, Sam Kassas, Elwasfi, and Pound with murder, Fred Saad with being an accessory after the fact and Ashley Saad with conceal serious offence.

30 Sep 2003

There was agreement between the DPP and Ashley Saad that, on terms, the charge against him should be severed from the indictment.

3 Oct 2003

Another indictment charging Messrs Danny Saad, Kassas, Elwasfi, and Pound with murder and Fred Saad with being an accessory after the fact.

13 Oct 2003

Voir dire hearing involving Messrs Danny, and Fred Saad, Sam Kassas, James Elwasfi and Andrew Pound before Newman AJ commenced.

21 Nov 2003

Judgment on voir dire delivered.

16 Aug 2004

Trial of Messrs Danny, and Fred Saad, Sam Kassas, James Elwasfi and Andrew Pound commenced before Newman AJ.

30 Aug 2004

Newman AJ’s trial aborted.

13 Sept 2004

Trial of Messrs Danny, and Fred Saad, Sam Kassas, James Elwasfi and Andrew Pound before Sully J commences.

20 Sep 2004

Another indictment charging Messrs Messrs Danny, and Fred Saad, Sam Kassas, James Elwasfi and Andrew Pound others with murder.

28 Sep 2004

Another indictment charging Messrs Messrs Danny, and Fred Saad, Sam Kassas, James Elwasfi and Andrew Pound others with murder.

27 Oct 2004

Sully J directs verdict in favour of Elwasfi.

8 Nov 2004

Jury in Sully J trial retires.

18 Nov 2004

(On or after) jury in Sully J trial acquits Fred Saad, Sam Kassas, and Andrew Pound but cannot agree re Danny Saad.

10 Jan 2005

DPP advises no further proceedings against Danny Saad.

18. The first group of arrests connected with Mr McPherson’s death occurred on 1 or 2 April 1998. One of those arrested on that day was Mr Pound who was then charged with Mr McPherson’s murder. During the course of the criminal proceedings that inspired the present suit and at an earlier stage of it, Mr Pound was referred to as “AH”. This was in consequence of the Children (Criminal Proceedings) Act 1987 and an order of Sully J made on 13 September 2004. During the course of these proceedings and with the consent of Mr Pound, I vacated that order. In the course of the various proceedings he has also been referred to as “Shorty” and “Andrew Hoogwerf”.

19. On 2 April 1998 Messrs Danny Saad and Sam Kassas were arrested and charged with Mr McPherson’s murder.

20. On 14 July 1998 at the Bidura Children’s Court, Mr Pound was committed for trial. A Mr Roth was the only witness who gave evidence and the crucial part of what he said was that Mr Pound had confessed to breaking a baseball bat over Mr McPherson’s head. In the course of her reasons for committing Mr Pound, Magistrate Gilmour remarked that Mr Roth’s evidence was “pivotal”, that he was “clearly a rogue” but that she had found him to be “frank”, “spontaneous”, “believable and credible”.

21. Despite being committed, the charge against Mr Pound was “no-billed” by the DPP on or about 22 February 1999. This followed the withdrawal of committal proceedings against Danny Saad and Mr Kassas on 27 October 1998. As has been said, on 11 April 2003, he was re-arrested pursuant to an ex-officio indictment being preferred and effectively resurrecting the charge against him. On 11 April 2003, he was remanded in custody to appear in the Supreme Court on 2 May 2003.

22. Committal proceedings relating to these two took place in October 1998 and, as I have said, were withdrawn and they were discharged. The inspiration for the withdrawal was that Mr Roth declined to give evidence upon the stated ground that subsequent to his giving evidence against Mr Pound and because of giving that evidence, he had been assaulted and police had not assisted him, and another witness, Mr Ezzy, was not able to be found.

Resurrection of the Investigation

23. In consequence of a number of internal police reports canvassing the topic, the police investigation into Mr McPherson’s death was re-opened on 1 May 2002. Sergeant McLennan was appointed to head that investigation. Additional evidence referred to below came to hand.

24. Commencing on 9 August 2002, a number of arrests followed. On that day Danny Saad and Sam Kassas were again arrested and charged with Mr McPherson’s murder. Also on 9 August 2002 Ashley Saad was arrested and charged with concealing a serious offence and Mr Fred Saad was arrested and charged with being an accessory after the fact to murder.

25. On 23 August 2002 Mr Elwasfi was arrested and charged with concealing the serious offence of the murder of Mr McPherson. On 6 November 2002 he was again arrested and on this occasion charged with Mr McPherson’s murder. On 5 January 2005, the DPP directed that there should be no further prosecution of the concealment charge. On the same date the DPP decided there would be no further proceedings against Danny Saad and Sam Kassas on charges of assault occasioning actual bodily harm to Mr Mazzeo.

26. Because in a number of pieces of evidence, Mr Elwasfi is referred to by a nick-name “Camel”, it is appropriate to record the fact at this stage. From time to time that nick-name has been spelt “Kamil”.

27. On 4 November 2002, fresh committal proceedings against Danny, Ashley and Fred Saad, Mr Kassas and Mr Elwasfi commenced before Magistrate Orchiston. On 6 November the proceedings were adjourned to 13 January 2003 and then continued on 21, 24 and 30 January (principally concerned with bail) and 24 to 27 March 2003. On that last mentioned date, all five were committed for trial in the Supreme Court on 2 May 2003 or such other court or date as might be appointed. On 11 April 2003 an ex officio indictment was preferred against Mr Pound.

28. On 13 October 2003, a trial of Messrs Danny Saad, Kassas, Pound and Elwasfi on a charge of murder and Fred Saad on a charge of being an accessory after the fact, commenced before Newman AJ. The charge against Mr Ashley Saad was by consent adjourned back to the Local Court. The proceedings before Newman AJ commenced with a voir dire enquiry that extended until 6 November when his Honour reserved his decision. The decision was delivered on 21 November and was to the effect that the evidence challenged in the voir dire was admissible. However, in the course of dealing with that application, Newman AJ made remarks very critical of the credibility of the Crown’s principal witnesses Messrs Roth and Byrne. His Honour referred to the fact that two other important witnesses Ms Holland and Mr Holland had recanted from their statements but could be cross-examined. He said that some Listening Device evidence relied on by the Crown was admissible but concluded:

While the trial should proceed with the challenged evidence being called, the nature of the challenged testimony was such that a Court of Criminal Appeal might well come to the conclusion that any verdict founded on that evidence was unsafe. Given the generally unsatisfactory nature of the evidence, it is a question for the DPP to consider. A no bill application would be a more appropriate mode of challenging the Crown case than an application that the evidence be excluded.

29. Applications for bail made by Messrs Kassas, Elwasfi, Pound and Danny and Fred Saad came before Levine J on 5 March 2004 and were granted. In the course of his Honour’s reasons for the grant of bail, he remarked that the prosecution case rested to a not insubstantial degree on the evidence of at least three people, Messrs Byrne and Roth and Michelle Holland and that he had come to the same view as Newman AJ to the effect that the Crown case could not be characterised as strong.

30. A trial before Newman AJ and a jury commenced on 16 August 2004 but on 30 August was aborted because of some prejudicial evidence volunteered by Mr Roth to the effect that the Accused or a number of them were selling heroin.

31. On 13 September 2004 a further trial commenced before Sully J. There were a number of applications his Honour dealt with before a jury was empanelled on 20 September 2004. There were further problems and a fresh trial finally commenced on 29 September. Again Messrs Danny Saad, Kassas, Elwasfi and Pound were charged with murder and Fred Saad with being an accessory after the fact to that murder. By agreement, the trial of Ashley Saad on the charge of concealing a serious offence was postponed until some time after the resolution of the murder charges. It is not necessary for me to pursue the question of how Mr Ashley Saad’s matter was again in the Supreme Court.

29. One of the decisions his Honour made was to exclude the Listening Device recordings which the police had obtained and the corresponding transcripts which his Honour observed, had originally been seventeen but were then five. Sully J acquiesced in the application, his reasons being in substance:

… the quality of what is produced on the discs is almost indecipherable to the unaided ear.

… the transcripts, viewed fairly, overall comprise disconnected phrases, and sometimes sentences interspersed with passages of matter which are simply indecipherable, even to those who have listened repeatedly, and with the best available equipment to the tapes.

It seems to me that, with all the good will in the world, to put this material before a lay jury would simply lead to a situation where, inevitably, the jury either could make no sense in a real way of what it was hearing, in which case the material might as well not be there; or the jury would be tempted, and would be all too likely to yield to the temptation, to fill in by speculation the gaps that will be at once apparent to the jury in the matter recorded on the discs themselves, and in the transcripts such as they are.

I cannot think… it would be in accord with what the interests of justice might be thought reasonably to require to permit material of that equivocal and ambiguous kind to be led as part of the Crown case against the accused.

33. During the course of the trial, the Crown also made an application to cross-examine Ms Holland, upon the ground that it seemed likely that she would give evidence contrary to two statements she had earlier made and which in their terms constituted evidence – Sully J thought powerful evidence – against some of those on trial. However, Sully J concluded that in view of the decision of the High Court in Lee v The Queen (1998) 195 CLR 554 the statements could amount only to proof that Ms Holland had made prior inconsistent statements and were not evidence of the substance of what were said to have been “inculpatory admissions made verbally to her by various of the accused” and that accordingly he should not give leave to cross-examine. His Honour made a similar ruling in the case of Mr Holland with the result that the Crown elected not to call either of those persons.

34. At the end of the Crown case, the Prosecutor conceded that the Crown had no case against Mr Elwasfi, observing that the entire case against him was to come from the Hollands. Sully J then directed the jury to find Mr Elwasfi not guilty which the jury on 27 October 2004 then did.

