Hrdavec v New South Wales

[2021] NSWSC 560

Supreme Court

New South Wales

Medium Neutral Citation:

Hrdavec v State of New South Wales [2021] NSWSC 560

Hearing dates:

13-14, 16 August 2018; 8, 12-13, 16-18 December 2019; 12 February 2020

Date of orders:

18 May 2021

Decision date:

18 May 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The State shall file short minutes of order reflecting this judgment.

Catchwords:

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

Legislation Cited:

Bail Act 2013 (NSW)

Crimes Act 1900 (NSW)

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Evidence Act 1995 (NSW)

Law Enforcement (Powers and Responsibilities) Act NSW 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

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

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

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

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

Berry v British Transport Commission [1962] 1 QB 306

Briginshaw v Briginshaw (1938) 60 CLR 336

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

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

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

Coyle v State of New South Wales [2006] NSWCA 95

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

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

Ea v Diaconu [2019] NSWSC 795

Ea v Diaconu [2020] NSWCA 127

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

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

FP v R [2012] NSWCCA 182

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

Hamod v New South Wales [2011] NSWCA 375

Hamod v State of NSW [2007] NSWSC 600

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

Hill v Woollahra Municipal Council [2003] NSWCA 106

Holgate-Mohammed v Duke [1984] AC 437

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

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

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

McDonald v Coles Myer Limited (1995) Australian Torts Report 81-361

Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154

Mohamed Amin v JogendraBannerjee [1947] AC 322

Mutton v Baker [2014] VSCA 43

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

Noye v Robbins; Noye vCrimmins [2007] WASC 98

Nye v State of New South Wales [2003] NSWSC 1212

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

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

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

SB v State of New South Wales [2016] NSWDC 189

Smith v State of New South Wales [2016] NSWDC 55

Spautz v Butterworth (1996) 41 NSWLR 1

State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419

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

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

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

State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

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

State ofNSW vDelly [2007] NSWCA 303

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

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

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

Category:

Principal judgment

Parties:

Valentino Hrdavec (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
T Molomby SC, with R Rasmussen (Plaintiff)
M Spartalis with D Hume (Defendant)

Solicitors:
Nicopoulos Sabbagh Lawyers (Plaintiff)
Makinson d'Apice Lawyers (Defendant)

File Number(s):

2016/308826

Publication restriction:

Reference to certain individuals and places were removed and replaced with pseudonyms to prevent identification of the victim of the offences.

TABLE OF CONTENTS

INTRODUCTION - paragraph 1

RELEVANT PERSONS - paragraph 5

THE PRINCIPLES OF LAW - paragraph 21

THE PLAINTIFF’S PLEADINGS - paragraph 83

ISSUES IN DISPUTE - paragraph 91

AN OVERVIEW OF SUBMISSIONS FOR THE PLAINTIFF - paragraph 94

AN OVERVIEW OF SUBMISSIONS FOR THE STATE

FACTUAL FINDINGS AND RESOLUTION OF INTERMEDIATE ISSUES - paragraph 128

CONCLUSIONS - paragraph 408

DAMAGES - paragraph 460

CONCLUSION - paragraph 515

JUDGMENT

INTRODUCTION

1. HIS HONOUR: By an amended statement of claim filed 31 August 2018 (“ASOC”), Mr Valentino Hrdavec (“the plaintiff”) claimed damages for wrongful arrest, false imprisonment and malicious prosecution. His claim arose out of his arrest on 1 July 2015, and subsequent charging and prosecution, for aggravated sexual assault, contrary to s 61JA(1) of the Crimes Act 1900 (NSW), and aggravated indecent assault, contrary to s 61M(1) of the Crimes Act (since repealed) (collectively, “the aggravated assaults”). On 11 December 2015, the charges against the plaintiff were dropped by the Office of the Director of Public Prosecutions (“ODPP”).

2. The plaintiff sued the State of New South Wales (“the State”) as being vicariously liable for the actions of Detective Sergeant Jason Pietruszka (“Inspector Pietruszka”) and officers and constables of the NSW Police Force. Inspector Pietruszka was the Officer-in-Charge of the investigation into the aggravated assaults.

3. The State admitted that it would be vicariously liable for torts committed by Detective Inspector Pietruszka (“Inspector Pietruszka”) and Constable Michael Mahony, Constable Darren Boyd and Constable Muhsen Bayzidi (although the proceedings were not continued against these officers) who was in service of the Crown, but denied any such alleged torts were committed. (Inspector Pietruszka held that rank at the hearing of his matter and hence he shall, for the balance of this judgment, be referred to in that fashion).

4. On 21 August 2019, the Court made orders by consent that included, inter alia, that the plaintiff was to file the ASOC with the omission of any allegation that Constable Boyd initiated a prosecution. By the filing of the ASOC, the subject of the claims brought by the plaintiff was confined to the conduct of Inspector Pietruszka. The same confinement was reflected in both the closing written submissions of the parties, and the agreed statement of issues filed by the parties on 19 February 2020.

RELEVANT PERSONS

5. At the outset of this judgment, it is useful to outline the dramatis personae in these proceedings.

The Hrdavec Family

6. The following members of the plaintiff’s family were required for cross-examination:

1. the plaintiff;

2. the plaintiff’s father, Sinisa Hrdavec (“Sinisa”); and

3. the plaintiff’s brother, Dorijan Hrdavec (“Dorijan”).

7. Both the plaintiff’s father and brother, for convenience and clarity, will be referred to by their first name in this judgment.

Inspector Pietruszka

8. Inspector Pietruszka was the main State witness. He arrested and charged the plaintiff in July 2015.

9. Inspector Pietruszka commenced as a student police office in 1997. He completed the Detectives Education Program in 2003. He was appointed a Senior Constable in around 2003. He was appointed Sergeant in June 2005. As Sergeant, within the Redfern Local Area Command, he oversaw investigations being carried out by other officers. In March 2007, he was appointed Senior Sergeant and moved to City Central Local Area Command. He oversaw a crime management unit of approximately 30 officers.

10. In December 2007, Inspector Pietruszka moved to Central Metropolitan Region Officer, where he provided operational assistance to approximately 13 Local Area Commands. In January 2010, he transferred to Blacktown Local Area Command Detectives Office as Detective Sergeant Team Leader. In that role, he had command of any homicide or high profile investigation, often including sexual assaults. Inspector Pietruszka has experience in investigating a wide variety of offences, including sexual assaults (both immediate report and historical).

11. Inspector Pietruszka, in my view, is an experienced detective, with a long history of investigating and supervising investigations of alleged sexual assault.

12. Inspector Pietruszka was required for cross-examination.

Sergeant Mark Kneipp

13. On the evening of the plaintiff’s arrest, the initial custody manager was Sergeant Mark Kneipp. Sergeant Kneipp accepted the plaintiff into custody at approximately 12.19am on 2 July 2015. He was required for cross-examination.

Police

14. In addition to Inspector Pietruszka, several police officers and detectives are mentioned throughout the factual background, with roles relevant to different stages of the arrest, charging and investigation. For present purposes it is unnecessary to identify each officer, save for noting that no claim is brought against those officers. As mentioned, it is the conduct and intent of Inspector Pietruszka, at the various stages, that is relevant to the claims before the Court.

