Melmeth v State of New South Wales

[2021] NSWDC 28

District Court

New South Wales

Medium Neutral Citation:

Melmeth v State of New South Wales [2021] NSWDC 28

Hearing dates:

28-30 September 2020, 15 October 2020

Date of orders:

26 February 2021

Decision date:

26 February 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Verdict and judgment for the defendant against the plaintiff.

Catchwords:

TORTS — Malicious prosecution — Elements — 3 elements in dispute — Malice — Reasonable and probable cause — Whether OIC still prosecutor after proceedings taken over by DPP — Whether Crown Prosecutor briefed only to conduct trial could be a relevant prosecutor.

Legislation Cited:

Costs in Criminal Cases Act 1968

Criminal Procedure Act 1986

Crown Prosecutors Act 1986

Director of Public Prosecutions Act 1986

Evidence Act 1995

Law Reform (Vicarious Liability) Act 1983

Small Debts Recovery Act 1912

Cases Cited:

A v NSW [2007] HCA 10; (2007) 230 CLR 500

Beckett v NSW [2013] HCA 17

Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343

Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527

Davis v Gell (1924) 33 CLR 275

Fred Saad & Ors v State of New South Wales [2016] NSWSC 1247

Gibb-Smith v NSW [2018] NSWDC 204

Johnston v Australia and New Zealand Banking Group Ltd [2006] NSWCA 218

Likiardopoulos v The Queen [2010] VSCA 344

Martin v Watson [1996] AC 74

NSW v Abed [2014] NSWCA 419

R v Doorey [1970] 3 NSWR 351

R v Dunn (1930) 30 SR (NSW) 20

R v Murray (1987) 11 NSWLR 12

Sahede v Bischoff [2015] NSWCA 418

Skrijel v Mengler [2003] VSC 270

Wood v NSW [2018] NSWSC 1247

Zreika v NSW [2012] NSWCA 37

Texts Cited:

Fleming, The Law of Torts, 9th Ed (1998)

Halsbury’s Laws of Australia, Vol 26

New South Wales Law Reform Commission, Complicity, Report 129 (2010)

Category:

Principal judgment

Parties:

Plaintiff - Carly Jayne Melmeth
Defendant - State of New South Wales

Representation:

Counsel:
Plaintiff - A.C. Canceri
Defendant - A.N. Williams
Solicitors:
Plaintiff – Nyman Gibson Miralis (P. Gibson)
Defendant – Crown Solicitor’s Office (A. Taylor)

File Number(s):

2019/00118966

Publication restriction:

Nil.

Headnote

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

On 30 May 2015, M invited V to visit her at her house. Shortly after V arrived there, M admitted F to the house. F was immediately antagonistic towards V, according to V. V alleged that he was detained in M’s house for nearly 3 hours and was repeatedly stabbed by F. According to V, M assisted F. V managed to escape, after being hog-tied, and raised alarm at a service station adjoining M’s house. Police and ambulance attended. The detective in charge of the investigation charged both F and M with wounding V with intent to inflict grievous bodily harm and aggravated kidnapping of V. M was arrested and charged and imprisoned for almost 6 months, before being granted bail by the Supreme Court. M committed for trial. Trial in 2016 aborted when V failed to obey a subpoena. Trial by jury in 2017. Trial conducted by Crown Prosecutor C, who had been briefed before trial fixed for 2016, but had not been briefed to find a bill. At end of Crown Case C took no further proceedings against M on wounding charge. Jury found M not guilty of kidnapping charge.

Criminal complicity: discussion of applicable principles considered by G and C.

HELD:

element 1: G was prosecutor until proceedings taken over by DPP; C could be held liable for the tort if he acted maliciously and without reasonable and proper cause;

element 2: the proceedings were determined in M’s favour;

element 3: neither G or C acted maliciously i.e. for an improper purpose;

element 4: neither G or C did not honestly believe in the guilt of the accused; both G and C had reasonable and probable cause to prosecute M.

Judgment

Introduction

1. The plaintiff, Carly Jayne Melmeth, brings an action for damages for the tort of malicious prosecution. The plaintiff relies on a prosecution of her arising out of the interaction between her, Gregory George Fernando (“Fernando”) and Steven John Connolly (“Connolly”) at her then residence at 38 Miller Street, Mayfield West on Saturday 30 May 2015. Later on that day Detective Senior Constable Jason Richard Green (“DSC Green”) charged the plaintiff with two offences:

1. wounding Connolly with intent to cause him grievous bodily harm, an offence against Crimes Act 1900, section 33(1)(a), carrying a maximum penalty of imprisonment for 25 years; and

2. aggravated taking and detaining of Connolly with intent to obtain an advantage, the circumstance of aggravation being occasioning actual bodily harm to Connolly, an offence against Crimes Act 1900, section 86(2), carrying a maximum penalty of imprisonment for 20 years.

I shall refer to the first offence as “the wounding offence” and to the second offence as “the kidnapping offence”.

2. The plaintiff identified in the Amended Statement of Claim filed on 10 September 2020 (“the SOC”) two persons as those who maliciously prosecuted her:

1. DSC Green; and

2. Mr Brian Costello, a Crown Prosecutor appointed under the Crown Prosecutors Act 1986, section 4 (“Mr Costello”).

Par 2 of the SOC alleged that both DSC Green and Mr Costello were in the service of the Crown and par 3 alleges that the defendant is vicariously liable for their conduct pursuant to Law Reform (Vicarious Liability) Act 1983. At common law a constable of police is not an employee of the Crown nor, in my view, would a Crown Prosecutor be an employee of the Crown, but par 2 of the SOC is admitted in the Defence to Amended Statement of Claim filed 21 September 2020 (“the Defence”). The defendant almost admits that it would be vicariously liable for either or both of DSC Green and Mr Costello if the tort alleged be proved.

3. The plaintiff was arrested after the interaction which I described above. She was taken before the Newcastle Local Court on Sunday 31 May 2015 but did not apply for bail. She next appeared before that Local Court on Monday 1 June 2015 and, again, she did not apply for bail. Indeed, she never applied for bail in the Local Court. She was granted bail by Schmidt J in the Supreme Court on 24 November 2015. She was eventually committed for trial in this Court at Newcastle on 13 April 2016 by Stone LCM. She was to be jointly tried with Fernando. The trial was first listed for hearing before King DCJ on 12 September 2016 but the trial could not commence, because of a failure by Connolly to attend Court in obedience to a subpoena. The listing for hearing was vacated by King DCJ on 14 September 2016. The trial was then set to commence on 3 April 2017. The trial did commence on that date before Ellis DCJ with a jury of twelve. On day 7 of the trial (Tuesday 11 April 2017) at the close of the Crown case, Mr Costello told the Court, both judge and jury, that the Crown would take no further proceedings on the wounding charge against the plaintiff. On Thursday 13 April 2017, the jury returned a verdict of “Not Guilty” on the kidnapping charge. On 31 August 2017 Ellis DCJ granted a certificate to the plaintiff under the Costs in Criminal Cases Act 1968, section 2(1)(a).

Abbreviations

4. In addition to the abbreviations I have already indicated, further abbreviations will be used in this judgment:

1. “CB” means Court Book, which was tendered by consent. The CB comprises 4 lever arch binders containing 1,479 pages and 6 discs. A number following CB is a reference to the page with that number in the CB. The CB contains transcripts of proceedings in this Court at Newcastle. A reference such as CB1253.16 is a reference to line 16 of the transcript found at CB1253 (where Mr Costello commences to tell the Court that no further proceedings were to be taken against the plaintiff on the wounding charge).

2. “T” means the transcript of the present proceedings. A reference such as T146.35 is a reference to page 146 of the transcript, line 35 (where Mr Costello commences to outline his career in the law)

3. Police ranks will be stated with the conventional abbreviations e.g. ‘Cons’ (Constable) ‘SC’ (Senior Constable) ‘Sgt’ (Sergeant) and a preceding ‘D’ indicates Detective.

4. “OIC” means Officer in Charge.

5. “DPP” Director of Public Prosecutions or one of his officers as the context demands.

6. When a person’s full name and title have been provided, I may refer to that person thereafter merely by her or his surname, but I mean no disrespect to any such person.

7. I shall describe the interaction of the plaintiff, Fernando and Connolly described in [1] above as “the event”.

Background

5. At one time the plaintiff formed a relationship with Mr Luke Wallace (“Wallace”). They lived together from 2003 until either 2008 or 2009 (T21.24). As a result of that relationship, the plaintiff gave birth to her son in 2006. Initially they lived at The Entrance until moving to a property at Abernethy, near Cessnock. Wallace had an earthmoving business, in which the plaintiff worked when they were together (T20.50), for about two years doing the administrative work (T22.48).

6. Connolly was admitted to practice as a solicitor on 16 February 2007. He was the sole principal of a law practice on the Central Coast from 1 August 2009 to 1 October 2013 when he was suspended from practice because of trust account irregularities. He was struck off the Roll on 23 March 2018. I have taken the liberty of taking these biographical details from [2018] NSWCATOD 43. Paragraphs [3] and [4] of Connolly’s statement of 31 May 2015 are this:

3. About 2010 I was a practicing solicitor in the Toronto area. My firm dealt with Carly MELMETH due to a criminal inquiry she made for assistance in relation to a matter before Belmont [Court]. I was engaged to act for Luke WALLACE her defacto partner some time later. Luke was in custody and as a proxy for his instruction Carly liased with me in regards to payments and further legal advice.

4. After assisting with this matter I did see Carly from time to time as we had developed an acquaintance. She would occasionally keep in touch. As far as I am concerned the relationship was nothing more than a friendship. I've known her for about four years.

It was a result of this friendship that led to Connolly’s participation in the event.

7. There had been interaction between DSC Green and the plaintiff prior to the event. DSC Green became a detective in “2013, or shortly thereafter” (T89.35). In 2013 he was doing his detective training at Newcastle. He was called in the course of his duty to investigate an aggravated break and enter at Callen Street, Stockton. Exhibit 1 are notes he made on 23 February 2013 regarding this investigation. Two persons of interest to the police were Michael Christopher Moore and George Pouwhare. DSC Green was led to believe that those persons “may have stopped” at the plaintiff’s residence prior to the commission of the crime (T91.10). He called into the plaintiff’s residence on the afternoon of 24 February 2013. DSC Green gave this evidence:

I did ask her if she would give me a statement in relation to their presence at her premises. She did not wish to give a statement. That’s where my enquiries end…[i]nsofar as they related to her.”

The plaintiff alleges that her interaction with DSC Green on this occasion provided him with an animus to prosecute her maliciously.

Connolly visits the plaintiff

8. Paragraph [5] of Connolly’s statement of 31 May 2015 commences:

“On Saturday the 30 May 2015 about 9:30am I awoke and saw several missed calls from Carly Melmeth. I called her shortly after to see what the call was in relation to.”