35. As has been said, Messrs Kassas and Pound were also acquitted. In the case of Danny Saad, the jury could not agree and in December 2004 the DPP decided not to further proceed against him. The Amended Defence in the proceedings by Mr Ashley Saad admits that on 9 December 2004, the proceedings against him were withdrawn.

Issues and Evidence

36. As I have said, there is no doubt that Mr McPherson was murdered. His injuries occurred when he and a companion, Mr Mazzeo, were attacked by a group of men in James Street, Redfern at or near its corner with Castlereagh Lane. There is also no reasonable scope for doubting that a number of the men were acting in concert. The principal issues about which there was doubt during the court proceedings to which reference has been made, is whether the Plaintiffs and other members of the Saad family were members of that group or, in the case of Fred and Ashley Saad and Mr Elwasfi, had knowingly assisted one or more of them or had knowledge of the involvement of one or more of their number so as to fulfil the knowledge or belief element in s 316(1) of the Crimes Act 1900 (NSW) which provides:

If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

37. There was also a question whether, within the operation of that section, there was or may have been “reasonable excuse”.

38. In large part, although not exclusively, the evidence of the involvement of the Plaintiffs relied on by the prosecuting authorities came from a Mr Roth, some Listening Device tapes, a Mr and Ms Holland, and a Darren Byrne and it will be necessary to deal with each part of that evidence specifically but it is convenient to refer to the other evidence first.

39. Much of it was contained in a brief provided by police to the office of the DPP and which in these proceedings became Exhibit U. It consists of two lever-arch files of documents, which it was accepted was the brief concerning Fred Saad delivered by the police to the DPP. This brief substantially coincided with the briefs delivered in relation to Messrs Kasses, Elwasfi, and Ashley Saad and there was no suggestion that the differences were of consequence. The witness list and summary of evidence included in the bundle was dated 19 August 2002 and, although unsigned in the bundle tendered, it provided for signature by Sergeant McLennan.

40. The brief was added to by some later statements, e.g. Exhibit W, to which it presently unnecessary to refer.

Exhibit U

41. Chalmers Street, Castlereagh Lane and Great Buckingham Street, Redfern run north-south parallel to each other. Castlereagh Lane ends in T-intersections with James Street and Redfern Lane which run east-west. Living at 262 Chalmers Street at the time was the Saad family, including Danny and Fred Saad. Those premises extended from Chalmers Street 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 and which garage faced onto the 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, from time to time working on cars nearby.

42. Castlereagh Lane was commonly referred to as “Leb Lane” and sometimes “Saad Lane”. In December 1999, there were at least two pieces of graffiti on the walls of the lane in terms, “Leb Lane”. There was evidence that Fred and Ashley Saad were of Lebanese appearance as were others who worked on the cars. In Exhibit U there was no evidence how many other people of Lebanese appearance may have lived near or commonly used the Lane although Exhibit N in these proceedings, dated 4 October 2001, refers to there being other residents of Lebanese extraction.

43. Estimates of the number of persons involved in the attack on Mr McPherson generally varied between four and six. Two persons who lived nearby, Chelsea Brennan and Kevin McCall described the persons who attacked Mr McPherson as all, or mostly, Lebanese. On the other hand, a Mr Cerne whose residence backed onto Castlereagh Lane, said that at about 5.30pm on 27 January, he saw six males go into what would seem to have been the Saad garage, four of these males being “Aussies, whiter than me”. The first ambulance on the scene arrived at 2153 hours.

44. A Mr Rupert Olivera who attended on Mr McPherson prior to the attendance of police or ambulance service, said in a statement on 2 February 1998 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. A Mr Woodings who saw the deceased staggering down Chalmers Street after the attack also recounted hearing the deceased say, “Lebanese”.

45. In a later statement made on 9 July 2002 Mr Olivera also recorded that on the night of 27 January 1998 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 his later statement, he also said that some days later, Danny Saad said to him, “What happened, happened. We got away with it”.

46. Mr Mazzeo said that he and the deceased had walked down the lane and into James Street with a view to purchasing 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 and near Castlereagh Lane, the red utility and what Mr Mazzeo described as a blue XB Ford, pulled up in front of them and about six occupants of the vehicles alighted. 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.

47. In a statement of 27 January 1998, Mr Mazzeo provided some description of the assailants albeit largely by reference to their clothing. In a video-taped walk-around on 10 May 2002, Mr Mazzeo identified two of the attackers as Danny Saad and Kassas. Consideration of all that Mr Mazzeo said, suggests that that identification was based principally on what Mr Mazzeo saw on 27 January although he did not then know the attackers’ names. However there are some answers that provide grounds for thinking that the identification may have been more reliant on subsequent information. During that walk-around Mr Mazzeo also said that the attackers included a “couple of white boys”.

48. When on 18 February 1998, Mr Mazzeo had been shown by Detective Moubarak three video tapes depicting a number of persons, he then said he was unable to identify any of the persons depicted. Before Newman AJ on 23 August 2004, the Crown prosecutor said that each of the accused was depicted on one or more of the video tapes.

49. The index to Exhibit U refers to two statements of a Mr Andrew Ezzy who is said to identify Danny Saad at the murder scene. Mr Ezzy’s statements were not in Exhibit U but there were two in the Court Book, dated 28 January and 4 March 1998 that were admitted into evidence. Exhibit K also contains reference to two statements of Mr Ezzy and having regard to their date, they were obviously available to the police and DPP at the time any presently relevant decision was made to institute or maintain the prosecution of the Plaintiffs.

50. In his statements, Mr Ezzy says that his attention was directed to the incident when Mr Mazzeo called 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. In his statement of 4 March, Mr Ezzy added that he had not been able to identify any of persons on three video tapes he was shown that day because of the 5 weeks since the murder and because he had tried to block it out of his mind. He also said that he was certain that one of the attackers had been Danny Saad because he had seen him on numerous occasions.

51. A Mr Craig Spicer (sometimes referred to as Craig Duncan and sometimes as Duncan-Spicer) who said that he had seen the attack as he happened to be passing along Chalmers Street on his way to Mr Olivera’s, identified Danny Saad as calling encouragement during the fight. He also said that a few days later, in a coffee shop with Rupert Olivera, he saw another of those who had been in the laneway during the fight. Mr Spicer provides a description but does not name that person and Mr Olivera’s statement makes no mention of the occasion. There seems to have been no other evidence identifying that person.

52. Mr Spicer also said that as he walked along Chalmers Street and apparently crossing James Street he had seen the front of a utility sticking out of Castlereagh Lane into James Street. He could not remember the colour, but thought it was either a ZF or XD model Ford. Mr Spicer’s statement was not made until 5 July 2002 “because I had my own court matters pending and police had never come to talk to me before this”.

53. Other evidence in Exhibit U bearing on the involvement of Danny Saad, is that on 29 January he was seen to be suffering from injuries to his right leg for one of which on that day he received treatment from a Dr Duggin. When questioned by the doctor, he attributed the injuries to falling onto some rocks on the beach but Dr Duggin opined that one of the injuries was not consistent with such a fall. Signs of injury were seen by police officers and another doctor in the days that followed 29 January.

54. Statements of a number of other persons corroborate Mr Mazzeo’s account of the presence of two vehicles. A Mr Scott Pritchard who lived on the corner of Chalmers Street and James Street and whose attention was directed to the incident, said that he saw someone strike the victim a number of times, apparently with something in his hand. Mr Pritchard said that at the time there was a red Holden utility and a Blue XB or XC Falcon behind it in James Lane.

55. A Mr McCall referred to a red utility stopping in Castlereagh Lane as if about to turn into James Street with a greeny-blue sedan right behind it.

56. Other statements refer to only one vehicle although I do not read those statements as denying the presence of two. A Mr Higginbotham said that, at what must have been the relevant time, he had seen a Ford Falcon parked almost across what he referred to as a laneway but which may have been James Street. He said that the Falcon appeared to be chocolate brown but there were no lights other than the headlights of the car in the laneway.

57. Within Exhibit U, there is evidence that Mr Danny Saad owned a red Holden utility. Included in such evidence are statements of a Nathan Sproule, his mother and a Mr Kohut showing the sale on or shortly before 22 November 1997 of a red Holden utility QGY-155 to Danny Saad of 262 Chalmers Street, Redfern. Mr Sproule also indicated that Danny was in possession of the red utility until at least early January 1998.

58. Janko Cerne, who as has been said was a resident, identified Danny Saad as the only person who he had seen driving the vehicle almost every day for a month prior to the murder. However in his statement of 31 May 2002, Sergeant Baker said that about 8.45 to 8.50 pm on 27 January 1998, he had seen Fred Saad move and park a red Falcon utility near the rear entrance to the Saad residence.

59. A number of the locals who said that they had seen the vehicle in the Lane previously, remarked that they had not seen the red utility since the date of the murder. On 2 February 1998 the red utility was found parked near Botany Drive in the Eastlakes area by Detectives Woolback and McMahon. Both detectives described the vehicle as appearing to be in “pristine” condition and said that it was towed to a police station where it was examined. Senior Constable Gordon recorded that on 2 February 1998 he saw the vehicle at Eastlakes, locked and appearing to have been recently polished inside and out.

60. The red utility was photographed and examined. A forensic examiner reported that the vehicle had some damage to a near side quarter panel and a small mark on the off-side of the driver’s seat. A presumptive test, presumably for blood, of the mark gave a positive result and a swab was taken. Within Exhibit U, there is no information as to what happened to the swab or whether thorough inspection revealed that the vehicle had been cleaned to an unusual degree or with a substance called Armourall to which I make further reference below.

61. On 12 February 1998, Danny Saad was questioned about the vehicle by Detective Moubarak. He told the detective that he had sold the vehicle to someone named James whose surname he did not know and who lived up the lane in a house Danny could not identify.