Amy Williams, Tony Khawaga and Melissa Khawaga

15. Amy Williams is the partner of Dorijan. Tony and Melissa Khawaga are associates of the plaintiff.

The victim, alleged offenders and witnesses

16. On the night of 21-22 June 2015, there was a party (also referred to as a “gathering”) at the premises of Mr Loyd Bandao in Blacktown (“the premises”). The party was attended by four males and two females. The “four males” were:

1. Mr Bandao;

2. Mr James Bruce, cousin of Mr Bandao;

3. Mr “BJ” Alcazar, best friend of Mr Bandao; and

4. the plaintiff.

17. The two females that attended the gathering were:

1. Ms Patricia “Trish” Tejada, girlfriend of Mr Bandao; and

2. MM, the victim of the aggravated assaults.

18. In addition to the six persons that attended the premises for the party, reference is also made to two persons present in the premises: the father and sister of Mr Bandao although no party contended they were involved in the party or connected to the events of the evening.

19. The aggravated assaults took place, on the evening of the party, in a bathroom external to the premises, which was a small tiled room that featured a toilet and sink, which was accessible via a single doorway from the outside yard. The location of the assault was referred to interchangeably as “the bathroom”, “the toilet”, “the cubicle” and “the crime scene”. All four males were charged and arrested with respect to the aggravated assaults.

20. The accounts provided by Ms Tejada, MM, Mr Alcazar and the plaintiff, in the context of the investigation conducted by Inspector Pietruszka, were each before the Court and were the subject of controversy. I will return to those controversies within the context of the factual findings.

THE PRINCIPLES OF LAW

21. The relevant principles of law as to false imprisonment and malicious prosecution were recently set out by this Court in the judgment of Edwards v State of New South Wales [2021] NSWSC 181 at [7]-[43], [49]-[59], [65], [71]-[83]. I adopt those principles, which are set out below.

False Imprisonment

22. False imprisonment is the unlawful arrest or detaining of any person: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714. A false imprisonment is an intentional, total and direct restraint on a person’s liberty. There is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140] (per Kirby J, in dissent but not on this principle).

23. Thus, a significant difference between false imprisonment and malicious prosecution is that with false imprisonment, if the detaining or arrest was unlawful, the tort is established. The intent of the person doing the detaining is not relevant. See Ruddock v Taylor at [140].

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

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

99 Power of police officers to arrest without warrant

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.

Note—

The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.

(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

26. The High Court considered s 99(1)(a) in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 (“Robinson”). In Robinson, the High Court emphasised that the relevant standard was suspicion. It observed (at [55]):

The degree of certainty of guilt required to charge

[55] It is true, as has been noticed, that, in Williams v R , Mason and Brennan JJ observed in obiter dictum that there was no reason to think that, “in general”, an arresting police officer would be unable to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. But contrary to the majority’s reasoning in the Court of Appeal, Mason and Brennan JJ are not to be taken thereby to have represented that what suffices to constitute reasonable grounds to suspect must necessarily be enough to lead an arresting officer to believe that the arrested person is so likely to be guilty of the offence for which he or she has been arrested that a charge is warranted. The essential point of both Dumbell v Roberts and Hussien — which Mason and Brennan JJ cited with evident approval in support of their analysis of reasonable grounds to suspect — was that the requirement of reasonable grounds to suspect is “very limited” and nothing like as much as a prima facie case. As Lord Devlin stated in Hussien:

Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.

Likewise, as this Court observed in George v Rockett :

Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam , ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.“’ The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees , a question was raised as to whether a payee had reason to suspect that the payer, a debtor, ‘was unable to pay [its] debts as they became due’ as that phrase was used in s 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said:

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which “reason to suspect” expresses in sub s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub section describes — a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

[Footnotes omitted.]

27. The suspicion referred to in s 99(1)(a) must be held “on reasonable grounds”. That is a familiar criterion in the exercise of statutory powers and attracts well-understood principles.

28. Reference may be made in this context to the judgment of the Court of Appeal in in Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 (“Hyder”). The facts in Hyder concerned Mr Christopher Gaggin, a Federal Police Agent, whom arrested the applicant without a warrant to do so, acting pursuant to the discretion to so act provided by s 3W(1)(a) of the Crimes Act 1914 (Cth). Sub-section (1)(a) of s 3W relevantly provided that “[a] constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence ...”. At [15]-[19], as to the requirement of reasonable grounds,
    McColl JA (with Hoeben JA agreeing at [90]) stated the following:

[15] The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:

(1) When a statute prescribes that there must be "reasonable grounds" for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);

(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the "arresting officer"); the arresting officer may not "discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant": George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;

(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that "[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order": O'Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);

(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O'Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;

(5) "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof": George v Rockett (at 116);

(6) "Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture": George v Rockett (at 116);

(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against "what was known or reasonably capable of being known at the relevant time": Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O'Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;

(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;

(9) "The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist": New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL's conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;

(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words "may arrest without warrant" conferred on a public official "an executive discretion" whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock's reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that "[a]ny constable or other person may without warrant apprehend"), was "not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word 'may' "; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ.

[16] The primary judge referred (at [15]) with apparent approval to a statement in Purchas LJ's reasons in Castorina v Chief Constable of Surrey [1988] NLJR 180; Times, 15 June 1988, to the effect that "courses of inquiry which may or may not be taken by an investigating police officer before arrest are not relevant to the consideration whether on the information available at the time of the arrest he had reasonable cause for suspicion."

[17] It is not apparent that Purchas LJ's proposition is consistent with the statement in George v Rockett (at 112, see [15](2) above) to the effect that the arresting officer may not merely act as a cipher, or with the plurality's reasons in Ruddock v Taylor (at [40], see [15](7) above) that what constitutes reasonable grounds for forming a suspicion or a belief must be judged, inter alia, against what was "reasonably capable of being known at the relevant time". Prima facie, in my view, it will be a matter of fact in each case as to whether the materials the relevant person was considering were such as to prompt other inquiries before the relevant state of mind could be formed. This question was not argued and need not be finally decided.

[18] The point made in [15](8) above deserves some elucidation in the context of the appellant's complaints. As Lord Hope pointed out in O'Hara v Chief Constable of Royal Ulster Constabulary (at 301 - 302), it is frequently the case that:

"[an arresting officer's] action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."

[19] Lord Hope's remarks emphasise that the question of identifying the material sufficient to support an objective finding that, for relevant purposes, an arresting officer had reasonable grounds for his or her belief has to be approached with practical considerations as to the nature of criminal investigations in mind.

29. The Court of Criminal Appeal in R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 discussed the notion of a reasonable suspicion as follows (at [52]-[53]):

[52] In Streat v Bauer; Streat v Blanco (16 March 1998, CLD, unreported) I reviewed the authorities from other fields which help to elucidate s.357E and the words "suspects" and the clause "any person whom he [the member of the police force] reasonably suspects", namely Queensland Bacon Pty Ltd v Rees (1996) 115 CLR 266 at 303 per Kitto J, George v Rocket (1990) 170 CLR 104 at 115-116, R v Armstrong (1989) 53 SASR 25 at 27; O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] 2 WLR 1 at 5 and 11 and Anderson v Judges of the District Court (1992) 27 NSWLR 701.

[53] These propositions emerge:

(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

30. In Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 (“Hamilton”), Campbell J described the test of suspicion on reasonable grounds under s 99(2) as a “relatively undemanding test”: at [154].