The plaintiff told him she was busy at that time but would call him back. Shortly after that the two exchanged text messages. They were [‘P’ means plaintiff; ‘C’ means Connolly]:

P: Noone here

C: Hey I just woke up

C: Do you mean come over at noon

P: Nah

C: Ahh sleep always fucks me lol if your bored or just wanna anything lol let me know

P: Sorry had people pop in feeling so tired grr

C: If you want to get rid of that feeling let me know cause I must do so soon

C” Put a loud song on Lol

P: Are you local?

C: Just at my place do want to get away or for me to come to yours

P: I don’t have any fuel in my car

C: I can jump in the car be as yours in 15-20

P: Sounds good

C: See you soon

C: Passing Glendale do you want anything

P: Some alcohol would be awesome

P: Or am I pushing it

C: You have always pushed it lol no that’s my issue to get over. I will grab some cigs & a six pack what do you want.

C: I don’t want to piss you off & muck up your time either. I am in Jesso [Jesmond]. What drinks?

P: Jim Beam zero sugar or vodka udls zero guar

C: Ok

P: Thanks

C: Is mixed berry ok in zero sugar udls

P: Yes :)

En route to the plaintiff’s residence, Connelly stopped at Jesmond, visited an ATM, purchased the alcohol at a BWS outlet and a packet of 40 cigarettes from a supermarket. I have quoted the text messages because they display an air of friendship.

9. Next to the plaintiff’s then residence is a Coles Shell Express Service Station. Its carpark abuts the eastern side boundary of the plaintiff’s property. That carpark is under camera surveillance. At 12:42pm Connolly arrived at the service station carpark and parked his vehicle. He alighted from the vehicle at 12:44pm carrying a plastic bag and he then walked towards the rear entrance of the plaintiff’s residence. The same camera records Fernando walking along the eastern side of the plaintiff’s residence just before 1pm on the same day, 30 May 2015 (CB pp 196, 197, 937).

The event

10. The principal witness in the prosecution of the plaintiff was Connolly. As I have already said he made a statement on 31 May 2015, the day after the event. It was given to DSC Green. It is a crucial piece of evidence in this case. I shall therefore include its substance in this judgment:

6. I walked into the kitchen and took a seat on a stool at the kitchen bench. I placed the six pack of UDL on the bench and Carly opened one of these. I heard a knock on the front door. I sat there while Carly walked away to answer the front door. She came back into the kitchen and she had a strange grin on her face. The male also was grinning. He was average size with a belly dressed like a lad. He was Aboriginal in appearance. Carly said, "This is Greg." I offered my hand to shake his and he refused. He said, "You putrid cunt." He picked up my cigarettes from the table without my permission and said, "I'll have one of these." I said, 'You can have one but you should ask for it." He said, "Well why don't we go out the back." I said, "I don't want to fight you."

7. Carly looked at Greg and said words to the effect of 'What did you get?' Greg said, "Only about two points." Carly got some water and syringes from what I believe was her diabetes kit. I was still sitting at the kitchen table. Greg put the water in the small resealable bag. Carly and Greg argued about her having a shot or not. He said, "You're not having one." They argued further about this. They both continued to argue and walked towards the rear room of the house. A very short time later they came back in. Greg pushed two needles and the resealable bag to me and I understood that he intended me to draw up the liquid. I did this. I put the caps back on the needles and put them back on the bench. I felt if I did not do this I was under threat.

8. Greg said, "I'm going to have one." Carly said, "I want one." A further argument started between them over this. Greg walked out of the room. Carly passed me the needle and said can you give it to me. I did this in the belief that if I didn't things would escalate. Immediately after she had this she said, "I feel sick." Greg returned and she said, "I feel sick." Greg looked at me and said, "You putrid cunt you've made her feel sick." Greg took a knife from the draw and came over to me and stuck it under my neck. It was a big knife 30-40cm in length. Greg said, "You putrid cunt, fucking have that one there." He was referring to the other syringe. I said, "I don't want to have it." He said, "You're going to have it." He punched me to the head. I felt the knife pressed against my neck when he said this. She said, "I feel sick." Greg became more aggressive and said, "If you don't have it I'll give it to you." He punched me several times to the head again. I picked up the syringe and I stuck it in my left arm while he was right in my face. I didn't pick up a vein. As I pulled it out he said put it in deeper and I said, "I can't do this when you're in my face like that next to me." As I stuck it back in I pressed the syringe to get as much out before it went into my body. I believe I only got about half of what it was. I had no idea what was in the syringe. I didn't feel anything from this. There was no reaction.

9. I was really stressed and my adrenaline was pumping. Greg came at me with the knife. I was sitting on the stool and as he came at me, the knife was in his right hand. He swung it in a sideways action. I stood up to be able to defend myself. Greg said to Carly, "Make sure the doors are deadlocked." Carly left the room and I heard the doors to the house being closed the back door was first. Greg had the knife now in his left hand and swinging it at me. I put my arms up and grabbed his arms to stop the knife. I felt the knife go into the top of my right arm. I felt the knife go in and it felt like it went in really deep. It started to bleed a lot. He was still trying to stab me. We were in a wrestle and as he struck I grabbed at his arm to stop the blows. There were several attempts to stab me. Then he just stopped and stood back. He looked like he was tired of trying to stab me.

10. He looked at me and said, "It's just a little cut." I said, "I think it nearly went through my arm." I remained in front of the stool waiting for him to come again. He had stepped back still holding the knife. Carly said, "It's about time you tell the truth. You've got inside my head, come clean with it." I said, "I don't know what you mean Carly, I don't know what you mean? He's stabbed me and he is still trying to stab me." Carly said, "It's time to tell the truth. Why are you in my head?" I said, "I'll tell you the truth, but I don't know what you mean." Greg said, "How do you know Carly? You have done Carly's head in."

11. I was too afraid to turn my back on him and run. The only way out was to go out the front door as Carly was standing in the kitchen blocking the way to the back door. Greg was pacing back and forth from the kitchen to the stools where I sat. It was only about a metre or two. He took more knives from the draw and put them on the bench. The knives were sitting on a tea towel. I was using the bench as a barrier at my back so I could watch where. they were. I was telling myself not to make a rash decision and tried to remain calm. I was very aware that I could be injured in a worse way if I didn't stay aware. I had no idea of what time was passing. There had been a phone call not long after I had been stabbed. Carly was on the phone and it seemed to be her mother. Greg looked at me, put his finger to his lips and motioned to me. He said softly, You had better shut up, or I'll put this through your skull."

12. After this call Carly returned. She said, "Are you going to tell the truth?" I still didn't understand. This angered Greg, he continued to call me a putrid cunt several times. He attacked me again and had another knife he struck me to the upper right arm and caused another wound. I was still bleeding everywhere on the floor. I was saying, "Just let me leave, I've got some valuables in the car you can have. Just let me go I won't tell anyone about what's happened." Greg said, "Can't you see we're not robbing you we are going to kill you. You're not going we've got your car keys." I was in fear of my life and realised I could not leave even though I was asking. I wanted to get help. I couldn't use my phone, Carly had picked it up and was looking through it. She asked me for the PIN number.

13. Carly remained throughout the whole time in the corridor that led from the kitchen to the rear door. Again she kept asking me to tell her the truth. I had no idea what she was on about and this just seemed to go on and on. Each time Greg would get more infuriated and started to assault me again. He punched me several times over and over. Again he came at me with the knife and again he struck me to the upper right arm. I felt the blade again go in. The whole experience was surreal and all I could think of was how to get out without getting a more serious injury. Carly got a medical kit and brought it to Greg. Because of the amount of blood they decided to wrap my arm. I was handed a bandage to do this myself. This wasn't to aid me it was to stop the blood going on the floor.

14. Greg and Carly were questioning and continually abusing me. He was just calling me a 'dog cunt' or 'putrid dog' over and over. The whole thing just went on and on in this cycle. I didn't know how much time was passing but I knew it had been over hours. Again Greg snapped and came at me with a larger knife. It was the size of a hunting knife. He hit me with the butt of the knife several times to the head. At one point he put the tip of the knife to my skull and said, "You wait till I put these knives through your skull." Greg turned to Carly and said, "Let's go for a drive Carly." Greg turned back to me and said, "We're going to take you out to the bush and we're going to get to the truth." He swung the knife at me again and I put my arms up to protect myself. I felt the end of the knife go deep into my elbow. It felt like it hit my bone.

15. Greg had been using different knives and they were both very erratic in their behaviour. I was bleeding everywhere. Greg said, "I need to knock him out. Get a bat or something." Carly went to the book shelf and I could see there were some old guns on the top. She handed Greg one. There was blood on the floor of the dining area pooling and there was blood on the curtain. Greg said, "Carly, get a towel he's bleeding all over your fucking floor." Carly went and got a towel which he threw at me and said, "Clean it up."

16. I got down on the floor and started to clean up. Greg came at me grabbed my hair and started to hit me with the gun. He hit me several times. And the gun broke in his hand as he struck me. These blows caused a lot more pain. By this time I wasn't really feeling a great deal. I was in real fear for my life.

17. Carly had given Greg the towels to clean up and he threw them at me. I remember there was a brown coloured fitted sheet that they gave me to do this. After I cleaned up he told me to place them into a plastic shopping which he handed me. I was told to put the sheet on the floor. Greg said, "Put that on the floor so I don't make a mess when I slit your throat." I felt he was going to kill me at this stage. I had a real fear that the level of harm he intended was greater now.

18. The physical abuse continued and I remember continually asking for them to let me go. I was too scared to just run because I didn't know if they would both attack me to stop me leaving. I was on the floor still and not allowed to get up. Greg came at me with a knife again and I tried to defend myself but was stabbed in the upper right arm again. This was not as deep.

19. Greg and Carly, had moved about two or three metres away near the fridge and had conversation I could not hear. I was still bleeding a bit and trying to clean up. Greg had been wearing a white T-shirt which had my blood on it. He was angry about this and changed into a red T-shirt. When Greg came back he said, "We are going to take you to the bush, with the guns and knives. You haven't seen anything yet. Where going to cut you up in bits." Carly came back into the room and put some white and blue rope on the bench. Greg came over and holding the gun and knife said, 'You're going to give me a head job before we go. He said, "Put your hands behind your hands together behind your back." I did this and he tied rope around my wrists. I held my wrists slightly apart to to make it loose. He kicked me in the back and I fell onto my stomach. Greg said, "Lie down. Put your feet together. He made me bend my knees and then tied my ankles together. He tried to hog tie my ankles and hands together.

20. I began to think about how I would get away. He was above me facing my feet and I started to try and free my hands. After I was tied up he left the room and went out the back. I could hear him with Carly and there was a tap running from out the back I realised I could get my hand out. I got free of the binds and ran quickly to the front door making no noise. I ran out the front door, through the gate to the Shell Service Station next door. I went to the pumps and said to a male and female, "Can you please let me in your car and drive me away." They told me to go inside the petrol station. I went inside and yelled out to the lady, "Please lock the door."

