Hamilton v State of New South Wales

[2020] NSWSC 700

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hamilton v State of New South Wales [2020] NSWSC 700

Hearing dates:

15, 18, 19, 22, 23, 25, 29, 30 October 2018; 2 November 2018; 4 December 2018; and 7 March 2019

Date of orders:

05 June 2020

Decision date:

05 June 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following orders:

 

(1) The fourth further amended statement of claim is dismissed.

 

(2) Judgment for the defendant.

 (3) Costs for the defendant as agreed or, in default of agreement, as assessed.

Catchwords:

MISFEASANCE IN PUBLIC OFFICE – intentional tort – act or acts of a police officer – investigation of alleged criminal activity – public power – scope of public power – intention to harm – targeted malice – mental element – anterior element of invalidity – first limb of malice – reach of tort to plaintiff – Farah Constructions deference – police power – investigative functions of police – inferences – standard of proof – act of sending a letter – final malicious step – perception of organisation Kenja – cult – claim for damages – psychological injury – other harm – credibility of police witness – trial as to two complainants – further complaints by separate complainant – historical allegations – Bundeena allegation – procure or cause to procure false allegations – knowledge or belief allegations false – indifference to truth – glaring improbability – whether a malicious investigation – disclosure of current investigation material to ODPP – Director of Police Prosecutors Act – whether disclosure obligations met and whether malicious intention – limitation defence – damages – whether harm – causation – general damages – aggravated damages – fourth further amended statement of claim dismissed – costs for the defendant

Legislation Cited:

Bail Act 1978 (NSW)
Bail Act 2013 (NSW)
Civil Liability Act 2002 (NSW)
Crimes Act 1900 (NSW)
Criminal Injuries Compensation Act 1969-1974 (SA)
Crown Proceedings Act 1988 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Employees Liability Act 1991 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW)
Limitation Act 1969 (NSW)
Police Act 1990 (NSW)

Cases Cited:

Adams v Bracknell Forest Borough Council [2005] 1 AC 76
Akenzua v Secretary of State for the Home Department [2002] EWCA Civ 1470; [2003] 1 WLR 741
Allianz Australia Insurance Ltd v Mercer (2016) ALR 157; [2016] TASFC 2
Amin v Imran Khan & Partners [2011] EWHC 2958
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
Bailey v Director General, Department of Natural Resources (formerly known as Department of Land and Water Conservation) [2014] NSWSC 1012
Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Battista v Cooper [1976] 14 SASR 225
Bergman v Haertsch [2000] NSWSC 528
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; [1985] 3 All ER 585
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Browne v Dunn (1892) 6 R 67
Calveley v Chief Constable of the Merseyside Police [1989] AC 1228
Carr v Baker [1936] SR (NSW) 301
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29
Commonwealth of Australia v Dinnison (1995) 56 FCR 389; [1995] FCA 192
Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18
Commonwealth v Nelson [2001] NSWCA 443
Commonwealth v Smith [2005] NSWCA 478
Cornwall v Rowan [2004] 90 SASR 269; [2004] SASC 384
CRA Ltd v Martignago; Costain Australia Ltd v Martignago (1996) 39 NSWLR 13
Cran v New South Wales [2004] NSWCA 92
De Reus v Gray (2003) 9 VR 432; [2003] VSCA 84
Desai v Keelty (2009) 180 FCR 559; [2009] FCA 1280
Director of Public Prosecutions (Vic) (On behalf of Neil Joseph Smyth) v Zierk (2008) 184 A Crim R 582; [2008] VSC 184
Donmez v Neissa [2012] VSC 73
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
Emanuele v Hedley (1998) 179 FCR 290
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Farrington v Thomson and Bridgland [1959] VR 286
Frizelle v Bauer [2009] NSWCA 239
Garrett v Attorney-General [1997] 2 NZLR 332
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
Glasbrook Bros Ltd v Glamorgan County Council [1925] AC 270
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Grimwade v Victoria (1997) 90 A Crim R 526
Henry Walker Eltin Contracting Pty Ltd v Hrstic [2005] NSWCA 253
Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268; [2000] NSWCA 294
Hussien v Chong Fook Kam [1970] AC 942
Johnson v The Commonwealth (1927) 27 SR (NSW) 133
Jones v Great Western Railway Co (1930) 144 LT 194
Jones v Swansea City Council [1990] 1 WLR 54
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Leerdam v Noori (2009) 227 FLR 210; [2009] NSWCA 90
March v Stramare (1991) 171 CLR 506; [1991] HCA 12
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65
Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311; [2017] FCAFC 59
O’Malley v Keelty (2005) 148 FCR 170
O’Reilly v Hausler (1987) 6 MVR 344
Obeid v Lockley (2018) 355 ALR; [2018] NSWCA 71
Odhavji Estate v Woodhouse [2003] 3 SCR 263
Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27
R v Chief Constable of the Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458
R v Commissioner of Police of the Metropolis; Ex parte Blackburn [1968] 2 QB 118; [1968] 1 All ER 763
R v Dyers [2000] NSWCCA 335
R v Dytham [1979] QB 722
R v Lipton [2011] NSWCCA 247
R v Spiteri-Ahern (No 11) [2017] NSWSC 1820
Rajski v Bainton [1991] NSWCA 231
Roncarelli v Duplessis (1959) 16 DLR (2nd) 689; [1959] SCR 121
Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64
Seltsam Pty Ltd v McGuiness; James Hardie & Co Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Shoesmith v Cessnock Truck Tyre Centre Pty Ltd [2008] NSWCA 342
State of New South Wales v Corby (2010) 76 NSWLR 439; [2010] NSWCA 27
State of New South Wales v Gillett [2012] NSWCA 83
State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235
State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208
State of New South Wales v Williamson [2011] NSWCA 183
State of NSW v Tyszyk [2008] NSWCA 107
State Secretary for the Home Department [2006] 2 AC 395
Stevenson v Basham [1922] NZLR 225
Strinic v Singh (2009) 74 NSWLR 419
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Wilkinson v Downton [1897] 2 QB 547
X (Minors) v Bedfordshire County Council (1995) 2 AC 633; [1995] UKHL 9
XL Petroleum (NSW) Pty ltd v Caltex Oil Pty Ltd (1985) 155 CLR 448

Texts Cited:

Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed 2017, Lawbook Co)
Harvey McGregor QC, McGregor on Damages (19th ed, 2014, Thomas Reuters)
Sappideen and Vines, Fleming’s The Law of Torts, (10th ed, 2011, Thomas Reuters)

Category:

Principal judgment

Parties:

Janice Rita Hamilton (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
P J Brereton SC, with A E Maroya and L Fernandez (Plaintiff)
P Neil SC with D F Villa SC (Defendant)

  Solicitors:
Hoffmann & Koops Lawyers (Plaintiff)
NSW Crown Solicitor’s Office (Defendant)

File Number(s):

2013/55881

Publication restriction:

Suppression and non-publication order made on 25 October 2018 by Walton J.