62. In Exhibit U there is evidence that Fred Saad owned a Ford, generally described as a Falcon but sometimes as a Fairlane – grey or blue or a combination of these two colours A statement of a Graham Bayliss records that he is a former owner of such a vehicle, registered number, SPC-182 and, shortly after Christmas 1997 in the presence of a Mr Michael Grech, sold it to someone called Fred who came out of a garage about half way down Castlereagh Lane on the right hand side as one faces the city. On 28 January 1998, Mr Bayliss identified the garage to Senior Constable Gordon. Detective Carter confirms that the garage was at the rear of 60 Buckingham Street. Mr Grech’s statement confirms such a sale but said that the person to whom the vehicle was sold to, was someone known to him as “Marko”.

63. During the night of 28 January, the Falcon was deliberately burnt in a street in Surry Hills. A Margaret Johns said that shortly before she saw the vehicle on fire, she had experienced a strong smell of petrol in the vicinity and noticed a group of males nearby. When the fire started and she called out, the males, one of whom was carrying a petrol can, ran away. The males were described by Ms Johns and according to Sergeant Hall and another witness, Stuart McDonald, as Caucasian and of dark complexion. Police attended and in due course the vehicle was impounded.

64. Searches of 262 Chalmers Street and the garage behind were conducted by police on 30 January 1998. Nothing indicating the involvement of the Plaintiffs in the murder of Mr McPherson was found.

65. On 2 April 1998, there was another search of these premises and in the garage a chain attached to a piece of wood and with U-bolts through its links was located in the rear wheel of a go-cart chassis. Within Exhibit U there is no relevant expert evidence but a comparison of the chain and photographs of the marks to be seen on Mr McPherson’s back, provides grounds for thinking that the marks were inflicted by the chain.

66. Apart from its location when found and a reference to it by Mr Roth, there is no other evidence linking the object with any of the Plaintiffs or other persons charged with Mr McPherson’s murder. In a statement of 1 April 1998, Mr Roth remarked that when he was in the laneway some weeks after Mr McPherson’s murder, he had seen a chain of a similar description picked up and thrown down by Danny Saad and that he had also seen it sometime later in the garage. When questioned about the piece of wood and attached chain after police had found it, Danny Saad denied ever seeing it before.

67. Pausing at this stage, the material to which I have referred – that of Messrs Olivera, Ezzy, Spicer, Dr Duggin and that relating to the ownership and absence of the red utility – provides strong grounds for thinking that Danny Saad was one of those involved in the attack on Mr McPherson and that the other attackers were or included some of his friends or associates. Some of Danny Saad’s statements concerning the sale of the vehicle might well be regarded as lies told out of a consciousness of guilt.

68. The identity of his friends or associates seems not to have been the subject of specific attention in the preparation of Exhibit U although there is a deal of evidence including Listening Device records indicating that the friends and associates included his brothers Fred and Ashley, Sam Kassas, James Elwasfi, Gary Roth and Andrew Pound. Constable Hollingsworth who was attached to Redfern Police Station, said in a statement dated 12 September 2002, but which was not in Exhibit U, that Mr Elwasfi was an associate of Danny and Fred Saad and Sam Kassas.

69. In his statement of 1 April 1998, Mr Roth said that Danny Saad was very friendly with Sam Kassas. Constable McDonald in evidence before Magistrate Orchiston, said that he knew Mr Elwasfi to be an associate of Danny Saad. In a statement of 27 October 2003, Constable McDonald referred to the area around 262 Chalmers Street, Redfern being a crime “hot spot” and during some 2½ years at Redfern to having had extensive dealings with Danny, Fred and Donna Saad, Sam Kassas, James Elwasfi, Andrew Hoogwerf and Garry Roth and recalled arresting most of them.

41. In a statement of 30 July 2002, Mr Elwasfi acknowledged that he and a number of other people, including the other Plaintiffs and Danny Saad, used the garage.

42. Some further information in this regard can be found in the statement of a Mr Clemm contained in Exhibit U. Mr Clemm referred to hanging out at the Saad’s, seeing “Camel” there occasionally and meeting Sam Kassas and “Shorty” there.

43. When arrested in April 2003 and asked if he intended to be interviewed, Mr Pound’s response was:

Who do you think you’re talking to, you mad cunt. I’m not saying anything. They’re my mates and I’d fucken die for them.

73. As I have said, the topic seems not to have been the subject of specific attention in the preparation of Exhibit U, but having regard to all of the material mentioned, it seems highly likely that the DPP could readily prove that Messrs Kassas, Elwasfi and Pound were friends or associates of Danny Saad. And although I do not need to rely on it here, it is relevant to bear in mind that the method of identification of the voices recorded via Listening Devices was by having Redfern police depose to knowing the identity and voices of the speakers. Furthermore, although Constable McDonald’s statement of 27 October 2003 was after most of the arrests relied on in these proceedings, it seems likely that the Plaintiffs’ association was a matter of common knowledge within the Redfern police station.

74. Exhibit U also contained four statements by Mr Roth. It contained one statement by each of Mr and Ms Holland under the pseudonyms “Witness 1” and “Witness 2” although substantial parts of each statement were blacked out. Mr Byrne’s statement was made later and thus not in Exhibit U. It is not clear that the exhibit contained transcripts of the Listening Device recordings although these were referred to and had in any event been available in 1998.

75. There were four major aspects of the Plaintiffs case before me. One was that, because of Mr Roth’s past, aspects of his evidence in the proceedings against the Plaintiffs, and the benefits he was offered or received, no reliance should have been placed on anything he said unless it was independently corroborated and there was no corroboration. The second was that the Listening Device recordings and the purported identification of the speakers were of little or no value. The third was that because of Ms Holland’s mental history and state, inconsistency between Ms Holland’s first and second statements and because she and Mr Holland had repudiated the contents of their statements, no weight could be given to anything they had said. The fourth was that no weight should have been placed on Mr Byrne.

Mr Roth’s Statements

76. On 27 January 1998, Mr Roth was boarding in a room of the Saad household at 262 Chalmers Street. He was spoken to there by police during a search of the premises on 30 January but his first formal statement to police was made on 1 April 1998. He made another statement on 16 April and then after being further interviewed provided statements dated 7 July and 7 August 2002. He provided a fifth statement on 5 November 2002 dealing with much of his past including psychiatric treatment, a drinking problem, medication and violence.

77. In his 1 April statement, Mr Roth gave an account of his activities on the night of 27 January including a two stage fight between him and another resident, Mr Mick Shepherd within the 262 Chalmers Street premises and hearing persons calling to him from the laneway. He went on to say that soon after the fight “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 said “I broke the baseball bat over his head.”

78. (I have not mentioned “Eddie” previously. He may have been Eddie Clemm, although the latter denied having any knowledge of the murder of Mr McPherson.)

79. According to Mr Roth, on the next day Danny referred to having had a heated argument and a fight during which the bloke “bit me on the leg”. Although the statement does not make the time of the conversation entirely clear, Mr Roth also said that Fred told him that he had burnt his Ford sedan. Mr Roth went on to say that he knew “from the newspaper that it was Surry Hills and it had been burnt because of fingerprints”.

80. In the 1 April statement, Mr Roth also refers to Eddie and Shorty 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 “Armourall” to get rid of fingerprints. Later, after the red ute disappeared, Danny told Mr Roth that the police had it and he proposed to say that he had sold it.

81. The statement records that Mr Roth refused to be interviewed on a video machine, that he was frightened of Sam Kassas, the Saads and their friends, but was willing to sign the statement. He said that he had known the Saads and Mr Kassas for about four years and that Sam Kassas was Danny Saad’s closest friend.

82. 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”. Otherwise the statement adds little to the information contained in that of 1 April.

83. The 7 July 2002 statement does not contain any information as to the circumstances of the attack on Mr McPherson. That of 7 August 2002 deals principally with a fight that Mr Roth says he had with Mr Elwasfi, a matter I deal with below when considering the Listening Device transcripts. However in that statement, Mr Roth also said that he remembered that one of the voices that had called out to him from the laneway on 27 January was that of Sam Kassas.

84. The first four statements of Mr Roth to which I have referred and a transcript of proceedings, principally Mr Roth’s evidence before Magistrate Gilmour, were all contained in Exhibit U.

Mr Roth’s Evidence

85. Mr Roth gave evidence at the committal proceedings involving Mr Pound before Magistrate Gilmour in July 1998; on 15, 16 and 17 January 2003; in the committal proceedings involving the other Plaintiffs before Magistrate Orchiston on 15, 16 and 17 January 2003; in the voir dire before Newman AJ which commenced on 23 October 2003; again before Newman AJ in 2004; and for some 3 days before Sully J. His cross-examination before Magistrate Gilmour was reasonably confined but he was cross-examined very extensively, indeed an inordinate length, in subsequent hearings.

86. To a large extent, he adhered to his account of the confessions recorded in his 1 April 1998 statement. However in matters of detail there were some inconsistencies.

87. He said that Mr Pound’s statement referring to the baseball bat occurred not at the same time as Mr Kassas’ remarks but later in the laneway. In January 2013, he said that Mr Pound’s remarks were made the next day. On 16 January 2003 he placed the time of being called to somewhat different from that asserted in the 1 April 1998 statement.

88. In his statement of 16 April 1998, he said in effect that it was on the morning of 28 January that Fred Saad said that he had burnt the Ford. Other strong evidence indicates that the burning occurred on the night of 28 January. Cross-examined before Magistrate Orchiston on the difference, he acknowledged having been told by the police that the Ford had been found burnt out and said that he guessed he “did verbal” Fred Saad in his statement”. Later he agreed that he had made up the statement “We burnt it to get rid of the fingerprints”. However, it is of relevance to record that Mr Roth was under a deal of pressure in this part of his cross-examination. He had earlier raised the possibility that what Fred Saad might have said was that they were going to burn the car and in the course of that part said that he had not meant to lie. It is at least arguable that “verbal” when used by Mr Roth did not have its traditional meaning and that his admission of verballing Fred Saad was not intended to indicate he had told an deliberate untruth.

