LSA v State of Queensland

[2024] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:

LSA v State of Queensland [2024] QSC 102

PARTIES:

LSA

(plaintiff)

v
STATE OF QUEENSLAND

(defendant)

FILE NO/S:

BS No 1253 of 2021

DIVISION:

Trial division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13–17 November 2023, 30 November 2023.  Further review on 9 February 2024.  Further written submissions filed on 1 March 2024 and 7 March 2024.  Further application heard on 8 March 2024.

JUDGE:

Cooper J

ORDER:

The plaintiff’s claim is dismissed.

CATCHWORDS:

TORTS – INTERFERENCE WITH THE PERSON – FALSE IMPRISONMENT – LAWFUL JUSTIFICATION – ARREST AND DETENTION AND IMPRISONMENT IN CRIMINAL PROCEEDINGS – where the plaintiff brought a number of claims alleging that officers of the Queensland Police Service (QPS) acted unlawfully towards him in the context of the QPS investigating the plaintiff for numerous offences – where the plaintiff alleges that his former partner was a covert police officer and that there existed a conspiracy orchestrated by the QPS to murder the plaintiff, which his former partner was involved in – where the plaintiff submitted that there was a finding in a decision of the District Court, which the plaintiff was a party to, that the plaintiff’s former partner had been involved in a conspiracy to murder the plaintiff – where the plaintiff was investigated for weapons offences arising out of the storage of a rifle in a shed rented by the plaintiff – where the plaintiff was investigated for domestic violence offending which arose in the context of the plaintiff accusing his former partner of being involved in the police locating his rifle at the rented shed – where police subsequently located the plaintiff in the carpark of the hospital that his former partner was staying at due to injuries inflicted on her by the plaintiff – where the plaintiff accompanied police to Fortitude Valley police station and there police issued him a police protection notice – where the plaintiff’s former partner subsequently alleged that the plaintiff breached the police protection notice by attempting to contact and come near her on two occasions – where, on the second occasion, the plaintiff was arrested for contravening the conditions of the police protection notice, for which he pleaded guilty and was fined – where the plaintiff pleads that he was falsely imprisoned when he accompanied police to the Fortitude Valley police station and was issued with a protection order, and when he was arrested for two contraventions of his police protection notice – where the plaintiff claims that when he arrived at the Fortitude Valley police station, he felt compelled to not move from the seat he was directed to – where the plaintiff attended the police station voluntarily – where, on the second occasion, the plaintiff was arrested and detained for contravening his police protection notice conditions – where the plaintiff alleged that he was falsely imprisoned on the second occasion because, for various reasons, the police protection notice was not validly issued to him – whether the plaintiff was falsely imprisoned on the two occasions complained of

TORTS – MISCELLANEOUS TORTS – MISFEASANCE IN PUBLIC OFFICE – where a temporary protection order was made against the plaintiff but the plaintiff submitted that the police protection order had not been properly served on him such that there was no valid application before the magistrate when the temporary protection order was made or subsequently – where the plaintiff pleaded that the temporary protection order contained conditions that the issuing magistrate did not include when the magistrate made the order, such that the inclusion of those conditions constituted an invalid or unauthorised act – where the temporary protection order was made because the plaintiff sought an adjournment of the QPS’ application for a protection order – where the temporary protection order was made with standard conditions and further other conditions – whether the issuing of the temporary protection order was an invalid or unauthorised act

TORTS – ABUSE OF LEGAL PROCESS – ABUSE OF PROCESS – where the QPS applied for a protection order against the plaintiff and the plaintiff filed a cross-application for an order against his former partner – where a magistrate made a temporary protection order against the plaintiff’s former partner – where the plaintiff alleged that his former partner took steps to vary the terms of the cross-temporary protection order to make it appear that this order had been made for her benefit, not for the plaintiff’s benefit – where the plaintiff asserted that a secret hearing of the plaintiff’s cross-application occurred in his absence at which numerous police officers and his former partner gave evidence – where, at the trial of the application for a protection order brought by QPS against the plaintiff and the plaintiff’s cross-application, the magistrate made a protection order against the plaintiff and dismissed the plaintiff’s cross-application such that the plaintiff’s temporary protection order against his former partner was removed – where the plaintiff alleged that the bringing and maintaining of the QPS’ application for a protection order against the plaintiff, as well as charging the plaintiff with offences against the weapons act and domestic violence offences, amounted to a collateral abuse of process by QPS – where the plaintiff alleged that, inter alia, police officers acted on behalf of the plaintiff’s former partner in bringing the application for a protection order and used that application as a tool to inflict domestic violence on him – where the plaintiff alleged that the application was based on fabricated evidence and false allegations from the plaintiff’s former partner – where the plaintiff further pleads that police arrested him for and charged him with domestic violence and weapons offences that police knew he had not committed and that the police sought to achieve a collateral purpose by charging him and imposing certain bail conditions – where the plaintiff alleged that the collateral advantage the police sought to obtain was to either hinder the plaintiff’s ability to escape from the threat posed by actions that his former partner was taking against him, or to conceal the purported unlawful issuing of the police protection notice and to justify the conditions contained on the temporary protection notice – where these aspects of the plaintiff’s case were contingent on accepting that the plaintiff’s former partner was an undercover police operative and that the actions of the police in the conduct of the QPS’ application for a protection order were intended to benefit the plaintiff’s former partner because of her purported connection with the QPS – where the plaintiff alleged that police had tampered with the rifle seized from the plaintiff’s rented shed to justify the charges imposed on the plaintiff – where police officers referred to a number of matters which supported their view that there was reasonable and probable cause to charge the plaintiff with the offences – whether the conduct complained of amounted to a collateral abuse of process

TORTS – ABUSE OF LEGAL PROCESS – MALICIOUS PROSECUTION – ESSENTIALS OF ACTION – MALICE  – INTERRELATIONSHIP WITH ABSENCE OF REASONABLE AND PROBABLE CAUSE – where the plaintiff was charged with fraud in circumstances where was engaged to build a kitchen for two individuals and he obtained a deposit for that purpose but he did not do so – where the fraud charge was later withdrawn – where the police officer who issued the plaintiff the notice to appear gave evidence that she considered text messages between the plaintiff and one of the complainants delaying the installation of the kitchen and the plaintiff’s conduct in avoiding the complainant in laying the charge – where the plaintiff relies on a number of matters, including inter alia the alleged overarching police conspiracy to murder him of which his former partner was a part of, in establishing that the police acted with malice – whether the laying of the fraud charge against the plaintiff constituted malicious prosecution

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – OTHER FACTORS – EXISTENCE OF STATUTORY DUTY – where the plaintiff submitted that in investigating the complaint of domestic violence against the plaintiff from his former partner, the investigating officer breached a duty of care which she owed to the plaintiff and caused him economic loss – where the police who spoke to the plaintiff at the hospital and at the Fortitude Valley police station and who issued him the police protection notice were performing the statutory duties of police to investigate matters which causes the officer to reasonably suspect that domestic violence had been committed – where there is a statutory constraint on police officers issuing cross-police protection notices naming an individual as the aggrieved on one notice and the aggrieved as the respondent on another where the same parties are involved – whether, in investigating the plaintiff’s former partner’s complaint of domestic violence, the police owed a duty of care to the plaintiff which required the police to have regard to the danger that the plaintiff might suffer loss because of the police’s actions

TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – FACTORS DETERMINING EXISTENCE OF DUTY – OTHER FACTORS – where the plaintiff made a complaint to police about threats against him in social media messages and in documents which were left outside his residence, which the plaintiff believed his former partner was responsible for – where the plaintiff later complained to police again about the threatening documents previously left outside his residence, but police determined that there was insufficient evidence concerning his complaint – where the plaintiff submitted that the QPS officers the plaintiff complained to about his former partner’s alleged threats to harm him breached a duty of care which they owed to him to investigate the complaint and protect the plaintiff from the threatened harm – whether the QPS owed the plaintiff a duty of care in relation to its investigation of his complaints about his former partner’s conduct towards him

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 8, s 13, s 14, s 18, s 45, s 100, s 101, s 101A, s 189
Police Powers and Responsibilities Act 2000 (Qld), s 365, s 393