The CCTV shows Connolly running from the house at 3:38pm. As Mr Costello opened to the jury, “he was covered in a fair amount of blood” (CB937.31). Relevant photographs of Connolly taken at hospital are at CB 66, 67 and 68.

11. About 4:30pm Connolly was examined at John Hunter Hospital at New Lambton by Dr Amy Alldis. She summed up Connolly’s injuries thus:

Head - Multiple haematomas to the forehead/jaw, lacerations penetrating dermis & epidermis…

Right upper arm - 3 lacerations (less than 15mm penetrating dermis & epidermis ...

Wrist - ligature marks

Left elbow - deep lacerations penetrating dermis & epidermis to the left elbow - exposing the joint capsule.

Right anterior hip - small abrasion

Immediate aftermath

12. The console operator at the service station was Ms Michelle Shone. She made a statement on 1 June 2015. The substance of that is this:

3. I started my shift at 12.30pm on Saturday, 30 May 2015 at the Cole Express Service Station, 63 -69 Maud Street, Mayfield and finished at 10.15pm that evening.

4. About 3.30pm on Saturday, 30 May 2015 a guy came running through the forecourt of the service station. I saw the male stop and speak with another customer, when I saw that I grabbed the phone book so I could call Police. The male came into the shop a short time later, while I was still looking for the number to call Police. When the male was inside I locked the doors as the male kept looking over his shoulder.

5. I managed to get through to Waratah Police Station to get Police to attend. While I was on the telephone the male kept saying 'I've been stabbed and they're going to kill me', he kept saying that over and over. The male rambled they tied me up and they're going to kill me' a couple of times. I had a line-up of customers so I ended up handing the phone to the man to speak with Police.

6. When the male gave me back the phone he paced back and forth near the door to come behind the counter and asked me if I could let him out the back so he could hide. The male appeared anxious and freaked out each time I unlocked the doors to let customers in to pay for their petrol.

7. I asked the male where he had come from and he told me he had come from the house next to the service station. I told the male! know those people and I won't let them in, to try and calm him down. A young female customer stayed inside after paying for her purchases to help me let the other customers out of the shop, once she had checked there was no one waiting outside to come into to get to the male person.

8. I saw the male person had been stabbed in his right upper arm above the elbow. I saw a bandage on his arm and appeared to be covering where the man had been stabbed. The bandage looked like it had been on for a while as there was blood soaking through the bandage. The man's head was a mess, it looked like it was covered in dried blood, and he had a wound of some sort on his left elbow.

9. About 3.50pm on Saturday, 30 May 2015 the Police arrived at the service station and a couple of minutes later the ambulance. The man was treated by the Ambulance officers in the shop, when they took the bandage off his arm they dropped it onto the floor and I cleaned this up when they were finished.

13. According to the Police Incident Log (CB139), the Police commenced to receive the 000 call at 15:40:46. The first broadcast was at 15:45:01. It appears to be this:

Informant staff from Coles Express Maud St Mayfield has Steven Connolly 35 old inside shop covered in blood. Has stated he was just stabbed at the Shell Service Station, Mayfield. Connolly is conscious and breathing. Ambulance requested. Informant has shop closed to the public. Informant communicated Connolly advised persons of interest had him tied up house in Miller St, Mayfield. Persons of interest stole his wallet and keys. Person of interest stab wound to arm and head.”

The first police vehicle to arrive at the scene was NCC 33 at 15:49:54. I am unable to discern which police were within that vehicle. The next vehicle to arrive was NCC12a at 15:50:09. That contained a mobile supervisor, Acting Sgt Michael Smith. Then followed NCC 18 at 15:52:27, DOG 51 at 15:52:57, NCC 37 at 15:56:03, NCC 104 at 16:00:37, NCC 36 at 16:05:06, NCC 35 at 16:06:18 and NCC 32 at 16:08:15. Further police arrived later, but after the arrest of the plaintiff and Fernando.

14. Acting Sgt Smith made a statement on 7 June 2015. That contains this:

3. On the afternoon of Saturday 30 May 2015, I was performing my duties as Mobile Supervisor, working from Waratah Police Station.

4. About 3.45pm, I was in the Mayfield area when a 'priority 2' job was broadcast, requesting assistance at the Shell Coles Express, Maud Street, Mayfield West. I proceeded to the location, arriving on scene at 3.50pm.

5. I saw the victim, Steven CONNOLLY, seated inside the store, being treated by staff for head injuries. Ambulance Officers then arrived on scene.

6. I spoke briefly to CONNOLLY, while he was being treated. During this conversation, I ascertained that there was a male and a female still inside the premises at 38 Miller Street, Mayfield West. CONNOLLY further stated to me that there was a shortened firearm in the premises.

7. I conveyed this information to Detective Senior Constable GREEN, who had just arrived on scene.

8. I instructed other Police crews to form a perimeter around the premises and to put on ballistic vests.

9. I saw no persons leave the dwelling at 38 Miller Street.

10. I spoke with Inspector GALLAGHER, by phone, advising him of the current situation.

11. Sergeant THOMPSON arrived on scene and I spoke with him. I provided him with the names of the persons known to be inside the dwelling. A short time later, I heard Sergeant THOMPSON speaking to someone on the phone. I heard him saying that the house was surrounded by Police and called upon them to exit the premises via the front door.

12. A short time later, I saw one male and one female, exit the front door of the dwelling. Sergeant THOMPSON spoke to them both and they were both separated and detained. I now know these people as being Carly MELMETH and Greg FERNANDO. I saw officers enter the premises and exit a short time later.

13. I saw Detective GREEN speak to both accused persons. I saw officers search FERNANDO and place him in the rear of a caged vehicle, before driving him from the scene.

14. I saw MELMETH placed in the rear of a separate caged vehicle, before being searched and driven from the scene.

Because of what Acting Sgt Smith ascertained from Connolly as stated in [6] of that statement, at 15:53:51 a message was broadcast that an offender at the plaintiff’s house was “possibly armed with [a] shotgun.” Inter alia, that led to the police blocking local streets to prevent vehicular and pedestrian traffic in Miller Street, in case there was a discharge of firearms.

15. The names of the plaintiff and Fernando were broadcast at 16:08:15. I have assumed that they were identified to the Police by Connolly. When Sgt Luke Thompson arrived, he appears to have taken control from Acting Sgt Smith, whose substantive rank was Senior Constable. He then made arrangements to confront the occupants of the plaintiff’s house, in particular with SC David Wynne who had arrived on scene in DOG 51 with police dog (PD) Ulrich. SC Wynne made a statement on 9 July 2015. It contains this:

5. From the information provided to me from Acting Sergeant SMITH, I put on my ballistic vest and I removed Police Dog (PD) ULRICH from the rear of my vehicle and placed his K9 vest on him. I then approached the premise of 38 Miller Street, MAYFIELD WEST from the eastern side which was from the car park of the Shell Service Station. I stood behind a vehicle parked in the car park and helped set up a perimeter around the premise.

6. A short time later, Sergeant THOMPSON arrived and I had a short conversation with him. We then approached the premise at 38 Miller Street MAYFIELD WEST with a number of other police including Constable REES and Senior Constable CAREY. I walked towards the front door. I saw Sergeant THOMPSON knock on the house and said, "Hello, its Police. Is anyone in there? We need to talk to you. You need to come to the front door." I then saw the accused, Greg FERNANDO open the front door. I saw that he was wearing a red coloured shirt. I said, "Greg, you need to come out here. Show me your hands. We need to speak to you." The accused FERNANDO walked out onto the veranda and onto the lawn in front of me. FERNANDO said, "What's this about?" I said, "You are under arrest for a stabbing. You do not have to say or do anything unless you wish to do so but anything you say or do will be recorded and we can use this recording at court. Do you understand this?" The accused did not reply. I then saw a number of police take custody of FERNANDO.

7. I then saw the accused Carly MELMETH exit the premise and she was detained by a number of police. I then entered the premise with PD ULRICH and cleared the premise of any other persons. No other persons were located.

16. The plaintiff was escorted from her home to the service station car park where she was made to sit on the ground. There she had interaction with SC Mark Rees. When he had arrived on the scene he was posted to the rear of the plaintiff’s house, to keep watch on its rear door. When the plaintiff and Fernando had been arrested, he searched the house’s garage in case there was anyone else there. He then returned to the service station car park and was told to stay with the plaintiff. He made a statement on 22 July 2015, which contains this:

7. …I heard Detective Senior Constable Jason GREEN speak with Carly and give her the police caution. While Observing Carly, I could see her to be affected by an unknown substance, she was fidgeting a lot, her conversations at times were not clear and her eyes appears glazed. Carly said to me words of the affect 'I did it; it was me so hurry up and get this over with'.

8. I explained to Carly the reason for the delay was that we were waiting for a Female Police officer to attend so that she could be searched. About 30 minutes later, Constable Alana RISTESKI arrived. By this time I had Carly Seated in the caged area of the Police vehicle with the door open. Carly continually requested that she needed her epee pen for her diabetes. Senior Constable Carey came to the Police vehicle and with the epee pen and I observed Carly inject herself to the leg. She gave the epee pen back to Senior Constable Carey.

9. I was standing to the side of the Police Vehicle was Constable RISTESKI was having a conversation with Carly about her having to be stripped searched. Carly Continued to refused to allow this and I observed Constable RISTESKI climb into the rear of the Police vehicle to attempt to search her. I Could not see inside the police vehicle but could hear what sounded like Carly and Constable RISTESKI struggling with each other. Fearing that Carly was hiding something on her and that Constable RISTESKI was being assaulted I went to the rear of the Police vehicle and aided Constable RISTESKI to remove the Clothing from Carly who was still kicking out and refusing to allow this to occur.

10. We did not find any adverse items on her. Senior Constable CAREY and I conveyed Carly back to Waratah Police Station where she was placed in the charge room. I then returned to other Policing duties.

17. This search of the plaintiff is something of which she complained in her evidence before me (T26.32 to T26.50). Cons Alana Kelley made a statement on 23 July 2015. It is clear that she is the officer described by SC Rees as Cons Alana Risteski (the change of surname may reflect a change of marital status). Cons Kelley arrived in NCC 17 at 17:06:16. Her statement contains this:

5. I alighted from NCC17 and approached Senior Constable Mark REES who was standing at the rear door of NCC32. Senior Constable REES opened the rear cage door and I observed a female, I now know to be Carly MELMETH. MELMETH appeared pale and was moving her mouth as though she was chewing something or moving her jaw. Senior Constable Michael SMITH requested me to search MELMETH. I requested that another female attend to assist me in the search but I received no response.

I said, "Hello I am Constable Kelley from Newcastle police, I am going to search you because we have concerns you might have drugs in your possession and evidence connected to this serious incident. Do you understand?".

MELMETH did not respond

6. I entered the rear of the police vehicle and conducted a search. No items were found on MELMETH. A short time later I returned to unrelated duties.