89. Mr Roth also gave a number of other answers that, quite apart from his record, were calculated to damage his credibility. I see no occasion here to attempt to summarise all of these but examples also taken from the transcript of proceedings before Magistrate Orchiston include the following: Having said that he did not lie, he admitted to “little white lies” to doctors asking for medication and lying to the police to protect himself and when it suited him. In answer to a question, “You’re prepared to sacrifice somebody else’s freedom to save your own skin, aren’t you, aren’t you?”, he replied, “Yes you could say that”.

90. During the January 2003 proceedings, Mr Roth agreed that he could not actually remember the events of early 1998 and to give evidence about anything he needed to read his police statements. Later he said that he did remember the events. He accepted that in consequence of his history he has memory impairment. He said also that he had a good memory and remembered just about everything about what’s happened in his life. Asked if he had ever hallucinated he said, “No I haven’t” but asked in the next question, “Not even once?” he said, “Yes, I have”. Elsewhere he said that sniffing paint thinners makes one hallucinate and accepted the he had been sniffing such substances for 35 years.

Mr Roth – Circumstances of Statements

91. The circumstances in which Mr Roth came to make his various statements of April 1998 are not calculated to inspire confidence in them. On 31 March 1998, Mr Roth had been arrested and charged with a number of offences including malicious wounding and maliciously inflicting grievous bodily harm. Apparently the victim’s skull was fractured. According to evidence he gave in January 2003, Mr Roth said that while he was in the cells at Newtown Police Station he was approached by Detectives McMahon and Woolbank who told him they wanted him to help with the murder at Redfern adding, “Maybe we can help you if you help us”, and talked to him about getting a lighter sentence if he helped. He said that he was talked into making a statement. Giving evidence in October 2003, he agreed that he knew that the way to get a better deal was to give the police information that they wanted to hear.

92. In fairness I should add that Mr Roth also gave evidence that the Saads used to be friends of his and he didn’t want to make statements against them. He was living with them on 27 January and said that he did not know what to do. They were also apparently suppliers of heroin to Mr Roth and though he said he left the area because of his conscience, he acknowledged that he had returned at some stage to score heroin.

93. On 1 April 1998 he was granted bail, the court being told he was helping the police on a more serious matter.

94. When asked during the course of court proceedings in January 2003 about the circumstances in which his 16 April 1998 statement was made, Mr Roth agreed that he had not wanted to go back to gaol and in fact obtained bail on that day. He gave evidence that his statement of 16 April 1998 was made in the context of police approaching him and saying that if he helped them, they would help him. He also agreed that by then he had worked out that the more statements he made and the more information he gave, the more benefits he received from the police and that he only assisted the police after he needed their help.

95. In 2002 Mr Roth was the subject of a warrant from the NSW Parole Board, parole having been revoked because Mr Roth had failed to report to a supervising officer. There remained only some 9 months for him to serve under the revocation. On 15 May 2002 Sergeant McLennan made representations to the Board to induce that organisation to rescind the revocation of parole that had led to the warrant and when this occurred, Mr Roth had no matters outstanding in New South Wales that would impact upon his attending in this State. In those representations Sergeant McLennan observed that Mr Roth was a pivotal witness in relation to Mr McPherson’s death, adding that it was anticipated that without his involvement in the prosecution, there were no prospects of any conviction relating to the murder.

96. Sergeant McLennan, in company with a Detective Donohue, then approached Mr Roth where he was in another state, on remand and charged with arson, probably in gaol or possibly living in a squat, Sergeant McLennan first informed Mr Roth of the matters referred to in the immediately preceding paragraph and of the existence of a $100,000 reward. He did this in order to induce Mr Roth to reverse his previous stance of refusing to give evidence. Sergeant McLennan also told Mr Roth that they intended to write a letter to the DPP in the state where he then was to help Mr Roth in his forthcoming sentencing.

97. The police took notes and returned next day with a typed document for Mr Roth to sign. That document was the statement dated 7 July 2002 and in which Mr Roth indicated his willingness to give evidence again.

Mr Roth – Criminal and Psychiatric History

98. Mr Roth has an extensive criminal record extending from 1975 when he was nearly 18. The record, which includes offences in Queensland and New South Wales, includes numerous offences of assault – before Newman AJ, Mr Roth said “26” – some involving the infliction of actual bodily harm, a number of offences of causing malicious injury or damage, breaking entering and stealing, taking and using a motor vehicle without the consent of the owner, and five of driving with an excess concentration of alcohol in his blood. Two of the charges of assault were, in January 1993, dismissed pursuant to s 32 of the Mental Health Act 1990. Another, dealt with in the Queensland Magistrate’s Court on 3 December 2001, resulted in a sentence that included special conditions which were to “undertake such medical, psychiatric and/or psychological treatment to include inpatient treatment to address mental health and alcohol abuse problems as is considered appropriate”.

99. There are also recorded offences, one committed in each of 1982, 1983 and 1984 of using number plates calculated to deceive, stating a false name and place of abode, and fraudulently using a driving licence. A number of the offences were committed in 1997.

100. In addition to Mr Roth’s criminal antecedents, he had some other attributes that militated against his reliability and credibility. He had taken to sniffing glue or paint thinners when he was 14 and become addicted. He had a very extensive history of admission to psychiatric hospitals or for problems associated with his mental state. A discharge summary from the Macquarie Clinic, Liverpool Hospital, records admissions there in 1976 for depression and anxiety, in 1982 for schizophrenia and in 1984 for glue addiction and substance abuse. His discharge in 1982 was while he was “AWL”. A report of a clinical psychologist, Mr Graham Trembath, of 18 February 1982 indicated that short term memory and concentration appeared impaired and symptoms were consistent with early stage schizophrenia.

101. Another note records that Mr Roth was admitted on 19 March 1982 and discharged on 30 March 1982, that he was brought in on a Schedule 2 from the Campbelltown Area Health Service, diagnosed as suffering from schizophrenia but not presenting with schizophrenic features on admission, that he absconded before formal testing could be done, and that he had repeatedly absconded and brought back paint thinners.

102. In July 1982 Mr Roth was admitted to the Parramatta Psychiatric Centre under the Inebriates Act 1912. The admission seems to have been inspired by orders or suggestions at the Campbelltown or Camden Magistrates Court. A psychology report of August 1982 recorded that Mr Roth’s IQ placed him within the “borderline retarded range” and testing suggested the possibility of organic brain damage.

103. In October 1982 a discharge summary from the Parramatta Psychiatric Centre referred to Mr Roth as having a personality disorder and continuing to be “unmotivated to do anything about his addiction to paint thinners, which was quite evident by his blatant lies when caught red-handed abusing alcohol and other substances on the grounds of the hospital”.

104. A report of 23 March 1984 of Andrea Grom, psychologist at the Cessnock Correctional Centre, recorded many abnormalities in Mr Roth’s thinking and conduct but concluded there was “little evidence to suggest any form of brain damage”. A “psychiatric in-patient review” from the Liverpool District Hospital which appears to be dated 14 May 1984 recorded Mr Roth’s memory as “unimpaired” and that auditory hallucinations, being musical sounds, were no longer present.

105. On or about 16 July 1984 Mr Roth became an inpatient at Morisset Hospital consequent on a bail condition imposed at Camden Local Court. The principal diagnosis was alcohol and glue thinners addiction and mild organic brain disease and that he had suffered some decline in cognitive abilities. He was recorded as having a poor short term memory although a psychologist who tested Mr Roth on 9 August 1984, recorded that his memory functioning was normal. Mr Roth denied hallucinations.

106. Hospital notes, the date of which is not clear but appears to be 16 July 1984, records that his memory is “grossly intact”. Other notes of 18 July said Mr Roth appeared to “have a poor short term memory”. A report of Ian Gale, psychologist, recorded that Mr Roth’s memory function is in the normal range although he obtained a very low score on a sub-test and his pre-morbid functioning level was at least in the high normal range. The report went on to suggest Mr Roth had suffered some decline in cognitive abilities from pre-morbid levels and that some of the decline might well be attributable to abusing paint thinners.

107. The Morisset Hospital records state that on 13 November 1984 Mr Roth’s Probation and Parole officer contacted the hospital and reported that Mr Roth had returned to his drug abuse pattern.

108. On 24 April 1987, Mr Roth was taken to the Macquarie Clinic by Police, intoxicated, disorientated and somewhat incoherent. He was found by Police while trying to break into a car. He claimed he had seen his friend trapped in the car when, in fact, there was no-one inside the vehicle. He seems to have been at the Clinic again on 14 June 1987 and 19 July 1987.

109. On 10 September 1987, he was taken to the Liverpool Hospital. On examination he was found unable to give a coherent history, his thoughts were confused, he believed he was James Bond and he said he had been hearing voices. A discharge summary from the Cumberland Hospital of or about 1 December 1987 indicated he had been admitted on 31 October 1987 for detoxification from alcohol, that five days into his admission he exhibited clear signs of hypomania, that he was seen by a neuropsychologist who felt he functioned in the average range intellectually but had some mild problems which could be due to hypomania and there was subsequent deterioration consistent with this. The report records that Mr Roth discharged himself saying he wished to leave “to get drunk”.

110. In 1988 he was admitted to the Cairns Base Hospital after Police had attended his residence finding “it stank of stale food thrown around and liquid cleanser, coffee, soft drink, butter, eggs all over the floor”. The fridge was opened and the stove was pulled out and also thrown on the floor. Mr Roth was observed to be drowsy, slurring his voice and staggering.

111. Inpatient notes of August 1988 from that hospital, recorded that Mr Roth admitted to having treated his flat that way but didn’t know why. A report of a Dr Fama, psychiatrist, of November 1988 referred to a normal level of intelligence but a history indicating severely disturbed personality with anti-social and possibly paranoid traits, perhaps aggravated by psychotic disorder and certainly worsened by alcoholism. The report recommended his confinement to a psychiatric institution.