Judgment

TABLE OF CONTENTS

CHAPTER I: OVERVIEW OF THE RELEVANT FACTS AND CIRCUMSTANCES 

CHAPTER II: ISSUES OF LAW AND PRINCIPLE

CHAPTER III: THE FACTUAL BACKGROUND RELATING TO THE CHARGES AND PROCEEDINGS BROUGHT AGAINST MR DYERS CONCERNING THE HLA/OLR ALLEGATIONS

CHAPTER IV: ACTING INSPECTOR SOUTHGATE’S KNOWLEDGE AS TO MR DYERS’ HEALTH

CHAPTER V: THE STRIKE FORCE CAROOLA INVESTIGATION INTO THE ALLEGATIONS OF PLA IN 2007

CHAPTER VI: THE PROCUREMENT ARGUMENT 

CHAPTER VII: THE KNOWLEDGE OR BELIEF ARGUMENT 

CHAPTER VIII: THE DECISION TO SEND THE LETTER 

CHAPTER IX: THE DECISION TO NOT RELEASE “CURRENT INVESTIGATION MATERIAL” TO THE ODPP  

CHAPTER X: LIMITATION DEFENCE

CHAPTER XI: THE CLAIM FOR DAMAGES 

CHAPTER XII: CONCLUSION AND ORDERS

INTRODUCTION

1. HIS HONOUR: By a fourth further amended statement of claim (“4FASOC”) filed 5 November 2018, Janice Rita Hamilton (“the plaintiff”) brought proceedings against the State of New South Wales (“the defendant”), pursuant to the Crown Proceedings Act 1988 (NSW), the Law Reform (Vicarious Liability) Act 1983 (NSW), and the Employees Liability Act 1991 (NSW). The plaintiff claimed damages (general, aggravated and exemplary) by reason of various loss and damages pleaded in the 4FASOC, including psychological injury and harm (consisting of post-traumatic stress disorder and major depressive disorder) in association with generalised anxiety.

The Alleged Act of Misfeasance

2. The plaintiff’s claim was for misfeasance in public office. The alleged act of misfeasance (“the act”) that was relied upon by the plaintiff to ground that claim was the positive act of the sending of a letter dated 24 July 2007, signed by Detective Senior Constable John Southgate of the Child Protection and Sex Crimes Squad of the New South Wales Police Force, to Mr Kenneth Emmanuel Dyers’ solicitor, Mr Harland Koops of Henry Davis York Lawyers (that letter shall hereinafter be referred to as “the letter”).

3. The letter is extracted, in full, below:

Mr KOOPS,

24th July, 2007

As you are aware an investigation into allegations of a serious nature made by PLA against your client Mr Ken DYERS is being undertaken. As part of this investigation investigators wish to offer your client, Mr Ken DYERS the opportunity to be interviewed in relation to these allegations. The allegations relate to numerous Aggravated Sexual Assaults, Sexual Assaults, Aggravated Indecent Assaults, and Indecent Assault offences between 1999 and 2006. It would be appreciated if a written reply to this request could be forwarded to this office.

Yours sincerely,

John SOUTHGATE

Detective Senior Constable

Child Protection & Sex Crimes Squad

State Crime Command.

4. The contentions of the plaintiff placed particular focus upon an allegation by PLA, namely, that in June 2006, Mr Dyers had sexually assaulted her at his home in Bundeena. That allegation came to be known in the proceedings as “the Bundeena allegation”. I will adopt that nomenclature for the remainder of this judgment. The Bundeena allegation, as such, was made during the taking of a statement of evidence by police from PLA in April 2007 (“PLA’s First Statement”) and, thereby, involved an allegation of a relatively recent assault. By that statement, PLA also made allegations relating to historical sexual abuse by Mr Dyers that occurred between 1999 and 2004 (“the historical allegations”).

5. Many of the submissions, and parts of the evidence, use various expressions to describe those criminal allegations against Mr Dyers. The letter, extracted above, makes reference to some particular offences which are found in Pt 3 Div 10 of the Crimes Act 1900 (NSW). For convenience, the various allegations or complaints, and references to the same, shall be described generally as “sexual offences”, as this will more closely align to the contentions of the parties. The remainder of this judgment will only deviate that generalised approach where there is a need to refer to a particular offence under the Crimes Act or form of offending.

6. On 25 July 2007, after being told of the contents of the letter by the plaintiff, Mr Dyers shot himself and died. He was 85 years old. The plaintiff was the de facto spouse of Mr Dyers. The plaintiff witnessed Mr Dyers’ suicide.

7. The plaintiff’s case was of targeted malice. The plaintiff sought to prove that Detective Senior Constable Southgate (who by the time of the hearing held the rank of Acting Inspector Southgate: hereinafter, “Acting Inspector Southgate”), a public official acted in the performance or purported performance of his functions as a police officer of the NSW Police Force (see ss 4 and 5 of the Police Act 1990 (NSW)) in sending the letter with an actual intention of causing harm to Mr Dyers and the plaintiff.

8. As to all earlier events, prior to the act, the plaintiff submitted that they are “evidentiary matters that support the submission that at the time that letter was sent the requisite mental element of malice was present”. Further, it was contended, that what the police were seeking to do was to have Mr Dyers incarcerated “because they wanted him to be in gaol and they were prepared to take steps along the way that were otherwise than taken in a bona fide investigation ultimately supporting the submission that the letter was sent with the requisite degree of malice”.

9. The plaintiff’s case was that the sending of the letter was the “final, malicious step” taken in an investigation that was carried out in “a highly improper manner”; although, the plaintiff contended the tort may be sustained by reference to the act alone.

10. The plaintiff contended that investigating officers, most significantly, Acting Inspector Southgate, had determined for themselves that Mr Dyers was the “paedophile leader of a cult” who had to be punished, and that the officers were determined to see that he was punished. However, as will be described below, and as correctly identified by the defendant, no conspiracy by police officers was pleaded or particularised in the 4FASOC. Further, the defendant correctly identified that as pleaded (and advanced in oral submissions) the misfeasance tort is directed only against Acting Inspector Southgate.

11. Nonetheless, proceedings were maintained against Detective Sergeant Fiona Frame until the filing of closing submissions by the plaintiff dated 1 November 2018 (“Plaintiff’s Closing Submissions”). Contentions of fact were pleaded against her, the proof of which had a bearing upon the case brought against Acting Inspector Southgate. Ultimately, some arguments of the plaintiff’s case against Acting Inspector Southgate, insofar as reliance is placed upon the Bundeena allegation, in particular, will depend on the plaintiff proving the substantive facts pleaded and submitted against Detective Sergeant Frame.

Course of the Proceedings

12. In the Statement of Claim filed 22 February 2013, which marked the commencement of these proceedings, the plaintiff’s case, then as now, was founded upon the tort of misfeasance in public office, was pleaded against Acting Inspector Southgate as well as the following police officers:

1. Detective Chief Inspector Paul Jacob;

2. Detective Sergeant Stuart Owen;

3. Detective Senior Sergeant Graham Norris; and

4. Detective Senior Constable Leanne O’Meara.

13. Four and a half years after the commencement of the proceedings, in the Further Amended Statement of Claim filed 7 August 2017, allegations were also pleaded against Detective Sergeant Frame.

14. Notice that the claims against Detective Chief Inspector Jacob, Detective Sergeant Owen, Detective Senior Sergeant Norris had been abandoned was provided by the plaintiff’s opening submissions filed 12 October 2018. By the Plaintiff’s Closing Submissions, no claim was being pursued against Detective Senior Constable O’Meara.

15. As mentioned above, notice that the claim against Detective Sergeant Frame was abandoned was provided by the Plaintiff’s Closing Submissions. That position arose after the cross-examination of Detective Sergeant Frame and, in particular, her (lack of) knowledge of the letter.

Relevant Parties

16. Prior to setting out the plaintiff’s claim as pleaded in the 4FASOC and the factual background, for ease of reference (and with slight repetition), the following section sets out the relevant parties.