31. The assessment of whether any suspicion was held on reasonable grounds is be judged from the “standpoint” of the officer “at the time of his decision to arrest or not in the circumstances then actually pertaining. The Court’s evaluation is not to be made retrospectively”: Hamilton at [155].

32. The state of mind referred to in s 99(1)(b) is satisfaction. The subject of the satisfaction is that the arrest be “reasonably necessary” (not “necessary”) or one of the identified purposes (contra the form of LEPRA considered in Robinson was decided at [43]).

33. There is a well-established body of law dealing with the validity of the exercise of powers conditioned on the holding of a satisfaction. The satisfaction “must be formed reasonably and on a current understanding of the law” (see example, Wilkie v The Commonwealth (2017) 263 CLR 487; [2017] HCA 40 at [109] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)). However, the ultimate criterion is that there be a satisfaction, lawfully formed, at the time the power was exercised; and error is not established merely because the Court itself would not have reached that satisfaction.

34. In order to be lawful, at the time of arrest, the arresting officer must intend to charge the arrested person: Robinson at [62]-[63] (per Bell, Gageler, Gordon and Edelman JJ).

Malicious Prosecution

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

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

1. the prosecution was initiated by the defendant;

2. the prosecution terminated favourably to the plaintiff;

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

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

37. In these proceedings, there is no dispute about the first two elements, except that there is an important secondary issue as to how long Inspector Pietruszka remained the prosecutor, with the State contending the case was taken over by the Director of Public Prosecutions (“DPP”). Further, in these proceedings, issues arise as to the third and fourth elements.

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

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

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

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

[54] Harvey ACJ made the following observations:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Footnotes omitted.]

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

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

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

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

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

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

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

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

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

51. While the cross-examination of Inspector Pietruszka often travelled beyond the pleaded and particularised case, the Court should, it was submitted by counsel for the State, hold the plaintiff strictly to his pleaded case.

52. As to the standard of proof, s 140(1) of the Evidence Act1995 (NSW) states that the case must be proved on the balance of probabilities. However, under
    s 140(2), the Court is to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The allegations now made against Inspector Pietruszka are grave within the meaning of s 140(2) and of the utmost seriousness having regard to the statements of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 362 (per Dixon J).

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

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

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

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

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

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

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

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

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

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

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

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

58. Rule 15.4 states:

15.4 Allegations as to condition of mind

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

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

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

59. The effect of these rules, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given. However, the function of the pleadings and particulars thereof in the disposition of these proceedings will be discussed further below.

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

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

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

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

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

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

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

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

64. In this case, the plaintiff relies on the subjective aspect of absence of reasonable and probable cause. He asserts that, as at 1 July 2015, Inspector Pietruszka knew that there was not reasonable and probable cause to prosecute the plaintiff.

65. Counsel for the State contended “it is not open to the [p]laintiff to run a case that objectively there was no basis for [Inspector] Pietruszka to form a view that there was no proper case to prosecute”. To succeed on the objective element, having regard to the fact that the plaintiff advances a “subjective” case, the plaintiff must establish that, at the time of each active step, Inspector Pietruszka had not honestly formed the view that there was a proper case for prosecution.

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

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

67. The High Court continued at [93]:

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

68. The plaintiff must therefore prove that the sole or dominant purpose of Inspector Pietruszka at the time of the taking of each active step was some purpose other than the proper invocation of the criminal law.

Prosecutor

69. It is well-established that the inquiry as to the identity of the prosecutor is one of substance. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ said that the law “looks beyond legal theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor”. The inquiry is therefore into the person or persons who, at each time, are instrumental in prosecuting the then accused.

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

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

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

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

[285] At [38] the Court said:

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

72. Her Honour also noted (at [146]):

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

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

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

75. The New South Wales Court of Appeal has recently cautioned against assuming that the Officer-In-Charge of an investigation is ipso facto a prosecutor. In HD v State of New South Wales [2016] NSWCA 85, the Court of Appeal observed (at [76]):

[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.

76. In this case, the circumstances include the role of the DPP once it assumed carriage of the prosecution. That directs attention to s 9 of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”), which states:

9 Taking over prosecutions or proceedings

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

(a) carry on the prosecution or proceeding,

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

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

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

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

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

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

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

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

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

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

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

77. Section 10 provides for the Director to give notice when he or she takes over a matter under s 9 of the DPP Act.

78. The effect of s 9(4)(a) is to deem the DPP to be the prosecutor (not a prosecutor) in connection with the prosecution.

79. In written submissions, the plaintiff has taken the point that there is no evidence of the existence of a notice having been issued.

80. The plaintiff advanced the following submissions in reply as to the identity of the prosecutor:

17. The defendant says (para 208) that the plaintiff has belatedly taken the point that there is no evidence of the sending of a notice pursuant to Section 10(1) of the Director of Public Prosecutions Act 1986. The plaintiff's position is not belated. The earliest that a party can take a point about absence of evidence is in final submissions. The provisions of the DPP Act were specifically drawn to the attention of the court on 14 August 2018 by the defendant. There was specific reference to Section 9 (at T81, 5-7 and T96, 8-18). There was recognition there for the requirements of s.9( 4) to be satisfied - "we say that s.9( 4) makes clear that the Director is the Prosecutor, once the Director takes over and once the obligations under s.9 are satisfied ... ".

…

18. In the present case, the issue is not the regularity of an act done by the DPP as prosecutor, but whether in fact the DPP had taken over the prosecution.

19. In any event, the resolution of that question does not finally determine the issue of who is liable for the maintenance. The relevance of whether the DPP took over the prosecution is that without specific evidence, any malice of Mr Pietruszka cannot be attributed to the DPP. But any malice of Mr Pietruszka will have been operating on the prosecution until the DPP had the opportunity to consider the case and take his own position. This was recognized at first instance in Av New South Wales, as narrated in the judgment of the High Court in [18]. There, the DPP formally took over the proceedings on 6 April 2001, but the original prosecutor was held to be liable for the maintenance of the prosecution up to 16 May 2001 "which was regarded as allowing for a reasonable period for the Director to consider his position after taking over the proceedings." This approach obviously was approved by the High Court. Thus, even if the defendant is correct, and it is to be presumed that the DPP took over the proceedings on 7 July 2015, the defendant remains liable for Mr Pietruszka's actions until the lapse of a reasonable period for the Director to consider his position.

20. … In the present case, the DPP cannot have been in a position to consider his position before receiving the brief. Mr Pietruszka did not serve the victim's statements on Mr Linegar until 24 July 2015, and the rest of the brief(apart from the DNA evidence) until 21 August. Mr Pietruszka said that he served these documents on Mr Linegar as soon as they became available to him ((Ex 20, p 505) second statement para 26(f)), so he would not have been able to serve them any earlier on the DPP. Thus the defendant must be liable for Mr Pietruszka's actions until at least 21 August. Other evidence suggests strongly that the DPP did not consider the matter in detail until early October.

Two emails were sent from the DPP to Mr Pietruszka on 6 October 2015 (Ex 10, p53 and 52). The first, at 10.34 am, related to possible evidence from Alcazar. It was followed by another at 11.33 am, commenting that the evidence against the plaintiff was very weak. It seems very much that the DPP officer had only just looked at the evidence against the plaintiff after sending the first email.