98. A February 1989 report from a psychiatrist, Dr Young, said that in Dr Young’s opinion Mr Roth was suffering from bipolar disorder and a manic episode in partial remission, alcohol dependence, borderline intellectual functioning and possibly an anti-social personality disorder. Notes of 5 December 1989 from that hospital record him as “talking gibberish”.

99. An 18 December 1989 report from the Psychiatric Registrar at the Cairns Hospital said he had been admitted there on 3 December in an acute psychotic state.

100. In 1990 he was again in the Cairns Base Hospital having been observed to be hitting cars “because he thought they were stolen”. On admission he became physically violent. The hospital notes refer to him drinking alcohol. Notes of 26 May 1990 from the Cairns Base Hospital said that Mr Roth “claims he hears voices quite regularly – feels he becomes possessed”. A, possibly provisional, diagnosis referred to an “acute psychotic episode alcohol related”.

101. Further notes of 30 May 1990 recorded that Mr Roth was calm and rational saying that alcohol was the cause of his behaviour and that he was determined to avoid alcohol in the future. Notes of a further admission, probably again to the Cairns Base Hospital, record that he had interrupted a wedding ceremony with chains and a knife.

102. A report from the Medical Superintendent of that hospital dated January 1991 records that “even as an inpatient, he absconds continually from what is virtually an open ward, abuses solvents”, and there is a resulting deterioration in his mental state.

103. On 10 March 1992 there seems to have been an unsuccessful request made by Constable Dorrough of Petersham Police Station for Mr Roth’s admission under the Mental Health Act 1990. A further request for admission dated 18 April 1992, this time by Sergeant Hickson, recorded Mr Roth holding conversations with the room heater and chairs in the enquiry section of a Police Station.

104. An affidavit of 13 October 1992 by Sergeant Norris of Petersham Police clearly directed to having Mr Roth admitted under the Inebriates Act 1912 recorded him attending the Police Station on numerous occasions, intoxicated, in his underpants and with a knife down the front and requesting the Police to shoot him. Sergeant Norris said that over the previous 9-12 months, Mr Roth appeared to be losing control of his coordination, especially his head and facial movements. On 13 October 1992, a Magistrate ordered Mr Roth be placed in a State Institution for the Reception of Inebriates. (I should add that under cross-examination on more than one occasion concerning the suggested conduct while in his underpants, Mr Roth was vehement in his denials.)

105. He seems to have been admitted to the Rozelle Hospital in October 1992. Notes of 13 October record two previous short admissions. On 15 October he denied hallucinations but was unable to give a clear account of his past. Notes of 19 October record that he remained fairly settled in his behaviour.

106. Tests at the Rozelle Hospital in November 1992 led to the opinion that Mr Roth exhibited paranoid and psychotic symptoms but his memory deficit was limited and it was only immediate memory span which was significant. Tests indicated schizophrenia to be significant. Mr Roth seems to have been again taken to the Rozelle Hospital on 15 December 1992 after causing a disturbance. At the time he was “intoxicated, cognitively impaired and unable to give a clear account of recent events”.

107. Mr Roth seems to have been admitted to the Rozelle Hospital again in May 1993 after fighting with an imaginary enemy in his room, accumulating match heads to make a “pipe bomb” and attacking a shopkeeper because “I hate Vietnamese”. The hospital notes record that on 11 January he was determined unfit to plead under s 32 of the Mental Health Act 1990.

108. Cumberland Hospital records record Mr Roth’s admission to the hospital on 31 October 1997 and contain a note “finding it harder to remember”. He was said to be suffering from alcohol withdrawal. On 7 November 1997 nursing notes record “pressure of speech, tangential conversation and hypomanic symptoms”. Further nursing notes dated 11 November 1997 indicated his IQ was at the level of “borderline retardation” and on 30 November that he was very disruptive.

109. A psychological examination on 13 November 1997 recorded he was currently functioning in the average range intellectually, that learning and memory functions were intact despite complaints of memory difficulties. Hypomanic symptoms are referred to, though it is said that at age 41 the development of hypomania for the first time would be unusual. It suggested that any hypomania would be due to substance abuse induced mood disorder.

110. Arrangements were apparently made on behalf of the DPP to have Mr Roth psychiatrically examined on 13 January 2003. A letter from Dr Skinner, undated but shown to have been of that date, said that she did not find any evidence of mental illness or that Mr Roth was suffering any mental condition that would prevent him from giving evidence. Dr Skinner gave evidence at the committal proceedings that occurred during that month. She said the she had examined material she had been given and which clearly included prior psychiatric and hospital reports and notes. She acknowledged that at times Mr Roth had been diagnosed as having a mental illness and that at times he might have been insane. However when Dr Skinner saw him in January 2003 she saw no clear evidence of an underlying mental illness and saw nothing in the prior reports to indicate underlying mental illness as distinct from substance abuse. Dr Skinner opined that the prior reports were provisional. She did not think that Mr Roth was delusional. She accepted that he was intermittently violent and had a personality disorder.

111. Dr Skinner’s letter of 13 January was admitted but not as evidence of the truth of its contents or of Dr Skinner’s opinion. Having regard to the general approach taken during the hearing generally to the limits on the use to which many aspects of the evidence could be put, there is much to be said for the view that, quite apart from the general principle concerning evidentiary rulings, that ruling was tentative. Indeed counsel for the Plaintiff in his written submissions on the topic provided during addresses seems to have proceeded on the basis that no ruling had been made and wanted one in similar terms.

112. The complexities inherent in ruling as to the use that could be made of various types of evidence led to the topic ultimately being left until these reasons. In that situation it seems to me that I should treat Dr Skinner’s letter or report in the same way as other medical evidence and admit it for all purposes.

Mr Roth and Mr Shepherd

127. Another issue that arises from the contents of Mr Roth’s 1 April 1998 statement, is inconsistency with an account given by a Mr Michael Shepherd. In his statement of 1 April, Mr Roth said that it was dark and he thinks about 8pm that he first approached Mr Shepherd within the premises at 262 Chalmers Street, and then the fight with that person began. According to Mr Roth it was one minute before the fight that he heard voices calling him from the laneway.

128. Mr Roth said that Mr Saad senior stopped his fight with Mr Shepherd, Mr Shepherd went to his room and then returned with an iron bar. There was more violence, Mr Saad Senior again intervened and Mr Shepherd left for the night. It was minutes after this that Eddie and Sam Kassas came up the stairs.

129. Mr Shepherd places the fight at a different time. He says it was about midnight or just after midnight that the fight commenced. He does agree with Mr Roth that there was a break after which he returned with an iron bar and after things settled down he left. He also said that when he had the fight with Mr Roth, he did not hear anybody calling out.

130. Mr Shepherd does say that on 30 January he had a conversation with Mr Roth in which Mr Roth said that he was lucky he was fighting with Mr Shepherd when the boys were calling for Mr Roth’s help as otherwise, he would have been involved with the other fight in the laneway and the Police would be after him for murder.

131. The significance of the conflict between the two accounts arises because the evidence shows that the attack on Mr McPherson occurred shortly before 10pm. Paramedics received calls at 9.53 pm.

132. Apart from Mr Shepherd’s evidence as to the conversation on 30 January, there is nothing in the evidence that enables me to make a decision as between the statements of Mr Roth and Mr Shepherd as to the time of their fight. However that conversation does tend to favour Mr Roth’s account.

Roth – Other matters

133. There are some other matters concerning Mr Roth that should be mentioned. As has been said, he declined to give evidence at the committal proceedings that took place in October 1998. In his statement of 7 July 2002 Mr Roth gave as a reason for this that he didn’t want to give evidence at that time, continuing, “I had been bashed in Wollongong and the Police did nothing to help me”. His statement continues:

“I am now willing to give evidence again in this matter, because I am one of Gods faithful followers and in the Ten Commandments it says ‘Thou shalt not kill’ and that’s why I gave evidence to start with and that’s why I want to give evidence again.” (sic)

134. During her reasons for committing Mr Pound for trial, Magistrate Gilmour remarked, as I have said, that Mr Roth’s evidence was “pivotal”, that he was “clearly a rogue” but that she had found him to be “frank”, “spontaneous”, “believable and credible”.

135. When Magistrate Orchiston committed Messrs Elwasfi and Kassas and Ashley Saad for trial he gave no reasons beyond findings that he was satisfied that the evidence was capable of satisfying a jury beyond reasonable doubt and that there was a reasonable prospect of a jury convicting them. During the course of those proceedings, Constable McDonald who had worked at the Redfern Police Station for an appreciable period and who had arrested Mr Roth, gave evidence that Mr Roth had many problems and agreed with the propositions that:

Q.    And it was painfully obvious to anybody who spoke to him for any length of time that he had some problems, would you agree?

A.    Yeah, correct.

Q.    And I will go so far as to say this. Nobody in their right mind, having spoken to Mr Roth for a relatively short period of time would form the view that he is normal, would you agree?

A.    Yeah, correct.

136. In the course of his voir dire ruling as to the admissibility of evidence, Newman AJ remarked that while Roth’s evidence taken at its highest was of high probative value, he had difficulty in accepting Roth as a credible witness.

137. Tendered before me were “mug shots” of Mr Roth taken on one occasion of his arrest. While conscious that they but reflect Mr Roth’s appearance at one particular time and that appearances are liable to be an unreliable indication of the reliability and credibility of the person photographed, they certainly do nothing to inspire confidence. Indeed they argue to the contrary.

138. During the course of cross-examination before Sully J, Mr Roth agreed that the reason he advanced for refusing to give evidence at the second lot of committal proceedings was that the police had not properly investigated an assault on him in Wollongong but that in fact he had never reported the assault and hence the reason advanced had been untrue.

