HD v State of New South Wales

[2016] NSWCA 85

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	HD v State of New South Wales [2016] NSWCA 85
Hearing dates:	23 March 2016
Date of orders:	26 April 2016
Decision date:	26 April 2016
Before:	Gleeson JA at [1] Leeming JA at [136] Emmett AJA at [137]
Decision:	1. Summons dismissed with costs (CA2015/114853). 2. Extend the time for filing of the notice of appeal until 15 September 2015. 3. Appeal dismissed. 4. Appellant to pay the respondent’s costs (CA 2015/270321).
Catchwords:	TORTS – malicious prosecution – where interim ADVO obtained by police against the father on behalf of daughter and followed by police prosecution of an assault charge against the father – identity of prosecutor – whether prosecutor acted without reasonable and probable cause – whether credit-based findings concerning the subjective belief of the prosecutor shown to be wrong on Fox v Percy test – whether prosecutor acted maliciously – whether prosecutor acted on improper purpose of instituting and maintaining prosecution of assault charge against the father to support the ADVO proceedings
Legislation Cited:	Crimes Act 1900 (NSW), s 59(1) Crimes (Domestic and Personal Violence) Act 2007, s 41 Criminal Procedure Act 1986 (NSW), Div 3, 4, Ch 6 Evidence Act 1995 (NSW), s 38 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules, rr 42.1, 51.16(1), 51.22(2)
Cases Cited:	A v New South Wales [2007] HCA 10; 230 CLR 500 Adams v Kennedy (2000) 49 NSWLR 78 Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 Costa v The Public Trustee of NSW [2008] NSWCA 223 Lamb v Cotogno [1987] HCA 47; 164 CLR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 George v Rocket [1990] HCA 26; 170 CLR 104 Houda v State of New South Wales [2005] NSWSC 1053 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Li v Deng (No 2) [2012] NSWSC 1245 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Zreika [2012] NSWCA 37 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34 Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571
Texts Cited:	John G Fleming, The Law of Torts (9th ed 1998, LBC Information Services)
Category:	Principal judgment
Parties:	HD (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: Mr PA Beale (Appellant) Mr HN Newton (Respondent)   Solicitors: McGrath, Dicembre & Company (Appellant) IV Knight, Crown Solicitor’s Office (Respondent)
File Number(s):	2015/1148532015/270321
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 30 March 2015 Before: Robison DCJ File Number(s): 2013/351814

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 May 2012, an incident occurred at the appellant’s home, resulting in the appellant’s 15-year-old daughter suffering facial injuries. Later that night, the daughter told her best friend that the appellant did it. The next day, her injuries were observed by her school Deputy Principal and after speaking with her, he made a report to the police and arranged for her to attend hospital. After speaking with the daughter, her best friend, and school and hospital staff, the police obtained a provisional apprehended domestic violence order (ADVO) on her behalf against the appellant. The applicant for that order was Constable Tierney. Subsequently, in an interview on 17 May 2012, the daughter changed her story, saying that she had previously lied to her best friend and now denied that her father had kicked or punched her, saying instead that it was an accident.

On 5 July 2012, the police arrested and charged the appellant with assault under s 59(1) Crimes Act 1900 (1900). The prosecutor named on the Court Attendance Notice was Detective Constable Barnett and the officer-in-charge, Detective Constable Cameron. On 10 September 2012, the assault charge and ADVO application were dismissed in the Local Court. The appellant commenced proceedings in the District Court against the respondent, claiming for unlawful arrest, false imprisonment and malicious prosecution. The primary judge dismissed all claims. Against the possibility that he was wrong in doing so, the primary judge observed that the damages would be very modest and indicated that he would have awarded $7,000 for damage to the appellant’s reputation, $5,950 for legal expenses and $5,000 for loss of liberty. The appellant appealed in relation to the malicious prosecution claim by the police.

The issues before the Court were:

1.   whether the primary judge erred in finding that the police, including Detective Cameron, were not acting out of malice and had reasonable and probable cause to charge the appellant on 5 July 2012 and maintain the ADVO after 17 May 2012

2.   whether the primary judge erred in drawing a Jones v Dunkel inference based on the appellant’s failure to call his daughter

3.   whether the primary judge erred in making adverse credit findings in relation to the appellant and his son-in-law, JS, and denied the appellant procedural fairness; and

4.   whether the primary judge’s contingent assessment of damages was manifestly inadequate

Held, per Gleeson JA (Leeming JA and Emmett AJA agreeing), dismissing the appeal:

In relation to (1)

To be a prosecutor, the person must play an active role in the proceedings. For the purpose of the appeal, it may be assumed, since it was not put in issue, that Detective Cameron, was a prosecutor. However, this should not be taken as suggesting that, as a general proposition, all investigating police or those named as “officer-in-charge” of the investigation are to be treated as the real prosecutor. In all cases, it will depend on the circumstances. [74] – [76]

State of New South Wales v Landini [2010] NSWCA 157; A v State of New South Wales [2007] HCA 10; 230 CLR 500

Malice requires the prosecutor’s sole or dominant purpose to be other than proper invocation of the criminal law. Here no error has been demonstrated in the primary judge’s findings that the appellant failed to establish that the prosecution of the assault charge or the maintenance of the ADVO proceedings after 17 May 2012 was malicious. [91]

A v State of New South Wales [2007] HCA 10; 230 CLR 500; State of New South Wales v Abed [2014] NSWCA 419

The appellant had not demonstrated any error in the primary judge’s finding that the police, including Detective Cameron, honestly and reasonably concluded that the material available to them warranted instituting and maintaining the assault charge and the ADVO proceedings. [96] – [101], [102] – [111]

Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34; A v State of New South Wales [2007] HCA 10; 230 CLR 500; Fox v Percy [2003] HCA 22; 214 CLR 118

In relation to (2)

The context in which the primary judge drew a Jones v Dunkel inference had nothing to do with the appellant’s guilt or innocence on the assault. The appellant’s failure to call his daughter was relevant to his Honour’s acceptance of Constable Tierney’s evidence that she had a belief that the appellant had assaulted his daughter and his Honour’s finding that there was a very sound evidentiary foundation for that belief. No error was made by his Honour in drawing such an inference. [119]

Jones v Dunkel [1959] HCA 8; 101 CLR 298

In relation to (3)

There was no denial of procedural fairness. The appellant and his son-in-law gave evidence concerning the effect of the prosecution on the appellant’s reputation, which was challenged in cross-examination. Complaints regarding the adverse credit findings need not be resolved in light of the above conclusions. [122] – [124]

In relation to (4)

Again, in light of the above conclusions, it was unnecessary to address the question of damages. Nonetheless, it was observed that it was not suggested that the primary judge had acted on a wrong principle of law, and, contrary to the appellant’s contention, the judge had not misapprehended the facts, nor was the amount of general damages contingently assessed so inordinately low as to be a wholly erroneous estimate of the damage suffered. [29], [31]-[32]

Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571; Costa v The Public Trustee of NSW [2008] NSWCA 223

Judgment

1. GLEESON JA: This appeal concerns a claim by the appellant against the respondent, the State of New South Wales, for damages for malicious prosecution.