Cons Kelley makes no mention of any struggle with the plaintiff or of any necessity for SC Rees to intervene. However, it is clear that he did, but it is unclear whether he was required to do so. This evidence is relevant to damages, should the plaintiff succeed. The need for SC Rees to intervene could have been cleared up by the defendant’s calling Cons Kelley, but there was no attempt to do so. This weighs in favour of the plaintiff’s case on damage.

18. The Incident Log records a broadcast at 16:14:48 by Acting Sgt Smith that there were “Two in custody”. The clear inference is that the plaintiff had been arrested at 4:14pm. Yet, Cons Kelley did not arrive to commence her search until 5:06pm, indicating that the plaintiff was detained in the service station car park for at least 45 minutes, probably more like 50 or 55 minutes, before being conveyed to Waratah Police Station. The plaintiff’s Custody Management Record (CB 176) indicates that the plaintiff arrived at Waratah Police Station at 5:30pm.

19. There was, at the service station, interaction between DSC Green and the plaintiff. His statement of 30 November 2015 contains this:

8. [near Fernando] I said, "Carly, I'm Detective Green I have spoken to you before." She said, "Yes." I said, "Carly you are under arrest for a stabbing. You do not have to say or do anything. Anything you say or do will be recorded and later used in evidence. Do you understand that?" She said, "Yeah I did it. It was me so hurry up and get this over with." I saw Melmeth was fidgeting, erratic and her eyes blurred. I was of the opinion that she was affected by a substance other than alcohol.

20. There was further interaction between the plaintiff and DSC Green later on this day. After speaking with the plaintiff at the service station, DSC Green made arrangements to obtain a Crime Scene Warrant and for the attendance of Crime Scene Officers. He then inspected the interior of the plaintiff’s house, then made arrangements to obtain the CCTV from the Coles Express shop, then visited Connolly in hospital and then went to Waratah Police Station. His statement contains this:

13. A short time later I left the hospital for Mr Connolly to continue treatment. I attended the Charge room of Waratah Police Station where I spoke with the accused, Carly Melmeth. I said, "Carly my name is Detective Green, can you understand what I am saying to you?" There was little to no response. At the time she had slow speech and was visibly falling asleep. I was unable to offer the accused the right to an interview for this reason.

That statement is erroneous, because DSC Green did offer the plaintiff an opportunity to participate in an electronically recorded interview (“ERISP”) but she declined to do so. In his evidence in chief DSC Green said this:

Q. Where in the station did you see her?

A. I spoke to her in the custody area of the station.

Q. Were you able to make any observations with respect to her?

A. At that time she appeared to be not as erratic more sleepy.

Q. Did you turn your mind to the question of whether she ought to be interviewed?

A. Yes, I did.

Q. What view did you form?

A. I felt that at that stage given that observations had been made in relation to the custody record and having asked her if she was able to - sorry and having asked her if she was willing to participate in any of those procedures and the fact that she’d signed the paper in the manner in which she had done‑‑

Q. Just with this paper‑‑

A. Sorry.

Q. ‑‑are you talking about something that you wrote in a notebook?

A. I am.

Q. Because I'll have you shown three pages of your notebook, it’s over two pages of documents. Detective, I've given you as I said two pages of copied documents but it appears to carry pages 82, 83, and 84 of a notebook, are those pages extracted from your notebook?

A. Yes, they are.

Q. Is some of the writing on those three pages in your hand?

A. All of the writing is in my hand other than the scrawl.

Q. Is that a document that records a conversation that you had with Ms Melmeth?

A. Yes, it is.

Q. Where did that conversation take place?

A. Waratah charge room, as I’ve indicated there.

……………………………………………….

Q. Is the scrawl you’re referring to the writing sort of below the fifth line to the bottom of page 84?

A. Yeah, that’s correct.

Q. It looks like it might say Carly?

A. Yes.

Q. That mark was made by Ms Melmeth?

A. Yes.

EXHIBIT #2 COPY OF PART OF PAGE 82, ALL OF PAGE 83 AND PAGE 84 FROM JASON GREEN’S NOTEBOOK DATED 30/05/15 TENDERED, ADMITTED WITHOUT OBJECTION

21. The relevant part of exhibit 2 is this:

“Q. You have been arrested in relation to an allegation of wounding and detention of Steven Connolly. Do you understand that?

A. Yes.

Q. The custody manager has read your rights in relation to what can happen and what rights you have regards to Part 9 LEPRA 2002.

A. Yes.

Q. Do you wish to participate in an electronically recorded interview?

A. No.

Q. I intend to have a qualified officer obtain your DNA by way of DNA Buccal Swab.

A. Yeah of course.

Q. Do you consent to the taking of this procedure?

A. Yeah of course.

Q. Will you sign this record as true and correct?

A. Yeah.”

On page 84 of the notebook, there are 21 ruled lines. The penultimate answer, last question and last answer take up 4 of those lines. The “signature” of the plaintiff occupies lines 6 to 21 and extends below the last ruled line to the bottom of the page. It appears to me to be a scrawled “Carly”.

22. The inconsistency between DSC Green’s statement and the contemporaneous notebook recording was explored in cross-examination, commencing at T118.20. The witness’ response is best shown in this passage:

Q. You say in the final sentence of that paragraph, “I was unable to offer the accused the right to an interview for this reason, the reason being that her speech was slurred and she was visibly falling asleep.” Correct?

A. That's correct.

Q. But the fact of the matter is that you did offer her an interview and she declined. Correct?

A. I consulted the custody records. I had no toxicology experience or an awareness of what someone is doing when they’re drug-affected. I had asked those questions, and in asking those questions I felt that I had no right to offer the interview, so I did not proceed. It was unfair.

EXHIBIT 2 SHOWN TO WITNESS

Q. This is your notebook entry for 30 May 2015, correct?

A. It is so, yeah.

Q. You can see that by the date. And then underneath it has one line, and then colon and two zeroes.

A. Yes.

Q. So this notebook entry was made at 7pm, is that right?

A. Yeah.

Q. You’d consulted the custody management records before then.

A. No, I hadn’t.

Q. Before making this notebook entry.

A. No, I hadn’t.

Q. You hadn’t?

A. Not at that stage, I hadn’t.

Q. When did you consult the custody management record?

A. When I was speaking to her.

Q. But in any event--

A. And when she signed it.

Q. In any event, at Mayfield West when you first spoke to the plaintiff you formed the opinion that she was affected by a drug, correct?

A. A substance.

Q. Yes. Can you see in your notebook entry on page 83 in the middle of the page you record this question being put to the plaintiff, “Do you wish to participate in an electronically recorded interview?”

A. That's right.

Q. And she answered, “No.”

A. That's right.

Q. So in fact you had offered to interview her, correct?

A. Correct.

23. The Custody Manager at the Waratah Police Station on 30 May 2015 appears to have been Ms Kathryn Haines (rank not disclosed). These records show this:

Time	Observation/Comment	Responsible Officer
17:58	Uncooperative	HAINES
18:00	Insulin dependent Diabetic. Insulin self-administered at 17:15 ‘hrs witnessed by SC Rees and Carey.	HAINES
18:00	No complaints. Sitting quietly in dock.
18:00	[Medical Questionnaire] Drugs – Yes. Admits to being on ice Insulin – Yes Medication – Yes Asthma – Yes Diabetes – Yes Is quiet and has started to assist with the custody process by answering health related questions.	HAINES
18:07	Quiet – indicates she understands the caution but has refused to sign.	HAINES
18:24	Prisoner has asked for insulin as she is diabetic. Ambulance contacted.	HAINES
18:27	Sitting in dock, starting to become drowsy.
18:40	Sitting in dock, drowsy and appears to be under the influence but has declined to indicate any drug use. Appears to be drug affected.	HAINES
18:43 to 18:57	[Ambulance] Responder 1 attended. Insulin administered by prisoner after observations.    Has admitted to using ICE and is displaying signs of being drug-affected. Was able to understand instructions given by Paramedic and Police. Refused further observations [sic].	HAINES
18:59 to 19:02	Has requested Responder 1 to take sugar level again. Sugar level taken.	HAINES
19:03	Refused to eat meal [Dinner]. Advised by Paramedic Responder 1 to eat the meal in order to regulate her sugar.	HAINES
19:05	Sitting in dock… Is more alert since taking insulin. However still appears to be drug affected. Has refused meal.	HAINES
19:28	Sitting in dock talking with other prisoner   - has been treated by ambulance personnel. Refused to eat dinner.	DAVID MITCHELL
20:01	Sitting in dock. Condition has not changed. Has been given juice. Still has not eaten Subway.	MITCHELL
20:18	Sitting in dock. Condition has not changed.	MITCHELL
20:21	Rang 000 to arrange ambulance attendance to confirm blood sugar levels.	MITCHELL
21:02	Has been treated by ambulance personnel – condition has not changed. Has taken further medication.	MITCHELL
21:46	Uncooperative taking fingerprints. Now sitting in dock. Again refused to eat dinner.	MITCHELL
22:37	[Charged with 2 offences]	GREEN
22:49	Asleep sitting in dock.	MITCHELL
23:38	Occupier’s notice of crime scene warrant included in property bag	MITCHELL
23:38	Sitting in dock.	MITCHELL

The only other relevant entry is a record made at 12:06am on 31 May 2015 that bail was refused and that the plaintiff was transferred to the care of the Department of Corrective Services at Newcastle.

The plaintiff’s subsequent custodial history

24. The plaintiff was taken to the cells in the Newcastle City Police Station which is next to the old Newcastle Court House. On the morning of Sunday 31 May 2015, the plaintiff was taken before the Newcastle Local Court (whether it be before a Magistrate, Registrar or Justice of the Peace I do not know) and was remanded in custody until Monday 1 June 2015. She was unrepresented on 31 May. On 1 June the plaintiff was represented by Mr Laidler of Ramsland Laidler (see CB 877). The plaintiff said that he advised her “that I wasn’t going to make bail with the charges I was facing” (T30.21). As I stated in [3] above, bail was never applied for in the Local Court (see CB 877, 876). The plaintiff was kept at the Newcastle Police Station for “4 or 5 days” (T29.05, T30.45) and then transferred to Silverwater on either Friday 5 June or Saturday 6 June 2015. She was incarcerated at Silverwater for either 3 or 4 months (T31.41). For her first 3 or 4 weeks at Silverwater she was kept in a “detox cell” under constant observation (requiring constant illumination of the cell) because she was “suicidal” (T31.12). She was then transferred to Dillwynia for “maybe 2 months” (T31.42). She was then transferred back to Silverwater for what she thought was a medical reason, but it might also have been because of the application for bail to the Supreme Court. As stated in [3] above, bail was granted by Schmidt J on 24 November 2015. However, the plaintiff said that she appeared before her Honour a week earlier. Her Honour required information (perhaps medical) from Corrective Services and the plaintiff had to wait a week for that to be produced to the Court before bail was granted (T33.47).