Listening Device Evidence

139. Soon after Mr McPherson’s murder, police installed a number of listening devices on the phones of the suspects and one in the garage to which reference has been made. Those on the phones produced nothing of significance. 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.)

140. At the various stages of the criminal proceedings against the Plaintiffs, the Crown sought to use extracts from that second recording device. Even in the case of those extracts there are extensive gaps and much of what was recorded is unclear. Expert techniques were used to enhance the recordings and while some of the sounds detected are reasonably clear, much remains inaudible or indecipherable. In due course transcripts of the recordings were made.

141. There is no doubt that by listening to the recordings, the voices of a number of persons can be detected but as is to be expected, in general the speech recorded did not reveal the identity of any particular speaker. The task of identification was undertaken by police officers who listened to the recordings. Passages appearing in the transcript were then ascribed to persons so identified.

142. Some twelve of those transcripts were regarded as significant and came into evidence before me as Exhibit 1 (although the transcript of proceedings before me does not seem to record the fact). Further copies are in volume 4 of the Court Book. Only five of the twelve seem to me to have any possible relevance and, subject to the issue of speaker identification which I deal with below, they and my view of the corresponding transcripts, can be summarised as follows.

143. 30/1/98 – 4bjl The voices are attributed principally to Sam Kassas and to one or more “male voice(s)”, there also being attribution of a few passages to James Elwasfi and Fred Saad. The conversation recorded is directed to the subjects of fingerprints on a utility and the cleaning of that vehicle, “Armourall” being suggested, and indicates concern at the fingerprints of one or more persons in the group being found by police. Mr Kassas is recorded on page 4 of the transcript as saying, “Freddy no … done for murder …” but more significantly on page 2, following mention of the vehicle, Mr Kassas and Mr Elwsfi are recorded as saying:

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 ones 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)

ELWASFI:   What about underneath it, the diff and … they won’t get prints offthere man.

144. In its terms, the remark, “They can almost see we’ve done it” is an admission that the speaker had done something of interest to the police and, given the conversation was but 2 days after the murder or Mr McPherson nearby, the earlier references in the recorded conversation to a utility and the other evidence of a red utility being present at the time of the murder, the recording if accurate provides significant evidence of the speaker’s participation in that murder. Otherwise, particularly in light of the post-murder absence of Danny Saad’s utility from Chambers Lane and it being found in a cleaned state, the transcript is incriminatory of Messrs Kassas and Elwasfi. However, that other incrimination is just as consistent with their being accessories after the fact or satisfying the knowledge requirement for the offence of concealing a serious offence as it is with their involvement in the murder itself. (I may perhaps add that presumably the police had available to them more information as to the extent of cleaning of Danny Saad’s vehicle, and what products had been used in that exercise than was disclosed in Exhibit U. However, as the nature of any such further evidence was not the subject of evidence before me, I shall ignore the possibility.)

145. The transcript of this tape occupies 4 pages. The audibility of the recording purporting to be reflected on pages 1 and 2 of the transcript or of those pages of the transcript is poor but not so poor as seems to me to justify its and their exclusion from evidence. On the other hand so much of the recording represented by pages 3 and 4 was inaudible or indecipherable as to make those pages practically meaningless.

146. However, having listened to the passage on tape about 20 times I am unable to hear the words “they can almost see we’ve done it”. Some of those words can be heard but insufficient to conclude that the speaker was making a statement to the effect of those words.

147. 30/1/98 – 5bjl The words are attributed principally to Gary Roth asking what “you” are going to do with the red ute and whether it is going to be torched. Someone, said to be Fred Saad, tells Mr Roth to shut up as he talks too much. The transcript indicates some knowledge on the part of Mr Roth and possibly Fred Saad of the involvement of the “red ute” but in its terms the transcript does not otherwise provide evidence of involvement in the murder.

148. The transcript of this tape occupies half a page. There is nothing apparent about the quality of the recording purporting to be reflected on this transcript that seems to me justify its exclusion from evidence.

149. 2/2/98 – 57bjl In part the transcript reads:

MALE VOICE:   Look, the last time he had a pole he went for the legs…

ELWASFI:   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.

ELWASFI:   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.

MALE VOICE:   …

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

ELWASFI:   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:   …

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.

150. There were also passages attributed to Ashley Saad although these do not suggest any involvement by him in the murder. “Gaz” was a nickname given to Mr Roth although I am by no means sure that the first “Gaz” reference accurately reflects what can be heard on the tape.

151. The transcript of this tape occupies a little over 2 pages. There is nothing apparent about the quality of the recording purporting to be reflected on these pages or of the transcript itself that seems to me justify their exclusion from evidence.

152. 13/2/98 – 214bjl The voices are attributed to Mr Pound, someone named “Riley” and one or more “unknown male(s)”. There was discussion about being sent to various Juvenile Prisons and the transcript includes the following:

RILEY:   If you escape from Cobham they chuck you in Minda, if you escape from Minda they chuck you in Kariong.

HOOGWERF:   Oh yeah I suppose so.

MALE VOICE:   People for murder and things like that.

MALE VOICE:   What are you trying to prove?

HOOGWERF:   It doesn’t matter see, if I got done for murder I’ll still go to Reiby, you know what I mean.

153. Particularly given the subject of murder was introduced by someone other than Mr Pound, there is nothing in this transcript incriminatory so far as Mr McPherson’s death is concerned.

445. Mr Kimble’s recommendation of 2 April 2003 contains similar omissions. In neither document is there any significant attempt to identify or analyse the weaknesses in the evidence the Crown proposed to rely on.

446. Without evidence as to the standards Mr Kimble’s checklist was supposed to meet, there is some difficulty in making a judgment as to the significance of omissions That said, 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 or her repudiation of her statements and the issue of “without reasonable excuse”.

447. On the other hand, if the document should have recorded all the weaknesses to which attention has been given, it presumably should also have echoed some strengths such as my remarks to the effect that there were in the medical and hospital records and doctors’ opinions, some grounds for not abandoning reliance on Ms Holland, to the effect that there was significant support for some of what Mr Roth had said and reason to think that the account Mr Elwasfi and Mr Roth gave of a fight between them did not explain the remarks attributed to Mr Kassas on tape 57bjl.

448. Mr Kimble was also criticised by counsel for the Plaintiffs upon the ground that he never seems to have spoken to Sergeant McLennan or Detective White to obtain their response to the material produced by the hospital or medical service or doctors concerning Ms Holland and had not taken reasonable steps to investigate the consequences of Mr Roth’s drug, alcohol and mental problems, that he was an informer, and had received incentives. It was submitted that a prudent and reasonable prosecutor would only call Mr Roth if his evidence was independently corroborated.

449. While undoubtedly Mr Kimble could have taken the additional steps just referred to, I do not regard Mr Kimble as having been bound to take the steps suggested prior to the committal proceedings where the topics were likely to be fully explored. In making that judgment, I have in mind that Mr Kimble was apparently as capable of understanding the medical and hospital notes and reports concerning Ms Holland as Sergeant McLennan who saw them at about the same time. Mr Kimble might also reasonably have assumed that an experienced detective as Sergeant McLennan was unlikely to have obtained a statement from someone who was obviously unfit to give one, and in the case of Mr Roth, a person who was significantly supported in respects to which I have earlier referred. In Mr Kimble’s defence, it should be remembered that in January 2003, presumably in response to requests, he received a medical report by a Dr Skinner concerning Mr Roth’s mental state and capacity to give evidence and one by Dr Shaw concerning Ms Holland. While these reports do not contain any endorsement of the reliability of their subject, and direct attention to warning signs, they do not lead to the conclusion that reliance on the witnesses the subject of the reports should have been abandoned.

450. But even putting aside the matter referred to in the immediately preceding paragraph, 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 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.

451. The concurrency of the committal proceedings is a not unlikely reason Mr Elwasfi was charged so quickly after Ms Holland’s statement of 4 November and I do not infer from that the wilfulness, recklessness or blindness for which the Plaintiffs contend.

452. 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.

453. The written submissions by Mr Roser of 4 November 2003 upon which reliance is placed on this issue of malice were during the voir dire hearing before Newman AJ and the tenor of the submissions is that the evidence of the Listening Device tapes and transcripts, and of the various witnesses mentioned in these reasons was admissible. The preparation of the submissions should clearly have directed Mr Roser’s mind weakness in the Crown case but again I am not prepared to infer from their terms or the fact that proceedings were not then, at least partly, withdrawn that the, or a, significant reason was malice in any of the ways advanced.

454. The Plaintiffs also rely on a recommendation by Mr Roser in July 2004 that an ex-officio indictment be preferred against Fred Saad for murder. It was submitted that the statement from a Mr Kalaitzis relied on for that recommendation was so “extraordinarily unreliable” as to demonstrate that Mr Roser was prepared to accept any testimony adverse to the Plaintiffs. It demonstrated, according to the submission, a wilful closing of the mind or reckless indifference to the Plaintiffs’ guilt or innocence. The absence of Mr Kalaitzis’ statement from the evidence before me makes it impossible to accept this submission (which may well have been prepared before the hearing and before the tender of Kalaitzis material was withdrawn).

455. In the case of Messrs Roser and Thorpe, reliance was also placed upon evidence indicative of Mr Roth’s, Ms Holland’s and Mr Byrne’s unreliability. In the case of Mr Roth, specific mention was made of, inter alia, bipolar disorder, manic depression, schizophrenia, addiction to paint thinners and alcohol, hallucinations, telling lies because he did not to want to go to gaol, Mr Roth’s admission of not having at the time informed police of being assaulted in Wollongong and of the evidence of Messrs Shepherd and Clemm. In the case of Ms Holland, specific mention was made of, inter alia, her evidence that she was still mentally ill, on medication and that she should not be in court, of what she said about her memory and that she would not recognise Mr Pound.