2. On 10 May 2012, there was an incident at the appellant’s home at Fairfield Heights involving the appellant’s daughter, aged 15 years. In circumstances which are contentious, the daughter suffered injuries to her face. Later that night she told her best friend that the appellant did it. On the following day, 11 May 2012, a school Deputy Principal observed the daughter’s facial injuries and after speaking with her made a report to the police and arranged for her to be taken by ambulance to Fairfield Hospital. The police attended the hospital and spoke with the daughter, her best friend, and the ambulance officers, caseworkers from Family and Community Services and a social worker who had each spoken with the daughter. As a result of what they were told, the police urgently applied for, and obtained, a provisional apprehended domestic violence order on behalf of the daughter against the appellant. (The primary judge’s reasons referred to the daughter by the pseudonym X, in view of her age. That course has been followed where necessary in these reasons and explains why the appellant is also referred to by a pseudonym, as are those persons whose name might reveal the daughter’s identity.)

3. On 17 May 2012, the daughter attended a video recorded interview with police in which she changed her story, saying her injuries were an accident. After further investigations by the police, the appellant was arrested and charged on 5 July 2012 with the offence of assault occasioning actual bodily harm, domestic violence related, contrary to s 59(1) of the Crimes Act 1900 (NSW). On 10 September 2012, the assault charge against the appellant and the application for an ADVO were both dismissed in the Local Court.

4. The appellant then commenced proceedings in the District Court against the respondent claiming damages for unlawful arrest and false imprisonment and also for malicious prosecution. The respondent accepted that it is vicariously liable for the conduct of police officers concerned, but otherwise denied liability. After a hearing lasting five days, the primary judge dismissed all claims by the appellant: HD v State of New South Wales (District Court) (NSW), Robison DCJ, 30 March 2015 (unrep).

5. The appellant has appealed in relation to the dismissal of the malicious prosecution claim.

6. The appellant seeks to set aside the primary judge’s findings that the relevant police officers involved in the decision to institute and maintain the prosecution and to maintain the ADVO proceedings after 17 May 2012, were not acting out of malice or without reasonable and probable cause. The appellant also seeks a remittal of the proceedings for a retrial on damages only.

Extension of time for appeal

7. The appellant requires an extension of time to appeal since the notice of appeal filed 15 September 2015 was about ten weeks out of time: Uniform Civil Procedure Rules (UCPR), r 51.16(1). The notice of appeal was preceded by a summons seeking leave to appeal filed 30 June 2015, which was within time. It seems that those advising the appellant initially thought that leave to appeal was required because the appeal involved a matter at issue less than the $100,000: Supreme Court Act 1970 (NSW) (Supreme Court Act), s 101(2)(r). Subsequently, the appellant’s solicitor filed an affidavit sworn 14 September 2015 setting out the material facts on which the appellant relied to show that the monetary restriction in s 101(2)(r) did not apply: UCPR r 51.22(2). The appellant’s claim at trial had sought damages in the order of $140,000.

8. The respondent did not oppose an extension of time for the filing of the notice of appeal. Such an order should be made; however, for the reasons that follow I have concluded that the appeal should be dismissed with costs.

Relevant facts

9. At the time of the incident on 10 May 2012, the appellant, his wife, their three sons and their daughter lived at the appellant’s home at Fairfield Heights. The appellant’s other daughter, MS, and her husband, JS, and their two young children lived nearby at Canley Vale. The appellant had left Bosnia with his wife and their children in about 1993, and migrated to Australia from a refugee camp in Croatia in 1994. He was 49 years old at the time of the incident; he was unemployed and in receipt of government benefits for a disability pension.

10. It is not in dispute that the appellant’s daughter suffered facial injuries sometime on 10 May 2012. Nor is it disputed that later that evening, she had a Facebook “conversation” with her best friend, AR, telling her that she needed foundation makeup to hide something on her “bloody nose”, that her nose was injured (“I nearly broke my nose”) and that “my dad did it”.

Events of 11 May 2012

11. The following day, 11 May 2012, was a school day. The appellant and his wife attempted to persuade their daughter to remain at home but she attended school. She had visible injuries to her face which she tried to cover up with make-up. During the morning recess, the Deputy Principal of the school, WG, noticed her injuries; he observed some bruising across the bridge of her nose all the way down the sides of her nostrils, bruising under her left eye and a bruise about the size of a 50-cent piece over her right eye. It also appeared to him that her nose was crooked. WG asked her what was going on. She said nothing was going on. WG persisted because he thought that she looked fearful. He asked the appellant’s daughter and her friend, AR, to go to his office, where he spoke to them in the presence of the school counsellor, RW. Based on what he was told, he decided to ring an ambulance and he reported the matter to police.

12. The appellant’s daughter was taken to Fairfield Hospital by ambulance at about 12.47pm. On the way to the hospital, she disclosed to the ambulance officers that she had been assaulted by a kick at home, but did not state by whom. The ambulance officers recorded that she was reluctant to speak of the incident for fear of retribution. The daughter’s friend, AR, told the ambulance officers in her presence that the appellant had assaulted his daughter. The daughter did not dispute this.

13. At about 1.45pm, Senior Constable Mark Stevenson and Detective Senior Constable Katherine Tierney received a radio message to attend Fairfield Hospital. They arrived at the hospital at around 2.00pm-2.30pm and spoke with the appellant’s daughter, her friend, AR, and the ambulance officers. Both officers observed injuries to her face. Constable Tierney observed dark bruising to her forehead between and around her eyes, on her forehead above her eyes, and also that her nose was crooked and disjointed.

14. The appellant’s daughter told Constable Tierney that she had been kicked in the head saying, “I’m not allowed to have a boyfriend … It’s my fault. I deserved it” and “it was discipline, it was a kick, he was teaching me a lesson”. She did not respond when asked if it was “Your dad?” As to her mother’s reaction she said, “She was upset. They talked about it this morning, they didn’t want me to go to school, they said not to say anything”. When asked if it had ever happened before, the daughter said, “once, with a belt”. Constable Tierney said in her statement dated 10 June 2012, that the daughter appeared to be unconcerned about her injury and more worried about what would happen if her parents found out about the police being involved.

15. AR told Constable Stevenson that the appellant’s daughter had called her the previous night at about 8pm and told her that a family friend saw her holding hands with a boy at the shopping centre. Her mum found out and started lecturing her in the bedroom. Her dad heard it and came into the room. She was sitting on the bed when her dad gave her a flying kick in the head. (AR was not willing to sign the police officer’s notebook verifying this statement.)

16. Constable Tierney telephoned Detective Sergeant Terrence Murray from the Child Abuse Squad at Bankstown and a decision was made to make an urgent application for a provisional ADVO on behalf of the appellant’s daughter, who was described as the “Protected Person”. The applicant for the order was Constable Tierney. The application was prepared and lodged by Detective Senior Constable (now Sergeant) Brydie Cameron (Detective Cameron) from the Joint Investigation Response Team (JIRT) at Bankstown. At about 5.30pm that day, the application for the provisional ADVO was granted.

17. While at the hospital, two caseworkers from FCS, Ms Payne and Ms Geitz, attended and spoke to the appellant’s daughter. She said to them words to the effect, “Dad didn’t hurt me”.

18. About 7pm that night, the appellant’s wife and elder daughter, MS, arrived at the hospital. The mother was overheard speaking in Bosnian to the appellant’s daughter, by a hospital social worker. The mother said:

[X] don’t tell them anything. [X] tell them that you had a fall. [X] you must tell them that you had a fall in the bathroom.