81. Counsel for the State submitted that the evidence establishes that the Director in fact took over the prosecution by no later than 7 July 2015. The Court should infer, it was submitted, consistently with the presumption of regularity, that the DPP complied with his duties under s 10 of the DPP Act from the time he took over the prosecution. The Court does not need, it was contended, the notice to conclude that notice was given. This presumption of regularity is applicable to this content and permits the Court to presume that the DPP complied with all applicable procedures: see, example, Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; Hill v Woollahra Municipal Council [2003] NSWCA 106 at [51]-[52] (per Hodgson JA, with Ipp JA and Davies AJA agreeing at [62] and [63], respectively).

82. In the final disposition of these proceedings, it will be unnecessary to resolve the issue of when Inspector Pietruszka was no longer the prosecutor, given the conclusions I will reach as to maintenance of the prosecution. It is sufficient to observe at this juncture that it was common ground that Inspector Pietruszka remained the prosecutor until 7 July 2015.

THE PLAINTIFF’S PLEADINGS

83. The ASOC was lengthy with the pleadings and particulars extending over 15 pages, including several attached statements of particulars. Those statements are listed below:

1. Statement of Particulars: Maintenance or Continuance of Criminal Process (28 paragraphs, 3 pages);

2. Statement of Particulars: Lack of Reasonable and Probable Cause (1 paragraph, 2 pages);

3. Statement of Particulars: Malice (45 paragraphs, 7 pages); and

4. Statement of Particulars: Institution of Criminal Process (8 paragraphs, 1 page).

(For convenience, those statements are annexed to this judgment: Annexure A, B, C and D, respectively.)

84. In support of its application, the plaintiff filed closing written submissions dated 17 January 2020 (74 pages) and reply submissions dated 4 February 2020 (22 pages).

85. At the outset of closing written submission, the plaintiff accepted that “wrongful arrest” is not of itself a separate tort, but a necessary part of false imprisonment. An arrest involves a deprivation of liberty; if the arrest is unlawful the consequent deprivation of liberty is false imprisonment. Thus, there are two causes of action in issue, false imprisonment and malicious prosecution.

86. The claim in false imprisonment raises the issue of whether the arrest of the plaintiff, being an arrest without warrant, complied with the terms of s 99 of the LEPRA. The plaintiff acknowledged that if false imprisonment is established, it does not continue beyond the time at which the plaintiff was refused bail by a court, with the consequence that imprisonment continuing beyond that time becomes part of the claim for malicious prosecution.

87. Allowing for some vagueness in the pleadings, based upon the combination of those pleadings and submissions, the case for the plaintiff on liability, in broad terms, ultimately consisted of the following:

1. On 1 July 2015 at or around 11.20pm, the plaintiff was wrongfully arrested at Blacktown railway station and subsequently falsely imprisoned by Inspector Pietruszka and Constable Mahoney: ASOC at para 2.

2. The prosecutor who instituted, continued and maintained the proceedings against the plaintiff was Inspector Pietruszka. He was the prosecutor from the date of the plaintiff’s arrest on 1 July 2015 until the date that the charges against the plaintiff were withdrawn on 11 December 2015.

3. Inspector Pietruszka acted without reasonable cause:

1. when he arrested the plaintiff on 1 July 2015;

2. when he maliciously laid or caused be laid the charges with respect to the aggravated assaults against the plaintiff
   on 2 July 2015: ASOC at para 3.

3. when he maintained or caused to be maintained against the plaintiff criminal proceedings for the charges with respect to the aggravated assaults: ASOC at para 4.   

88. It should be observed that the plaintiff particularised his claim with respect to (3) above as being: as at 1 July 2015 ,when the plaintiff was arrested, Inspector Pietruszka knew that he did not have reasonable and probable cause to arrest and charge the plaintiff for the offences as charged.

89. The plaintiff seeks the following relief:

1. damages for wrongful arrest, false imprisonment and malicious prosecution including aggravated and punitive damages;

2. actual or special damages;

3. interest;

4. costs; and

5. such orders as the Court shall deem necessary.

90. As to the particulars of damages, the plaintiff pleaded the following (at para 5 of the ASOC):

Particulars of Punitive Damages

The Defendant acted in contumelious disregard of the Plaintiff’s rights.

Particular of Aggravated Damages

The Plaintiff suffered increased hurt and upset because he knew the Defendant had fabricated the allegations against him.

The Plaintiff suffered increased hurt and upset because he knew the Defendant had arrested and charged him without reasonable and probable cause and further that it initiated and maintained a criminal prosecution against him for an improper purpose.

Actual and Special Damages

Please see the plaintiff’s letter of 18 May 2018 for particulars of this claim.

ISSUES IN DISPUTE

91. During the course of closing submissions, the parties confirmed that an agreed chronology was before the Court. Following the closure of the parties respective cases, pursuant to directions of the Court, an amended and agreed statement of issues was received by the Court on 19 February 2020.

92. The parties agreement as to the issues in dispute joined was as follows:

False Imprisonment

1. Whether the plaintiff was lawfully arrested pursuant to s 99(1)(a) and 99(1)(b) of LEPRA as set out in para 3 of the Defence?

2. Did Inspector Pietruszka have reasonable grounds to suspect it was necessary to arrest the plaintiff pursuant to s 99(1)(b) of LEPRA as set out in paragraph 3(b) of the Amended Defence?

3. Was the plaintiff lawfully imprisoned between 11.30 pm on 1 July 2015 and 31 July 2015?

4. If not, what was the period of false imprisonment?

5. Is the plaintiff entitled to damages for false imprisonment for the period following the bail refusal?

Malicious Prosecution

1. Did Inspector Pietruszka:

1. have an absence of reasonable and probable cause when commencing the prosecution?

2. act maliciously in commencing the proceedings?

3. continue and/or maintain the prosecution?

4. have an absence of reasonable and probable cause when continuing and/or maintaining the prosecution?

5. act maliciously in continuing and/or maintaining the prosecution?

2. Is it open to the plaintiff to assert malice absent a particularisation of a malicious purpose?

3. Must the plaintiff establish malice and an absence of reasonable and probable cause at the time of each act of initiation or maintenance on which the Plaintiff can rely?

Causation

1. Whether the plaintiff suffered injury, loss and/or damage as alleged or at all and if so, the nature and extent of such injury, loss and/or damage?

2. Whether and to what extent the plaintiff’s alleged injury, loss and/or damage are causally related to the incident the subject of this proceeding and to other factors?

3. What was the precise conduct that resulted in any injury or injuries?

4. Whether the plaintiff suffered any loss or injury as a result of the alleged malicious prosecution?

Quantum

1. Did the conduct of Inspector Pietruszka result in the alleged injuries to the plaintiff?

2. Has the plaintiff made a claim for economic loss?

3. If so, is the plaintiff entitled to economic loss?

4. The quantum of the plaintiff’s claim with respect to his claim for false imprisonment and malicious prosecution, including whether the plaintiff is entitled to:

1. general damages including damages for deprivation of liberty from 1 July 2015 to 31 July 2015 and reputational damages;

2. aggravated damages;

3. exemplary damages;

4. (Past) Economic loss;

5. (future) Economic loss;

6. loss of opportunity to maintain a career at UBank;

7. Interest from 1 July 2015 to date.

5. Is the plaintiff’s case on quantum limited by the plaintiff’s pleadings and particulars on damages?

93. In addition the above statement of issues with respect to quantum, was the following notation: “Note: The plaintiff has not filed a Statement of Particulars pursuant to UCPR 15.12”.