456. It was submitted inter alia, that the evidence Mr Roth gave before Newman AJ would have persuaded any honest prosecutor to abandon use of him to establish that any of Messrs Kassas, Elwasfi or Pound was guilty of murder; that if the success of a prosecution of Elwasfi for murder was dependent on the evidence of Ms Holland it was doomed to fail; that it would have been clear to an honest prosecutor that Byrne could give no evidence probative of guilt of any of the Plaintiffs and that, having the benefit of more information to consider, certain failure of the prosecutions was or must have been more obvious to Mr Mr Thorpe.

457. I have said enough to indicate that I do not see in the continuation of a prosecution dependent on the evidence of Mr Roth and the Listening Devices any evidence of impropriety or malice, even on the expanded explanation of that term relied on by the Plaintiffs. Given the other evidence, that of Mr Byrne tended to support, I do not infer malice from continued reliance on him even though many, possibly most, would not have continued any reliance.

458. 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.

459. As I have indicated, none of the three Crown prosecutors gave evidence and Jones v Dunkel [1958-1959] 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.

460. 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.

461. Thus the claims of all of the Plaintiffs for malicious prosecution fail.

Wrongful Arrest

464. As has been said, Messrs Elwasfi and Pound also sue for wrongful arrest - Mr Elwasfi for his arrest on 23 August 2002 for conceal serious offence and Mr Pound for his arrest for murder on 11 April 2003. Despite paragraph 11 of the Third Amended Statement of Claim, no claim of wrongful arrest is made in respect of Mr Elwasfi’s arrest for murder on 6 November 2002. In both cases the arresting officer was Sergeant McLennan.

465. 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.

466. I have also set out above the evidence available to police at the time of Mr Elwasfi’s arrest on 23 August 2002 and recorded my view that that while there was reasonable evidence of Mr Elwasfi 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 Elwasfi was wrongfully arrested.

467. In the case of Mr Pound’s arrest on 11 April 2003, the evidence against him and known to the police was, as I have said, the evidence against Danny Saad, the evidence of association, and

(i)   Mr Roth’s statement of 1 April 1998 where he claimed that Mr Pound had confessed to breaking a baseball bat over Mr McPherson’s head;

(ii)   (Possibly) Listening Device Tape 57bjl;

(iii)   Ms Holland’s statement of 6 August 2002 to the effect that that when Danny Saad confessed to the murder to the murder of Mr McPherson and that “we were all in the laneway”, Mr Pound was present, laughing and did not deny involvement;

(iv)   the evidence of Ms Holland given before Magistrate Orchiston denying the significant elements of her statements;

(v)   The evidence of Ms Holland saying on 26 March 2003 during the committal proceedings that the admission detailed in her statement of 4 November was made by Mr Pound.

468. Recognition must also be afforded to Ms Holland’s statement of 4 November 2002 and its impact on her credibility. I have indicated that I regard the evidence in paragraph (i) as evidence worthy of credit, particularly in light of the support afforded by some of the Listening Device material. Sergeant McLennan did also. The evidence the subject of the other sub-paragraphs was not exculpatory and nor was there any other to that effect. Thus at the time of Mr Pound’s arrest there was reasonable cause for Sergeant McLennan suspecting him of having committed murder.

469. Accordingly Mr Pound’s claim for wrongful arrest fails.

Damages

470. Mr Elwasfi gave evidence before me. Although his past and the matters hereafter mentioned throw doubt on his credibility, it is appropriate to record that my general impression from his demeanour was that he was endeavouring to be honest.

471. He seemed to be saying that the statement he made prior to 23 August 2002 contained all the relevant knowledge that he had. Given the terms of the conversation on tape 4bjl, I do not regard such a statement as correct or that Mr Elwasfi can have thought it was. I have no doubt that Mr Elwasfi knew more. He said also that he never saw drug dealing going on from the garage. Given what a number of other witnesses said, it seems likely that this statement is also a lie but the limits I put on the use of evidence means that I cannot so conclude.

472. Mr Elwasfi was charged with the conceal offence on 3 August. He was admitted to bail on the following day. He was charged with the murder offence itself on 6 November 2002. Bail was refused on 27 March 2003 when Mr Elwasfi was committed for trial but granted by Levine J on 5 March 2004. On 5 January 2005 the DPP directed that there be no further proceedings in respect of the concealment charge.

473. Mr Elwasfi’s evidence as to how he felt when charged was:-

23 August, by that time I sort of come to the end of my tether. I was being arrested for numerous breaches of bails, but I was always come to Court the next morning and the Magistrate would give me continuation all the time, so every time I went to report to Campbelltown Police Station, there was always something in the back of my mind, what is next, what is next, and lo and behold, I went to go and report this time, that is when the alarm went off. I didn’t know what they were coming for but I was aware that some police officers from Redfern wanted to speak to me. How I felt could be, simply put, angry, sad, frustrated, powerless and helpless.

474. The records do not support these allegations of numerous arrests, but I am disposed to accept Mr Elwasfi’s evidence on that topic. I have no doubt that the police were applying pressure

475. Mr Elwasfi was born in July 1976, so he was 26 at the time of arrest. He had left school part way through year 12 in 1993 and then for a time participated in a course in landscaping and horticulture. He had some employment in that industry, in a recycling business and in 1995 in a watch factory. In 1997 he was involved in a motorcycle accident suffering considerable damage to this shoulder. In consequence, and perhaps because he failed to undertake some physiotherapy, he was unemployed for at least 4 years and possibly 7 years.

476. After finally being acquitted in November 2004, he secured other paid employment driving vehicles.

477. He gave evidence that he had used marijuana heavily from age 16, alcohol heavily from soon after and began using heroin from about age 20. Thereafter he commenced to use methadone. There is an issue I do not feel it necessary to resolve whether this commenced in 2000 or 2002. In a Second Evidentiary Statement, Mr Elwasfi said that he had been on a methadone program up to January 2009. He said after commencing on methadone there have been times when he has been able to work although the need to obtain methadone commonly daily sometimes prevented this and a delay in obtaining it has been liable to inhibit him in undertaking physical tasks.

478. He said that his arrests over Mr McPherson’s death and his treatment by the authorities thereafter had increased his dependence on drugs, made him feel very paranoid and subject to flashbacks. In his Second Evidentiary Statement he said that since July 2002 due to pressure from police he became addicted again. However his past record, drug taking, drug offending in July and tendency apparent in the totality of his evidence to simply blame the police without accepting any responsibility of his own lead to the view that this bald proposition is simply unpersuasive.

479. Mr Elwasfi said that at the time of arrest in August 2002, he was working as a part-time cleaner but because of bail restrictions, he could not continue that employment. However he provided no details such as hours of work, or the magnitude of restrictions which would enable this claim to be evaluated. There is no evidence that the arrest on the concealing charge itself led to a loss of income. He said that he had paid, or had paid on his behalf, various amounts arising from “my wrongful arrest” but again no details of treatment or cost were provided which would allow assessment or quantification.

480. There were before me medical reports concerning Mr Elwasfi from Doctors Godsall (23 May 2008) and Champion (19 July 2008) neither or whom was cross-examined. Dr Godsall expressed his conclusion in the following terms:

Apart from an uncertain employment future if this crisis had not occurred, on the basis of his pre-2002 history, his Adjustment Disorder and Mood disturbance now significantly inhibit his effectiveness and competence. This is very much compounded by drug misuse. One has to be very guarded with respect to his prognosis, and in the absence of successful treatment and the removal of the Chronic Situational Stress, I would suggest it is poor. With successful treatment and appropriate social changes it will very much improve, particularly with permanent employment. EMPLOYMENT IS NOT LIKELY IN THE IMMEDIATE FUTURE as at this point he is unable to persevere with the task in hand and he would not attract an employer.

I believe I have answered your enquiry and addressed all the questions in your letter of 7/4/08. I reiterate a causal relationship between the presenting distress and the trauma described.

481. A difficulty with giving operation to this opinion, is that Dr Godsall attributed many of the symptoms from which he regarded Mr Elwasfi as suffering to the totality of events of 2002 or his arrest for murder and it is not possible to deduce from what Mr Godsall has said that there were or remain any, certainly any significant, consequences of his arrest for concealing a serious offence. What Dr Godsell intended to refer to as “trauma” is not clear. It certainly was not, although it may have included, Mr Elwasfi’s arrest for the concealing offence. A further difficulty with accepting Dr Godsall’s conclusions is that he noted “that prior to arrest (Mr Elwasfi) had cooperated with investigations”. Despite the limitations which I think much of the evidence in the case must bear, there is so much information to the contrary of this, that I cannot accept it.

482. Dr Champion opined that Mr Elwasfi suffered from an anti-social personality disorder and may have suffered from a minor adjustment disorder with depression and anxious mood in relation to being charged with murder but any reactive disorder related to that event has long since resolved. Dr Champion continued:

Currently Mr Elwasfi does not receive any form of psychiatric treatment and in my view there is little that could be done to assist Mr Elwasfi apart from continuing monitoring of his drug use and continuance on the methadone program which he finds of help. The long term prospect for those who exhibit the antisocial behaviour patterns and drug programs experienced by Mr Elwasfi is that of a slow progressive resolution of excesses in the behaviour and the drug use as time passes. There is often some improvement in the 4th and 5th decades of life.

483. Dr Champion recorded that at the time of his report Mr Elwasfi was facing further imprisonment but that at the time of examination was not suffering any diagnosable psychiatric disorder. He said that Mr Elwasfi’s prognosis was for:

… a continuation of the dysfunctional activities and behaviours present prior to being charged with murder and being acquitted. I have indicated above that generally there is a tendency of the antisocial personality to moderate as life progresses into the 4th and 5th decades.