19. The social worker reported this conversation to the FCS caseworkers, who were present. Ms Payne later gave a statement dated 4 July 2012 in which she said the social worker told her that the mother said to the daughter:

Don’t tell them anything, if they ask you anything you fell over in the shower”.

20. Both the mother and the elder daughter, MS, told the FCS caseworkers that they did not know how their daughter/sister had sustained her injuries. Ms Payne and Ms Geitz spoke with the daughter, her mother and sister, MS, to develop a safety plan, which involved the appellant’s daughter staying at her sister’s house.

21. The medical discharge summary dated 11 May 2012, recorded that the daughter had complained of an assault by somebody the previous day around 4.30pm. She told the doctor that the person had used a leg to assault her and that she had been punched on the nose and just above the right eye on the forehead. The medical notes recorded that she did not want to reveal who had assaulted her.

22. At about 7.50pm on 11 May 2012, the provisional ADVO was served on the appellant.

23. After 11 May 2012, the investigation of the incident was assigned to JIRT and Constables Cameron and Barnett undertook investigations. Among other things, on 15 May 2012, the police obtained the medical discharge summary referred to above, recording what the daughter had had told the doctor about the assault.

The police investigations and Local Court proceedings

24. On 16 May 2012, the Deputy Principal provided the police with a Facebook record of the daughter’s “conversation” with her friend, AR, in which she told AR that her “dad did it”.

25. On 17 May 2012, Constable Cameron, undertook a video recorded interview with the appellant’s daughter who changed her story, while at the same time confirming that she had previously said that her father had kicked her in the face, but that she had previously been lying. During the interview, she said that:

1. her mother found out that she had been “jigging school” to see her boyfriend. She had an argument with her mother, which her father overhead. Her father asked what was happening and her mother told him and her father got angry with her and told her she was grounded for 2 months. She yelled at her father, screaming at him that she hated him and slammed the door of her bedroom in his face. He tried to get into her room and she wouldn’t let him. He forcefully opened the door and it hit her in the face. She fell to the ground. When she opened her eyes her mother was putting ice on her face and her father was standing there saying that “You deserve it, you know this is what happens when you don’t listen to your parents, you’re meant to go to school, why didn’t you listen to me, we only want the best for you and this is what you do, you deserve it you know”;

1. while she was on the ground her mother came in and yelled at the plaintiff “why did you kick the door in”;

2. she refused to tell Deputy Principal Groth anything and that she did not want to talk about it;

3. she denied that her mother said anything to her at the hospital in Bosnian about her face;

4. she initially said that she had told her friend AR that it was an accident. She then said she had not told AR the actual story. (Neither of those versions of her exchange with her friend was true.) Eventually, after being asked questions about her Facebook conversation with AR, she admitted that she had told AR that her father had hit her. However, she said her account of the incident in the Facebook conversation with AR was not true. She said she told AR that her dad hit her because she was angry at the time and wanted AR to be on her side;

5. however, she confirmed that she had also told another friend on Facebook that her father had hit her.

26. On 18 May 2012, the ADVO proceedings were returnable in the Local Court at Fairfield. Sergeant Fraser appeared for the “informant”. Mr Dicembre, solicitor, appeared for the appellant. The proceedings were adjourned for four weeks to 15 June 2012 at the request of the prosecutor for further investigation. The provisional order was continued, without admission, as an interim order.

27. On 23 May 2012, the social worker declined to make a statement, stating that she was a member of the community in which the appellant lived. On 24 May 2012, the police obtained the clinical hospital notes containing the social worker’s notes about the mother’s statement to her daughter that she should say that she fell in the bathroom.

28. On 25 May 2012, the police obtained an expert report from Dr Doan. He expressed the opinion (based on his review of the case notes) that the appellant’s daughter was assaulted as described in the medical case notes. He believed that the injuries exhibited were consistent with being punched in the nose.

29. On 25 May 2012, the Deputy Principal provided a statement to the police. He stated that the appellant’s daughter was reluctant to give him any information after he told her that anything she said would lead to a reportable situation that he was required to report. The Deputy Principal said that he had a discussion with the appellant’s daughter, in the presence of the school counsellor, RW, during which the following responses were made:

● when generally discussing what is normal and not normal in a parent/child relationship, she said, “My dad lives outside the law, no law will stop him”;

● when discussing the appropriate love of a father and daughter, she said, “I hate my dad. I’ve hated him ever since I’ve known the meaning of the word”;

● when discussing family dynamics and what happened the night before, she said, “I heard my dad talking to my mother and he said to her ‘I don’t know why I am hitting her’.”;

● having asked her many times who had hit her and if it was her father, each time she would not answer. She said, “I’m not going to say anything. I’m not going to tell anyone who was involved.”;

● she added that she was not going to say anything because she was fearful of her mother’s safety as well.

30. On 12 June 2012, AR told police that she did not wish to make a statement. She explained that she had previously gone through the process of giving a police statement for an unrelated matter and did not wish to participate. The COPS entry for this date recorded:

At this point there are no independent witnesses. All involved parties are being uncooperative. The victim denies her father assaulted her, the natural mother refuses to speak with police and has sought legal representation. The POI refuses to speak with police and has sought legal representation.

Investigators are still waiting on responding police statements to reassess the investigation.

31. On 15 June 2012, the ADVO proceedings were before the Fairfield Local Court. Sergeant Jawjaw appeared for the informant. The ADVO proceedings were adjourned for seven days and the interim orders continued on a without prejudice and without admission basis to enable the appellant’s solicitor to have discussions with the officer in charge of the investigation. On 22 June 2012, the ADVO proceedings were again before the Fairfield Local Court. Sergeant Fraser appeared for the informant. The proceedings were adjourned for two weeks to 6 July 2012, on the basis that related charges would be laid within that time. The interim orders were continued without admission until that date. The COPS entry for 25 June 2012, noted that investigators were still waiting on statements from the ambulance officer.

32. From 25 May to 24 June 2012, Detective Cameron was absent on holidays. During this time, Detective Barnett had conduct of the investigation. Upon Detective Cameron’s return, she reviewed the evidence that had been gathered and then met with Detective Barnett and Sergeant Murray of the Bankstown Child Abuse Squad. Detectives Barnett and Cameron decided to charge the appellant.

33. On 5 July 2012, the appellant attended Fairfield Police Station with his solicitor, by prior arrangement. He was arrested and charged with the assault offence indicated above. He declined to participate in an electronic record of interview.

34. On 6 July 2012, the appellant appeared at Fairfield Local Court and pleaded not guilty to the assault charge. Sergeant Lozanoska appeared for the informant. The prosecution and the ADVO proceedings were both adjourned for mention on 13 July 2012. On that date both proceedings were set down for hearing on 10 September 2012.

35. On 18 July 2012, the police caused subpoenas for attendance at the hearing to be issued to the appellant’s daughter, her mother, her sister (MS), her friend (AR), the social worker, the school counsellor (RW) and also the witnesses that had given statements, the Deputy Principal (WG), Ms Payne, and the FCS caseworker.