25. This was, in effect, the plaintiff’s first experience of custody. She had spent “one day” (probably overnight) in police custody at Waratah because of some youthful, drunken indiscretion at the age of 18, but that is a far cry from her experience on this occasion. Part of her evidence was this:

Q. And were you able to cope during your remand?

A. I had an inmate drag me around by my hair, I got hit with a phone, I had officers keep me in a cell and not give me my diabetes food. They wouldn’t give me my insulin. I had comments about made about do I scrunch or fold my toilet paper. I was told to sit in a wheelchair when I went to clinic, not a normal seat. They put me in a wheelchair. There was – yes, I keep hitting the buzz – the knock-up button for help, because I needed food because of my diabetes, and they wouldn’t come. They would just laugh at me. I would say “check my medical file, please. Look at my folder. I’m a diabetic. I’m not joking, like, I could end up on the ground.” The officers would yell at me. I had to wait for an officer to straighten her hair before she came and gave me my medication. And when they were giving me my medication, it was at the wrong time, so the insulin wasn’t working when it was supposed to be working. It’s got to work within 10 minutes of food.

This, of course, is relevant to damages.

26. It is convenient at this point to observe the plaintiff’s bail conditions. Omitting formalities the order made by Schmidt J was this:

1. daily reporting to Newcastle Police Station between 8am and 6pm;

2. to reside with her father at Long Crescent, Shortland;

3. a curfew between 6pm and 8am unless accompanied by her father or mother;

4. to present herself at the front door of her father’s house when directed by a police officer to confirm her observation of the curfew;

5. non-association with her co-accused, Fernando, or with Connolly;

6. not to consume alcohol or enter any liquor outlet except in the company of her father or mother;

7. not to ingest any illegal drug or prescribed medication, without a prescription;

8. not to leave her father’s home other than to report to police, attend court or attend pre-arranged legal conferences, unless accompanied by her father or mother;

9. to undergo drug or alcohol testing as directed by a police officer who suspected on reasonable grounds that she may have consumed drugs or alcohol in breach of her bail undertaking.

This order was varied by Wilson J on 2 February 2016 to permit in (viii) above the plaintiff to attend Centrelink appointments or any employment agency or work provider but only when she had written confirmation of any such appointment. The conditions were so onerous that the plaintiff was unable to live with her son who had to live with her mother, his grandmother, at Lake Cathie near Port Macquarie until the end of the school term following the plaintiff’s acquittal. Her bail conditions did not permit her to take her son to or from school or to attend to any other usual movements of a parent for his or her child. This, again, goes to the question of damages.

Connolly – further history

27. The initial call to the Ambulance Service was received at 3:47pm. An ambulance was dispatched at 3:50pm and arrived at the service station at 3:57pm. That vehicle was described as Hamilton Ambulance 275 staffed by Paramedics Michael Lachlan O’Connor and Andrew Ridgeway. Paramedic O’Connor was the treating paramedic that day. His statement of 14 November 2015 contains this:

6. On arrival I saw numerous police at the location. I exited the ambulance and was directed to a male patient inside the service station shop. I entered the shop and saw a male approximately 30-40 years old covered in a significant amount of blood. I know this person to Steven Connolly date of birth 20th of February 1980.

7. Mr Connolly said words to the effect of, 'I was in a nearby house and assaulted by another male. The male stabbed me with a kitchen knife and struck me with a gun. I was kicked and punched several times.' I asked if he had lost consciousness to which he said, "No". He stated, 'I left the house and sought help at the service station.' I recall Mr Connolly stating that the male had either tied him up or restrained him at some point during the altercation in the house.

8. I commenced to start attending to his injuries as follows. I determined he had no central stab wounds of immediate concern. He had what appeared to be puncture wounds to both his arms. The most significant being to his right tricep. He had multiple bruises and abrasions to his face. Some of the blood that I noted on his body particularly on his face appeared to have been dry for some time. There was blood soaked onto his clothing. I saw a bandage or similar wrapped around one of his arms. This had been applied prior to my attendance.

9. There were no immediate concerns for the patient and after allowing police to speak with the patient briefly he was conveyed to John Hunter Hospital.

The ambulance records (CB 76 to 81) tell me that Connolly was loaded into the Ambulance at 4:22pm. It reached John Hunter Hospital at 4:33pm. Connolly was in triage at 4:48pm and was taken from the Ambulance stretcher at 4:55pm.

28. The hospital records provided (CB 84 to 105) have been poorly photocopied and are incomplete – for example the discharge summary was 2 pages but only the first is in the CB. Some of the documents are illegible. The triage notes are recorded as commencing at either 16:39 or 16:59. The discharge summary converts that to 16:36, but the 9 in the triage notes is clear. There is generally a discrepancy between Ambulance records and hospital records: the latter generally record triage later than do the former. In this Court’s experience the Ambulance records are usually more accurate. The presenting problem given in the triage notes is this:

“Male aged 35 years, 3 months presents with alleged assault. Patient wheeled into Emergency Department, after being assaulted. Has been stabbed with kitchen knife to R triceps and L elbow. Has been hit with butt of gun to forehead. Multiple haematoma’s [sic, scil. haematomata] to forehead. 3cm laceration to L elbow. No loss of consciousness.”

One of the Trauma Admission Sheets contains this history:

“Alleged assault. Sustained and lasted – 3 hours. Punched x 20/kicked/hit by butt of gun to head. No loss of consciousness. Full recollection. Stabbed to right upper arm and left elbow with a knife. Nil stab wounds to torso/abdomen – extremities only. Managed to escape and run away to get help.”

The notes go on to describe 3 lacerations to the right upper arm with an underlying haematoma and a laceration overlaying the olecranon of the left elbow and exposing the joint capsule as well as facial lacerations. The discharge summary describes multiple haematomata to the face and a 3cm laceration of the left eyebrow. Radiological investigations were a CT scan of the facial bones and Xrays of the chest and right humerus and elbow. They reveal no abnormality. It seems likely to me that what was ordered were not only a chest Xray but an Xray of the right humerus and of the left elbow. However there are 2 copies of a report of the Xray of the chest and right humerus and elbow but each has a different order number: 5001209884 and 5001209885 – perhaps one was on the left side but the reports both state the right side. In any event, there was no bony abnormality detected. The records indicate that Connolly was discharged at 10:30pm (CB93).

29. Connolly was clearly well enough to be interviewed by DSC Green on Sunday 31 May 2015 when he made the statement which I quoted extenso in [10] above. Despite stating that it was recorded at Newcastle Police Station, DSC Green said that the interview was to be at Toronto but actually took place at Waratah Police Station (T107.32). There is no doubt that Connolly completely recovered from his injuries.

Physical Evidence

30. The police gathered much physical evidence to support the allegations made against the plaintiff and Fernando: I have already referred to the statements of various witnesses which are not, in my view, physical evidence, and to CCTV films taken from the Coles Express service station which clearly are such evidence. Also obtained were telephone records/cellbrite downloads of the telephones of Connolly, Fernando and the plaintiff. I have also referred to earlier photographs in particular thus far, of Connolly’s injuries.

31. SC Blake Dahl of the Newcastle Crime Scene Section took 140 photographs of the plaintiff’s house, both exterior and interior, and of its contents. He attended the house at about 7:50pm on 30 May 2015, ie on the day of the event. Significant photographs are, in my view, these:

Photograph

Caption

36

View south showing the firearm on top of the white bookcase in the dining room.

37, 38

Further view [of above].

Comment:

The firearms appear to be antique.

39,40

Views showing the position of markers [1 to 10] on the floor of the dining room.

41

View showing the position of marker 11 on the table of the dining room.

42

Further view showing the position of marker 12 on the floor of the dining room.

43 to 54

Close views of each marker 1 to 12 showing blood stains on the floor or table in the dining room.

55, 56

Views showing red staining on the curtain on the northern wall of the dining room.

59

View north showing the bench top in the kitchen.

60

View north showing the location of items at markers A to E on the bench top.

61, 62

View of the Samsung mobile phone from the bench top at marker A.

Comment:

Owner unclear.

63, 64

Views of the Sony mobile phone from the bench top at marker B.

Comment:

Plaintiff’s phone.

65, 66

Views of the Apple mobile phone from the bench top at Marker C.

Comment:

Connolly’s phone.

67, 68

Views of the open cigarette packet from the benchtop at marker D [“Choice, Rich Gold”].

Comment:

The cigarettes purchased by Connolly at the Woolworths Supermarket at Jesmond on the way to the event – Connolly’s statement of 31 May 2015, [5].

69, 70

Views of Huawei mobile phone from the benchtop at marker E.

Comment:

Fernando’s phone.

74

View showing [3] knives removed from the cutlery basket in the dishwasher in the kitchen.

Comment:

These appear to be kitchen knives rather than knives to be used at table.

76

View south showing the location of a cupboard at Marker F in the south west corner of the kitchen.

77, 78

Views of the red stain on the top edge of the cupboard door at marker F.

81

View of a plastic bag removed from the cupboard at Marker F.

82

View of the rope, towel, bandage and paper from the plastic bag removed from the cupboard at Marker F.

83

View of the paper from the plastic bag removed from the cupboard at Marker F.

Comment:

Of the 6 pieces of paper, 4 appear to be blood stained.

85

View of the bandage from the plastic bag removed from the cupboard at marker F.

Comment:

Appears to have blood stains.

86, 87, 88

Views of the ropes from the plastic bag removed from the cupboard at Marker F.

92, 93, 94

Views of keys at marker G on shelving in a room described as “the utility room”.

Comment:

The keys contained a Toyota motor vehicle key. Connolly had arrived at the service station driving a Toyota vehicle. Parked in the driveway of the plaintiff’s residence was a Ford Fiesta [photograph 8]. Fernando had arrived on foot.

101, 102

View of white fabric and 4 knives removed from the timber hall table at the rear entry – Marker H.

Comment:

These are kitchen knives.

106 to 109

Views of a white T-shirt found in the washing machine in the laundry.

Comment:

This is a “Badboy” garment, size L with “The Badboy” printed on the front, with what appears to be a blood stain on the lower front of the garment.

118

View of the couch showing the location of Marker I in the third bedroom.

121

View of the couch at Marker I with a cushion removed showing 2 knives located there.

122

View of the 2 knives removed from the couch in the third bedroom.

Comment:

These are kitchen knives.

125

View of bamboo shading inside the garage showing the location of marker K.

126, 127

Views of a black reel of rope on the shelving at marker K.

Comment:

This appears to be the same type of rope seen in photographs 86, 87 and 88.

128 to 131

Views of knife 1 from XF000953291 – Marker H.

[knives near rear entry door]

132 to 134

Views of knife 2 from XF000953291 – Marker H.

135 to 137

Views of knife 3 from XF000953291 – Marker H.

138 to 140

Views of knife 4 from XF000953291 – Marker H.