A v New South Wales (2007) 230 CLR 500, cited
Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252, considered
Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734, considered
Caltex Refineries (Qld) Pty Ltd v Stavar (2009 75 NSWLR 649, considered
Ferguson v State of Queensland [2007] QSC 322, cited
Fuller-Wilson v New South Wales (2018) Aust Torts Rep ¶82-413, considered
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, applied
Hill v Chief Constable of West Yorkshire [1989] AC 53m cited
Hunter v Chief Constable of the West Midlands Police [1982] AC 529, cited
Irving v Pfingst [2020] QSC 280, cited
Jennings v Police (2019) 133 SASR 520, considered
McFadzean v Construction, Forestry, Mining & Energy Union (2007) 20 VR 250, considered
New South Wales v Tyszyk [2008] NSWCA 107, considered
Northern Territory v Mengel (1995) 185 CLR 307, cited
Peat v Lin [2005] 1 Qd R 40, considered
Rogers v The Queen (1994) 181 CLR 251, cited
R v Bossley [2015] 2 Qd R 102, approved
R v Kovacevic [2020] QSC 399, cited
Smith v State of Victoria (2018) 56 VR 332, considered
SRV v Commissioner of the Queensland Police Service [2020] QDC 208, considered
Sullivan v Moody (2001) 207 CLR 562, considered
Tame v New South Wales (2002) 211 CLR 317, considered

COUNSEL:

The plaintiff appeared in person
DM Favell for the defendant

SOLICITORS:

The plaintiff appeared in person

Crown Solicitor for the defendant

1. The plaintiff claims damages totalling $5,989,300 from the defendant for false imprisonment, misfeasance in public office, collateral abuse of process, malicious prosecution, and negligence.

2. All of the plaintiff’s claims arise from his interactions with various members of the Queensland Police Service (QPS).  Commencing in January 2019, the QPS investigated the plaintiff for weapons offences, domestic violence, and fraud.  In that context, the plaintiff alleges that QPS officers have acted unlawfully towards him.  He also complains about the way QPS officers investigated complaints he made concerning threats against him by his former partner, RBG, including threats to kill him.

3. For the reasons which follow, the plaintiff has failed on each of his causes of action.  His claim must be dismissed.

   The plaintiff’s central allegations

4. The various causes of action the plaintiff has pursued are underpinned by two overarching allegations: first, that RBG is a covert police officer or a police informant; secondly, that there is a conspiracy on the part of members of the QPS to murder him.  At the outset, it is necessary to address these allegations.

   The allegation that RBG is a covert police officer or a police informant

5. The plaintiff has previously said, including in a statement he provided to police in March 2020,[1] that he was in a business relationship and in an intimate relationship with RBG from October 2018 until January 2019.  The plaintiff also tendered an affidavit sworn by RBG confirming that she was involved in an intimate personal relationship with the plaintiff and involved in the operation of his kitchen business.[2]

   [1]Exhibit 35.1, at page 7 of the exhibits.

   [2]Exhibit 35.1, at page 63 of the exhibits.

6. Despite tendering this evidence, the plaintiff no longer accepts that he ever had a genuine relationship with RBG.  His case at trial was that his meeting RBG, and commencing a relationship with her, was orchestrated by a crown prosecutor who was in dispute with the plaintiff over the installation of a kitchen.  The plaintiff contended that RBG fraudulently commenced the relationship with the intention of causing harm to him.  He asserted that RBG and the crown prosecutor were connected by their mutual knowledge of a stonemason who worked for the plaintiff on the kitchen installation for the crown prosecutor.[3]  The plaintiff argued that this is consistent with a text message RBG sent to him on 26 January 2019, less than a week after the events which precipitated the interactions with QPS officers which are the subject of this proceeding, stating:[4]

   “Maaatteeee u are so hilarious I can’t stop crying with laughter!!  U have done a fabulous job in ur role!  Better than I ever imagined actually!  U see, how do u know that I wasn’t sent to u by someone u have tried to extort before!  It’s going to be so funny when u go up in ‘FLAMES’.”

   [3]Transcript 13 November 2023, 1-16:5-10; 1-17:2-6; 1-54:39 to 1-55:3.

   [4]Exhibit 39, paragraph 208; Exhibit 41, paragraph 4.

7. The plaintiff tendered affidavits in which he deposed to RBG having disclosed to him that she was an “undercover police officer” who was involved in “covert police operations”.  He said that at the time RBG made these disclosures, he did not know what she meant and had some doubt about the authenticity of RBG’s claims.[5]  Although the defendant did not object to the tender of this evidence,[6] its hearsay character affects the weight which I am prepared to attribute to it.

   [5]Exhibit 39, paragraphs 1-2; Exhibit 40, paragraph 6; Exhibit 41, paragraph 1.

   [6]Transcript 13 November 2023 1-69:23 to 1-70:25.

8. A further consideration affecting the weight of this evidence arises from the account which the plaintiff gave of RBG’s statements when he was interviewed by Dr Beech, a psychiatrist who provided an assessment of the plaintiff for the purposes of this proceeding in a report dated 19 June 2022.[7]  In that report, Dr Beech recorded:[8]

   “[The plaintiff] said that when [RBG] first contacted him in October 2018 she came across as flirtatious.  She alluded to being a sex-worker.  They formed a relationship that lasted three months.  At the end, she essentially told him that she was a covert police operative (‘CPO’).  [The plaintiff] conceded, ‘she didn’t actually come out and say that’.  Rather, under pressure from him, she kept telling him that someone had said she was an operative but she had laughed this off.  That is, she relayed to him an incident when someone had said she was a CPO but she had dismissed it.  However, she said this so often that [the plaintiff] ‘drew from it that there was something more in it’.  He said there were many suspicious indications.  He found police officer cards around her.  There was a constant police presence in their area.  People kept coming to the residence.  She was always on the phone.  He ‘acted like I knew she was a [covert police officer] to bluff her’ and ultimately, ‘she broke down in tears’ and admitted to being a police informant.”

   [7]Exhibit 59.

   [8]Exhibit 59, page 5 lines 191-204.

9. There is an important difference between RBG telling the plaintiff that she was an undercover police officer involved in covert police operations (which is what the plaintiff said in his affidavits) and her telling the plaintiff that she was a police informant (which is what the plaintiff said to Dr Beech).  The version the plaintiff gave to Dr Beech is consistent with statements he made when he was first approached by police after RBG had made a complaint of domestic violence against him (see [70] below).  In that conversation, the plaintiff said that RBG was a registered informant.  He did not say anything about her being an undercover police officer or having told him that she was an undercover police officer.

10. In my view, it is unlikely that if RBG was an undercover police officer, she would reveal that fact to the plaintiff, whether under pressure from him or otherwise.

11. RBG referred to the plaintiff’s claim that she was an undercover police officer when she first complained of domestic violence by the plaintiff (see [65] below).  Rather than her saying anything to the plaintiff, RBG told police that it was the plaintiff who kept telling the “crackheads” he was involved with that she was an undercover police officer.  She said that these comments put her in “mega-danger” with those people.  Her demeanour during that part of the conversation was consistent with her being fearful of the consequences of the plaintiff telling others that she was an undercover police officer.  It was completely inconsistent with RBG having given that information to the plaintiff. 

12. Ultimately, I do not accept the plaintiff’s evidence that RBG told him she was an undercover police officer.  There is no logical reason for her to have done so.

13. The plaintiff further submitted that RBG is “highly likely” to be the same person identified as Jade Erin Langerak in a decision of the Queensland Industrial Relations Commission: Langerak v State of Queensland.[9]  That matter involved a dispute concerning disciplinary proceedings brought against Senior Constable Langerak who was a serving officer in the QPS. The decision in Langerak records that, in March 2018, there was an incident in Emerald involving a Mr Ericsson and his partner.  As a result of that incident, Mr Ericsson was charged with various domestic violence offences.  It was alleged that about six months later, SC Langerak commenced an intimate relationship with Mr Ericsson.

    [9][2022] QIRC 327 (Langerak).