484. Also relevant to the assessment of damages for the wrongful arrest of Mr Elwasfi, is the fact that he 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. The nature and number of the offences leads to the conclusion that many would have resulted in Mr Elwasfi’s arrest. His first sentence of imprisonment commenced in June 2000. There followed a number of others some of which were suspended, until on 30 July 2002 he was charged with supplying drugs on an ongoing basis. For that offence he was, in September 2003, sentenced to imprisonment for 2 years 3 months including a non-parole period of 14 months.

485. Given the number of occasions Mr Elwasfi had been arrested previously and the severity of some of his prior offences it is the highest degree unlikely that he suffered any reputational damage in consequence of his wrongful arrest. This conclusion is strengthened if one has regard to the 2 year maximum penalty prescribed for the offence and compares it with the penalties prescribed in respect of some of the other offences Mr Elwasfi committed. His prior history leads also to the view that any subjective consequences, e.g. mental suffering, are liable to have been very substantially less than in the case of a person who had not been arrested before. I am prepared to infer he suffered some mental stress through being arrested but it is likely to have been far less than that which flowed from the far more serious charge of ongoing drug supply and I am not persuaded that in consequence of the concealing charge he in fact suffered any mental distress after being charged with murder on 6 November 2002.

486. It was common ground that the period in respect of which any damages can be awarded for wrongful arrest ceases upon the arrested person being remanded in custody by a magistrate and that, in the case of Mr Elwasfi this occurred at some unknown time on the day following his arrest – see Diamond v Minter (1941) 1 KB 656 – a case cited as authoritative in Macgregor on Damages, 19th ed. Para 40.021. See also Clerk and Lindsell on Torts, 20th ed., para 15-42.

487. The nature of the wrong Mr Elwasfi suffered means that damages are at large. The consequences to him of the tort committed by Sergeant McLennan were arrest, deprivation of liberty for about 24 hours and, according to him, “feeling angry, sad, frustrated, powerless and helpless”. I accept that to some degree these emotions were likely, and were likely to have been at least heightened by Mr Elwasfi’s arrest. However, given Mr Elwasfi’s criminal past, his lack of legitimate success in life and his arrest on 30 July 2002 for the ongoing supply of drugs, an offence to which he later pleaded guilty, it is very likely that he was experiencing these emotions to a not insubstantial degree before his arrest for the concealing offence.

488. Although I am conscious that substantially higher amounts have been awarded in some, but not all, other cases, albeit on radically different facts – see the cases cited in Beckett v State of New South Wales [2015] NSWSC 1017 at [672] et seq, it seems to me that an appropriate award by way of compensatory damages in Mr Elwasfi’s case is $2,000.

489. Mr Elwasfi also claimed aggravated and exemplary damages. The former are compensatory in nature, given for injury “resulting from the circumstances and manner of the wrong doing - see New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31]. Differently expressed, they are appropriate “for the injured feelings of the plaintiff where his sense of injury is resulting from the wrongful physical act is justifiably heighted by the manner in which or the motive for which the defendant did it” – Cassell & Co Ltd v Broom [1972] AC 1027 at 1124, quoted with approval in Spautz v Butterworth (1996) 41 NSWLR 1 at 15.

490. There is no evidence indicating that Mr Elwasfi’s arrest was conducted in other than the usual and appropriate manner of arrest or inspired by a motive other than a belief that Mr Elwasfi was guilty of the offence for which he was arrested. I do not see in the fact that, for some time up to and including immediately before Mr Elwasfi’s arrest, Sergeant McLennan was endeavouring to induce Mr Elwasfi to provide information which a deal of information indicates he possessed anything which would justify aggravated damages.

491. Sergeant McLennan’s error was in not having regard to the requirement in s 316 that the failure to provide information be “without reasonable excuse” or not recognising that Mr Elwasfi had or might well have had such an excuse. However, there is no evidence, and it is in the highest degree unlikely that Mr Elwasfi knew of these matters and in any event I am unpersuaded that he suffered in consequence of them rather than from the arrest itself. Accordingly, I see no basis for an award of aggravated damages.

492. So far as exemplary damages are concerned, I do not see in Sergeant McLennan’s actions in arresting Mr Elwasfi any contumelious disregard of Mr Elwasfi’s rights or any reckless indifference to the guilt or innocence of Mr Elwasfi. Nor do I see in Sergeant McLennan’s prior efforts to persuade, perhaps pressure, Mr Elwasfi to provide information any basis for such damages. Despite that prior conduct, I am not persuaded that Mr Elwasfi’s arrest was not because Sergeant McLennan thought Mr Elwasfi guilty of the concealment offence. Accordingly, I see no justification for awarding exemplary damages.

The Use of Evidence

493. I indicated early in these reasons that questions arose as to the use that some of the material that came into evidence could be put.

494. The vast majority of the evidence consisted of statements made previously and summarised in the usual form of witness statements prepared by police officers or the transcript record of evidence given during committal or trial proceedings against the Plaintiffs and persons said to be their co-offenders. Some of the other evidence took a more primary form and included affidavits of the Plaintiffs, reasons for judgment delivered by judicial officers who had been involved in proceedings, discs recording conversations heard via Listening Devices, Listening Device logs, Criminal Antecedent Reports, reports to or by officers of the DPP, and medical records. The vast majority of such documents were photocopies. Principally, because of the great variation in the circumstances of the evidence and to avoid the trial becoming bogged down in evidence rulings, the course was adopted, with the consent of counsel, that all decisions concerning limits to which pieces of evidence could be put, should be left until the end of the hearing, or as was finally agreed, until either these reasons or I had a fairly full knowledge and understanding of all of the evidence.

495. Both counsel addressed on the topic both orally and in written submissions. Unsurprisingly, they did not agree.

496. The only witnesses who gave evidence were the Plaintiffs and Sergeant McLennan, who was also the author of a small proportion of the witness’ statements and evidence to which reference has been made. Criticism was made of the Defendant on the ground that the DPP prosecutors and more witnesses should have been called and while the Plaintiffs are fairly entitled to such benefits as may fairly flow from the absence of the DPP prosecutors, the large extent of the case as it was presented, argues against an approach that involved a large number of witnesses called during the criminal proceedings, being called yet again. That is not to say that some were not more important than others or that all were available.

497. In his written submissions on the topic, counsel for the Plaintiffs sought eight separate rulings. Given they are so recorded, I need not set them out but there is certainly something to be said for the Defendant’s counsel’s criticism that the submissions “distinguish between the evidence not by reference to its apparent reliability, but simply based upon whether or not it suits their case”. Certainly some distinctions are required but it seems to me that they should be more principled. The nature of the issues assists in that regard.

498. Furthermore, given the thousands of pages, a ruling as suggested by the Plaintiffs’ counsel that:-

All evidence the plaintiffs have specifically referred to that contain evidence of representations by police officers White, McLennan, Hollingsworth, Rudens and Scott that are adverse to the defendant’s interest in the proceedings, being admissions, be admitted under section 81(1) of the Evidence Act as truth of the facts contained in the assertions.

would be unfair and perhaps impossible to practically implement and because of that “might be unfairly prejudicial or misleading or confusing”.

499. There is inconsistency in some of the evidence. An example is the medical condition of Ms Holland and even putting aside what she has said on the topic, not all of the medical reports and notes agree. In no circumstances might it have been possible to come to any reliable conclusion as to that condition but certainly one could not without seeing and having cross-examined the authors of those documents.

500. To generally accept what documents there are as evidence of the truth of what is said in them is calculated to be unfairly prejudicial or misleading or confusing. I include in that observation the statements of Ms Holland and Mr Holland. However, it was accepted that those acting for the Plaintiffs had made all reasonable efforts without success to find Ms and Mr Holland and in those circumstances s63 of the Evidence Act excludes the operation of the hearsay rule. That said, the inconsistencies in their evidence still remain as do the dangers of which s135 speaks. Nevertheless, I am sufficiently confident in my ability to weigh their evidence that in the circumstances I believe I should allow their statements into evidence without restriction.

501. The issues are principally what were the states of mind of Sergeant McLennan, possibly other arresting officers, and the prosecutors mentioned, and whether the information available to them, judged objectively, amounted to a reasonable cause for suspicion of the commission of the offences for which Messrs Elwasfi and Pound were arrested and for the institution or maintenance of the prosecutions. Obviously to some of these issues the apparent or possible reliability or unreliability of the information they had is relevant but its accuracy in fact is not.

502. In these circumstances it seems to me that I should:-

(i)   Regard the evidence of the Plaintiffs and Sergeant McLennan given before me as in evidence for all purposes;

(ii) Regard the representations of the Plaintiffs and Sergeant McLennan in documents or transcripts as in evidence for all purposes – vide Evidence Act s 64;

(iii)   Regard statements contained in any document appearing to be prepared by any of the three prosecutors as evidence of the author’s belief at and about the time of preparation of the document. And insofar as the statement appears to be of matters within the author’s knowledge, as in evidence for all purposes;

(iv)   Regard letters from doctors as in evidence for all purposes;

(v)   Regard the representations made by Ms and Mr Holland in their police statements or recorded in transcripts of proceedings as evidence of the truth of the facts asserted;

(vi)   Subject to the foregoing;

(a)   regard business and hospital records, not being witness statements or evidence given during court proceedings, as in evidence for all purposes, providing however that insofar as a business record reproduces or summarises a witness statement or apparently does so, it is not evidence of the truth of what is asserted; and

(b)   Otherwise regard statements in documents, including transcripts, so that they are not evidence of the truth of what is asserted;

(vii)   For the reasons set out in s 136 of the Evidence Act, limit the use of evidence accordingly.

Orders

503. Leaving aside the question of costs about which there was no debate, what I have said leads to the conclusion that the appropriate orders are:-

In proceedings 2007/265163

(i)   Verdict for Mr James Elwasfi in the sum of $2000;

(ii)   Otherwise proceedings dismissed;

(iii)   Judgment accordingly.

1. In proceedings 2008/289620

(i)   Suit dismissed.

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Decision last updated: 08 November 2016