AN OVERVIEW OF SUBMISSIONS FOR THE PLAINTIFF

94. This summary provides a broad overview of the plaintiff’s case on malicious prosecution and false imprisonment. Particular elements of the submissions will be discussed during the course of this judgment.

Malicious Prosecution

A. Initiation, Maintenance or Continuance of Criminal Process

Initiation

95. It was common ground that Inspector Pietruszka initiated the prosecution of the plaintiff. The initiation occurred on 2 July 2015 at the time of charging. It did not occur prior to then at the time of arrest.

Maintenance or Continuation

96. The plaintiff’s position is that Inspector Pietruszka was the prosecutor who continued and maintained the proceeding against the plaintiff. It is alleged that he was the prosecutor from the date of the plaintiff's arrest until the date that the charges against the plaintiff were withdrawn on 11 December 2015. The pleaded acts of maintenance or continuance were listed in the statement of particulars (see Annexure A).

97. In written submissions, the plaintiff advanced the following submissions:

51.It is clear that the prosecution was initiated by Mr Pietruszka. He performed functions in relation to it throughout, for example through his emails to Mr Linegar, and serving the victim’s three accounts on 24 July 2015 (T 584, 40-46; 585, 46 – 586, 13) and the remainder of the brief on 21 August 2015 (T587, 29-34). There is no evidence that the DPP ever formally took over the matter.

52. The Director of Public Prosecutions Act 1986 provides for the DPP to take over prosecutions. Section 9(1) provides that the Director may take over a matter. Section 9(4)(a) provides that if the Director takes over a matter under the section “the Director shall, from the time when the Director complies with section 10(1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceedings concerned.” Section 10(1) provides:

…

Applying those principles to the present case, I would conclude that the additional matters relied on by the appellant are not grounds which may be taken into account by the Court in considering an award of aggravated damages absent any evidence of mala fides or lack of justifiability. However, they may be taken into account in assessing an award of general compensatory damages. Matters such as the indignity, mental suffering, disgrace and humiliation suffered by the appellant as a result of the false imprisonment are to be included in general damages. Any conduct of the first respondent which may have had the effect of increasing the injury to the appellant’s feelings is also to be included in the general compensatory damages.

464. In wrongful arrest and false imprisonment actions, general damages should include an amount for curtailment of liberty and associated hurt feelings (including humiliation, distress and loss of status): see State ofNSW vDelly [2007] NSWCA 303 at [76].

465. In McDonald v Coles Myer Limited (1995) Australian Torts Report 81-361 at 4, Powell JA referred to the types of damage for which the plaintiff may be compensated in a successful action for false imprisonment as follows:

Further, as the tort of false imprisonment is derived from trespass, a plaintiff need not prove actual damage, although any pecuniary loss which is not too remote is recoverable (see, for example, Childs v Lewis (1924) 40 TLR 870). The principal heads of damage to which, in the past, regard appears to have been paid are, the injury to liberty, the injury to the plaintiffs feelings, ie the indignity, mental suffering, disgrace and humiliation, with any attended loss of social status, and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff’s health, any resultant physical injury, illness or discomfort (Lowden v Goodrick (1791) PEAKE 64; Pettit v Addington (1791) PEAKE 87). In addition to damages falling under one or other of the heads to which I have just referred, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge (Warwick v Foulkes (1844) 12 M and W 507; Walter v Alltools (1944) 61 TLR 39 (CA)), although it has been suggested (McGregor on Damages 15 Ed (1988) at 1029) that an unsuccessful plea by the defendant that the plaintiff was guilty of the offence charged against him by the defendant should not lead to an aggravation of damages, unless it is shown the defendant made the charge mala fide.

466. In Coyle v State of New South Wales [2006] NSWCA 95 (“Coyle”), the Court (in circumstances where it was contended by the defendant that false imprisonment for 2.5 hours should only sound in a nominal award of damages) stated (at [99]):

[99] It is difficult to imagine, for a person who is otherwise generally a law abiding citizen, a more humiliating experience or a greater shock to one’s equilibrium than being forcefully deprived of one’s liberty for even a relatively short period of time in circumstances which are entirely unjustified. This is all the more so where that curtailment of liberty is accompanied, as in the present case, by the detained person being handcuffed and marched through a crowd of onlookers and then incarcerated in a police paddy wagon, locked in a cell at the police station and fingerprinted and photographed as a criminal. Not surprisingly, the whole experience must have been both humiliating and highly embarrassing.

467. In Australia, there is no authoritative guideline on how to calculate damages in wrongful imprisonment or malicious prosecution cases by reference to the period of time the plaintiff was detained. There is no clear arithmetical symmetry. Each case appears to have been decided on its facts and the reasoning behind the quantum of damages is usually short. An Australian case where a Court calculated the damages for wrongful detention in an arithmetical way was at first instance in Spautz vButterworth, where a daily rate was applied. However, this was overturned on appeal, and a lump sum was substituted: see Beckett v State of New South Wales [2015] NSWSC 1017 per Harrison J at [670].

468. In McDonald v Coles Myer Limited at 7, Powell JA stated that the types of damage for which the plaintiff may be compensated in a successful action for malicious prosecution were as follows:

The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff’s reputation, injury to his feelings that is for the indignity, humiliation and disgrace caused him by the fact of the charge being referred against him, pecuniary loss – as, for example, as a result of his being dismissed from his employment – and the expenses incurred in defending himself against the prosecution, or, where he has been awarded costs against the prosecutor, the amount by which the costs incurred exceeded the costs awarded. In addition, if the facts warrant it, an award of aggravated compensatory damages may be made.

469. In cases of malicious prosecution general damages will be similarly be awarded for damage to fame and character; Noye v Robbins; Noye vCrimmins [2007] WASC 98 (“Noye v Robbins”) at [261]. This head of general damages is sometimes referred to as reputational damages. In Noye v Robbins, Heenan J held that had he found for the plaintiff, he would have awarded $50,000 for injury to reputation.

470. In Berry v British Transport Commission [1962] 1 QB 306, the Court of Appeal held that the financial consequences of the destruction or damage to reputation are recoverable. Devlin and Danckwerts LJJ held that reputational damages were recoverable where the imputed criminal offence would cause a reasonable observer to form the view that it was a damaging reflection on the "fair fame" of the plaintiff.

471. Damages will also be awarded for the inconvenience and disturbance to the plaintiff’s life, as well as the stress constituted by the fear of conviction: see Coyle at [92].

472. The plaintiff relied upon the following factors as matters which should be taken into account in the assessment of the quantum of damages and to increase the quantum of damages:

1. Deprivation of liberty: the plaintiff was arrested and remanded in custody from 1 July 2015 to 31 July 2015 when bail was granted.

2. The conduct of the defendant in arresting the plaintiff at the railway station, failing to caution him, laughing at him and subjecting the plaintiff to a search of his person and his belongings by railway transit officers who had no legitimate role in the arrest of the plaintiff including the embarrassment, fear, and hurt caused to the plaintiff thereby.