The Plaintiff and Mr Dyers

17. The plaintiff was the de facto spouse of Mr Dyers and one of the principals, together with Mr Dyers, of an organisation called “Kenja”.

18. In 1978, the plaintiff commenced a personal relationship with Mr Dyers. From about that time, they began to offer workshops, classes and sessions in activities described as “Energy Conversion” and “Clowning”.

19. “Energy Conversion” was a meditative technique devised by Mr Dyers, designed to enable an individual to locate within their unconscious mind the thoughts and emotions that proved an obstacle to the realisation of their personal goals, happiness and success. It involved the interaction between two persons; one, called the “professional”, who leads the session, and another, called a “client”. They are also referred to as the “processor” and the “processee”, respectively. The aim of the technique is to enable the “client” to become aware of unwanted thoughts and emotions that surface during the exercise, and to allow them to dissipate.

20. “Clowning” is a workshop technique practised by the plaintiff, which was designed to enable actors in the United Kingdom (but later, wider cross-sections of society globally) to get in touch with their “inner child”, with the aim of achieving more effective and genuine communication.

21. By about 1982, the plaintiff and Mr Dyers believed that the “Energy Conversion” and “Clowning” workshops had grown in popularity, and so they formed an organisation named “Kenja” (from an amalgamation of their names, “Ken” and “Jan”) to promote those activities.

Kenja

22. Kenja was concerned with personal development and was open to any member of the public who wished to participate in its activities, whose stated objects were the individual's personal growth to achieve a successful and fulfilling life.

23. The purpose of Kenja was to offer “Energy Conversion” and “Klowning” (as it was termed after Kenja’s formation) workshops, classes and sessions to a wide cross-section of society. Later, a broader range of social and cultural activities were offered, with an emphasis on leadership training and a creative, alcohol and drug-free environment.

24. Initially, Kenja’s activities did not involve children or minors. With time, the adults involved in Kenja began to introduce their children to the activities, with the result that many families (including their children) began to participate in Kenja’s activities.

Kenja employees

25. The following former employees of Kenja are mentioned in this judgment:

1. Linda Paisley, former personal assistant to Mr Dyers;

2. Karli Stevenson, former processor at Kenja; and

3. Timothy Walker, former personal assistant to Mr Dyers.

Kenja members

26. The factual background to these proceedings includes reference to three families that were at one stage members of Kenja:

1. PLA’s family;

2. OLR’s family; and

3. HLA’s family.

27. One member of each family made an allegation(s) against Mr Dyers, at one stage or another, with respect to sexual offences during their time at Kenja. The relevant subject of each of those allegations were as follows:

1. PLA, born in 1987;

2. OLR, born in 1989; and

3. HLA, born in 1989.

28. At this juncture, it is important to note that this judgment does not concern the truth of those allegations as such.

29. Other family members responded to those allegation(s) against Mr Dyers during the course of a police investigation. A list of the relevant family members follows:

1. PLA’s family:

1. PLA’s father (“PLF”);

2. PLA’s mother (“PLM”);

3. PLA’s younger brother; and

4. PLA’s older brother.

2. HLA’s family:

1. HLA’s father (“Mr H”); and

2. Ms Patrique, mother of HLA.

Police Officers

30. The following police officers are relevant to the factual background to these proceedings:

1. Detective Superintendent Helen Begg;

2. Detective Superintendent Kim McKay;

3. Detective Chief Inspector Paul Jacob;

4. Acting Inspector John Southgate;

5. Detective Sergeant Stuart Owen;

6. Detective Sergeant Fiona Frame;

7. Detective Senior Sergeant Graham Norris;

8. Detective Senior Constable Leanne O'Meara;

9. Sergeant Scott Willis;

10. Senior Constable Steven Pfundstein; and

11. Constable Angela Cranny.

31. The plaintiff pleaded that the officers identified in the 4FASOC were “employed” by the defendant. The nature of the employment of such officers has been the subject of some controversy but no such issue was raised in these proceedings and there are alternative pleadings as to the legal relationship between Acting Inspector Southgate and the defendant.

32. It should also be noted, with respect to the rank of each officer, throughout the course of proceedings the above officers were at times referred to by different titles and/or ranks, in particular, Acting Inspector Southgate (who, as mentioned earlier, held the rank of Detective Senior Contactable at the time of the letter) and Detective Sergeant Frame. However, for ease of reference, each officer will be referred to with respect to their relevant rank at the time of the hearing.

Kogarah Joint Investigation Response Team

33. By way of background, a Joint Investigation Response Team (“JIRT”) consists of staff from the Department of Community Services (“DOCS”), NSW Police Child Abuse Squad and from NSW Ministry of Health.

34. JIRT was a victim support service, which aimed to provide a seamless service response to children and young people at risk of significant harm, as a result of sexual assault, serious physical abuse and extreme neglect: see:

35. Kogarah JIRT was involved in the investigation into allegations against Mr Dyers between 2002 and 2005. This investigation commenced prior to the establishment of a police strike force with respect to the same allegations.

Strike Force Caroola

36. Strike Force “Caroola” was a police taskforce created for the purposes of conducting investigations into Mr Dyers in accordance with “Terms of Reference”. The Terms of Reference would also identify the Investigation Coordinator, the Officer in Charge and the Investigator(s).

37. The police officers that formed that police taskforce included some of the officers listed above. However, the officers involved changed over time.

Lawyers

38. The following legal representatives will also be mentioned:

1. Mr Koops – the solicitor for Mr Dyers and the plaintiff. As earlier mentioned, at the relevant times, Mr Koops worked for Henry Davis York. He was also identified as solicitor for various employees and/or members of Kenja.

2. Mr Michael Walton – the solicitor for the Office of the Director of Public Prosecutions for NSW (“ODPP”). In addition to instructing counsel, with respect to the criminal trial of Mr Dyers, Mr Walton responded to communications from Henry Davis York to the NSW Police, with respect to the same matter.

3. Mr Lionel Rattenbury – the solicitor for PLF and PLA.

Pleadings

39. The pleadings in the 4FASOC are lengthy. It will suffice for present purposes to extract the specific pleadings of the tort of misfeasance in public office; some particular pleadings as to the basis upon which the action is brought against the defndant; and damages.

Misfeasance in Public Office

40. The plaintiff’s pleadings (as amended), in this respect, are extracted below:

Misfeasance in Public Office

Southgate

97. Southgate, from about the time he was assigned to Strike Force Caroola to the time of Dyers’ death in July 2007.

viii. procured, or caused to be procured, allegations from PLA that she had been assaulted by Dyers;

xii. deliberately ignored documents that PLA provided to Frame (including PLA’s Handwritten Statement) that were inconsistent with, or failed to corroborate PLA’s Police Statements;

xiv. procured, or caused to be procured, PLA’s June 2006 alleged Bundeena assault allegation, which he knew; alternatively, believed, to be false;

xv. failed to consider impartially the material given to the Police by Dyers’ lawyers on 26, 27 and 30 April 2007, in respect of the allegations made by PLA;

xvi. withheld from the NSW Director of Public Prosecutions (and thereby Dyers and the Court): PLA’s First Statement; the 2006 RMIT Diary; the Pink Notebook; the Blue 2007 Diary (including PLA’s Handwritten Statement); and the statements of PLF, PLA’s younger brother, Slater, Conway, Stone and Heslop;

xvii. did not interview PLM, or Hamilton, and did not properly conduct and [sic] investigation into the alleged Bundeena assault;

xvii. withheld from Dyers PLA’s Second Statement;

xix. acted upon PLA’s allegations that Dyers had assaulted her between 1999 and 2006:

a. knowing; alternatively, believing, that PLA was an unreliable witness and in the belief that she was most likely lying; and

b. knowing; alternatively, believing, that the alleged Bundeena assault of June 2006 was a false allegation;

i. in order to be in a position to continue his malicious investigation of the Caroola police against Dyers and Kenja, to arrest and charge Dyers, and to refuse him bail;

ii. to prepare and send the 24 July 2007 Letter; and

iii. thereby inflict harm upon Dyers and Hamilton; and,

xx. made the decision to send the 24 July 2007 Letter to Dyers’ lawyers, requesting that Dyers be interviewed by Police in relation to PLA’s allegations, with the intention of harming Dyers and Hamilton.