32. In SC Dahl’s statement of 15 November 2015, he described the firearms depicted in photographs 37 and 38 thus: “Two black powder pistols and a black powder musket on top of the white bookcase.” During his examination of the dining room he collected 6 exhibits:

1 x black powder pistol - XF000953293

1 x black powder pistol - XF000953294

1 x black powder muscat (Musket) - XF000953295

1 x swab of blood at marker 4 - XF000953297

1 x swab of blood from marker 10 - XF000953298

1 x swab of blood from marker 11 - XF000953299

33. During the examination of the kitchen, SC Dahl collected 9 exhibits:

1 x mobile phone from Marker A (XF000953281)

1 x mobile phone from Marker B (XF000953282)

1 x iphone mobile phone from Marker C (XF000953283)

1 x opened packet of cigarettes from Marked D (XF000953284)

1 x mobile phone and charger from Marker E (XF000953285)

1 x grey jacket from cupboard at Marker F (XF000953296)

Numerous pieces of rope from cupboard at Marker F (XF000953287)

1 x triangle bandage from cupboard at Marker F (XF000953288)

1 x blue towel from cupboard at Marker F (XF000953289)

34. There was a further examination of a number of these items (and others) conducted by Mr Cameron Peno, a Scene of Crime Officer (SOCO) commencing on 5 November 2015. His significant findings, in my view, were:

1. The pieces of rope removed from the plastic bag found in the cupboard at Marker F had a diameter of 3mm. It was mainly white with a green twist and strands of thin metal wire. One piece of the rope was 43cm long and contained a kink within which was an apparent blood stain. Testing proved positive for human blood and the stain was swabbed for DNA analysis.

2. The large triangular bandage removed from the plastic bag found in the cupboard at Marker F also tested positive for human blood and was swabbed for DNA analysis.

3. The Badboy T-shirt found in the washing machine in the laundry had its apparent blood stain tested and was found to be a stain of human blood. That stain was swabbed for DNA analysis and SOCO Peno also tape-lifted the interior neck line of the garment for DNA analysis.

4. The 2 knives found hidden under the cushion of the couch in the third bedroom at Marker I (XF000953292) were measured: one was 24cm (13.5cm blade) and the other was 22cm (11.5cm blade). An apparent blood stain was found on the larger knife’s blade and that was confirmed to be human blood. It was swabbed for DNA analysis.

5. The first black powder pistol (XF000953293) was described as a duelling style pistol with a metal firing mechanism and side decorative panels but had no barrel. No apparent blood stains were located but each end of the pistol was swabbed for DNA analysis.

6. A grey jacket from the cupboard at Marker F (XF000953287) was described as a “Tweed River” jacket, size L. There was a 1.5cm cut found in the back of the upper right sleeve of the jacket, approximately 48.5cm from the cuff. There were apparent bloodstains on the front, back, inside and outside of the jacket with the greatest amount of staining around the cut. That staining proved positive for human blood and was swabbed for DNA analysis.

7. The antepenultimate paragraph of SOCO Peno’s statement is this:

15. During my examination of the exhibits on 5th November 2015 at the Newcastle Crime Scene Section I collected the following sub-exhibits:

Item 1 — Swab of blood from length of rope (XF000953287) (Barcode XF000953595)

Item 2 — Tape-lift from knotted sections of rope (XF000953287) (Barcode XF000953596)

Item 3 — Swab of blood from bandage (XF000953288) (Barcode XF000953597)

Item 4 — Swab of blood from hand towel (XF000953289) (Barcode XF000953598)

Item 5 — Swab of blood from front of t-shirt (XF000953290) (Barcode XF000953599)

Item 6 — Tape-lift from internal neck line of t-shirt (XF000953290) (Barcode XF000953600)

Item 7 — Swab of blood from blade of larger knife (XF000953292) (Barcode XF000953601)

Item 8 — Trace swab from handle of larger knife (XF000953292) (Barcode XF000953602)

Item 9 — Trace swab from blade of smaller knife (XF000953292) (Barcode XF000953603)

Item 10 — Trace swab from handle of smaller knife (XF000953292) (Barcode XF000953604)

Item 11 — Trace swab from butt of pistol (XF000953293) (Barcode XF000953605)

Item 12 — Trace swab from fore-end of pistol (XF000953293) (Barcode XF000953606)

Item 13 — Blood swab from internal right sleeve of jacket (XF000953296) (Barcode XF000953608)

35. A Certificate of Analysis pursuant to the Evidence Act 1995, section 177 was made by Ms Alexandra Nicola Bate, a Forensic Biologist at the Forensic Biology/DNA Laboratory of the NSW Forensic and Analytical Science Service on 30 August 2016. As this is not a criminal matter and as I am not directing a jury, I trust I am permitted to abbreviate the findings of Ms Bate. The findings can be summarised thus:

Item	Finding
Swab of blood at Marker 4 (dining room floor)	DNA of Connolly
Swab of blood at Marker 10 (dining room floor)	DNA of Connolly
Swab of blood at Marker 11 (dining room table)	DNA of Connolly
Swab of blade of knife 1 (near rear entry)	Unsuccessful
Swab of handle of knife 1 (near rear entry)	DNA of Connolly
Swab of blade of knife 4 (near rear entry)	Mixed DNA
Swab of handle of knife 4 (near rear entry)	DNA of Connolly
Swab of blade of knife 2 (near rear entry)	Mixed, Connolly not excluded
Swab of handle of knife 2 (near rear entry)	Mixed DNA
Swab of blade of knife 3 (near rear entry)	Unsuccessful
Swab of handle of knife 3 (near rear entry)	Mixed DNA
Swab of blood from length of rope (cupboard, Marker F)	Mixed, Connolly not excluded.
Tape lift of knotted sections of rope (cupboard, Marker F)	Mixed, Connolly and Fernando not excluded
Swab of blood from bandage (cupboard, Marker F)	DNA of Connolly
Swab of blood from front Badboy T-shirt	DNA of Connolly
Tape lift from internal neck line of T-shirt	Mixed. Fernando major contribution
Swab of blood from larger knife (Marker I)	DNA of Connolly
Trace swab from handle of larger knife (Marker I)	Mixed DNA
Trace swab from blade of smaller knife (Marker I)	Mixed. Fernando minor contributor
Trace swab from handle of smaller knife (Marker I)	Mixed DNA
Trace swab from butt of pistol	Mixed DNA
Trace swab from fore end of pistol	Mixed DNA
Swab of blood from interior right sleeve of jacket (cupboard, Marker F)	DNA of Connolly

How physical evidence supported Connolly

36. I now consider how the physical evidence gathered by the police supported the statement made by Connolly on 31 May 2015.

1. The packet of cigarettes found by the police matched the description by Connolly on the following day.

2. The first knife that Fernando used, and the other he removed from the kitchen drawer and put on the kitchen bench may have been knives found in the dishwasher by SC Dahl, which appeared to him to have been “recently operated” and he found “residual moisture present on the inside of the door (CB510 at [20] therein).

3. After he was stabbed a second time Connolly stated he was “bleeding everywhere over the floor”, consistent with blood staining on the floor of the dining room.

4. Connolly describes 3 stab wounds in his right upper arm, consistent with the injuries described in the hospital records.

5. At [13] Connolly said that his arm was bandaged, consistent with the blood stained bandage containing his DNA found in the plastic bag in the cupboard at Marker F.

6. At [14] Connolly spoke of protecting himself with his elbow when the knife was swung at him. He felt the knife go deep into his elbow, feeling like it hit a bone. This is consistent with the injury to the left elbow described in the medical evidence, exposing the capsule of the joint.

7. At [15]. Connolly describes the plaintiff as bringing a towel and throwing it at Connolly, telling him to clean up the blood falling on the dining room floor. At [16], Connolly said he got down on the floor and started to do so. In the plastic bag found in the cupboard at Marker F was also a hand towel (which I had not mentioned above. It can be seen in photographs 82 and 84 and is described by SOCO Peno on a “Homemaker” brand cotton hand towel, teal in colour, approximately 60cm x 40cm with apparent blood stains, the largest of which tested positive for human blood and was swabbed for DNA analysis. That was reported by Mr Bate in showing a mixed DNA, from which Connolly could not be excluded.

8. Connolly said that when he was mopping up the blood, Fernando struck him on the head with a gun which “broke in his hand as he struck me”. That is consistent with one of the duelling pistols having lost its barrel and with DNA (albeit mixed) being found at each end of the pistol.

9. In [19] Connolly said, “Greg had been wearing a white T-shirt which had my blood on it. He was angry about this and changed into a red T-shirt”. That is consistent with the Badboy T-shirt found in the washing machine being stained with Connolly’s blood and Fernando’s DNA probably being present on the neckline of the garment. SC Wynne described Fernando as wearing a red shirt when he left the plaintiff’s house – see [15] above.

10. In [19] Connolly speaks of being tied up with “white and blue rope”. That is fairly consistent with the white and green rope found in both of the cupboard at Marker F and in the garage and with the rope from the cupboard containing Connolly’s DNA. That is also consistent with the ligature marks in Connolly’s wrists observed by Dr Alldis (see [11] above) and by DSC Green at the John Hunter Hospital on the evening of 30 May 2015 (his statement of 30 November 2015, [12] at CB 108) and shown in photographs at CB 64 (left wrist), at CB 65 (right wrist). Connolly was also bound at his ankles, as shown in photographs at CB 62 (left ankle) and CB 63 (right ankle). Those photographs were taken by DSC Green at the hospital on 30 May 2015.

A reason for delay in surrendering

37. Connolly is seen running from the plaintiff’s house at 3:38pm (see [10] above). Police commenced to receive the 000 call at 3:40pm (see [13] above). The call was broadcast at 3:45pm and the first police to arrive on the scene was at 3:49pm (ibid). The plaintiff and Fernando were arrested at 4:14pm, some 35 minutes after Connolly’s escape. It is apparent from considering the physical evidence that during that time the plaintiff and Fernando were cleaning up what the police describe as the crime scene e.g. knives put through dishwasher, knives hidden near backdoor in white linen and in third bedroom, ropes, bandaging, towels secreted in cupboard, items put in washing machine.

What DSC Green did

38. DSC Green was attested as a NSW Police officer in 2001. He initially performed general duties at Brisbane Waters, then Maitland and finally at Newcastle. He commenced training to be a detective in 2013 and qualified as a detective in 2014 (T90.16). He was stationed at all material times with the Newcastle City Police. Waratah Police Station in a substation of Newcastle City LAC (T90.19). On Saturday 30 May 2015 he was rostered on a day shift from 7am to 5pm (T93.18). In the course of his rostered duty, he was called to the Coles Express Service very shortly after the event. His recollection was that he arrived there around 3:50pm (T93.30). He was working by himself that day (“a single unit” – T93.47). It is very important to note that DSC Green was assigned to this investigation in the normal course of his duty: he did not seek to become involved in the investigation because it involved the plaintiff, nor did he do anything which might have enticed or exposed the plaintiff to being involved in the event.