36. On 4 September 2012, the Deputy Principal informed the police that AR had approached him and reported that the appellant’s daughter and her sister, MS, had approached her and had told her to lie at court. The COPS entry for this date records the following:

Information is: Prior to the vic leaving the country on 25th July 2012 she and her sister contacted [AR] and invited themselves to [AR’s] home.

There were no other person/s present at the [AR] home when the vic and [MJ] arrived. All three were inside the premises for a short time before [MJ] and the vic asked the witness to sit in [MJ]’s car with them.

[AR] went out and sat in [MJ]’s car with her and the vic. While in the car both the vic and [MJ] told the witness that she had to tell the courts that the vic’s father (POI) was not involved in the incident and that the vic had injured herself by opening a door onto her face.

The prosecutor for the original charges has been informed of this incident and the fact the witness declined to provide police with a statement.

37. On the hearing of the prosecution and the ADVO proceedings on 10 September 2012, Sergeant Chillari appeared for the prosecution and the informant on the ADVO proceedings. The transcript records that both matters were mentioned and the Court was informed that the parties were in discussions to resolve the matters. Both the matters were stood down in the list. The transcript does not record what occurred thereafter. It seems, however, that the prosecution presented no evidence and consequently the assault charge and the ADVO proceedings were dismissed. Although Detective Cameron was present at Court, this decision was taken by the police prosecutor and the team leader, Detective Sergeant Murray.

38. The COPS entry for 11 September 2012, prepared by Detective Cameron, recorded the following:

The outcome of the hearing was that there was a ‘prima facie’ case but the matter could not be proved ‘beyond reasonable doubt’ due to the inconsistencies of subject child [the daughter’s] statement. For this reason the matter was dismissed. The interim Provisional Order was also withdrawn.

The proceedings below

39. The pleading of the malicious prosecution claim was deficient in a number of respects. In his further amended statement of claim it was alleged (par 9) that Constable Barnett and Constable Cameron maliciously and without reasonable and probable cause “arrested and preferred charges” against the appellant on 5 July 2012. The police records show that the arresting officer was Detective Cameron. The Court Attendance Notice shows the prosecutor as Detective Barnett.

40. It was alleged (par 10) that between 15 June 2012 and 10 September 2012 “the defendant” maliciously failed to advise the Court either directly or impliedly that it did not have a statement from X alleging an assault by the appellant when X had made a statement on 17 May 2012 exculpating the appellant of any assault. This pleading was singularly unhelpful in failing to identify any police officer for whose alleged tort the respondent was vicariously liable.

41. Finally, it was alleged (par 11) that on 10 September 2012 the “informant” did not disclose to the Court that he did not have a statement alleging an assault by the appellant. The reference to the “informant” in (par 11) may be taken to be a reference to Detective Barnett. However, counsel for the appellant acknowledged in this Court that no case was run at trial that Detective Barnett had acted maliciously in either instituting or maintaining the prosecution. Rather, the focus of the case at trial was on the conduct of Detective Cameron alone.

42. The appellant’s case consisted of evidence from the appellant (given through an interpreter), his oldest daughter, MS, and son-in-law, JS. The appellant tendered a number of documents including invoices for legal fees received from his solicitor. Neither the appellant’s daughter nor his wife were called to give evidence.

43. The respondent’s case consisted of evidence from Detective Cameron and Constables Tierney and Stevenson. Detective Barnett was unavailable to give evidence due to illness. The respondent tendered a number of documents obtained during the course of its investigations and the COPS record of the investigation.

The primary judge’s reasons

44. The primary judge commenced by summarising the oral evidence of the appellant, his eldest daughter, MS, and son-in-law, JS. The appellant’s evidence included the effect of his arrest and the ADVO order upon him and the damage that he suffered to his reputation. His Honour made observations concerning the appellant’s non-responsiveness to questions in cross-examination and the effect on his credibility.

45. His Honour referred to MS’s evidence concerning the conversation between her mother and her sister in Bosnian, that was overheard by the hospital social worker. This was relevant to whether the mother had attempted to put pressure on the daughter not to implicate her father. His Honour noted the (limited) extent to which that proposition was denied by MS. (In cross-examination, MS said that her mother had told the FCS caseworkers that her sister fell over in the bathroom. On any view, this was inconsistent with the evidence of the appellant and the two versions of events given by the appellant’s daughter.)

46. His Honour noted that JS had not given a statement to the police at the time of the incident. This was relevant because it meant that JS’s evidence (supporting the appellant’s version that the daughter’s injuries were an accident), was not available to the police who were not otherwise aware that he was a witness to the incident.

47. His Honour drew a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; 101 CLR 298) from the appellant’s failure to call the appellant’s daughter, particularly having regard to the challenge to the evidence of Constable Tierney concerning her initial interview with the daughter at the hospital.

48. His Honour accepted that Constables Tierney and Stevenson were truthful witnesses and found that the information which was available to them provided a proper foundation for their beliefs which gave rise to the application for the ADVO. Relevantly, his Honour accepted that Constable Tierney believed that the appellant had assaulted his daughter, and Constable Stevenson suspected from his observation of the daughter’s injuries that those injuries resulted from her father assaulting her, which his Honour considered “reasonable in the circumstances”.

49. After referring to the transcript of the daughter’s police interview, his Honour concluded that the police were “entitled … to be sceptical of the information provided during the course of this interview”. He described her police statement as part of “this puzzle” and referred to the need for all of the evidence to be considered as a whole. He continued:

The police, in my view, were entitled, and indeed obliged, to take that into account in assessing the veracity of the answers given by X during the course of that interview very fairly and properly conducted by Detective Cameron. Clearly X was reluctant to tell anyone anybody other than AR that her father was the one who in fact hit her. That, in my view is not surprising given the evidence overall.

50. His Honour referred to the daughter’s injuries described in the hospital notes and continued:

All of that indicates to me, when one considers the interview she had with Detective Cameron, a young 15-year-old girl who wanted to protect her father as best as she could, she having realised that she had, effectively, let the cat out of the bag, if I could use that terminology, when she had that very important discussion with her friend and no doubt confidante, AR.

The extent to which this young girl, 15 years of age, backtracked, if I could use that terminology, during the course of this interview, is understandable in the circumstances. The police ….. were entitled to be sceptical, and there was a very, very sound evidentiary basis for the police to be sceptical in the way that I have indicated.

51. His Honour also referred to the notes of the social worker (set out at [22] above) and observed the inconsistency between the mother’s instruction to the daughter to say that she fell over in the bathroom, and the appellant’s omission to give evidence about his daughter being in the bathroom. His Honour inferred that the attempt to persuade the daughter to say that she had a fall in the bathroom must have in some way infected the interview she gave to the investigating police.

52. His Honour referred to the elements of the malicious prosecution stated in A v State of New South Wales [2007] HCA 10; 230 CLR 500. He noted the requirement with respect to malice, that the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law, that is, an illegitimate or oblique motive. He also noted the two kinds of inquiry postulated by the requirement of the absence of reasonable and probable cause namely, one subjective and the other objective.

53. With respect to malice, his Honour accepted that Detective Cameron “considered that it was a proper matter to put before the court” and noted that Detective Cameron “was concerned about the domestic dispute”. He found that there was no evidentiary basis to “find some ulterior or sinister motive embarked upon by any police officers to extend the AVO for as long as possible until she attained the age of 16”. He concluded that there was no evidence that the ADVO proceedings were maintained for an ulterior purpose.