98. By reasons of the matters pleaded above, and in addition to the matters pleaded in paragraphs 23; 39; 48; 76-79; 81; 83; 84-85 and 97, above, Southgate:

i. acted maliciously;

ii. acted in bad faith in the exercise of the functions of his office as a police officer; and/or

iii. did not carry out his investigation impartially;

iv. acted unlawfully;

v. acted with wilful misuse of State power;

vi. acted with malice towards Dyers and Hamilton.

99. The sending by Southgate of the 24 July 2007 letter, for which the State is vicariously liable, constituted a misfeasance by Southgate in his public office.

…

106. Southgate was a person in the service of the Crown.

Particulars

Law Reform (Vicarious Liability) Act 1983 (NSW), section 6.

107. Further or alternatively, the State is vicariously liable for the commission, by its employee Southgate of the torts alleged above.

Particulars

i. Crown Proceedings Act 1988 (NSW), s 5;

ii. Employees Liability Act 1991 (NSW), s 2A.

iii. Law Reform (Vicarious Liability) Act 1988 (NSW), Part 4.

108. Southgate was a police officer at the time of the commission of torts alleged.

109. In the circumstances, these proceedings constitute a “police tort claim” for the purposes of section 9B(1) of the Law Reform (Vicarious Liability) Act 1983.

Dyers’ Suicide

110. Dyers’ suicide was caused or actuated by the malicious and unlawful actions of Southgate as pleaded in paragraphs 97-109 above.

Particulars

i. The temporal connection between Dyers’ suicide and the matters pleaded above including the matters in paragraphs, 37, 39 and 70-73, above, and the notification of the allegation by PLA that he had assaulted her in 2006, following the determination of the Mental Health Review Tribunal referred to in paragraph 80, above.

ii. Dyers committed suicide because he felt that he was being maliciously pursued by Southgate and Frame and was anxious at the serious prospect of having his bail revoked, being incarcerate, and dying due to ill-health, or being harmed, or killed while in detention.

111. Hamilton witnessed Dyers’ suicide.

Particulars

Police Report by Senior Constable Sara Burgess, dated 25 July 2007.

112. By reasons of the misfeasance of Southgate, as pleaded above, and for which the Defendant is vicariously liable, Hamilton has suffered loss and damaged, including psychological injury and harm by reason of:

i. her necessary proximity to Dyers, including during the period from about 2005 to 25 July 2007;

ii. by her witnessing of and necessary exposure to (as the case may be), as Dyers’ de factor spouse, and as one of the two principals of Kenja, the matters pleaded in paragraphs 11-111, above.

iii. witnessing Dyers’ suicide; and

iv. the fact of Dyers’ suicide and its circumstances, including its antecedent circumstances.

Particulars

a. Psychological injury and harm;

b. Chronic Post-traumatic Stress disorder;

c. Chronic Major Depressive Disorder, in association with generalised anxiety.

Damages

41. As earlier mentioned, the plaintiff claimed damages and costs. The particulars of that relief sought, with respect to aggravated and exemplary damages, are extracted below:

Particulars of Aggravated and Exemplary Damages

Hamilton claims that:

a. her damages are aggravated by the wrongful conduct of the Defendant, as pleaded in paragraphs 97-110 above;

b. that the totality of such conduct, together with the facts and matters pleaded in paragraphs 11-112, above, shows a contumelious disregard for Hamilton and her rights;

c. exemplary damages are sought to reflect the disapprobation of such contumacy by Southgate and as a deterrent to like-minded persons.

Material Before the Court

Submissions

42. The following is a summary of the written submissions filed by the plaintiff in these proceedings:

1. Plaintiff’s Opening Submissions (36 pages);

2. Plaintiff’s Closing Submissions (91 pages), together with annexure, entitled: “Steps taken by Caroola Police leading up to 23 July 2007” (4 pages); and

3. Plaintiff’s Reply Submissions filed 30 November 2018, which included an annexure, entitled: “Plaintiff’s Reply to Defendant’s Response to Fact Finding” (33 pages) (“Plaintiff’s Reply Submission”).

43. The Plaintiff’s Closing Submissions, together with the Plaintiff’s Reply Submission, superseded the Plaintiff’s Opening Submissions.

44. The following is a summary of the written submissions filed by the defendant in these proceedings:

1. Defendant’s Outline of Opening Submissions filed 17 October 2018 (11 pages);

2. Defendant’s Closing Submissions filed 1 November 2018 (48 pages); and

3. Defendant’s Closing Submissions filed 23 November 2018, which included an annexure, entitled: “Defendant’s Response to Fact Finding by Plaintiff” (50 pages) (which shall hereinafter be referred to as “the Defendant’s Closing Submissions”).

45. The Defendant’s Closing Submissions superseded the submissions earlier filed on 17 October and 1 November 2018, respectively.

46. In addition to the written submissions before the Court, the following material was also produced by the parties, either with leave or at the direction of the Court, at various stages throughout the proceedings:

1. The Plaintiff’s “Bundeena Case” (a note produced by the plaintiff on 21 October 2018) (2 pages) (“Plaintiff’s Bundeena Submission”) (It may be noted, this submission was provided prior to the plaintiff’s filing of the 4FASOC and the abandonment of the claim against Detective Sergeant Frame);

2. Defendant’s Note (dated 14 February 2019) (4 pages) (“Defendant’s 14 February Note”); and

3. Plaintiff’s Note in reply to the Defendant’s Note Dated 14 February 2019 (dated 4 March 2019) (4 pages) (“Plaintiff’s Note in reply”).

Plaintiff’s Evidence

47. The plaintiff relied upon the following affidavits:

1. The plaintiff, affirmed 17 September 2014 and 12 October 2018;

2. PLM, affirmed 17 September 2014 and 12 October 2018; and

3. Mr Koops, affirmed 12 December 2014.

48. The plaintiff, PLM and Mr Koops were required for cross-examination.

49. In addition to that evidence, the plaintiff also tendered a three volume tender bundle (marked Ex 2 in the proceedings) that included, inter alia, the following categories of documents:

1. Police records, which included:

1. Police Statements;

2. Duty Book entries;

3. [email protected] entries;

4. Computerised Operational Policing System (“COPS”) Case Report notes;

5. Strike Force Caroola Investigation Progress reports;

6. ERISP transcripts; and

7. correspondence.

2. Assessment records and reports.

3. Medical records and reports.

50. The plaintiff produced a document referred to as “the consolidated index” which listed the documentary evidence and basis upon which the evidence was tendered; generally as to the truth or not as to the truth of the document, including statements or evidence.