39. On arrival he spoke with Acting Sgt Smith (T93.49). Smith told him what Connolly had told Smith and that there was CCTV footage. Smith also told DSC Green that Connolly had come from the premises at 38 Miller Street, the plaintiff’s then residence. DSC Green then spoke to Connolly as he was being treated in the Ambulance. He observed Connolly’s injuries. He thought Connolly was very distressed. DSC Green then had this conversation with Connolly:

Q. Did you ask him anything?

A. I asked him who it was he was talking about, and where.

Q. What did he say?

A. He told me that it was at the premises next to the service station. He indicated that persons there were Greg and Carly.

Q. Yes. You'd been told there was a gun involved.

A. In relation to a gun, that was part of the message. That's correct. I did ask him if there was a gun present. He described an ornamental gun.

Q. When you say "ornamental", what do you mean? How did he describe it?

A. Yeah. He described like a musket or a - an older style

Q. Did he give you an account of how he'd come to be at that house?

A. Yes, he did.

Q. What did he say?

A. He had known, I believe, Carly Melmeth from about 2009. That involved some dealings in relation to legal dealings, as at that time he was a practicing solicitor. He had befriended her. He had, earlier that day - around about 9.30 - had a conversation with her, and had agreed to attend the premises. In that agreement, he further made another call, where he picked up some UDL cans on the way to the premises.

Q. UDL - you're talking about those post mix drinks.

A. As in a - a can of drink. I believe so, yeah. He - that's what it would be. Correct.

Q. Did he say how he had got to the home?

A. Yeah. He drove there in his mother's Toyota, I believe. Toyota Corolla.

Q. Was anything said about the keys to that car?

A. In relation to the keys, he said that the keys had been taken from him.

Q. Was anything said with respect to his telephone?

A. Yes, and his telephone.

Q. When you say taken did he say by whom?

A. He said that they had been taken by Greg and Carly.

Q. Did you have any further conversation with Mr Connolly at that time?

A. With regards to that he was heading off to hospital.

Q. So he was taken away, was he?

A. He was taken away by ambulance.

40. After that he was told that the plaintiff and Fernando had left the plaintiff’s house, which had been “cleared”, and had been taken into custody. DSC Green then spoke to Fernando. He cautioned him. DSC Green then spoke to the plaintiff. He gave this evidence of his interaction with her:

Q. Where was she when you had these dealings with her?

A. At the time when I spoke to her she was alongside the - one of the police vans with a female officer.

Q. And did you say something to her?

A. Yes, I did.

Q. What did you say to her?

A. I firstly said to her, “Do you remember me?”

Q. What was that a reference to?

A. That was a reference to my previous interaction in 2013, purely based as a rapport.

Q. What else was said?

A. I explained the purpose why I was there, the allegations that were to her and again cautioned her.

Q. Did you make any observations as to her behaviour?

A. Yeah, she had blurred eyes, and at that stage I believe she could have been drug affected.

Q. Affected by what?

A. I wouldn’t know.

41. He said in evidence that he then assigned to another detective (either DSC Briggs or DSC Barr) the task of obtaining a Crime Scene Warrant. Then he walked through the house (“the crime scene”) where he noticed various things, which were later to be photographed by SC Dahl. He then went to the service station and spoke to Ms Michelle Shone and discussed with her obtaining the CCTV footage and her providing a statement. He arranged a time for the latter to be done. He then went to the John Hunter Hospital to continue his interview with Connolly, where he took some photographs (CB 62 to 68).

42. He then went to Waratah Police Station, where he had the interaction with the plaintiff that I discussed between [20] and [22] above. At 9:32pm that evening DSC Green commenced to type the narrative in COPS Event E57479070, which can be found at CB 836 to 844. According to his evidence, DSC Green then decided to charge the plaintiff. This evidence was then given:

“Q.   Did you consult with anybody in choosing what charges were appropriate?

A.    At that stage, the other detectives that were on [duty] with me.”

Those gentlemen were DSC Briggs and DSC Barr. The offences which he chose were the wounding offence and the kidnapping offence. He also decided to charge Fernando with the same offences. Bearing in mind the narrative contained in the COPS Event it would probably be more accurate to say that DSC Green chose to charge the plaintiff with the same charges that he made against Fernando. The Court Attendance Notice (CAN) was generated at 10:37pm (CB51). That document provides these details:

OIC (Prosecutor): Det Jason Green, Newcastle City

Created by: Det Jason Green, 10:37pm 30/05/2015

Accepted by: Sgt David Mitchell

DSC Green explained in evidence that he was required to submit the charges to a senior officer “to review the Fact Sheet and decide the sufficiency that it goes forward” (T104.45). Sgt Mitchell was the shift supervisor at Waratah Police Station that evening, the senior officer on duty. It ought to be clear from what I have just quoted that as well as generating a draft of the CAN, DSC Green had to provide a “Fact Sheet” to Sgt Mitchell. That can be found at CB 52 to 55. It appears that between 9:32pm and 10:37pm DSC Green generated the original COPS Event, the CAN and the Facts Sheet.

43. DSC Green was rostered for the duty on Sunday 31 May 2015, when he took Connolly’s statement of that date. He could not recall attending to any other aspect of this matter on that day (T108.08).

44. It is an agreed fact that no later than 3 June 2015 the proceedings against the plaintiff were being conducted by the Office of the Director of Public Prosecutions (T179.16). DSC Green’s recollection as to when the DPP became involved was erroneous (T108.29). He went on to give this evidence:

Q. Once the DPP became involved, did you have any role with respect to the conduct of the prosecution thereafter?

A. No, I did not.

Q. When the matter came on for trial, in September 2016, what did you do, in your capacity as officer in charge, with respect to that trial?

A. I assisted with witnesses attending Court. I assisted in making sure that those persons - and any directions that were given me by the DPP.

Q. Did you attend Court on the days fixed‑‑

A. I attend Court on the days that the trial began.

HIS HONOUR

Q. With whom were you liaising at the DPP, Detective Senior Constable?

A. Mr - Mr Costello.

HIS HONOUR: Mr Costello.

WILLIAMS

Q. Before him, had you liaised with a solicitor called Mr Fitzhardinge?

A. And I had dealt with Mr Fitzhardinge.

………………………………….

Q. And he would occasionally give you directions with respect to the matter?

A. He would.

Q. His Honour has taken you to the statement you made on 30 November 2015. As I understand it, that’s the only statement you made with respect to the events of May 2015; is that right?

A. Yes.

He then gave evidence about his role in the aborted trial of 12 September 2016 (which I shall discuss later in these reasons) and his evidence then continued:

Q. Detective Senior Constable, once the matter finally went to trial in April 2017, were you at that stage the decision maker with respect to the charges?

A. No.

Q. Did you have a say in what charges proceeded?

A. No.

Q. How the charges would be cast on the indictment?

A. No.

Q. Did you have a view at that time about whether the charges were proper ones to proceed?

A. No. In terms of the charges that were currently before the Court, I believe they should proceed.

Q. Who did you rely upon for the conduct of the prosecution at that time?

A. The DPP.

45. DSC Green was cross-examined, inter alia, about his role after the DPP assumed the carriage of the prosecution:

Q. … when the DPP take over the proceedings, you still have an involvement in the case, do you not?

A. I’m contacted by the DPP, yes.

Q. You’re still known as the officer in charge?

A. I am.

Q. And the Director of Public Prosecutions or his employee would seek your views in relation to the matter?

A. They would consult with me, yes.

Q. And they would consult with you about whether the prosecution should remain on foot or whether it should be terminated?

163. The plaintiff’s submissions on this aspect of the matter are these:

39. Further, according to Mr Connolly’s statement made the day after the plaintiff was charged, Mr Fernando was immediately hostile towards him and shortly after became enraged when the plaintiff became sick upon injecting drugs. It was in this context that Mr Fernando attacked Mr Connolly with a knife. Critically, at this point in time the plaintiff was not in the room.

40. According to the statement of Mr Connolly, the initial attack upon him by Mr Fernando seems to have been motivated by Mr Fernando becoming angry when the plaintiff felt sick. This was the genesis for the initial and subsequent attacks.

41. DSC Green needed to establish the existence of an agreement to commit the offence and the participation in it by the plaintiff. There was no direct evidence of an agreement being reached and the evidence was not capable of giving rise to an inference of an agreement in circumstances where the attack by Mr Fernando appears to have been a spur of the moment decision which he took alone.

42. DSC Green conceded that up to the point where the plaintiff injected drugs and felt sick, resulting in Mr Fernando becoming further enraged, the evidence militated against the suggestion that the plaintiff had reached an agreement with Mr Fernando to commit the offence of wounding with intent to cause grievous bodily harm.

43. Further, there was no evidence that the plaintiff had participated in a joint criminal enterprise to commit the offence in the sense of intentionally assisting or encouraging Mr Fernando to commit the offence: see R v Chishimba [201] NSWCCA 228 at [29]. The plaintiff was not in the same room as Mr Connolly and Mr Fernando when the initial wounding occurred.

44. As for extended joint criminal enterprise, some of the wounds had been inflicted before the doors were allegedly deadlocked. In other words, the detention allegedly occurred after the initial wounding. Unless there was evidence establishing before the wounding that the plaintiff and Mr Fernando had reached an agreement to detain Mr Connolly, it could not be proven that the plaintiff contemplated a wounding with intention to cause grievous bodily harm.

45. The case for the plaintiff being a principal in the second degree was also hopeless. In order to establish that the plaintiff was a principal in the second degree, DSC Green needed to prove:

(a) The presence of the plaintiff at the time the wounding was committed;

(b) That the plaintiff knew all the essential facts or circumstances necessary to show the crime was committed by Mr Fernando (including that Mr Fernando intended to wound Mr Connolly with the intention of causing him grievous bodily harm); and

(c) With that knowledge, the plaintiff intentionally assisted or encouraged Mr Fernando to commit the crime.

46. The evidence before DSC Green was that the plaintiff was not present when Mr Connolly was first wounded. There was no direct evidence that the plaintiff knew that Mr Fernando intended to cause Mr Connolly grievous bodily harm. Further, there was no evidence that armed with the knowledge of the essential facts or circumstances, the plaintiff intentionally assisted or encouraged Mr Fernando to commit the crime.

165. The question of “genesis” is an interesting one. There is no suggestion that Connolly had ever previously met Fernando. Indeed, the plaintiff had to introduce them to each other by their first names. Fernando’s initial reaction to Connolly was hostile. In [6] of his statement Connolly said this: “I offered my hand to shake his and he refused. He said, “You putrid cunt”. This is hardly how any person reacts to being introduced to another. Why was this so? The only thing that each man appeared to have in common was some form of relationship (in the broadest sense) with the plaintiff. A rational inference to draw is that Fernando resented Connolly’s presence with the plaintiff in her home. Of course, Fernando may have been a psychopath, but that is hardly consistent with the plaintiff’s knowing him and inviting him into her house. The allegation of Connolly that Fernando took up a knife (an escalation of the hostility) after the plaintiff complained of feeling nauseous, links his hostility to his relationship with the plaintiff. If there were any pre-existing agreement between the plaintiff and Fernando, Connolly would not know of it, and its existence can only be inferred from all that occurred, then and later.