14. The conduct alleged against SC Langerak involved altering templates of documents prepared by Mr Ericsson’s solicitor which were used to instruct a medical practitioner for the purpose of obtaining medical evidence to be called on Mr Ericsson’s behalf in his criminal proceeding.  It was also alleged that SC Langerak was present when Mr Ericsson attended upon the doctor, that she represented that she was an assistant to Mr Ericsson’s solicitor and that she provided the altered template to the doctor.  The QPS also alleged that SC Langerak had improperly involved herself in Mr Ericsson’s domestic violence legal proceedings outside her lawful duties.

1. Importantly for the purposes of the plaintiff’s case, the decision in Langerak sets out the following:

   (a)SC Langerak worked at Petrie police station;[10]

   (b)SC Langerak commenced a relationship with Mr Ericsson in September 2018;[11]

   (c)on 13 February 2019, SC Langerak completed an application for a private domestic violence order on behalf of Mr Ericsson against his former partner;[12]

   (d)during a disciplinary interview, SC Langerak stated that Mr Ericsson has adult ADHD and left school in year 9 and that is why she completed the application for a private domestic violence order;[13]

   (e)on 24 June 2019, SC Langerak completed an application to vary a domestic violence order on behalf of Mr Ericsson to include herself as a named person under the order and, in making that application, referred to a complaint from Mr Ericsson’s former partner that SC Langerak had unlawfully accessed the QPS database to obtain information about her;[14]

   (f)on 2 July 2019, SC Langerak emailed Mr Ericsson’s solicitor and referred to her affidavit being printed;[15]

   (g)the complaint by Mr Ericsson’s former partner that SC Langerak had unlawfully accessed the QPS database was made on 30 January 2019 which was “4 days after the property was dropped off and collected”, being 26 January 2019;[16]

   (h)SC Langerak was notified of the disciplinary proceeding against her on 8 November 2021.[17]

   [10]Langerak, [71] (see particular xxxii of Matter 4).

   [11]Langerak, [19] (see second bullet point under “Further and better particulars”).

   [12]Langerak, [19] (see third bullet point under “Further and better particulars”).

   [13]Langerak, [19] (see seventh bullet point under “Relevant Matters”).

   [14]Langerak, [19] (see fifth bullet point under “Further and better particulars”) and [71] (see particular xxxi of Matter 4).

   [15]Langerak, [19] (see second bullet point under “Relevant Matters”).

   [16]Langerak, [71] (see particular xxxii of Matter 4).

   [17]Langerak, [23].

2. The plaintiff submits that the dates on which this conduct is said to have occurred and the nature of the conduct alleged against SC Langerak is consistent with relevant dates when events related to his matters occurred.  He relies on the following:[18]

   [18]Transcript 30 November 2023, 1-29 to 1-34; Plaintiff’s closing submissions, pages 50 to 57.

   (a)RBG informed the plaintiff that she was employed at the Petrie police station;[19]

   [19]Exhibit 41, paragraph 6 on page 4 and paragraph 166 on page 42.

   (b)the plaintiff’s relationship with RBG commenced in October 2018;[20]

   [20]Exhibit 41, paragraph 157B on page 41.

   (c)on 13 February 2019, RBG attended the Goondiwindi Police Station and complained that the plaintiff had breached the terms of a temporary protection order made against him (see [124]-[126] below);

   (d)RBG was aware that the plaintiff left school in grade 9 and she used to say to the plaintiff that he had ADHD;[21]

   (e)on 24 June 2019, RBG obtained a protection order in her name, and on the same day the plaintiff made a complaint to the CCC that RBG had obtained his criminal history;[22]

   (f)RBG filed an affidavit in court on 9 July 2019;[23]

   (g)as to the relevance of 26 January 2019 and 30 January 2019:

   (i)an affidavit sworn by Plain Clothes Senior Constable Jon Gray in this proceeding wrongly stated that the plaintiff was held in custody on 30 January 2019 (a matter which was addressed and corrected when Officer Gray gave evidence at the trial – see [136] below);

   (ii)the plaintiff made a complaint about the way he was treated in the Caboolture watchhouse on 28 January 2019 and 29 January 2019 in circumstances where he contended that police were attempting to hold him in custody until 30 January 2019;[24]

   (iii)the plaintiff stated that RBG’s children were taken to live with their father on 26 January 2019 and that RBG dropped some tools back at his workshop on the same date,[25] this being consistent to the reference in the Langerak decision to property having been “dropped off and collected” on that date;

   (h)RBG appeared in the Gladstone Magistrates Court on 30 November 2019 and 1 December 2019, that being consistent with the 21-day period set out in a notice to appear after notice of the disciplinary proceeding was given on 8 November 2021.[26]

   [21]Exhibit 41, paragraph 157H on page 41.

   [22]Exhibit 41, paragraph 7 on page 4.

   [23]Exhibit 41, paragraph 157A on page 41.

   [24]Exhibit 41, paragraph 168 on page 43.

   [25]Exhibit 41, paragraph 7 on page 4 and paragraph 169 on page 43.

   [26]Exhibit 41, paragraph 8 on page 5 and paragraphs 159-160 on page 42.

3. The plaintiff also contended that the date of the first mention of the Langerak proceeding in the Queensland Industrial Relations Commission (22 January 2022) and the date judgment was delivered (19 August 2022) explains the timing of what he claims were attempts to kill him on 5 January 2022, 6 January 2022, and 16 September 2022.[27]

   [27]Exhibit 41, paragraphs 161-165 on page 42.

4. Whatever coincidences the plaintiff has identified between dates on which events in the two proceedings occurred do not provide a basis to find that RBG is, in fact, the QPS officer identified as Jade Erin Langerak in the Langerak decision.  To accept that submission would require accepting the following matters:

   (a)the person the plaintiff knew as RBG, but who is in fact SC Langerak, has been the subject of a disciplinary investigation by the QPS because of her conduct towards him; and

   (b)in the proceeding brought before the Queensland Industrial Relations Commission to determine whether the disciplinary proceeding against RBG/SC Langerak could continue, the information provided to the Commission about the disciplinary investigation was altered from what the plaintiff says occurred between him and RBG/SC Langerak.  That is; instead of referring to actions which (on the plaintiff’s case) RBG/SC Langerak took in connection with her allegations of domestic violence committed by the plaintiff against her, the information provided to the Commission referred to different conduct undertaken in support of (rather than contrary to) the interests of the person alleged to have committed domestic violence in a complaint made by someone other than RBG/SC Langerak.

5. There is simply no logical reason to think that is what occurred when the Langerak proceeding was heard by the Queensland Industrial Relations Commission, nor is there any evidence of this beyond the plaintiff’s assertions.  The Langerak decision provides no support for the plaintiff’s claim that RBG is a covert police officer.

6. Against the plaintiff’s evidence, the defendant led evidence of searches undertaken of various databases that recorded information relating to QPS officers and informants.  The identity of any person who provides information to police to assist in the prevention or detection of a crime on a confidential basis (referred to as a human source) is recorded on a centrally administered, secure database maintained by the QPS.  In September 2021, a search was conducted of those human source records.  That same search was conducted again in November 2023.  The results of both searches confirmed that RBG has never been a human source or agent of the QPS.[28]  A search was also undertaken of the human resources management system used by the QPS for any employment records relating to RBG.  Again, that search confirmed that RBG has never been engaged as an employee of the QPS.[29]

   [28]Exhibits 66 and 105.

   [29]Exhibit 75.

7. Ultimately, I am not satisfied that there is any basis to find that RBG was an undercover police officer or a police informant.

8. I also reject the plaintiff’s submission (based on his assertion that, unbeknown to him, RBG was a covert police officer sent to cause him harm) that there was never a relevant relationship between himself and RBG which engaged the provisions of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). 

9. For the purposes of that legislation, domestic violence is defined to mean specified behaviour by a first person towards a second person with whom the first person is in a relevant relationship.[30] The powers of QPS officers under the DFVP Act, relevant to the plaintiff’s claims, include the issuing of a police protection notice and the making of a temporary protection order. The power to issue a police protection notice only arises in circumstances where a police officer reasonably believes[31] or reasonably suspects[32] that the respondent to the notice has committed domestic violence (and therefore is in a relevant relationship with the person towards whom behaviour is directed).  Similarly, a court may only make a temporary protection order against a respondent if it is satisfied that a relevant relationship exists between the respondent and the aggrieved for whose benefit the order is made and that the respondent has committed domestic violence against the aggrieved.[33]

   [30]DFVP Act, s 8.