Defendant’s Evidence

51. The defendant relied upon the following evidence:

1. Statement of Acting Inspector Southgate dated 17 October 2018. The following material was annexed to that statement:

1. Facts Sheet (concerning Mr Dyers’ charges and arrest on 27 October 2005);

2. Police Statement of Acting Inspector Southgate dated 23 November 2005;

3. Duty Book entries dated between 2005 and 2007;

4. [email protected] entries dated between 2005 and 2007; and

5. Strike Force Caroola Investigation Progress Report Number 4.

2. Statement of Detective Sergeant Frame dated 18 October 2018. The following material was annexed to that statement:

1. Duty Book entries dated between 2005 and 2007; and

2. [email protected] entries dated between 2005 and 2007.

3. Supplementary Statement of Acting Inspector Southgate dated 23 October 2018, which statement was directed at the Plaintiff’s Bundeena Submission and the affidavit of Mr Koops.

4. Supplementary Statement of Detective Sergeant Frame dated 23 October 2018, which statement was directed at the Plaintiff’s Bundeena Submission.

52. Acting Inspector Southgate and Detective Sergeant Frame were both required for cross-examination.

53. In addition to the above evidence, the defendant also tendered:

1. ERISP of Mr Dyers, recorded on 27 October 2005 (consisting of three discs) (marked Ex 3);

2. DVD of the interview between the plaintiff and Mr Dyers, recorded on 28 October 2005 (consisting of one disc) (marked Ex 4);

3. a single volume tender bundle (marked Ex 9), which included material removed from the plaintiff’s tender bundle (in order to be properly tendered by the defendant), namely, various [email protected] entries and correspondence concerning the mental health of the plaintiff. The defendant’s tender bundle also included the following documents:

1. statement of Suzanne Germain, dated 27 February 2006;

2. indictment of Mr Dyers, dated 8 June 2006;

3. orders entered by Phegan DCJ on 3 May 2007; and

4. correspondence concerning the mental health of Mr Dyers.

Expert Evidence

54. The plaintiff relied upon three expert reports:

1. Report of Dr Glenys Dore, Consultant Psychiatrist, dated 14 January 2012; and

2. Reports of Dr Selwyn Smith, Consultant Psychiatrist, dated 6 November 2012 and 6 June 2013, respectively.

55. The defendant relied upon the report of Dr Anthony Samuels, Consultant Psychiatrist, dated 30 April 2015.

56. A joint expert conference was conducted between Drs Samuels and Smith. A joint expert report dated 20 April 2018 was produced and before the Court.

57. The experts were not required for cross-examination.

CHAPTER I: OVERVIEW OF THE RELEVANT FACTS AND CIRCUMSTANCES

58. It is convenient to provide a brief and broad chronological overview of the facts and circumstances of the claim at the outset. However, in order to ultimately dispose the issues raised in the pleadings it will be necessary to delve into the history in considerable greater depth.

59. For the purposes of this overview it should be mentioned that there are three broad chronological categories of particular note:

1. The first category concerns charges laid against Mr Dyers in 1993 in relation to alleged sexual offending against four children of ex-Kenja members, not being the complainants referred to in the second or third periods.

2. The second category concerns allegations of sexual offending by Mr Dyers made by HLA and OLR (collectively, “the HLA/OLR allegations”). This resulted in 22 charges being laid against Mr Dyers, which ultimately, due to his death, did not go to trial.

3. The third category concerns allegations of sexual offending by Mr Dyers made by PLA. Those allegations involved historical allegations that overlapped with the HLA/OLR allegations but also involved later offending. PLA had earlier denied sexual offending against her and challenged the veracity of HLA’s complaint.

60. It is important to note that some of the events in respective categories overlapped in time with each other.

The First Category

61. In September 1993, Mr Dyers (then aged 71 years) was arrested and charged with 18 counts involving sexual offences against four children of ex-Kenja members.

62. Mr Dyers defended the charges. His trials were conducted in February 1996, April 1996, July 1999, August 1999 and October 1999. He was acquitted by a District Court jury on 3 counts, and by another District Court jury on 6 counts. The ODPP dropped 8 counts. In July 2000, Mr Dyers was convicted on the sole remaining count and sentenced to 12 months’ imprisonment. 

63. The New South Wales Court of Criminal Appeal reduced Mr Dyers’ sentence to a suspended sentence of 12 months’ duration: R v Dyers [2000] NSWCCA 335.

64. In October 2002, the High Court quashed the decisions below, with the result that Mr Dyers’ sole conviction was set aside and a new trial ordered: Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45.

The Second Category

65. In September 2002 (which was about one month before the High Court delivered its judgment), HLA complained to NSW police that she had been sexually abused by Mr Dyers. As earlier mentioned, HLA was the daughter of two ex-members of Kenja. She was herself an ex-member of Kenja. 

66. Between September and November 2002, HLA gave four police interviews. She alleged that Mr Dyers sexually abused her between December 2001 and July 2002, during her participation in Kenja, and on Kenja premises. During that time, she was aged between 12 and 13 years. HLA identified other children as potential victims of Mr Dyers, which included PLA and OLR.

67. The Kogarah JIRT investigated HLA’s complaints. That investigation included interviewing PLA and OLR.

68. PLA was interviewed on 27 August 2003. She was 16 years old at the time. During that interview, PLA denied that she had ever been abused by Mr Dyers, refuted the allegations made against Mr Dyers by HLA, and labelled HLA a “liar”.

69. OLR was interviewed on 3 September 2003. She was 14 years old at the time. The interview was conducted by Ms Wendy Daniel, Senior Child Protection Caseworker for DOCS.

70. The NSW Police reviewed the case against Mr Dyers and, in around late January/early February 2005, suspended the investigation. No charges were laid against Mr Dyers. 

71. In about early March 2005, Detective Superintendent Kim McKay, Commander of the Child Protection and Sex Crimes Squad, requested a review of the investigation conducted by Kogarah JIRT into “allegations made against KENJA religious organisation”.

72. The task of carrying-out the review was initially assigned to Detective Senior Sergeant Holton and later assigned to Detective Senior Sergeant Norris to complete. 

73. Detective Senior Sergeant Norris produced a report dated 8 April 2005 (“the Norris Report”).

74. The recommendation of the Norris Report was that “this matter is forwarded to the Commander of the Child Protection and Sex Crimes Squad for review and that consideration be given to activating an appropriately resourced strike force to reinvestigate this matter”.

75. On 13 May 2005, following the recommendation of the Norris Report, a NSW Police strike force called “Strike Force Caroola” was established.

76. The case title for Strike Force Caroola was: “Sex Assaults – Ken Dyers, Spiritual Leader”. The “Terms of Reference” for that strike force were as follows: 

To investigate child sex offences allegedly committed by Ken Dyers and the activities of his religious organisation “Kenja” regarding these offences. 

77. As at 6 October 2005, the Terms of Reference document (originally issued on 13 May 2005 and amended on 1 August 2005), was re-issued to reflect, inter alia, personnel changes within the investigation and the above recommendation of Detective Senior Sergeant Norris. The final form of the Terms of Reference document was signed by Detective Chief Superintendent R D Del Monte on 6 October 2005 and Detective Senior Sergeant Norris and Detective Sergeant Owen, respectively, on 10 October 2005.

77. At 9.40am on 27 October 2005, Acting Inspector Southgate arrested Mr Dyers at his home address in Bundeena (which residence he shared with the plaintiff). The plaintiff was present during the arrest.

78. After being formally charged, Mr Dyers made an application for bail. The circumstances surrounding the decisions made at Sutherland Police Station, with respect to Mr Dyers’ bail, attracted controversy.