3. The defendant’s conduct in questioning the plaintiff about the events for which the plaintiff was arrested whilst escorting the plaintiff to the police station, receiving information about the plaintiff’s alibi, accusing the plaintiff of being a liar and falsely denying that the conversation occurred or that the plaintiff said the things that he alleged (particularly about his innocence and his alibi witness).

4. The oppression, hurt and indignation of being questioned and subjected to a deliberately misleading ERISP when the plaintiff had said that he did not want to say or do anything until he had a lawyer present.

5. The effect on the plaintiff of being in protective custody which included fear of being hurt or killed in gaol because of the nature of the charges preferred against him, including sleeplessness and nightmares and not having a girlfriend for 2 years after release.

6. The injury to his feelings and the humiliation of being subjected to charges of which he was innocent including the anguish of being subjected to judicial proceedings from 1 July 2015 until 11 December 2015 when they were formally withdrawn.

7. The immediate and ongoing effects on the plaintiff of incarceration and the nature of the charges proffered against him, inability to sleep, change from outgoing personality to quiet and reserved, retreat from social engagement, reluctance to be seen in public, loss of confidence/self-esteem, concern that he would be recognised because of media publicity, comments made by others that he is a gang rapist.

8. The plaintiff’s knowledge that reports by well-respected media outlets of his arrest and charging for serious sexual assaults remain on the internet in a form easily found and read by conducting a google search of the plaintiff’s name and will stay there forever and have, and will continue to have, a detrimental effect on his employment prospects.

9. The anguish and shame of losing a well-paid job with UBank which the plaintiff enjoyed and in which he had received no inadequate or dissatisfactory performance reviews and was unable to recover.

473. I will turn firstly to the question of false imprisonment and detention, upon the premise, for the purposes of this part of my judgment, that the plaintiff’s arrest was unlawful.

474. The assessment of ordinary damages is essentially an evaluative question for the judge, to be decided in the circumstances of the case: see Smith v State of New South Wales [2016] NSWDC 55 at [256].

475. In SB v State of New South Wales [2016] NSWDC 189 (“SB”), the District Court considered the ordinary damages which should be awarded for a false imprisonment of one day. The Court (Hatzistergos DCJ) awarded $10,000 in ordinary damages for the false imprisonment: SB at [266].

476. In State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 (“Abed”), the Court of Appeal affirmed an award of $10,000 ordinary damages for false imprisonment. In that case, the plaintiff was detained for approximately three hours: see at [12]. In Abed, in order to effectuate the imprisonment, police had seized the plaintiff’s arms and forced her to the ground to handcuff her: see at [224]. There is nothing similar in the present case.

477. Here, the detention was well short of one day. On the evidence, the plaintiff was not mistreated in the course of the detention. Further, the plaintiff gave no evidence that he was shocked to be arrested. Nor is that evident from the plaintiff’s responses in his ERISP.

478. Taking into account those considerations, in my view, ordinary damages for false imprisonment should be $8,000.00. I make no separate assessment on the assumption that the plaintiff’s arrest was lawful but the detention thereafter became unlawful prior to the bail decision, although plainly damages would be less on that account.

479. Before turning to the particular factors relied upon by the plaintiff, I should deal with the submission advanced by the State that the plaintiff should not be entitled to damages reflecting a loss of liberty between the time of the refusal of bail by Sergeant Kneipp and his release from detention on 31 July 2015.

480. The State made that submission on the following basis:

1. The plaintiff’s counsel failed to apply for bail. Linegar was not called to explain that decision.

2. From no later than 7 July 2015, the prosecutor was the DPP. From no later than that point, steps to maintain the proceedings (including decisions relating to discontinuance) were the responsibility of the DPP, not Inspector Pietruszka.

481. As to the first of those contentions, I reject the submission in reply by the plaintiff that it was Inspector Pietruszka’s conduct that contributed to Mr Linegar not making the bail application. I reject the contention that Inspector Pietruszka’s email of 7 July 2015 did not accurately represent the effect of MM’s statement of 3 July 2015. Nor do I consider that Mr Linegar’s email of 16 July 2015 should alter that conclusion.

482. Nor do I accept the plaintiff’s submissions that the provisions of s 74 of the Bail Act would necessarily act as a barrier given the contents of the 7 July 2015 email of Inspector Pietruszka.

483. However, I accept the submission of the plaintiff that it was reasonable for Mr Linegar to delay the making of a bail application until he was in receipt of the victim’s statements. That would be the preferable basis for the making of a bail application not only because of the considerations arising under s 74 of the Bail Act but because the plaintiff was required to cross the hurdle of the show cause provisions of that Act. I do not consider the failure to call Mr Linegar to explain his decision adversely affects that conclusion. It follows that I reject the contention advanced by the plaintiff in that respect.

484. The second aspect of the State’s contention is substantially affected by my approach to the question of whether the DPP may properly be found to have taken over the prosecution of the plaintiff.

485. Those considerations relate to the first factor relied upon by the plaintiff.

486. As to the second factor relied upon by the plaintiff above, the State is correct to submit there is nothing improper in arresting the plaintiff at a railway station which was proximate to the police station and at the time of the arrest, was reasonably private. The plaintiff abandoned the contention that the plaintiff was not cautioned. The evidence does not sustain that he was laughed at. Nor was there anything improper in searching him upon arrest. Inspector Pietruszka’s explanations for doing so may be readily accepted.

487. As to the third factor, I have earlier rejected the plaintiff’s contentions in that respect.

488. Similarly I have earlier rejected the component of the fourth factor, which relies upon a proposition that the plaintiff was subjected to a “deliberately” misleading ERISP (based upon the notion of the plaintiff requesting a lawyer). There does not seem to be any other reliance upon the questioning in the ERISP under the arguments raised with respect to the fourth factor. Further, Inspector Pietruszka conducted the ERISP of the plaintiff because the plaintiff wished to hear the allegations against him and Inspector Pietruszka decided that it should be done in the context of an electronically recorded interview.

489. As to the fifth factor, the evidence does not sustain any causal link between the plaintiff’s arrest or prosecution and the plaintiff not having a girlfriend for two years. I accept the State’s submission that there is no expert evidence as to the casual relationship between arrest or prosecution and any sleeplessness or personality change, but nonetheless I accept the contention of the plaintiff (at least by inference) that the plaintiff’s detention in protective custody (including a fear of being hurt or killed in goal because of the nature of the charges brought against him) would have resulted in adverse personal consequences which included sleeplessness (consistent with the plaintiff’s evidence).

490. Save for the consideration of whether Inspector Pietruszka ceased as a prosecutor after 7 July 2015, I accept the sixth factor relied upon by the plaintiff.

491. As to the seventh factor, I have earlier found that the weight which may be attributed to the evidence of personality change, retreat from social engagement and loss of confidence and self-esteem is limited. However, I shall make limited allowance for that factor.

492. As to the eighth factor, I do not accept the State’s submission that there is an absence of evidence that the internet entries remain in place and thereby have the prospects of being detrimental to future employment prospects of the plaintiff. The thrust of the plaintiff’s submission that the effect of the internet entries is significant in that respect may be accepted.

493. As I will further discuss below, there are real difficulties in the plaintiff establishing, on the evidence, a connection between media reports of the plaintiff’s arrest or charging and any employment consequences for the plaintiff or evidence that may properly establish that those factors contributed to UBank not continuing the plaintiff’s probationary employment. In that respect, it may be emphasised the plaintiff’s employment was a probationary and, therefore, offered a wide discretion to UBank not continue the plaintiff’s employment if it chose to do so.