   [31]DFVP Act, s 101(1)(a).

   [32]DFVP Act, s 101A(1) read with s 116.

   [33]DFVP Act, s 45(1)(a).

10. The phrase “relevant relationship” is defined to include an “intimate personal relationship”.[34]  An “intimate personal relationship” is then defined to include a “couple relationship”.[35]  A “couple relationship” will exist between two people if they have, or had, a relationship as a couple.[36]  In deciding whether a couple relationship exists between two people, a court may have regard to a variety of factors including the degree of intimacy between them and whether the relationship involves, or involved, a relationship of a sexual nature.[37]

    [34]DFVP Act, s 13(a).

    [35]DFVP Act, s 14(c).

    [36]DFVP Act, s 18(1).

    [37]DFVP Act, ss 18(2)(d) and 18(3)(e).

11. The evidence that I have referred to at [5] above, satisfies me that the plaintiff and RBG were in an intimate personal relationship in the period immediately prior to the events which have given rise to the plaintiff’s claims and, accordingly, that they were in a relevant relationship for the purposes of the DFVP Act.

    The allegation that there is a conspiracy by QPS officers to murder the plaintiff

12. In alleging the existence of a conspiracy to murder, the plaintiff relies heavily on the decision of Sheridan DCJ in SRV v Commissioner of the Queensland Police Service.[38]  The plaintiff submitted that there was a finding in SRV that RBG had been involved in a conspiracy to murder him.[39]  He further submitted that the result of SRV was that RBG had been convicted of that offence.[40]  That submission cannot be accepted as it mischaracterises the effect of the judgment in SRV. 

    [38][2020] QDC 208 (SRV).

    [39]Exhibit 41, paragraph 5J on page 4.

    [40]Plaintiff’s closing submissions, page 11.

13. SRV was an appeal by the plaintiff against the decision of a magistrate on 2 December 2019:

    (a)making a protection order under the DFVP Act against the plaintiff for the benefit of RBG;

    (b)refusing to make a protection order under the DFVP against RBG for the benefit of the plaintiff.

14. The appeal against the making of the protection order against the plaintiff was dismissed, but the appeal against the refusal to make a protection order against RBG for the benefit of the plaintiff was allowed.

15. The question raised on the appeal against the refusal to make a protection order against RBG was whether Sheridan DCJ was satisfied that a protection order should be made under s 37(1) of the DFVP Act. That required her Honour to be satisfied of three things: that a relevant relationship existed between the plaintiff and RBG; that RBG had committed domestic violence toward the plaintiff; and that a protection order was necessary or desirable to protect the plaintiff from domestic violence. The phrase “domestic violence” is defined in s 8(1) of the DFVP Act to include behaviour that is threatening, or which causes the subject of the behaviour to fear for that person’s safety or wellbeing.

16. As Sheridan DCJ recognised,[41] the plaintiff’s appeal against the magistrate’s refusal to make a protection order against RBG was based upon allegations of incidents and threats of violence towards the plaintiff which RBG was either a party to or had conspired with others to have committed upon him.  Her Honour ultimately allowed the appeal on the basis that there was evidence of a threat to the plaintiff directly from RBG and reason to consider that a protection order was necessary and desirable to protect the plaintiff from physical harm.[42]  This direct threat was made in a Facebook message which RBG sent to the plaintiff on 26 January 2019 in which she stated that it would be funny when the plaintiff went up in “flames”.[43]  There was also evidence of screenshots of Facebook conversations between RBG and another party which indicated that RBG had procured the bashing of the plaintiff or the killing of his dog and that she was part of a conspiracy to have the plaintiff implicated in the possession of child pornography.[44]  Sheridan DCJ did not appear to accept RBG’s assertions that the plaintiff had fabricated the evidence of these Facebook conversations.  Her Honour noted that RBG did not swear any affidavit in response to the plaintiff’s complaint about the social media conversations, particularly in circumstances where the Court would expect a respondent to the application to address a serious allegation.  On that basis, her Honour appears to have accepted that RBG was involved in the Facebook conversations with the third party.[45]  

    [41]SRV, [91].

    [42]SRV, [113].

    [43]SRV, [105]-[108].

    [44]SRV, [92]-[104], [109].

    [45]SRV, [109]-[112].

17. The result of the successful appeal in SRV was that Sheridan DCJ was satisfied of the three matters identified in s 37(1) of the DFVP Act. However, there was no finding that RBG’s Facebook conversations evidenced a conspiracy to murder the plaintiff. RBG was certainly not convicted of that offence.

18. The plaintiff also relied on later references to SRV to support of his submission that the judgment established the existence of a conspiracy to murder him involving RBG.

19. First, the plaintiff referred to a summary of the decision in SRV set out in a QPS assessment of his complaint that QPS officers did not properly investigate RBG’s threats to kill him.[46]  That summary includes the following statement:

    “Paragraphs [1]-[34]: Background information.  Here, the Judge outlines the course of proceedings and what happened in the Magistrates Court.  Most importantly, the judge identifies the production of several screenshots of Facebook conversations said to be between [RBG] and others, amounting to a conspiracy to murder offence.”

    [46]Exhibit 99, page 3.

20. That statement simply records the submissions which the plaintiff made to the magistrate and repeated in the appeal heard by Sheridan DCJ.  It does not record a finding made by her Honour in determining the appeal.  The relevant findings were summarised in a later passage in the QPS assessment document as follows:

    “Paragraphs [91]-[122]: [the plaintiff’s] cross application.  In these paragraphs, the Judge examines the Facebook messages provided by [the plaintiff] to police and the court allegedly between his ex-partner, [RBG], and two other persons.  Concerningly, these messages detail elaborate plans to install listening devices in [the plaintiff’s] house, plant child exploitation material on his computer and have [the plaintiff] arrested for other offences.  Another matter raised in some of these conversations are [sic] an apparent indication to have [the plaintiff] killed.

    In the Magistrates Court hearing, [RBG] denied her involvement in this matter.  The Magistrate generally accepted her evidence.  However, no further argument on this point was advanced.  The appellant [sic] Judge formed the opinion there is no evidence to discount the Facebook conversations, nor is there anything to suggest to the relevant standard that they are not authentic.  On this point, [RBG] refused to provide an affidavit for the appeal proceedings.

    On this basis the Facebook conversations were admissible, the judge was satisfied to the required standard that domestic violence against [the plaintiff] had occurred, he was in an intimate-personal relationship with [RBG] and it is necessary of desirable to protect [the plaintiff] against further acts of domestic violence. In other words, the requirements under the [DFVP Act] ss 8(1) and 37 had been made out on the evidence. For these reasons, the judge ordered a protection order in favour of [the plaintiff] against [RBG].”

21. That is an accurate summary of the findings made by Sheridan DCJ in SRV.  There is no reference to any finding that a conspiracy to murder the plaintiff had been established.  That is because no finding to that effect was made.  The QPS assessment document provides no support for the plaintiff’s submission about the effect of the decision in SRV.

22. Secondly, the plaintiff relies upon a statement made by Burns J during the hearing of an application in another proceeding the plaintiff brought against the Commissioner of the QPS.  After reading the judgment in SRV, Burns J indicated to the Commissioner’s legal representative that he was concerned by what he had read in SRV and asked whether the allegations referred to in that decision had been investigated by police.  Burns J then made the following statement which the plaintiff says confirms the finding of a conspiracy to murder:[47]

    “HIS HONOUR:  No.  No.  Just to be clear, I am very concerned about what I read under that heading about the content of social media messages.  As I understand it, her Honour left the – well, decided the issue on the basis that there was evidence before her which would support a conclusion of conspiracy to murder.”

    [47]Exhibit 16, Transcript 15 March 2021, 1-29:33-36.

23. That statement must be read in the context of further statements which Burns J made immediately afterwards:[48]

    “HIS HONOUR:  The contrary argument – all that was suggested by [RBG] was that they had been fabricated.  That is, the social media messages.  A conspiracy to murder may be putting it too highly, but a criminal conspiracy of some form to entrap or plant evidence against [the plaintiff] was alleged and supported by the content of social media posts. Correct?