54. His Honour accepted that malice could be inferred from an absence of reasonable and probable cause. He concluded, however, that there was no evidentiary foundation to justify a finding of malice. He found there was no evidence that the prosecutor lacked belief in the guilt of the appellant.

55. With respect to absence of reasonable and probable cause, his Honour rejected the appellant’s submission that in the period 17 May to 10 September 2012 Detectives Cameron and Barnett ignored the evidence and that the assault charge could not possibly be made out on the evidence. He referred to the evidence he had earlier summarised which he considered could not be discounted but should be taken into account, and no doubt was by the investigating police. His Honour rejected the appellant’s submission that Detectives Cameron and/or Barnett could not have held any reasonable expectation of a conviction on any objective test.

56. His Honour referred to the need to make a practical assessment of whether there was an absence of reasonable and probable cause, referring to Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34. He accepted that “there was no suggestion at any time that the police officers knew the appellant or had any personal animosity towards him; the police were not witnesses nor that they could know where the truth lay”. His Honour continued:

Clearly, X was a child who presented with visible injuries and a contemporaneous account to a number of people was that she had been assaulted at home, although, having initially identified her father and then later backtracked away from that, at the end of the day, in all reality, there was an identification of her father as the perpetrator in the circumstances as submitted on behalf of the defendant.

57. His Honour found that there was no evidential basis on which to find that the police, in particular, Detective Cameron “were acting otherwise than in an honest and dedicated fashion and that they had put a proper case before the court”.

58. His Honour observed that, taking into account the representations which were made by the daughter, both oral and in writing, and the other evidence, there was powerful evidence that she had been assaulted by her father which was admissible as evidence of the truth of those representations under s 66 of the Evidence Act 1995 (NSW) (the Evidence Act). He added that it would have been open to the prosecution if the daughter had attended to give evidence, to make an application under s 38 of the Evidence Act to cross-examine her.

59. His Honour found that there was no occasion up to September 2012, when the assault charge was withdrawn, which would have warranted the withdrawal of the ADVO.

60. His Honour concluded that the appellant had not established that the police witnesses, in particular, Detective Cameron, had acted without reasonable and probable cause and with malice in instituting or maintaining the prosecution.

61. His Honour turned to the claim of wrongful arrest and false imprisonment and concluded that the appellant’s arrest was lawful: George v Rocket [1990] HCA 26; 170 CLR 104. There is no appeal ground challenging this finding.

62. His Honour proceeded to assess damages in the event that he was wrong in rejecting the appellant’s claims. His Honour observed that the damages to be awarded would have been very modest indeed. He took into account the absence of medical evidence to indicate any deleterious effects on the appellant following his arrest and subsequent prosecution; he accepted the appellant’s evidence that he was very concerned and upset about being deprived of the ability to see his daughter for a number of months; and noted that the evidence about the appellant’s loss of reputation was limited and not corroborated by anyone outside the appellant’s family.

63. His Honour indicated that he would have awarded the following damages:

1. $7,000 for damage to the appellant’s reputation by reason of the malicious prosecution claim;

2. $5,950 for legal expenses;

3. $5,000 for loss of liberty generally. This related to the claim for wrongful arrest and false imprisonment which is not relevant on appeal.

64. His Honour also indicated that he would not award exemplary damages or aggravated damages.

Issues on appeal

65. The appellant relies on seven grounds in his amended notice of appeal, some of which are connected. The issues on appeal may be conveniently grouped as follows:

1. whether the primary judge erred in finding that Detective Cameron was not acting out of malice and had reasonable and probable cause to charge the appellant on 5 July 2012 (Grounds 4 and 5);

1. whether the primary judge erred in drawing a Jones v Dunkel inference based on the appellant’s failure to call his daughter (Ground 6);

2. whether the primary judge erred in making adverse credit findings in relation to the appellant and his son-in-law, JS, and denied the appellant procedural fairness (Grounds 1, 2 and 3);

3. whether the primary judge’s contingent assessment of damages was manifestly inadequate (Ground 7).

66. The appeal is concerned mainly with factual findings. Review of his Honour’s critical findings, which are partly credit based, is to be undertaken in accordance with the well-known principles in Fox v Percy [2003] HCA 22; 214 CLR 118 at [28], [29]. In order to set aside those findings, the appellant must establish that the primary judge’s conclusions were wrong by reason of incontrovertible facts or uncontested testimony or that the decision is glaringly improbable or contrary to compelling inferences. Insofar as the primary judge made credibility findings, he had the very considerable advantage of seeing the relevant witnesses give their oral evidence and was thus able to bring to bear aspects of judgment and appraisal that are simply unavailable to this Court: Fox v Percy at [23].

Legal principles

67. The elements of the tort of malicious prosecution are set out in A v State of New South Wales at [1]. In summary, the plaintiff must prove four things:

(1) the prosecution was initiated by the defendant;

(2) the prosecution terminated favourably to the plaintiff;

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

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

See also Beckett v State of New South Wales [2013] HCA 17; 248 CLR 432 at [4].

68. There is no dispute as to the applicable principles stated in A v New South Wales and the appellant does not suggest that his Honour misstated the principles.

69. His Honour also accepted that an ADVO proceeding can be the subject of a claim for malicious prosecution relying on the view expressed by Ball J in Li v Deng (No 2) [2012] NSWSC 1245 at [169]. The respondent did not challenge that view in this Court. It is appropriate to proceed on this basis.

70. There was no issue in the present case as to the first and second elements of the tort of malicious prosecution. However, the first element calls for some comment.

71. Although the prosecutor shown on the Court Attendance Notice was Detective Barnett, the appellant’s case at trial focused solely on the conduct of Detective Cameron. It was asserted that Detective Cameron was relevantly a prosecutor because she was involved, together with Detective Barnett, in the decision to institute the prosecution and, as the officer in charge, was relevantly involved in the maintenance of the prosecution. With respect to the ADVO proceedings, although the applicant was shown as Constable Tierney, it was again asserted that Detective Cameron was a prosecutor, since she prepared that application on behalf of Constable Tierney and was involved in the maintenance of the ADVO proceedings.

72. It seems that neither party gave any consideration at trial to the reason why Detective Cameron should be treated as a prosecutor, even though Detective Barnett was the named prosecutor and Constable Tierney was the “informant” on the application for the ADVO. When this issue was raised by this Court, counsel for the appellant accepted that if Detective Barnett is the relevant prosecutor then the appellant’s case must fail, because no allegation of malice was made against Detective Barnett at trial and there is no complaint on appeal that his Honour did not make a finding in that regard. It may be added that no allegation was made against Constable Tierney that she acted maliciously in instituting or maintaining the ADVO proceedings.

73. The appellant’s case in this Court, consistent with the case advanced at trial, proceeded upon the basis that Detective Cameron’s involvement as the “officer-in-charge” of the prosecution and the ADVO proceedings made her a prosecutor. The respondent did not dispute that Detective Cameron was relevantly a prosecutor.

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

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

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

77. The argument in the present case focused on the third and fourth elements of the tort. What was put in issue at trial, and again on appeal by grounds 4 and 5, is whether Detective Cameron acted maliciously and without reasonable and probable cause in instituting and maintaining the prosecution, and in maintaining the ADVO proceedings after 17 May 2012.