79. Magistrate John Bailey granted bail to Mr Dyers, with conditions. Following that decision, Magistrate Bailey directed that the police brief was to be served on or before 9 December 2005. Mr Dyers remained on bail until his death in July 2007.

80. On 24-25 May 2006, Mr Dyers’ committal hearing took place at the Downing Centre Local Court before Magistrate Trad. A transcript of those proceedings was before the Court. At the committal hearing, the following prosecution witnesses were cross-examined:

1. Ms Patrique;

2. HLA’s father;

3. OLR;

4. Acting Inspector Southgate; and

5. Detective Senior Constable Norris. 

82. At the conclusion of the committal hearing, Mr Dyers was committed for trial in the District Court of New South Wales. Magistrate Trad ordered that bail was to continue. 

83. On 9 June 2006, Mr Dyers’ matter was listed for arraignment in the District Court on 21 counts of aggravated indecent assault and 1 count of aggravated sexual intercourse without consent relating to HLA and OLR. The trial was scheduled to commence on 21 May 2007 (“the HLA/OLR trial”).

84. Between 11 and 18 June 2006, the alleged sexual offending by Mr Dyers against PLA, namely, the offending which was the subject of the Bundeena allegation, was said to have occurred by PLA. PLA did not make a formal complaint against Mr Dyers to the NSW Police until 10 April 2007 (although contact was made with the police on 4 April 2007).

85. In early September 2006, Mr Dyers applied for a permanent stay of the criminal proceedings, on medical grounds, with respect to the HLA/OLR trial.

86. On 30 April 2007, that application was heard before Phegan DCJ. On 3 May 2007, Phegan DCJ dismissed the application but, in light of the medical material before the Court, referred Mr Dyers to the Mental Health Review Tribunal (“the Tribunal”) so that a determination as to his fitness to be tried may be made. The HLA/OLR trial date was vacated.

87. On 27 June 2007, the Tribunal determined that Mr Dyers was not fit to be tried within the next 12 months. Following that decision, the ODPP were considering whether to proceed to special hearing. In light of Mr Dyers’ death on 25 July 2007, no decision was made.

88. Before turning to the third category, it is appropriate to mention the overlap between this second category and the following category. Between the date of Mr Dyers’ arraignment on 9 June 2006 and the date fixed for trial, namely, 21 May 2007, a solicitor acting for PLF and PLA advised Detective Sergeant Frame that PLA intended to lodge complaints of sexual offending against Mr Dyers. I will ultimately find that the Detective Sergeant was advised that allegations would be made of historical sexual offending as well as recent sexual offending.

89. Statements were taken from PLA and PLF, again, prior to the date listed for HLA/OLR trial.

The Third Category

90. In or around 2005, whilst studying in Melbourne, PLA commenced a relationship with Mr Slater. She also attended Kenja in Melbourne. Ms Stevenson was the director of the Melbourne Kenja Centre.

91. In early February 2007, Mr Slater had ended the relationship with PLA. During 2006 and 2007, Ms Stevenson had numerous conversations with PLA. Ms Stevenson observed PLA to be “distraught and upset” because of issues in her relationship with Mr Slater in 2006 and “emotionally distressed” following her abortion in 2007.

92. On 8 March 2007, Ms Campbell told Ms Stevenson about conversations she had with Mr Slater about PLA. It was said that PLA would “cry and scream to get Huw to stay with her and also that Ken Dyers had raped her when she was younger”. Ms Stevenson told PLA about those conversations and deposed that PLA said “no, that didn’t happen. Ken did not rape me…”. (In her statement of evidence, not admitted as to its truth, PLA stated she had told Mr Slater that Mr Dyers had raped her, and that she had been pressured to change her account).

93. On 8 and 13 March 2007, following conversations with Ms Stevenson, PLA wrote and signed two statutory declarations, denying that she had been raped or molested by Mr Dyers. In PLA’s first statement to the police she stated: “I signed the statutory declaration because I felt intimidated and I also just wanted to get out of Kenja and I would have done anything to be allowed to be let out of Kenja”. On 26 April 2007, Ms Stevenson signed a statutory declaration that stated: “I did not suggest or invited PLA [sic] to make those statements. PLA raised the request indicating she wished to record her thoughts in writing of her own accord”.

94. On or around 27 March 2007, PLA told her father of the sexual offending of Mr Dyers “from the beginning”.

95. On 30 March 2007, Mr H contacted Detective Senior Sergeant Norris and advised that PLA had told him that Mr Dyers has sexually molested her “during her time [at Kenja]”. At or about the same time, various serious events, relating to the breakdown of the marriage of PLF and PLM were occurring. A charge of common assault, as well as three apprehended violence orders (“AVO”), was laid against PLF, who engaged a solicitor, Mr Lionel Rattenbury, to represent him.

96. Mr Rattenbury’s instructions included, inter alia, that the complaint in the common assault charge was fabricated in order to prevent his daughter, PLA, from making an allegation that she had been “sexually abused” by Mr Dyers from 1999 to 2002, namely, from the age of 12-15. He was also instructed that PLA and PLF sought advice as to PLA making a complaint to the police in relation to “sexual molestation” by Mr Dyers.

97. On 4 April 2007, Mr Rattenbury spoke with Detective Sergeant Frame. He advised that PLA wished to make a complaint of “sexual offences” against Mr Dyers. There was no dispute those complaints involved historical allegations. There was a dispute as to whether the record reliably represented reference to then more recent offending and, in that respect by reference to the time period in question, the Bundeena allegation. An appointment was confirmed for Mr Rattenbury to meet with Detective Sergeant Frame and Detective Sergeant Owen on 10 April 2007. There are two records of that phone call, both produced by Detective Sergeant Frame, one in a duty book and the other in an [email protected] record (although the latter was recorded on 10 April 2007). An appointment was also made to meet with PLA in-person, following the meeting with Mr Rattenbury, on 10 April 2007.

98. On 10 April 2007, following a short meeting with Mr Rattenbury, Detective Sergeant Frame and Detective Sergeant Owen, the investigators conducted a meeting with PLA and PLF. It was not in dispute that PLA met with the investigators to make formal complaint of sexual offences against Mr Dyers. During that meeting, the issue of particularising offences was raised and PLA mentioned she had some diaries that may assist her to recall when the offences occurred. The Bundeena allegation was not mentioned during the 10 April 2007 meeting. Following the meeting, arrangements were made to contact PLA to confirm whether she has located her diaries and to arrange a suitable time to commence taking her statement.

99. Two diaries were eventually located and provided to Detective Sergeant Frame, namely, a Blue 2007 diary and an RMIT 2006 student diary (collectively, “the two diaries”). The former included a lengthy handwritten narrative (“the handwritten narrative”), which formed the basis of PLA’s first statement to police (referred to below). The latter was primarily used by PLA to confirm the date range proximate to the time of the Bundeena allegation. The plaintiff contended that neither document corroborated the Bundeena allegation.

100. On 18 April 2007, the investigation commenced with a meeting conducted by Detective Sergeant Frame and Acting Inspector Southgate, together with PLA, PLF and PLA’s younger brother. The meeting was directed at the process of obtaining a statement from each of them and the arrangements put in place by Strike Force Caroola to facilitate that process.

101. PLA’s statement was taken over several days by Detective Sergeant Frame, commencing 19 April 2007, and dated 23 April 2007. Whilst the investigation was commenced by investigators within Strike Force Caroola, which was tasked with investigating “allegations of child sexual assault upon HLA and OLR by Ken Dyers whilst attending Kenja” (as at 6 October 2005), Detective Sergeant Frame was principally involved in the investigation into the allegations of sexual abuse upon PLA by Ms Dyers. It may be distinguished as a separate investigation, concerning a separate complainant and a separate set of potential charges (which, it may be noted, were being considered in the context of an ongoing investigation and were never laid against Mr Dyers).