    MR O’BRIEN:  As they were presented before that court, yes.

    HIS HONOUR:  All right.  And the suggestion was made – or the assertion was made by [RBG] that the posts were fabricated.  And her Honour deals with that at paragraph 11 [sic] of her judgment and says:

    …

    That may not be hard, but the conversations in the screenshots are not simple and the task of composing them would have been burdensome.  It is not clear that [the plaintiff] has the ability to perform such an elaborate falsehood.  Clearly, as the magistrate found, [the plaintiff] was and is concerned for his own safety.  This is not consistent with him fabricating the social media posts.

    The point of it is if the social media posts were fabricated, well, that’s a matter for investigation, because fabricated evidence has been placed before a court.  But if then – if they haven’t been, that’s also a matter for investigation, because the content raises serious concerns about the conduct of people, vis a vis, [the plaintiff].”

    [48]Exhibit 16, Transcript 15 March 2021, 1-29:40 to 1-30:19.

24. The full context of the statements of Burns J clearly demonstrates that his Honour was not saying that there had been a finding in SRV that there was a conspiracy to murder the plaintiff, or some other form of conspiracy against him.  Those statements only reflect his Honour’s concern to find out whether the allegations which were the subject of the plaintiff’s submissions in SRV, and of which there was sufficient evidence to satisfy the requirements for a protection order to be made against RBG under s 37(1) of the DFVP Act, had been investigated by the QPS. Nothing said by Burns J assists the plaintiff in seeking to prove to the required standard that there is a conspiracy to murder him.

1. In his affidavits, the plaintiff has described numerous attempts to kill him which he says were procured or arranged by RBG.[49]  That evidence has not been tested in this proceeding.  RBG is not a party to the proceeding and has not given evidence responding to the plaintiff’s account of her conduct.  Nor could the defendant reasonably be expected to challenge the plaintiff’s account of those matters.  In those circumstances, having regard to the seriousness of the allegations made by the plaintiff, I have not reached the state of actual persuasion required to find that the events described by the plaintiff in fact occurred.[50]  Absent that state of actual persuasion, I am not satisfied that RBG has engaged in a conspiracy to murder the plaintiff.   

   [49]For example, see Exhibit 39, paragraphs 224 to 233, 241 to 254, 303, 304 and 446; Exhibit 40, paragraphs 154 to 164, 253 to 256; Exhibit 41, paragraphs 2, 5H, 5J, 84, 161 to 165, 175; Exhibit 42, paragraphs 28 to 34, 47, 60 to 69.  The plaintiff also alleges that RBG has been involved in baiting his dogs.

   [50]Briginshaw v Briginshaw (1938) 60 CLR 336, 361; NOM v Director of Public Prosecutions (2012) 38 VR 618, 651-652 [106]-[109], [112].

2. Even if I had been satisfied about the existence of a conspiracy involving RBG, my conclusion that the plaintiff has failed to establish that RBG is a covert police officer or police informant means that I would not have been satisfied that such conspiracy involved any QPS members.  During his closing address, the plaintiff appeared to accept that this outcome must follow if (as I have done) I rejected his argument that RBG was connected in some way to the QPS.[51]

   Interactions between the plaintiff and the QPS

   [51]Transcript 30 November 2023, 1-53:40 to 1-54:15.

   Discovery of a rifle at the plaintiff’s workshop and analysis by the QPS

3. It is common ground that police located a rifle at the plaintiff’s workshop in a shed at a property at Burpengary on 21 January 2019.  The Burpengary property was owned by David Ebborn.  Mr Ebborn rented the shed to the plaintiff.

4. The plaintiff’s evidence was that he came to be in possession of the rifle after an incident at his workshop in December 2018 which he described as an attempt to rob or shoot him.[52]  The plaintiff referred, somewhat cryptically, to having set events in motion that would ultimately see him take the rifle, disassemble it into two parts and hide those separate parts in places only known to him.  The plaintiff described receiving threats and demands for the return of the rifle but said that those threats eventually ceased and he forgot that the rifle was hidden at his workshop.  The presence of the rifle was brought back to the plaintiff’s attention when RBG offered to help him clean the workshop on the night of 20 January 2019.  The plaintiff said that, after assisting in cleaning the workshop and not locating the firearm, RBG asked the plaintiff where it was and whether he wanted her to take it to the police. 

   [52]Exhibit 39, paragraphs 46 to 56 and 66 to 71.

5. The plaintiff said he showed RBG where the two pieces of the rifle were located at around 9:00pm on 20 January 2019.  In the early hours of the next day, he was at the workshop with four other people, including Eddie Ebborn (David Ebborn’s brother) and Joshua Ebborn (David Ebborn’s son).  At around 3:30am, the plaintiff revealed the location of the two pieces of the rifle to those four people as well.  The plaintiff believed that one of those people, Eddie Ebborn, had a weapons licence and that the plaintiff could trust him to hand in the rifle to police.  The plaintiff said that Eddie Ebborn agreed to hand the rifle in to police and that he told the plaintiff he would say he found the rifle in the gully next to the Burpengary property so that the plaintiff would not be connected to the firearm.

6. At about 5:00pm on 21 January 2019, Senior Constable Heidi O’Connor and Senior Constable Kayne Hasler were tasked with investigating the possible presence of a firearm at the Burpengary property.  When they arrived at the property, Officers O’Connor and Hasler spoke with David Ebborn.  Mr Ebborn said he had been told by RBG that there was a firearm in the gutter of the shed.  Mr Ebborn gave permission for the officers to search the property.  Mr Ebborn then accompanied the officers to the rear of the shed and told them that he had had reports of gunshots from behind the shed and had found spent shell casings in the yard and in the shed.

7. After climbing a ladder provided by Mr Ebborn, Officer O’Connor identified what she said looked to be a firearm in the gutter.  Officer O’Connor then moved the ladder to gain access to the gutter at the position where she had seen the firearm.  Upon climbing the ladder again, Officer O’Connor retrieved a rifle from the gutter and began to climb back down the ladder with it.  At that point, Officer Hasler suggested to Officer O’Connor that she should take a photograph of the rifle in position in the gutter.  Officer O’Connor then replaced the rifle in the gutter and, using her mobile phone, took some photographs of the approximate position she found the rifle. 

8. Officer O’Connor then descended the ladder, leaving the rifle in the gutter, while Officer Hasler attempted to arrange for scenes of crime officers to attend the Burpengary property to photograph and take custody of the rifle.  Officer Hasler was eventually informed that scenes of crime officers were not able to attend at that time.  When she was informed of that, Officer O’Connor took further photographs of the rifle in the gutter, using her mobile phone, before retrieving it.  She noted as she brought the rifle down that it had the word “AGAPE” written on it. 

9. During a discussion with David and Eddie Ebborn after Officer O’Connor had retrieved the rifle, Eddie Ebborn told Officer Hasler that he had seen the plaintiff take the rifle out the previous evening when the plaintiff offered to sell the rifle to him.

10. The officers took the rifle, as well as five rounds of unused ammunition, from the property and provided a field property receipt to David Ebborn.  That property receipt recorded that the rifle was assigned property tag number P1900030406.  The receipt described the rifle as a Category A rim-fire rifle.[53]

    [53]Exhibit 109, exhibit ‘HO-2’ to the affidavit.

11. Everything which occurred when Officers O’Connor and Hasler were at the Burpengary property was recorded on the officers’ body worn cameras.[54]

    [54]Exhibit 61.

12. When the officers returned to the Burpengary police station, Officer O’Connor observed Officer Hasler deposit the rifle and the ammunition in the secure property room.[55]  A QPS property evidence report for exhibit P1900030406 records that the placement of the rifle in the secure property room was temporary (i.e. overnight).  The following day, another QPS officer moved the rifle to a gun rack within the secure property section of the Burpengary police station.[56]

    [55]Officer Hasler was not called by the defendant to give evidence at the trial.  That was explained on the basis that Officer Hasler ceased employment with the QPS on 2 March 2022: Exhibit 73.

    [56]Exhibit 102.