494. The plaintiff contended that his employment was terminated on 6 July 2015 and that his probationary period for that employment ended on 16 July 2015, some 10 days later. However, the proximity to the end of the probationary period merely emphasises, in my view, that many discretionary factors may operate in the cessation of probationary periods, even where there has been a history of an acceptable engagement, irrespective of the existence of the media reports upon which the plaintiff relies. Further, there is no direct evidence of the reasons for termination of the plaintiff’s employment and as I will note later, he was absent from work without explanation for two days prior to the termination of his employment.

495. I consider, however, that some allowance should be made in the assessment of damages in this respect for loss of chance of the retention of employment or the finding of new employment after termination of employment with UBank.

Reputational damages

496. The plaintiff’s made the following submission in this respect:

79. The plaintiff’s arrest and remand in custody was reported by well known and widely read media outlets. Those articles appeared in the print newspapers and the internet. They appeared on the internet on and from 2 July 2015. They named the plaintiff and included images of him. They were published online under headlines such as “Four charged over teen gang rape” (yahoo7 News), “Four charged with gang raping teen at Blacktown party” (SMH.com.au), “Teen girl gang raped in back yard” (Daily Telegraph) (Exhibit 10 - tab 3). These articles still appear online and are readily found by conducting a Google search of the plaintiff’s name (Exhibit 14, Exhibit 15). They will stay there forever unless removed by the publishers of those articles. It is submitted that there is little or no prospect of that happening.

80. Apart from one apology published by Tune Media there were are no articles on the internet that demonstrate or show the result that the criminal proceedings have been dropped as against the plaintiff. The Tune Media apology no longer appears on the internet. A potential employer having conducted a google search would have to ask the plaintiff the result of the charges (assuming they chose to interview him after having discovered the articles) and believe him. There is no known (and readily accessible) mechanism for a member of the public asking the Police what the result of the charges was.

81. The plaintiff has no criminal convictions and is a person of unblemished character. The publication to a wide audience throughout New South Wales of charges of gang rape (of which he is innocent) must have a profound effect on his good fame and character. That effect endures to this day and will continue into the future.

82. In Beckett v NSW (supra), Harrison J. awarded an amount of $120,000 for reputational damages, reduced from a claimed $350,000 (at [748] and [825]), because Ms Beckett stood convicted of some charges. That is not the case here where Mr Hrdavec is a person of unblemished reputation.

497. As earlier mentioned, I do not accept the submission of the State that there is no evidence demonstrating an absence of media articles that indicate the charges against the plaintiff were dropped or that the apology no longer appears on the internet.

498. Nor do I accept the submission of the State that there is an absence of evidence that an employer who searched the internet would need to ask the plaintiff to ascertain the results of the charge as that may be reasonably understood as a step an employer may take in all the circumstances if the articles continue to appear in through a Google search.

499. However, it is important to note that evidence was admitted provisionally, following objection, that the plaintiff had been compensated in an amount of $315,000.00 inclusive of costs for asserted reputational damage arising from the charges. That evidence, in my view, is relevant to the question of damages in this respect and should be admitted. It must, therefore, be taken into account in the assessment of damages in this respect. As a broad proposition, the State was correct to submit that there is no causation for damage if in fact the plaintiff has been compensated.

497. The plaintiff contended that the damages awarded to the plaintiff in the other proceedings differed from the present matter because:

1. First it related to publications some ten months after the plaintiff was arrested and charged and after the media publicity caused by his charging. It was therefore not compensation in relation to that publicity but was in respect of quite different publicity some considerable time later. The plaintiff received no compensation for any reputational damage suffered over that first period after he was charged.

2. The reputational damage suffered during that first period is the damage which continues now and will continue indefinitely. It is damage inflicted universally on the plaintiff in any part of the world where anyone chooses to enquire about him using the internet. Particularly it is damaging to the plaintiff all over Australia.

3. The compensation that the plaintiff received from Fairfax Media Publications was in respect of articles published by them after the plaintiff was released from custody and after his charges had been discontinued.

4. It is clear from the Deed between the parties that the publications complained of asserted that he was guilty of the charges when in fact at the time of publication those charges had been discontinued. Those same articles do not appear in the google search that comprises Exhibit 15. The Deed provided for the plaintiff’s name to be removed from the article within 7days. Such compensation as has been received for those articles can have no bearing upon the reputational damage caused by the reporting of the plaintiff’s arrest, charge and incarceration in July 2015 which reporting remains on the internet.

501. There is substance in the plaintiff’s submission here. However, the State is correct to submit that damages in this respect need substantively to be assessed for a closed period what the plaintiff has described as the first period.

502. As to the plaintiff’s submission that the plaintiff was a person of unblemished character, the State relied upon the fact that the plaintiff failed to comply with a subpoena to give evidence but otherwise the submission should be accepted.

503. I do not accept that submission. The plaintiff was not cross-examined about this question and no criminal recorded of the plaintiff was tendered. The warrant was issued only with respect to a failure to appear in respect to a subpoena upon which the plaintiff proffered an explanation. That evidence was the subject of objection by the State. If the State intended to raise the point taken here then a different ruling may have been made as to the tender. I reject the State’s submission as to this factor.

Aggravated damages

504. The plaintiff submitted that the following circumstances aggravated the plaintiff’s claim for damages:

1. Permitting transit officers to assist with the plaintiff’s arrest and body search in a public place.

2. The manner in which the plaintiff was tricked into taking part in an ERISP in the absence of a lawyer and in the face of his expressed desire to not participate until a lawyer was present.

3. The deliberately misleading manner in which he was questioned by Inspector Pietruszka during the ERISP.

4. The deliberate attempt to undermine the plaintiff during the ERISP by misleading him into thinking that Ms Tejada (the plaintiff’s alibi witness) did not back up his version of what had happened.

5. The deliberate compilation of a misleading Facts Sheet that was likely to mislead both the Court and the plaintiff’s legal representations.

6. The deliberate failure to inform adequately the plaintiff’s legal representative of the victim’s withdrawal of any allegation the plaintiff and its effect on the strength of the case against the plaintiff.

505. The principles governing aggravated and exemplary damages were stated in Abed at [230]-[234], where the Court of Appeal observed:

[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in NewSouth Wales v Zreika [2012] NSWCA 37 at [60]-[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.

[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb vCotogno [1987] HCA 47; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v JohnFairfax [1966] HCA 40; 117 CLR 118 at [ ] [sic] (Windeyer J).

[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect "detestation" for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (Gray v MAC) [1998] HC 70; 196 CLR 1 at [14].

[233] In State of New South v Riley [2003] NSWCA 208; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that "Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing". However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court's disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.

[234] In New South Wales v Radford [2010] NSWCA 276; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:

[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.

506. I do not accept the various factors relied upon by the plaintiff to establish aggravated damages do establish a basis for aggravated damages for the following reasons:

1. No proper basis has been established as to why the involvement of transit police in the search of the plaintiff would warrant the award of aggravated damages.

2. The contention that Inspector Pietruszka tricked the plaintiff into participating in the ERISP in the absence of a lawyer is inconsistent with my earlier findings.