Malice

78. In deciding the issue of malice in a case such as the present involving a public prosecution, initiated by a police officer and conducted in the Local Court by a police prosecutor, it is necessary to keep in mind the statement in the joint judgment in A v New South Wales at [41]:

… where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice.

79. The joint judgment continued at [42]:

In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting where the prosecutor’s decision is subject to layers of security and to potential review.

80. To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91].

81. Examples of improper purposes include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However, as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92].

82. It has been said that malice can be inferred from an absence of reasonable and probable cause: A v New South Wales at [90]. However, this statement needs to be read in context with what follows at [91] in A v New South Wales: (see above at [79]). This Court summarised the position in State of New South Wales v Abed [2014] NSWCA 419 at [150]-[152], as follows:

[150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as - absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that "proof of particular facts may supply evidence of both elements", but noted that "no universal rule relating proof of the separate elements can or should be stated".

[151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the "indirect route" of proving malice. His Honour continued (at 164), in the context of a jury trial:

"If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was."

[152] However, whilst proof of malice will often be a matter of inference, it bears repeating that "it is proof that is required, not conjecture or suspicion": A v New South Wales at [93].

Absence of reasonable and probable cause

83. As the primary judge observed, the absence of reasonable and probable cause involves two kinds of inquiry: one subjective (what the prosecutor made of the available material) and the other objective (what the prosecutor should have made of that material): A v New South Wales at [70].

84. With respect to the prosecutor’s subjective state of mind, the High Court drew a distinction in A v New South Wales between cases where the prosecutor may be supposed to know where the truth lies and cases where it is alleged that the prosecutor knew or believed some fact that was inconsistent with guilt: at [71]. The present case falls into the latter category.

85. The joint judgment observed that “the absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty”: at [76]. For this reason, references to belief by the prosecutor in guilt, or the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. An example of such a case mentioned in the joint judgment is where the prosecutor acts on statements of others: at [76].

86. The joint judgment in A v New South Wales emphasised three matters: at [77]. The first is that the plaintiff must establish a negative proposition: more probably than not the defendant-prosecutor acted without reasonable and probable cause. The second is that this may be established in either or both of two ways: the defendant-prosecutor did not “honestly believe” the case that was instituted or maintained (the subjective inquiry), or the defendant-prosecutor had no sufficient basis for such an honest belief (the objective inquiry). The third is that the critical question is “what does the plaintiff demonstrate about what the defendant-prosecutor made of the material that he or she had available when deciding whether to prosecute or maintain the prosecution?” That is, what exactly is the content of the assertion that the defendant acted without reasonable and probable cause.

87. Whilst the objective aspect of reasonable and probable cause will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution, that absence of reasonable and probable cause is not demonstrated by showing only that there were further enquiries that could have been made before a charge was laid: A v New South Wales at [86].

Application of principles to the present case

Malice

88. The appellant’s case at trial was that Detective Cameron had an ulterior motive to charge the appellant so as to maintain the ADVO for as long as possible until the appellant’s daughter turned 16 on 13 February 2013. Detective Cameron denied this allegation in cross-examination.

89. The difficulty with this contention is that His Honour expressly refused to make such a finding and the appellant has not demonstrated, in accordance with the tests in Fox v Percy, that his Honour’s acceptance of Detective Cameron’s denial, was erroneous. Nor has the appellant challenged his Honour’s related findings, including: that the police, including Detective Cameron, did not know the appellant or have any personal animosity towards him; they were entitled to be sceptical of the change in the daughter’s story; and, they had acted in a proper and dedicated fashion and they had put a proper case before the court.

90. The appellant sought to overcome this difficulty by contending that malice can be inferred from an absence of reasonable and probable cause to institute and maintain the prosecution. However, as already indicated, the inference to be drawn is about the asserted improper purpose of the prosecutor: A v New South Wales at [91]. No argument was developed by the appellant as to why the alleged improper purpose put to Detective Cameron in cross-examination should be inferred from the asserted insufficiency of the materials before Detective Cameron. Moreover, for the reasons given below, the appellant has not made out the absence of reasonable and probable cause.

91. Perhaps in recognition of these difficulties, counsel for the appellant made a further submission in oral argument; that Detective Cameron’s improper purpose in maintaining the prosecution was to deprive the appellant of contact with his daughter, because the continuation of the appellant’s bail conditions precluded such contact. Counsel accepted that this alleged improper purpose was not pleaded or run at trial. The appellant should not be permitted to raise a new point on appeal, and ultimately counsel for the appellant did not seek leave to do so.

92. To constitute malice the appellant must establish that the dominant purpose of Detective Cameron was a purpose other than the proper invocation of the criminal law: A v New South Wales at [91]. No error has been demonstrated in the primary judge’s findings that the appellant failed to establish that the prosecution was instituted and maintained maliciously, or that the ADVO proceedings were maintained maliciously after 17 May 2012.

Reasonable and probable cause

93. The appellant contended that Detective Cameron was aware that the daughter’s recorded interview was contrary to the police allegation on which the assault charge was based, and that the only other evidence available to support the prosecution were prior representations made by the daughter that her injury was caused by her father. It was argued that the prosecution was “hopeless” from 17 May 2012, as was the continuation of the ADVO proceedings, because the appellant’s daughter had denied the assault in her interview and explained why she had earlier lied about the assault. It was said that this inescapable conclusion could not have been lost on Detective Cameron.

94. In oral argument, the appellant’s primary contention focused upon the objective inquiry. It was argued that a reasonable prosecutor in the position of Detective Cameron could not have formed the view that the prosecution should be instituted and maintained and the ADVO proceedings continued (after 17 May 2012) on the basis of the available materials.

95. Further, and notwithstanding his Honour’s favourable credit findings, the appellant also contended that Detective Cameron did not honestly form the view that there was a proper basis for the prosecution of the appellant and maintenance of the ADVO proceedings.

Subjective inquiry

96. The appellant has a heavy burden in setting aside the subjective aspect of his Honour’s finding – that the appellant had not established that Detective Cameron did not honestly form the view that there was a proper basis for the prosecution and the ADVO proceedings: Thomas v State of New South Wales at [98].

97. The appellant commenced by challenging his Honour’s acceptance of the veracity of Detective Cameron’s evidence on the ground that this finding was based on an erroneous view of the evidence given by the appellant, his eldest daughter, MS, and son-in-law, JS. That submission went nowhere. It conflated his Honour’s reasons for accepting Detective Cameron’s evidence with an entirely different subject matter.

98. Next, the appellant complained that Detective Cameron was obfuscatory in cross-examination about what she made of the answers given by the appellant’s daughter during her interview. This submission ignored three relevant findings by his Honour. First, that the police were entitled to be sceptical of the information provided during the course of this interview. Secondly, that it was necessary for all of the evidence to be considered as a whole. Thirdly, that there was other evidence that could not be discounted and was to be taken into account, and properly so, by Detective Cameron. That evidence included the representations by the appellant’s daughter to AR, to the Deputy Principal, to the ambulance officers and medical officers at the hospital and the investigating police, as well as the material indicating that pressure had been exerted on the appellant’s daughter by her mother, and later on her sister, MS, not to implicate her father.