13. Officer O’Connor’s evidence at trial was that, in the days following her attendance at the Burpengary property, she attempted to download the photographs of the rifle which she had taken on her mobile phone.  That phone was faulty and Officer O’Connor was unable to download those photographs.  Officer O’Connor subsequently replaced her mobile phone, but before doing so she sought the assistance of the QPS Forensic Services Group to download the photographs she had taken of the rifle in the gutter of the shed.  All attempts to download or recover those photographs proved unsuccessful. 

14. The plaintiff emphasises that when Officer O’Connor prepared a statement on 31 August 2019, which addressed the discovery and seizure of the rifle, she said that she had “deleted” the photographs which she took of the rifle in its original location.[57]

    [57]Exhibit 35.2, page 508 at paragraph 8.

15. During cross-examination, Officer O’Connor identified photographs of a rifle as appearing to depict the firearm which she located in the gutter of the shed.[58]  One of those photographs bears annotations showing certain measurements, including the length of the rifle (76.61 cm).  Although the photograph indicates that it was taken by the QPS Forensics Services Group, it is not clear from the evidence who annotated the photograph in that way.  There were other photographs in evidence which contained annotations suggesting the length of the rifle was different than that recorded in the photographs shown to Officer O’Connor.  Those lengths varied between 74.89 cm[59] and 80.9 cm.[60]

    [58]Exhibit 10.  Transcript 17 November 2023, 5-48:43 to 5-49:7.

    [59]Exhibit 35.2, page 490 (top photograph).

    [60]Exhibit 35.2, page 490 (bottom photograph).

16. The property evidence report for exhibit P1900030406 records that an audit of the secure property section at Burpengary police station was completed on 14 August 2019 (all items were found to be correct) and on 18 September 2019 Officer Sharp moved the rifle from the secure property section at the Burpengary police station to the Ballistics Exhibits Store at the QPS Forensic Services Group.[61]

    [61]Exhibit 102.

17. On 3 October 2019, Sergeant Michael Clark from the QPS Forensic Services Group examined the rifle.  That examination revealed that a portion of the rifle’s stock had been removed giving it an overall length of approximately 74.7 cm.  Officer Clark also observed that the serial number had been substantially obliterated.[62] The following day, Officer Clark signed a certificate issued under s 163(2) of the Weapons Act 1990 (Qld),[63] certifying that the rifle was:

    (a)a short firearm as defined by the Weapons Act 1990 (Qld); and

    (b)a category H weapon under the Weapons Categories Regulation 1997 (Qld).[64]

    [62]Exhibit 35.2, page 515 at paragraph 6.

    [63]Exhibit 35.2, page 499.

    [64]A “short firearm” includes a category H weapon that is a firearm: Weapons Act 1990, Sch 2. A category H weapon includes a firearm, under 75 cm in length: Weapons Categories Regulation 1997, s 7(1).

18. On 3 October 2019, after Officer Clark’s examination, the rifle was moved to the secure property section of the QPS Forensic Services Group.  It was then checked out of that section on 9 October 2019 by Detective Sergeant Ross Hutton.[65]  Officer Hutton later prepared a statement dated 12 May 2020 in which he said that he collected exhibit P1900030406 on 9 October 2019 and, on the same day, transported exhibit P1900040406 to Burpengary police station where he placed the exhibit in the property section drop safe.[66]  During cross-examination, Officer Hutton said that his reference to exhibit P1900040406 was a typographical error in his statement.[67]  He explained that it was common for him, when he came into the city, to collect exhibits which were required to be returned to the station he was working from at the relevant time.  He did not examine the weapon when he returned it to the Burpengary police station.[68]

    [65]Exhibit 102.

    [66]Exhibit 103, paragraphs 3 and 4.

    [67]Transcript 16 November 2023 4-98:25-27.

    [68]Transcript 16 November 2023 4-99:7-21.

19. On 26 October 2019, Senior Constable Douglas Sharp sent an email advising the plaintiff that he had measured the rifle as having a length of approximately 62 cm.[69]  Officer Sharp also stated that the rifle was a category H weapon.

    [69]Exhibit 35.2, page 494.

    Investigation of RBG’s complaint of domestic violence

20. At about 2:25am on 22 January 2019, Constable Alison Suen and Constable Luke McKeown were tasked with attending the Royal Brisbane and Women’s Hospital (RBWH) at Herston to investigate a possible domestic violence offence involving RBG.

21. The officers located RBG at about 2:35am.  Officer Suen then spoke to RBG about what had led to her being in hospital.  That conversation was recorded by Officer Suen’s body worn camera.[70]  Officer Suen also took notes of the conversation in her notebook.[71]

    [70]Exhibit 61.

    [71]Exhibit 78, exhibit ‘AS-1’ to the affidavit.

22. During the conversation with Officer Suen, RBG said that the plaintiff had told her that the police had been called to his workshop and located the firearm.  The plaintiff had accused her of being involved in that.  RBG said that there had then been an argument in the driveway at the plaintiff’s house earlier the previous day (21 January 2019) and the plaintiff had held RBG’s wrists for a long time until the plaintiff’s mother had managed to prise the plaintiff off RBG. 

23. RBG said that the plaintiff contacted her again later that day and said he needed her to pick him up.  She went to the airport and picked the plaintiff up at about 10:46pm.  RBG said the plaintiff told her that he needed a hire car.  He wanted to deposit money into RBG’s bank account so that she could hire the car for him as he did not have a licence.  RBG said that she and the plaintiff drove to Banyo looking for an ATM which the plaintiff could use to deposit money into RBG’s account. 

24. There was another argument when RBG was driving the plaintiff back to the airport so he could hire a car.  RBG said that the plaintiff kept telling her that he knew she had “dobbed him in” for the firearm.  RBG stopped the car and told the plaintiff to get out.  The plaintiff refused.  He verbally abused RBG, grabbed her wrists, bit her left hand and headbutted her. The plaintiff screamed words to the effect of “Tonight is the night we are both going to die”.  He accused RBG of cheating on him.

25. RBG said that she told the plaintiff that he had broken her wrists and that she needed him to take her to the hospital because she could not drive.  The plaintiff then agreed to drive RBG to the hospital.

26. RBG told Officer Suen that she had been in a relationship with the plaintiff since about November 2018, but that they had never lived together.  They also had a kitchen business together.  RBG said that she was living with her children at her sister’s house and that the plaintiff had also made threats against her children and her sister.  She said that she was afraid of the plaintiff.

27. During this conversation with Officer Suen, RBG also said that the plaintiff was involved with lots of “hectic” people.  She described those people as “crackheads”.  She said that the plaintiff had been telling those people that RBG was an undercover police officer and that this placed her in “mega-danger”.

28. Towards the end of the conversation Officer Suen told RBG that the information she had provided indicated to Officer Suen that there had been domestic violence and that Officer Suen wanted to take out a protection order for RBG.

29. RBG also showed Officer Suen text messages which she said had been sent to her by the plaintiff.  Officer Suen took photographs of those text messages.[72]  One of those text messages stated in part:

    “Your [sic] dead to me and now you have the biggest issue of your life because how dare you look me in the eye and fucking lie……. this is your biggest mistake to have me turn after me giving you the world…… I actually loved you and now I must destroy everything and everyone in my emotional spiral into the chaos that is me ……”

    Another message stated:

    “I’m coming over because I think now it’s time to show u the devil in which I warned you and begged you not to provoke”

    [72]Exhibit 78, exhibit ‘AS-2’ to the affidavit.

30. While Officer Suen was speaking to RBG, Senior Constable Samuel Pyke and Constable Matthew Strudwick were tasked with conducting patrols of the area surrounding the RBWH to locate the plaintiff.  At about 2:30am, the officers located the plaintiff in the RBWH carpark.  Their interaction with the plaintiff was recorded by Officer Strudwick’s body worn camera.[73]

    [73]Exhibit 61.

31. When he was asked what had brought him to the hospital, the plaintiff stated that RBG had suffered an extreme emotional episode while she was driving him back to the airport after he had deposited money for a hire car into her account.  He said that RBG attempted to jump out of the car and run across the highway.  He said he had grabbed both of RBG’s wrists to stop her from jumping out of the car when there were trucks passing nearby.

32. During the conversation with Officers Pyke and Strudwick, the plaintiff stated that he had found out that RBG was a “registered informant”.[74]  He said that did not bother him because he was “out of the scene”.[75]

    [74]I understood this to be a reference to a police informant.