3. So too is the contention that Inspector Pietruszka did something which was deliberately misleading in the ERISP.

4. I have earlier found against the proposition that Inspector Pietruszka “deliberately” attempted to undermine the plaintiff during the ERISP by misleading him into thinking that Ms Tejada’s did not back up his version.

5. I have earlier found against the contention that Inspector Pietruszka compiled a deliberately misleading Fact Sheet.

6. I have earlier found that Inspector Pietruszka did not “deliberately” fail to inform Mr Linegar of the victim’s “withdrawal of any allegation” or its effect on the plaintiff’s trial. I agree with the submission of the State that Inspector Pietruszka’s email to Mr Linegar of 7 July 2015 was frank.

507. It follows that I would refuse to award aggravated damages.

Exemplary damages

508. The plaintiff’s submissions as to exemplary damages was expressed in the following terms:

85. Pietruszka’s conduct in using improper means to obtain information from a young person (the plaintiff was then 19 years old), in the early hours of the morning, when no lawyer was present (contrary to his expressed desire), to attempt to undermine his alibi, and to present misleading information to the bail sergeant, the Court, and the plaintiff’s legal representatives are matters that should attract the Court’s opprobrium and sound in an award of exemplary damages. Such conduct is a serious misuse of the power of the State’s investigative and prosecutorial powers and is in contumelious disregard of the plaintiff’s entitlement to be treated fairly and consistently with the presumption of innocence.

509. This submission is entirely based upon premises which I’ve rejected as having any factual foundation earlier in this judgment. It follows that I would not award exemplary damages.

Economic loss: causation

510. The plaintiff made the following submissions in this respect:

1. The plaintiff had been working for UBank, apparently a subsidiary of the National Australia Bank Ltd, since October 2014. Initially his employment was casual. He was offered a full time position from April 2015 on 3 months’ probation. His contract provided that his employment could be terminated during the probationary period on 1 weeks written notice, or immediately with payment of 1 weeks salary in lieu of 1 weeks’ notice. The plaintiff’s probationary period was due to finish later in July 2015.

2. The plaintiff’s manager had told him that he was very good at the job. The manager said that the plaintiff was very friendly and that the customers really liked him. During the whole time that the plaintiff was working for UBank no inadequacy or unsatisfactory aspect of his performance was raised by his employer. There was a system that allowed for such inadequacy or dissatisfactions to be raised with employees, and the plaintiff was aware of that having happened to other employees.

3. The plaintiff’s employment was terminated with immediate effect by a letter dated 6 July 2015. No reason was given in the letter. The plaintiff submitted that against the background as outlined above, it was highly improbable that the reason for the termination was inadequate performance.

4. The plaintiff had been charged in the early hours of the previous Thursday, 2 July 2015. His name, with those of the other three charged, was published prominently in the media, including well known and widely distributed publications such as the Daily Telegraph and the Channel Nine News, from that afternoon. The plaintiff contended that it is likely employees and managers of the NAB became aware of one or more of these publications.

5. By 6 July 2015, the plaintiff had, of course, been absent from work without explanation for two days. The plaintiff contended that it was unlikely that the plaintiff would have been terminated summarily, without a reason being given if that were the cause. The plaintiff contended that a more likely explanation for his absence would have been sought. The plaintiff contended that the summary termination of his employment, without any reason, fits well with the state of mind of someone who had seen any of the media articles and understood that the plaintiff was in custody, meaning further that there would be no point in exercising the milder option of giving a weeks’ notice.

6. The plaintiff contended that given that the plaintiff had been working for his employer, one way or another, for more than 8 months, and that no inadequacy or dissatisfaction with his performance had been raised before he left work late on Wednesday 1 July 2015, the overwhelming inference is that the cause of his termination was something that occurred after that time. The plaintiff contended that the publicity of his arrest and charge was the obvious explanation. The letter was sent as promptly as one would expect if that publicity had come to the attention of his employer late on Thursday, 2 July 2015, or, as is probably more likely on Friday, 3 July 2015. The plaintiff submitted that there is a strong inference that the cause of the termination of his employment was the media publicity of his arrest and charging. If it was not, the only other possibility on the evidence was his unexplained absence from work for two days.

511. I have earlier discussed this issue. However, some further observations may be made in this context.

512. The State submitted that there is a perfectly plausible explanation for the discontinuation of the plaintiff’s employment: he was on probation and his probationary period was up. No inference favourable to the plaintiff as to the reason for his termination should be drawn. He has failed to seek evidence from UBank (for example, by way of subpoena) that could have established the reason for his termination. That submission is sound. The plaintiff was not summarily terminated. UBank was not required to provide a reason for termination of a probationary employee. Apart from the proximity to the end of the probationary period, the mere fact of his unexplained absence from work over two days may have been sufficient to justify the cessation of his probation without notice. As earlier indicated, I consider the limit of any award made in this respect must be a loss of chance. Quantum of economic loss

513. The plaintiff made the following written submission in this respect:

92. The plaintiff claims special loss through the termination of his employment at the NAB (UBank) on 6 July 2015.

93. The plaintiff’s claim for financial loss is the difference between present day earnings and what he would have earned had he remained at the bank. His present day earnings have been with Rhino Rack since 25 August 2015. For the period between the date of termination with NAB (UBank) and commencing with Rhino Rack the plaintiff had no present day earnings. His loss for that period was therefore his former salary at NAB (UBank).

94. The plaintiff’s earnings at Rhino Rack have fluctuated between There are no figures for his first year in 2015. His average yearly gross earnings from Rhino Rack have been approximately $37,000. $31,560.00 gross (2016) and $40,071.00 gross (2018).

95. While the plaintiff was employed at NAB his basic fortnightly salary (gross) was $1905.26. In addition he earned shift and penalty loadings. His total gross earnings for those 10 weeks were $13,594.76 that is a weekly average of $1359.00 or an annual amount of $69,693. Thus the difference between what the plaintiff has in fact earned at Rhino Rack and what he would have earned if he had continued at NAB (UBank) is approximately $32,000 per year (gross). The plaintiff claims this amount for the last 4.5 years, being $144,000.00 and into the future.

96. The plaintiff acknowledges that given the vicissitudes of life this cannot be projected indefinitely into the future. However he submits that on a fair estimation an extrapolation for at least the next 10 years is available giving a future economic loss of $320,000. A major factor to be taken into account in assessing the future is the drastic effect on any improvement in the plaintiff’s employment prospects because of the prominent presence on the internet of the articles labelling him as a gang rapist.

514. Based on the foregoing analysis, I would have assessed damages at $25,000.00.

CONCLUSION

515. In all the circumstances, there should be judgment for the State. In the absence of any disentitling conduct or other relevant factors, the State should have its costs of the proceedings as agreed or assessed. In the event of any dispute as to costs, the State should file and serve within 14 days of this judgment, submissions in support of any application as to costs it makes together with any supporting evidence in that respect. The plaintiff shall have a further 14 days after service of those materials in which to respond and put on evidence in reply.

516. The State shall file short minutes of order reflecting this judgment. Those short minutes of order shall reflect the position as to costs, either as agreed or, in lieu of agreement, in accordance with the foregoing procedure for the resolution as to a dispute as to costs.

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Annexure-A (6823446, pdf)

Annexure-B (4085085, pdf)

Annexure-C (16498274, pdf)

Annexure-D (53383, pdf)

Decision last updated: 20 May 2021