99. In Thomas v State of New South Wales, Gyles AJA explained (at [102]) that the discussion by the High Court in A v New South Wales (at [73]) was in the context of where the prosecutor has no independent first-hand knowledge of the facts. The High Court had in mind persons well-removed from direct involvement, such as officers of the Director of Public Prosecutions or senior police officers if they are called upon to make a final decision as to whether to charge or not. The High Court framed the relevant question with respect to such persons as (at [80]) “whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the process of the criminal law in motion”. Gyles AJA observed that that is a lesser subjective standard than belief in guilt, and the High Court did not consider the case of a prosecutor who believes in the guilt of the accused.

100. Gyles AJA continued at [103]:

In my view the position remains that if the prosecutor believes in the truth of the case leading to a belief in guilt, then the subjective element is met. Put more precisely, in those circumstances the plaintiff cannot prove absence of the necessary subjective element.

101. In the present case, his Honour found that the investigating police, including Detective Cameron, honestly concluded that the material warranted instituting and maintaining the assault charge and the ADVO proceedings. He also found that there was no evidence that the prosecutor lacked belief in the guilt of the appellant. In my view, the appellant has not demonstrated in accordance with the tests in Fox v Percy, that these findings were erroneous.

Objective inquiry

102. The next issue is the reasonableness of the belief by Detective Cameron. The question is whether the primary judge erred in finding that the appellant had not established that there was not a reasonable basis for the belief in guilt.

103. The appellant contended in oral argument that any reasonably experienced police officer in the position of Detective Cameron hearing the explanation given by the appellant’s daughter in her recorded interview and having an understanding that the daughter (as a young person) would give her evidence by the tender of the DVD recorded interview, would have concluded that a prosecution relying on other evidence of representations by the daughter to the contrary would have failed.

102. The appellant accepted that, for the purposes of this inquiry, the material to be considered is not limited to that which is admissible in evidence: Thomas v State of New South Wales at [105], where Gyles AJA continued:

[105]   … A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate’s decision as to committal for trial or a trial judge’s ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. … [Citations omitted].

105. As to the materials available to Detective Cameron, counsel for the appellant accepted a number of matters. One was that there was a reasonable basis for scepticism by the investigating police for the appellant’s daughter changing her story. Another was that the social worker had made a note of the attempt by the daughter’s mother to pressure her not to implicate the appellant and say that she fell over in the shower. Another was that there was material suggesting that pressure had also been brought to bear on one of the witnesses, AR, to lie to the Court.

106. Nonetheless, the appellant contended that grounds for scepticism for the daughter changing her story, did not provide a sufficient basis for instituting and maintaining the prosecution and also for maintaining the ADVO proceedings after 17 May 2012.

107. That, however, was not the only basis for his Honour’s rejection of the appellant’s submission that Detectives Cameron and/or Barnett could not have held any reasonable expectation of a conviction on any objective test. The other matters that his Honour took into account have already been referred to. It was necessary for all the evidence to be considered as a whole and there was other evidence beyond the daughter’s interview, that could not be discounted and was to be taken into account, and properly so, by the investigating police, in particular, Detective Cameron.

108. The investigating police were faced with a situation where, on the available materials, a 15-year-old girl with facial injuries consistent with an assault having occurred, had changed her initial reports of domestic violence involving her father. There was evidence that this followed family pressure on her not to implicate the appellant. Against this, the appellant’s daughter had made a number of earlier representations to independent witnesses and investigating police that she had been assaulted. There was also material from the ambulance officers and the Deputy School Principal on the day following the incident, which showed that the daughter was reluctant to speak of the incident for fear of retribution (see [12] above] and that she was also concerned for her mother’s safety (see [29] above).

109. The police had to weigh the sufficiency of those materials available against the information in the daughter’s recorded interview, which they were entitled to sceptical of. On a fair reading of the interview, the daughter’s explanation for having earlier lied to AR about the appellant assaulting her, was unconvincing. Nor was the daughter forthcoming that she had told AR in their Facebook conversation, “my dad did it”, until confronted during the interview, with a copy of the record of that conversation. Before that, she had given two different versions of what she had told AR, neither of which was true (see [25](5) above].

110. In view of the differing accounts given by the appellant’s daughter, it can be inferred that she had either lied on five earlier occasions almost contemporaneously with the incident on 10 May 2012 when she had told her best friend, AR, and another friend on Facebook, the school Deputy Principal, the ambulance officers and Constable Tierney, that she had been assaulted at home, or had lied to the police later on 17 May 2012 when she changed her story. This was not a case where the alleged victim of domestic violence had only ever given one consistent account of what occurred, which supported the innocence of the accused. Nor when all the available materials were considered, was it a case where a reasonable prosecutor in the position of the investigating police could only form one view, being that the prosecution could not succeed.

111. In my view, the appellant has failed to demonstrate error with respect to the objective aspect of his Honour’s finding.

112. One further matter should be mentioned. The appellant’s written submissions attacked the observations of the primary judge that the daughter was “compellable as a witness” and that she might be treated as an unfavourable witness pursuant to s 38 of the Evidence Act. The appellant complained in oral argument that this was a most unlikely prospect, because any well-advised defence counsel would not have sought to cross-examine the appellant’s daughter if called as a prosecution witness and accordingly, so it was argued, there would have been no prospect of an application by the prosecution to cross-examine the appellant’s daughter.

113. It is unnecessary to dwell on this complaint. As the respondent correctly pointed out, these observations by his Honour were directed to matters for the prosecutor, rather than the investigating police and this distinction was properly acknowledged by his Honour. The observations that an application might be made under s 38 of the Evidence Act was directed to the prosecutor, not Detective Cameron.

114. Further and importantly, it was not part of the respondent’s case below and Detective Cameron did not give evidence of ever contemplating an application for cross-examination by the prosecution of the appellant’s daughter relying upon the Crimes (Domestic and Personal Violence) Act 2007, s 41(5) and (6) which applies the Criminal Procedure Act 1986 (NSW), Div 3 and 4, Ch 6. His Honour did not rely upon this possibility, when finding that the appellant had not demonstrated an absence of reasonable and probable cause.

115. Grounds 4 and 5 should be rejected.

Failure to call X (Ground 6)

116. The primary judge observed that it was open to the appellant to call his daughter, but he had not done so. His Honour gave the following reasons for drawing a Jones v Dunkel inference:

Particularly, if it came to the point of challenging the account given by Constable Tierney and what she recorded, given that X was not asked to sign the police notebook statement. X was not called and I do indeed draw an inference pursuant to the principles enunciated in Jones v Dunkel.

117. The appellant contended that his Honour erred in drawing that inference and effectively required the appellant to prove his innocence. In written submissions, the appellant argued that it was difficult to see what X could have added by way of evidence other than to convince his Honour of the innocence of the appellant. It was submitted that this was an irrelevant enquiry.

118. The respondent emphasised that the appellant’s case involved a challenge in cross-examination to the evidence of Constable Tierney concerning what she observed about the appellant’s daughter at the hospital and also what the daughter had told her on 11 May 2012. Constable Tierney was subjected to a lengthy cross-examination about her conversation with the daughter and the notes she took of that conversation. Constable Tierney denied that the reason why she did not ask the daughter to sign her notes was that they were inaccurate. His Honour accepted Constable Tierney’s evidence that the record was accurate and her reason why she had not asked the daughter to sign her notes.