    [75]I understood this to be a reference to criminal conduct.

33. While Officer Pyke continued to talk to the plaintiff, Officer Strudwick received a call on his radio.  He walked a short distance away from where Officer Pyke and the plaintiff were standing.[76]  Officer Strudwick responded to the radio call by saying: “We have got him[77] on the second carpark floor”.  The caller on the radio then asked Officer Strudwick whether the radio was secure.[78]  Officer Strudwick told the radio caller that he would call back on his mobile.  The body worn camera footage shows Officer Strudwick then took out his mobile phone and searched through his contact list.  He brought up a contact with the initials “LM” and called that contact.  This is consistent with Officer Strudwick’s evidence that he stepped away from the discussion with the plaintiff to attend to a phone call with Officer McKeown.[79]

    [76]I infer Officer Strudwick moved away so that the plaintiff would not hear the content of the radio call.

    [77]I infer this was a reference to the plaintiff.

    [78]I infer this question was directed to whether the plaintiff could hear the content of the radio call.

    [79]Exhibit 86, paragraph 9.

34. During the phone call with Officer McKeown, Officer Strudwick referred to information about the plaintiff contained on the QPRIME system and discussed whether to search the plaintiff’s car.  Officer Strudwick did not search the car, other than by looking through the windows with the aid of his torch, because the plaintiff had locked the car and commenced walking away towards the exit of the carpark with Officer Pyke.  As Officer Strudwick began to follow Officer Pyke and the plaintiff through the carpark, he said to Officer McKeown: “We’ll take him back and we’ll see you at the station”.

35. The plaintiff then accompanied Officers Strudwick and Pyke on foot through the carpark and towards the Emergency Department of the RBWH.  At about 3:05am, at the entrance to the Emergency Department, Officer Strudwick left Officer Pyke and the plaintiff and went inside the RBWH to speak with Officer Suen.  Officer Strudwick could not recall the content of his conversation with Officer Suen.[80]  In her affidavit evidence, Officer Suen stated that Officer Strudwick told her that the plaintiff had been located in the carpark of the RBWH, but that she could not otherwise recall what was said in her conversation with Officer Strudwick.[81]  However, in her cross-examination Officer Suen said that, because she made the determination that it was necessary and desirable to issue a Police Protection Notice after her conversation with Officer Strudwick, she believed that Officer Strudwick had provided her with sufficient information from his interactions with the plaintiff to make the determination.[82]

    [80]Exhibit 86, paragraph 11.

    [81]Exhibit 78, paragraph 13.

    [82]Transcript 15 November 2023, 3-50:24-29.

36. At about 3:08am, Officer Strudwick returned to where Officer Pyke was waiting with the plaintiff outside the RBWH.  This interaction with the plaintiff was also recorded on Officer Strudwick’s body worn camera.[83]

    [83]Exhibit 61.

1. Against, that legislative and policy framework, the plaintiff identifies the salient features of the relationship between himself and the police officers to whom he complained about RBG’s conduct as being:[288]

   “(a)   The police’s duty to personally serve and explain domestic violence orders made by a court in a reasonable and timely manner.

   (b)     Queensland’s domestic and family violence policies stipulating that the QPS would protect people affected by domestic and family violence, enforce compliance of [sic] Domestic Violence Orders and comply with the policies such as the recommendation of the Not now, Not ever report of the Special Taskforce on Domestic and Family Violence in Queensland, the QPS Operational Procedures Manual and the statutory obligations under the DFVPA.

   (c)     Police officers’ control over compliance with domestic violence orders.

   (d)     The reasonable foreseeability of harm to the Plaintiff if [RBG] breached the domestic violence orders.

   (e)     There are no countervailing policy reasons that negate the imposition of a novel common law duty of care on police to prevent breaches of Domestic Violence Orders.

   (f)     Senior officers’ knowledge of the repeated acts of domestic violence and the breaches of the domestic violence orders.

   (g)     The public interest in police responses to Domestic Violence being one that warrants a duty of care to arise at common law.

   (h)     The Plaintiff was a vulnerable adult whom [sic] was suffering from a psychiatric impairment at the time a novel duty of care is alleged to have arisen.”

   [288]Amended Statement of Claim (Court document 111), paragraph 104.  See also paragraphs [103] and [105].

2. The plaintiff also pleads what he describes as exceptional circumstances warranting the imputation of a legal duty to take reasonable care.  Those exceptional circumstances are primarily based upon the plaintiff’s assertions that:[289]

   (a)RBG is, or was, a senior officer in the QPS;

   (b)RBG had committed domestic violence against him;

   (c)he was the subject of a criminal conspiracy to murder him;

   (d)QPS officers tampered with evidence, tampered with court files and falsified court transcripts and other court records in an attempt to ensure the plaintiff did not obtain a protection order against RBG;

   (e)by issuing the PPN and imposing bail conditions which required him to reside at an address known to RBG, the QPS had prevented him from protecting himself against the threat RBG posed.

   [289]Amended Statement of Claim (Court document 111), paragraphs 95(c), 95(d) and 107.

3. I accept that police may be found to owe a duty of care where the salient features test is satisfied in circumstances involving complaints about domestic and family violence and the police response to those complaints.  In Smith, John Dixon J dismissed an application for summary dismissal of claims of negligence based upon the conduct of certain members of Victoria Police in relation to repeated instances of family violence.  That application was decided on the assumption that the plaintiffs (a mother and her three children) could establish the pleaded facts at trial.  Those pleaded facts concerned numerous instances of family violence perpetrated on the plaintiffs by the children’s father and the police response to those various incidents.[290]  The plaintiffs alleged that the police officers who responded to their complaints about the father’s conduct and senior police officers owed duties of care to them as victims of family violence and that, as a result of breaches of those duties, they suffered psychological harm.

   [290]Smith, 334-340 [5]-[39].

4. The salient features identified by the plaintiffs in Smith which made it appropriate to impute a legal duty to take reasonable care to avoid harm or injury were:[291] (i) the reasonable foreseeability that the plaintiffs required protection from breaches of domestic violence orders by the father and the potential for injury if police failed to take reasonable care to enforce extant orders; (ii) that the police officers knew or ought to have known of the terms of the domestic violence orders, the conduct of the father and the risk of injury to the plaintiffs if the police failed to take reasonable care to enforce the orders; (iii) the police officers’ control over the risk to the plaintiffs; and (iv) the police officers’ assumption of responsibility to the plaintiffs and the plaintiffs having acted in reliance on that assumption of responsibility.

   [291]Smith, 364-367 [129]-[143].

5. In dismissing the application for summary dismissal in Smith, John Dixon J observed that, although there were many cases in which it has been held that police and the police force as a whole do not owe a duty of care to a plaintiff in the particular circumstances of those cases, there was no case in which a court has determined that no duty of care was owed in circumstances which demonstrate the degree of proximity between the plaintiffs and the police likely to be demonstrated on the evidence in Smith at trial.[292]

   [292]Smith, 373 [170].

6. In the present case, the facts which the plaintiff relies upon to establish the salient features or exceptional circumstances making it appropriate to impute a legal duty to take reasonable care to avoid harm or injury are not to be assumed but must be proved by the plaintiff.  I am not satisfied that the plaintiff has discharged that burden.

7. As I have explained, I am not satisfied that there is any basis to find that:

   (a)RBG was an undercover police officer or a police informant (see [5]-[21] above);

   (b)QPS officers tampered with evidence (see [257]-[260] above) or falsified court documents (see [210]-[217] and [233]-[244] above);

   (c)QPS officers charged the plaintiff with offences and imposed bail conditions for any collateral purpose of the type identified by the plaintiff (see [246]-[255] above).

8. I also have not reached the state of actual persuasion required to find that the events described by the plaintiff as forming part of a conspiracy to murder him in fact occurred (see [26]-[39] above).

9. That RBG committed domestic violence against the plaintiff is established by the judgment of Sheridan DCJ in SRV (see [26]-[31] above). However, the conduct which Sheridan DCJ was satisfied amounted to domestic violence on RBG’s part (sending the text message extracted at [6] above) is of a very different character to the repeated instances of domestic violence assumed in Smith.