102. At the same time as Detective Sergeant Frame was taking the statement of PLA, Acting Inspector Southgate took the statements of PLF and PLA’s younger brother.

103. During the course of the first statement, PLA addressed the “lies” she told Kogarah JIRT in 2002, made the historical allegations and the Bundeena allegation. The Bundeena allegation, on PLA’s account, concerned events that occurred when she was 18 years of age at the time and attended the residence of Mr Dyers with her mother (on that account, the plaintiff was also present at the residence). As noted above, following a review of her RMIT 2006 student diary, she later confirmed the incident occurred between 11 and 18 June 2006.

104. On 24 April 2007, Detective Chief Inspector Jacob, a superior officer within State Crime Command, wrote to Mr Koops advising that “members of my squad” are currently investigating “further allegations” made by PLA. He confirmed that investigators would be in Melbourne until 26 April 2007.

105. On 25 April 2007, Detective Sergeant Frame met with PLA in Melbourne. On that occasion PLA provided the investigator with the two diaries and one notebook. There was a controversy as to whether, prior to the taking of the first statement, the handwritten narrative (or part thereof) was made available via facsimile to Detective Sergeant Frame. However, irrespective of whether the content (or partial content) of that material was faxed through prior to that interview, both Detective Sergeant Frame and Acting Inspector Southgate attended upon Melbourne as the next step within the investigation into the allegations brought by PLA.

106. On 26 April 2007, Mr Koops sent a letter to Detective Chief Inspector Jacob together with a statutory declaration of Ms Stevenson, sworn 26 April 2007. Annexed that that statutory declaration were two statutory declarations of PLA, sworn 8 March 2007 and 13 March 2007, and the transcript of two voicemail messages left by PLA on the telephones of PLM and Ms Tinkler on 30 March 2007.   By that letter, Mr Koops also asked police to let him know if there were any persons who police would like to interview.

107. On 27 April 2007, Mr Koops sent a further letter to Detective Chief Inspector Jacob. The letter attached a statutory declaration by PLM, sworn on 27 April 2007, and a statement by PLM made to NSW Police on 30 March 2007.

108. On 30 April 2007, Detective Chief Inspector Jacob sent a letter to Mr Koops acknowledging receipt of material sent on 26 and 27 April 2007. Within that same communication, Detective Chief Inspector Jacob referred to the likely nature of subsequent communication including “requests to interview a number of other persons”.

109. On 30 April 2007, Mr Koops sent a further letter to Detective Chief Inspector Jacob attaching a statutory declaration of Ms Sadira Campbell, sworn on 30 April 2007.

110. Returning to proceedings directly related to the HLA/OLR trial, as earlier mentioned, Mr Dyers’ application for a permanent stay of the HLA/OLR trial was heard on 30 April 2007. On 3 May 2007, Phegan DCJ found Mr Dyers not fit to be tried and referred the matter to the Tribunal for a fitness to be tried hearing. The application for a stay, however, was dismissed on that day.

111. On 3 May 2007, with respect to the historical allegations and the Bundeena allegation of PLA, Acting Inspector Southgate recorded in his Duty Book “decision made not to release current investigation material to DPP”.

112. On 4 May 2007, PLA provided a second statement, which essentially clarified the date range in which the Bundeena allegation allegedly occurred within a formal police statement.

113. On 27 June 2007, the Tribunal published its unanimous determination that Mr Dyers would not become fit to be tried within the period of twelve months. Following that determination, the ODPP considered whether or not to proceed to a special hearing.

114. On 24 July 2007, Acting Inspector Southgate wrote and sent the letter to Mr Koops. The letter is earlier extracted, but for convenience it may be noted that it stipulated, as part of the investigation, the investigators would wish to interview Mr Dyers in relation to the allegations. A broad summary of the nature of the allegations as well as the relevant timeframe, namely, between 1999 and 2006, was provided. Whilst the age range of PLA at the relevant times was omitted, it may be noted that during that timeframe she was aged 12-19 years over that period.

115. On 25 July 2007, Mr Koops telephoned the plaintiff and read out the contents of the letter to the plaintiff. The plaintiff conveyed the contents of the letter to Mr Dyers. Shortly after that fact, Mr Dyers ended his life by shooting himself in head with a shotgun. The plaintiff witnessed the suicide and its aftermath.

116. I extract below a part of the plaintiff’s affidavit dealing with those final developments (which was unchallenged):

Events of 25 July 2007

153. On 24 July 2007, Detective Southgate wrote to Mr Koops at Henry Davis York informing him that police wished to give Ken the opportunity to be interviewed in relation to PLA's allegations and that the allegations related to sexual assaults between 1999 and 2006.

154. I received a telephone call from Mr Koops on the morning of 25 July 2007 at about 9:30am. He said to me he had received a letter from Detective Southgate the previous day. Mr Koops read the letter to me over the phone. I had a discussion with him about the matter. I told him I would speak to Ken about it and have Ken call him. I was stunned by the police letter and felt helpless.

155. I had a conversation with Ken about the letter and attending an interview with the police about PLA's allegations. We had a conversation in words to the following effect:

Me: Harland has received a letter from the police concerning allegations by PLA that you sexually assaulted her. They are investigating her claims and they want to interview you.

Ken: They have gone too far now. This is ridiculous. How can they pursue this? Harland sent them all that material about PLA and her problems. Surely they can see that this is nonsense.

Me: I don't know what is going on. I know allegations like this are absurd. You are too sick to participate in an interview at the moment. We need to discuss this with Harland.

156. I then telephoned Mr Koops. A series of conversations then took place among Ken, Mr Koops and me on the speaker phone in words to the following effect:

Mr Koops: I can't believe the police are acting on these claims. I thought that it had been dealt with in the material we supplied to Inspector Jacob.

Ken: What more can we put in to show them that this is ridiculous? They have gone too far, they are going to trip over themselves. They can't get away with this. Is there more evidence we can put in? I am willing to go to the police.

Mr Koops: That may not be appropriate right now. We don't know what they'll come up with next or even what they are capable of. We have to approach this very carefully. We shouldn't just rush in to anything until we have a better understanding of the background.

Me: Harland, you know that Ken has been very sick. He is in no condition to go to the police station for an interview. We have been through this before and Ken is not up to it.

Ken: They have overstepped the mark so far this time that it is beyond comprehension. Doesn't that work in our favour? Let's just do it and get this over with so we can put it behind us.

Mr Koops: We will talk later in the day once I have considered the issues.

157. When that telephone conversation finished Ken and I had a conversation in words to the following effect:

Ken: Why can't I just go and deaf with this now. This is so frustrating.

Me: The police say there are allegations in 2006. That is just Iast year. You were on bail. PLA was living in Melbourne.

Ken: I didn't realise that. Now I do, and what it means. They want to revoke bail. They want to kill me. If I go to gaol I'll be murdered. I need some space, can you get me a cup of tea?

158. I went to the kitchen to make a cup of tea. I returned to the bedroom and I saw Ken seated on the side of the bed with a shotgun across his lap. There was a doona on the bed. I said words to the effect of:

"Oh come on Ken you can't do this. ! love you. You don't need to handle it this way."