119. His Honour expressly identified the context in which he drew the Jones v Dunkel inference. That context had nothing to do with the appellant’s guilt or innocence with respect to the assault charge. The appellant’s failure to call his daughter was relevant to his Honour’s acceptance of Constable Tierney’s evidence that she had a belief that the appellant had assaulted his daughter and his finding that there was a very sound evidentiary foundation for that belief. There was no error by his Honour in drawing such an inference.

Adverse credit findings (Grounds 1, 2 and 3)

120. In written submissions the appellant complained that the primary judge had made adverse credit findings against the appellant and his son-in-law, JS, and the appellant had no warning of any suggestion that he was not telling the truth until the judgment. It was submitted that the failure by his Honour to raise this matter before judgment constituted a denial of procedural fairness. It was further submitted that his Honour had misused his advantage of observing the witnesses, that the lack of procedural fairness was capable if not likely to have pervaded every aspect of the fact finding process and the conclusions drawn, and that if this Court is not in a position to draw its own conclusions from the evidence at trial, then the appropriate remedy is a re-trial.

121. Although the appellant did not formally abandon these grounds, no oral argument was directed to them and they can be dealt with briefly.

122. First, there was no denial of procedural fairness. The appellant claimed that his reputation had been damaged in the Bosnian-Muslim community by the ADVO proceedings and his subsequent arrest and the assault charge. His son-in-law, JS, gave evidence in support of the alleged damage to the appellant’s reputation and the effect of the prosecution and the ADVO proceedings on the appellant. That evidence was challenged in cross-examination. The adverse credit findings were relevant to the issue of damages.

123. Secondly, the appellant’s complaints are directed to a false issue – whether or not the appellant had assaulted his daughter. That was the issue in the Local Court prosecution, which terminated favourably for the appellant. It was not the issue before the District Court on the malicious prosecution claim. Whether JS corroborated the appellant’s evidence of how the appellant’s daughter had suffered her injuries is not to the point. What was relevant was, as his Honour correctly noted, the evidence of JS was not available to the police at the time of the prosecution.

124. Thirdly, it is unnecessary to resolve the complaints about the adverse credit findings relating to the appellant and his son-in-law, JS. Those findings can only be relevant to the issue of damages, which does not arise having regard to the conclusions above.

Damages (Ground 7)

125. In light of the conclusions reached above, it is not necessary to deal with the challenge to his Honour’s contingent assessment of damages. However, this ground can be dealt with shortly.

126. First, it was not suggested that the primary judge acted on a wrong principle of law. In oral argument, the appellant contended that his Honour had misapprehended the facts or that the amount of damages awarded was so inordinately low as to be a wholly erroneous estimate of the damage suffered: Wilson v Peisley (1975) 50 ALJR 207; 7 ALR 571 at 585. When asked to identify which facts, counsel for the appellant made a different submission. This was that his Honour did not give any weight to the fact that the appellant was more sensitive than the average person to the deprivation of contact with his daughter. Later, counsel argued that his Honour did not take this into account. These submissions should be rejected.

127. His Honour expressly referred to, and accepted, that the ADVO did have a significant impact on the appellant as it would on any normal father. Reference to the appellant’s supplementary written submissions at trial makes clear that his Honour’s acceptance of that submission was in accordance with the submissions made by the appellant at trial. No submission was made at trial seeking a different finding that the appellant was more sensitive than would be any normal father prevented from seeing his daughter by reason of an ADVO.

128. Secondly, the appellant contended in written submissions that his Honour’s assessment of damages miscarried and was not in accordance with authority in respect of similar cases. Reference was made to two cases without any explanation as to why they should be considered analogous to the present case: Houda v State of New South Wales [2005] NSWSC 1053; Adams v Kennedy (2000) 49 NSWLR 78. These somewhat unhelpful submissions failed to grapple with the need to demonstrate error in his Honour’s (contingent) assessment of damages.

129. An appellate court must adopt a constrained approach when reviewing a determination of this kind in respect to general damages: Costa v The Public Trustee of NSW [2008] NSWCA 223 at [37], [39] (Ipp JA) and [103]-[105]. Other than the asserted failure to give any weight to the matter addressed above, which contention should be rejected, no argument was developed as to why his Honour’s decision did not fall within the appropriate limits of a sound discretionary judgment. If the appeal had otherwise succeeded, intervention by this Court is not warranted in relation to the award of general damages of $7,000 for the malicious prosecution claim.

130. Thirdly, no submissions were made seeking to make out the claim for aggravated and exemplary damages. The relevant principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in State of New South Wales v Zreika [2012] NSWCA 37 at [60]-[64].

131. Exemplary damages are punitive and intended as a deterrent of similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1 at 8. Given the favourable credit findings, there was nothing about the conduct of any of the police officers which could be described as “a conscious wrongdoing in contumelious disregard of [the appellant’s] rights” so as to justify an award of exemplary damages: State of New South Wales v Zreika at [61].

132. Aggravated damages are compensatory for injury to the appellant’s feelings caused by insult, humiliation and the like: Lamb v Cotogno at 8. The appellant acknowledged in this Court that the application for the ADVO was not malicious. The main source of aggravation relied upon by the appellant concerned the circumstances in which the police came to his house with guns and served that order on the evening of 11 May 2012. This cannot be relied upon as an aggravating factor justifying the award of damages for injury to the appellant’s feelings.

133. No error has been shown in his Honour’s decision not to award either aggravated or exemplary damages. Ground 7 should be rejected.

Conclusion and Orders

134. The appeal has failed. There is no reason why costs should not follow the event: UCPR r 42.1.

135. In the two proceedings, I propose the following orders:

CA 2015/114853

1. Summons dismissed with costs.

CA 2015/270321

1. Extend the time for filing of the notice of appeal until 15 September 2015;

2. Appeal dismissed;

3. Appellant to pay the respondent’s costs.

136. LEEMING JA: I agree with Gleeson JA.

137. EMMETT AJA: The appellant sued the State of New South Wales in the District Court, claiming damages for alleged malicious prosecution and wrongful arrest arising out of an incident that occurred on 11 May 2012, when the appellant’s daughter suffered an injury to her face. The appellant alleged that the State was vicariously liable for the actions of two police officers who were responsible for the allegedly tortious conduct. A Judge of the District Court dismissed the appellant’s claim and entered a verdict for the State. His Honour ordered the appellant to pay the State’s costs.

138. In his amended notice of appeal of 4 November 2015, the appellant relied on six grounds and also complained about the provisional assessment of damages made by the primary judge. The appeal was commenced about ten weeks out of time. However, the original notice of appeal was preceded by a summons seeking leave to appeal, which was filed in time. In fact, the appellant did not require leave to appeal, but by the time when the original notice of appeal had been filed, the time had expired. In the circumstances, the State did not oppose an extension of time.

139. I have had the advantage of reading in draft form the proposed reasons of Gleeson JA. I agree with his Honour, for the reasons proposed by him, that the time for the filing of the notice of appeal should be extended but that the appeal should be dismissed with costs. The summons seeking leave to appeal should also be dismissed with costs.

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Amendments

09 May 2016 - Counsel for respondent: HN Newton