10. In the end, I am not satisfied that the plaintiff has proved facts bearing on the relationship between himself and the relevant officers which establish the salient features or exceptional circumstances he relies upon to contend it is appropriate to impute a legal duty to take reasonable care to avoid harm or injury in the circumstances of this case.  In those circumstances, the plaintiff has not satisfied me that the defendant owed him a duty of care in relation to its investigation of his complaints about RBG’s conduct towards him.  That is particularly so where the imposition of a duty of care in this case would interfere in the operational decisions of the QPS, including decisions as to priorities in the deployment of resources required to investigate complaints of criminal conduct.[293]

    [293]Peat, 50 [29]; see also Hill v Chief Constable of West Yorkshire [1989] AC 53, 63 cited with approval in Sullivan v Moody (2001) 207 CLR 562, 581 [57].

    Breach

11. Even if I had found that the relevant QPS officers owed a duty of care in relation to the plaintiff’s complaint, I would not have been satisfied that anything those officers did, or omitted to do, during that investigation was a breach of the alleged duty.

12. The plaintiff did not identify, either in his pleading of this aspect of the negligence claim or in the presentation of his case at trial, what specific aspects of the investigation he says were undertaken negligently and how those matters amounted to a breach of the alleged duty of care.  Nor did his pleading or presentation of his case at trial identify what specific further investigatory or other steps he says the QPS officers were required (but failed) to take in conformity with the alleged duty.

13. The course of the QPS investigation and its outcome is set out at [137] and [160] to [178] above.  After receiving the plaintiff’s complaint, QPS officers interviewed the persons alleged to have been involved in the exchange of messages referred to in SRV.  Both RBG and Mr Glenane told QPS officers that they were involved in the exchange of messages but explained that they did so on the basis that they believed the plaintiff was impersonating Mr Bartlett.  They each said that the statements they made in those messages were intended to wind up the plaintiff.  They denied having any intention to harm the plaintiff.  Mr Bartlett denied having any involvement in the exchange of messages.  He also told Officer Peatling about his social media accounts having been hacked. 

14. Although the QPS Officers did not act with the speed with which the plaintiff wanted them to investigate his complaint, particularly as regards the delay in interviewing Mr Bartlett, there does not seem to be any basis in the evidence to conclude that the outcome of the investigation would have been any different if it had been undertaken with greater speed.  Nor is it obvious what further steps the QPS officers could have taken that might have altered the outcome of the investigation or avoided the harm the plaintiff claims to have suffered.  At its essence, this aspect of the plaintiff’s negligence claim seems to stem from his dissatisfaction with Officer Peatling’s conclusion that it was highly unlikely that the QPS could successfully prosecute any of RBG, Mr Glenane or Mr Bartlett on charges arising from his complaint.  Based on the evidence at trial, I am not satisfied that, in reaching that conclusion, Officer Peatling (or any other QPS officer) breached the alleged duty of care.  Nor am I satisfied that anything done, or not done, by any of the relevant QPS officers in the investigation which led to that conclusion amounted to a breach of the alleged duty of care.

    Causation and loss

15. Finally, I would not have been satisfied that the plaintiff has proved that the way the QPS investigated his complaint caused him to suffer loss.

16. The plaintiff alleges that he suffered a psychiatric injury because of the breach of the alleged duty of care.[294] In seeking to prove both the existence and cause of his alleged injury, he relied on the report of Dr Beech referred to at [8] above. Dr Beech diagnosed the plaintiff as suffering from:[295]

    (a)methamphetamine dependence;

    (b)a delusional disorder; and

    (c)a secondary anxiety disorder, probably an adjustment disorder with anxious mood.

    [294]Amended Statement of Claim (Court document 111), paragraph 4 and first paragraph 57(19), (20), (21), (24) and (26).

    [295]Exhibit 59, page 18.

17. As to the cause of the plaintiff’s conditions, Dr Beech stated:[296]

    “Methamphetamine dependence is diagnosed on the basis of his heavy daily methamphetamine use and the effects on him.  The delusional disorder is diagnosed on the basis of the extent of his persecutory beliefs, the nature of the widespread-inferences he makes, and the narrowing of his focus that impairs his perception of matters.  The nature of the delusional disorder is unconfirmed.  The most likely cause is his persistent heavy methamphetamine use, a chronic drug-induced psychotic disorder.  Alternatively, his heavy drug use may have precipitated a Delusional Disorder regardless of the continued drug use.  It would take a substantial drug-free period to discriminate between these two.  The anxiety disorder is secondary to the distress he suffers as a result of his beliefs, his perception of events, and the issues and experiences he has faced since 2019.

    It is likely that the delusional disorder commenced during the course of his relationship with [RBG].  He may have been vulnerable to this from his earlier drug use, possibly from some of the behaviours and verbalisations of [RBG] herself, and the generally heightened psychological and emotional state that comes with using drugs and associating with the people involved with drug manufacturing, drug possession, and drug selling.  Influencing him as well may be the elements of more realistic if hypervigilant concerns of infiltrations by covert police officers and police informants generally, and possibly the revelations of police conduct in the media over recent years, domestic, interstate, and foreign.

    It is likely that the delusional beliefs are perpetuated by his continued drug use, the possible actions by [RBG] and her associates, and the coincidences that Mr Lewis is hyper-vigilant to interpret as part of the conspiracy.  It is also likely that his own behaviour invokes in others reactions that he in turn misinterprets or misperceives.  One can imagine that when he speaks to his associates and tells them that [RBG] is a police operative, they are shocked and do react.  One can also imagine that a police officer’s demeanour towards him might change after the police officer types [the plaintiff’s] name into a database and reads the information held there.  To the extent that [RBG] may have colluded with others to talk about harm towards [the plaintiff], or made plans to do this or to [sic] acted on them, this would simply fuel his beliefs and expand them.  Over time, one difficulty is the likelihood that he misperceives all errors and omissions as part of the wider conspiracy.”

    [296]Ibid.

18. Later in the report, Dr Beech states that the plaintiff’s secondary anxiety disorder is:

    “… always fuelled in the background by his underlying delusional beliefs.  Those delusional beliefs in turn are likely to have been precipitated and perpetuated by the methamphetamine dependence.”

19. Dr Beech’s evidence as to the significant role which the plaintiff’s heavy drug use have had in his psychological conditions means that, even if I had found a duty of care existed and was breached, I would not have been satisfied that there was a sufficient basis in the evidence to conclude that the plaintiff suffered a psychological injury by reason of the QPS investigation of his complaint about RBG.

    Conclusion on negligence

20. For the reasons given above, both aspects of the plaintiff’s negligence claim fail.

    The plaintiff’s complaints about the transcripts

21. Prior to making his closing submissions, the plaintiff raised a concern about the accuracy of the trial transcripts.[297]  He referred to the names of people mentioned during the hearing having been spelt differently at different points in the transcript and submitted that this meant the evidence referred to two different people.  He stated that parts of the transcript recorded him saying the opposite of what he said.  He submitted that there had been deliberate interference with the audio recording of the trial to make it sound that a question asked about events on 2 December 2019 had instead been asked about a different date, 2 December 2009.

    [297]Transcript 30 November 2023 1-2:40 to 1-7:33.

22. Directions were made for the plaintiff to prepare a schedule identifying material errors in the transcript and for the defendant to respond to that schedule.  Unfortunately, the plaintiff did not limit himself to identifying material errors.  The schedule setting out errors identified by the plaintiff and the defendant’s responses extended to 78 pages. 

23. The defendant accepted some of the plaintiff’s proposed corrections, including those which addressed the misspelling of names.  None of those corrections altered the substance of the evidence led at trial or had any impact on the conclusions I have reached.

24. The defendant could not accept other corrections proposed by the plaintiff on the basis that it did not have access to the audio recording to satisfy itself that the proposed correction accurately reflected the audio recording.  It was not necessary for me to resolve whether the proposed corrections which the defendant did not accept accurately reflected the audio recording of the trial.  That is because, having reviewed the unaccepted corrections in the plaintiff’s schedule I am satisfied that those corrections, if made, would have no bearing on the conclusions I have reached.

    Conclusion

25. The plaintiff has failed on each of his causes of action.  His claim must be dismissed.