159. Ken pulled the doona partly over his face and head and positioned the barrel of the shotgun at his upper neck. He said:

“Just let me go through this."

160. I was shocked at what Ken was doing. I did not think that he would kill himself. Almost immediately I heard a muffled thud. Ken's body was still upright. I said:

“Come on Ken. Cut it out."

161. Ken's body then slowly slumped backwards on to the bed. I started to remove the doona and saw that Ken's face had been blown off. I saw half a head remaining on Ken's shoulders.

162. I started screaming. I started to feel furious and kicked a hole in the wall. I kept screaming for quite a long time. I kept walking into and out of the bedroom in a highly agitated state.

163. A few moments later Karli Stevenson came into the room. She started screaming also and shouted "Ken has shot himself'.

117. Following the death of Mr Dyers, Strike Force Caroola ceased its investigations. The allegations of PLA were not fully investigated.

118. On 19 February 2008, the NSW Police Post-Operational Assessment (“POA”), with respect to Strike Force Caroola was prepared by Acting Inspector Southgate, with a preamble written by Detective Chief Inspector Jacob.

CHAPTER II: ISSUES OF LAW AND PRINCIPLE

The Tort of Misfeasance in Public Office

Submissions of the Plaintiff

Introduction

119. It was submitted that, it may not have been Acting Inspector Southgate’s intention to drive Mr Dyers to suicide (although that is what he did), but he did wish to visit harm upon him, and was prepared to act wrongfully to achieve that end.

120. Having regard to Detective Sergeant Frame’s evidence concerning her lack of knowledge of the letter, dated 24 July 2007, that was sent to Mr Koops, the plaintiff accepted that she cannot make out a case of misfeasance in public office against Detective Sergeant Frame.

121. The plaintiff’s claim is framed, inter alia, upon the premise accepted by Deane J in Northern Territory v Mengel (1995) 185 CLR 307; [1995] HCA 65 (“Mengel”) at 370, namely, that “[i]n the context of misfeasance in public office, the focus of the requisite element of malice is injury to the plaintiff or injury to some other person through an act which injuriously affects the plaintiff”.

122. It is sufficient to establish the tort that, even if Acting Inspector Southgate purported to exercise his duties as a police officer by investigating alleged crimes by Mr Dyer, and subject to issues of causation, he nonetheless acted with the intention to cause harm to Mr Dyers, and, having acted upon this intention, the conduct was necessarily an abuse of power. It was not a bona fide investigation; if it were, the plaintiff would not succeed in making out the tort of misfeasance in public office, even if Acting Inspector Southgate understood some harm may have been caused to Mr Dyers through such an investigation.

1. The plaintiff also makes a claim for exemplary damages. Again, the principles for such an award have diverged between England and Australia. It is not disputed that exemplary damages are awarded for the tort of misfeasance in public office. They are an exceptional remedy which are rarely awarded, and may only be given where the conduct is "high­handed, insolent, vindictive or malicious conduct" amounting to or exhibiting "a conscious wrongdoing in contumelious disregard of' the plaintiff: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70. Because malice is an essential element of the tort itself, something over and above mere malice must be demonstrated in order to warrant such an award, otherwise exemplary damages would be awarded as a matter of course in cases of misfeasance. There is no such additional quality in the conduct of Acting Inspector Southgate.

The Issues of Principle and Fact

What should be assessed as general damages?

1105. The plaintiff correctly identified that, in Riley, the Court (at [127]) held:

Ordinarily compensatory damages are supposed to be an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote…

1106. While, as the defendant submitted, the Court must have regard to the plaintiff’s psychological state prior to the tortious conduct for which the defendant is liable. In that regard, I accept that there were signs and symptoms of the plaintiff suffering mental strain or mental ill health before the 24 July 2007 letter, as indicated in the evidence of the plaintiff, the expert reports from each of the parties and from the joint expert report. Ultimately however, the medical evidence makes it clear that the plaintiff suffered from recognised psychiatric illnesses, namely PTSD and Major Depressive Disorder, as a direct result of her having witnessed the suicide of Mr Dyers – it is that distinction that need be crucially made.

Are aggravated damages available and, if so, what should be assessed for such damages?

1107. In Uren v john Fairfax & Sons Pty Ltd (1966) 117 CLR 118, Taylor J (at 129-130) and Windeyer J (at 149) recognised a distinction between aggravated and exemplary damages. Justice Windeyer (at 149) stated:

[A]ggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment-moral retribution or deterrence.

1108. I accept the defendant’s submission that double compensation needs to be avoided, as the basis for aggravated damages would be compensated by an award for general damages.

Is the test that, something more than “mere malice is required”? If so, has the plaintiff passed that threshold? On that test or not, what is the assessment for exemplary damages?

1109. I wholly accept the defendant’s submission regarding exemplary damages.

‘[T]he principles for such an award have diverged between England and Australia. It is not disputed that exemplary damages are awarded for the tort of misfeasance in public office. They are an exceptional remedy which are rarely awarded, and may only be given where the conduct is "high­handed, insolent, vindictive or malicious conduct" amounting to or exhibiting "a conscious wrongdoing in contumelious disregard of' the plaintiff: Gray v Motor Accident Commission (1998) 196 CLR 1. Because malice is an essential element of the tort itself, something over and above mere malice must be demonstrated in order to warrant such an award, otherwise exemplary damages would be awarded as a matter of course in cases of misfeasance. There is no such additional quality in the conduct of Southgate.’

1110. In XL Petroleum (NSW) Pty ltd v Caltex Oil Pty Ltd (1985) 155 CLR 448, Brennan J (at 472) (citing Uren v John Fairfax & Sons Pty Ltd) opined that it was “now beyond argument that, by the law of this country, it is proper to award exemplary damages by way of punishment of the tortfeasor.”

Consideration

1111. As mentioned earlier, I have not assessed damages as the plaintiff has not succeeded in crossing the causation threshold.

CHAPTER XII: CONCLUSION AND ORDERS

Conclusion

1112. The sending of a letter by a police officer carrying out an investigation into alleged criminal activity is ordinarily an exercise of existing public power that falls within its scope. The relevant actions of Acting Inspector Southgate were an exercise of that public power. Therefore, to be successful in proving misfeasance in public office as pleaded, the plaintiff must show that the exercise of public power was beyond its scope as a result of the defendant acting maliciously (with an intention to harm) in the use of his power which then did cause harm to the plaintiff.

1113. The plaintiff’s claim has failed because the Court is not, on the evidence, satisfied to the requisite standard that the defendant’s act of sending the letter (whether viewed alone or with any preceding or associated actions) was conducted with an intention to cause harm. By virtue of this conclusion a determination as to whether it was the sending of the letter by the defendant that caused the psychological injury of the plaintiff is not necessary. Notwithstanding that, and without the need to decide the question, the present claim has also failed to, on the evidence, satisfy the causation element to the requisite standard. That is, the plaintiff did not show that the defendant’s act caused harm.

Orders

1114. The Court makes the following orders:

1. The fourth further amended statement of claim is dismissed.

2. Judgment for the defendant.

3. Costs for the defendant as agreed or, in default of agreement, as assessed.

Amendments

10 June 2020 - Slip rule adjustment at [923] and [1114]; typographical error at [613(18)]; pseudonyms per suppression and non-publication order made on 25 October 2018 by Walton J.

22 June 2020 - Anonymisation of names at [740] and [746].

08 July 2020 - Further redactions to prevent identification of HLA, OLR and PLA.

11 January 2021 - Typographical error in heading removed.

Decision last updated: 11 January 2021