166. Fernando threatened Connolly with the knife and assaulted him with his fist to make Connolly self-inject with the substance. He swung the knife at Connolly, after he injected himself, but before Fernando stabbed Connolly Fernando directed the plaintiff to “make sure the doors are deadlocked,” and she did so, according to Connolly’s statement. That the plaintiff knew that Fernando had stabbed Connolly is clear from [10] of Connolly’s statement. According to [12] of the statement, the plaintiff had “returned” after speaking to her mother on the telephone and appears to have been present during the second stabbing event after which Fernando made his statement as to their joint intention, which the plaintiff did nothing to rebut. It appears from [13] to [18] that the plaintiff was present throughout until she left to get the rope (see [19]). However, she does not appear to have been present when Connolly was bound, and certainly not when he managed to free himself.

167. The police and Crown case on detention was that the detention commenced when Fernando directed the plaintiff to deadlock the doors and she attended to that task. That was before any wounding. Yet, prior to any wounding, Fernando had taken up a knife and had threatened Connolly with it, holding it “under” his neck, presumably at his throat. The use of the knife prior to the detention makes an allegation of joint criminal enterprise plausible.

168. I would not describe the allegation of the plaintiff’s being a principal in the second degree as “hopeless”. This was the thrust of DSC Green’s attribution of criminal liability for the wounding to the plaintiff. Mr Canceri’s view of the requesting of the “presence” of the plaintiff is an unduly narrow one, as the authorities I have cited show, and as Mr Costello pointed out at T174.8. There is evidence from Connolly that after the initial stabbing of Connolly by Fernando, assistance was given by the plaintiff to him and the evidence suggests that the more serious stabbing injury, that to the left elbow, occurred in her presence and she still aided Fernando by going to retrieve the rope.

169. Mr Canceri’s submissions on this aspect of the case with his raising intoxication as a relevant issue. It was raised at the trial, because of the evidence given by Fernando. Mr Costello gave this evidence:

Q. Now, intoxication of the plaintiff was a live issue at the trial, correct?

A. Look, it was an issue that was open on the evidence, and the judge is required to give intoxication directions if the issue arises on the evidence. Now, Ms Melmeth never gave evidence herself, but the evidence that established that intoxication was an issue, Mr Connolly alluded to it but without, I think, at any point suggesting that Ms Melmeth’s actions were so affected by drugs or other substances that intoxication would arise.

There was a reference to taking drugs, her feeling sick, but Mr Connolly’s description of her conduct didn’t really raise intoxication as a live issue. However, Mr Fernando’s evidence plainly did, and therefore, irrespective of the case that was really being run by Ms Melmeth, intoxication was an issue that had arisen in the trial. There was a foundation for it, and his Honour was therefore going to have to give a direction in relation to it.

HIS HONOUR: It also arose in the police evidence, didn’t it? I mean, immediately after they were arrested, the plaintiff was found to be drug affected.

WITNESS: Yes. So when the police arrested the occupants of the house, they did form the view that Ms Melmeth was affected by something, and by the time they got her back to the station before they did an interview, it was lower concern, but there was also call, I think, to the hospital about her diabetes, and we never had medical evidence in relation to that. But I know that a diabetic who is being affected by concentrations can also present with symptoms of intoxication.

So there was evidence that immediately after when she was arrested that she was affected by something, but there had been an intervening period, there had been drugs in that house, and there was no real way of knowing what had happened after Mr Connolly left until the police arrived, unless you relied on the evidence of Mr Fernando, which the Crown obviously didn’t accept, and the jury obviously didn’t accept in its entirety.

Independently of Mr Costello, it appears to me that intoxication did not arise in the material available to DSC Green. That material is this:

1. the plaintiff’s repeated complaints of feeling sick. Nausea does not indicate intoxication. Of course, there are many ways in which one can be sick, but the common human experience of “feeling sick” is a feeling of being about to vomit or retch, which is nausea;

2. the plaintiff, like Fernando, was erratic in her behaviour (Connolly’s statement at [15]), but being erratic can be caused by a number of different things and some people are idiosyncratically erratic;

3. police officers, including DSC Green, believed that for the plaintiff, after being arrested, was affected by a substance other than alcohol, but that was at least an half hour after Connolly left the plaintiff’s house (3:38pm, arrest at 4:14pm – above at [10] and [18]);

4. to the contrary, the plaintiff did things requested of her by Fernando, or of her own accord e.g. locks the doors, getting the medical kit with the bandage, getting the towel and sheet to mop up the blood, retrieving the antique pistol from the bookshelf and handing it to Fernando to club Connolly and, tellingly, conducting a telephone conversation with her mother. If the plaintiff were then intoxicated, the mother was available as a witness.

170. In so far as the charges laid by DSC required specific intent, the rational inference to draw from the plaintiff’s complying with Fernando’s direction or request to deadlock the doors was that she shared the intention to detain Connolly in her home. As far as the wounding was concerned, she was present when Fernando initially threatened Connolly with a knife, she must have been aware of the initial stabbing(s) and she appears to have been present at the other stabbings. She was well aware that Fernando was wielding a knife and that he had an animus against Connolly. A tribunal of fact could draw the inference that she shared an intention of causing a really severe injury.

171. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable case for the wounding charge.

(b) Objective element: DSC Green: kidnapping charge

172. The plaintiff’s submissions on this aspect of the case were:

51. There was no evidence that the plaintiff detained Mr Connolly with the intention of obtaining an advantage, namely to avoid police detection.

52. As for the element of detention, on 31 May 2015 Mr Connolly had provided a statement in which he said that Mr Fernando had said to the plaintiff “Make sure the doors are deadlocked”, after which the plaintiff left the room and Mr Connolly heard the doors to the house being closed, the backdoor being closed first. Mr Connolly also said in his statement that the plaintiff provided Mr Fernando with some white and blue rope which Mr Fernando used to tie Mr Connolly’s ankles and hands together.

53. The point is that there was simply no evidence of the plaintiff detaining Mr Connolly with the intention of obtaining an advantage.

54. Later on, when the Director of Public Prosecutions took over the carriage of the matter, the allegation morphed into an offence of detaining with the intention to commit a serious indictable offence, namely intimidation, and during the detention actual bodily harm was occasioned.

173. The change of the particulars of the advantage sought has already been noted and discussed. However, “avoiding police detection” could be justified as an advantage of the detention as it allowed the assaults on Connolly to be protracted over a period of some 3 hours, without anyone being able to ascertain what was going on in the plaintiff’s house. Most human actions have a purpose – most things are done deliberately, even if routinely. Accidental human actions are, fortunately, not common. There is a lot more walking, running and jogging than slipping, tripping or losing balance. There obviously was a purpose to detaining Connolly in the plaintiff’s house, a purpose which she shared. From what the plaintiff herself is said to have said, she was trying to make Connolly tell her the truth, to tell her of his interest in her, if I have correctly divined the meaning of the Delphic “You’ve got inside my head, come clean with it.” To suggest, as Mr Canceri does, that there was no intention in detaining Connolly (a fact that he does not dispute, on the evidence available to DSC Green) is a nonsense: some advantage must have been sought. There is no suggestion that Connolly was detained for some disadvantageous reason i.e. like a hospital keeping a patient to treat him or her, or a charity keeping a person to protect her or him from the elements or other potential danger. A common particular alleged in many “kidnapping” cases is “to discuss personal issues” where a young man detains a young woman in his car, to sort out a disagreement about their (faltering) relationship. This detention may have been of such a nature. The particulars of the advantage contained in the CAN can be changed, and were, when the indictment was presented and the plaintiff first arraigned.

174. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the detention charge.

(c) Objective element: Mr Costello: wounding charge

175. Of course, the evidence or material available to DSC Green was also available to Mr Costello. Mr Costello also had available to him the telephone records, text message records, Facebook messages, DNA evidence and the results of other forensic enquiries. There are some significant additions to the material available to DSC Green.

176. There were the earlier messages passing between Connolly and the plaintiff. There are those I set out at [8] above, exchanged on 30 May 2015. They also included the messages in which Mr Massey cross-examined Connolly – see above [98] to [101]. There were also the electronic records relating to the plaintiff and Fernando, upon which Mr Costello cross-examined Fernando. Those records have not been provided to me. All I know of them is what is contained in Mr Costello’s cross-examination of Fernando: see [115] to [120]. This evidence suggests:

1. on the evening of 28/29 May 2015, there was a falling out between the plaintiff and Fernando;

2. that may have been because Fernando was with a girl (“Jess”) whose text messages sent or received Fernando had deleted from his phone, or someone the plaintiff described as a “slut”;

3. on the other hand Fernando was alleging that the plaintiff was being unfaithful to him by seeing “old bud” i.e. Connolly;

4. tentative arrangements were made for a relative of Fernando to go to the plaintiff’s house to collect his clothing;

5. Fernando sought to make arrangements later on 29 May to visit the plaintiff, perhaps seeking to reconcile;

6. Connolly was attending the plaintiff’s house on and off during the day, and it was possible that Fernando was aware of that;

7. at 12:39pm on 30 May 2015, very shortly before Connolly arrived at the plaintiff’s house there was a telephone call lasting 4 minutes and 23 seconds between Fernando and the plaintiff, which Fernando denied being able to recall, even though he turned up at the plaintiff’s house some 20 minutes later and was admitted by the plaintiff, leading to the event.

177. Whilst the messages passing between the plaintiff and Connolly suggest that his interest in the plaintiff was greater than he admitted (to his obvious detriment: miscredit), the messages and telephone calls suggest a falling out between the plaintiff and Fernando, an attempt by him at reconciliation which may have occurred in the telephone call between him and the plaintiff, shortly prior to the event. This “electronic” evidence in my view strengthened the Crown case. As Mr Canceri pointed out in his submissions, Mr Costello’s opening to the jury was predictably based on the contents of Connolly’s statement of 31 May 2015, as Mr Costello said in his evidence (T160.14). There is no issue that Connolly was an essential Crown witness. There is no contest to the proposition that the Crown case against the plaintiff was based on the evidence that the Crown wanted to call from Connolly. The “real” or circumstantial evidence did not make out the Crown case against the plaintiff, but did greatly assist the case against Fernando.

178. The plaintiff’s submissions on this issue are based mainly on the same matters that were relied upon in the case against DSC Green and on the way the evidence fell out from Connolly both in chief and in cross-examination, and on remarks made by Ellis DCJ as the evidence was unfolding. In so far as the plaintiff relied on what was alleged, objectively, about the material available to DSC Green, I shall not repeat myself. As I have said the further evidence, in my view, strengthens the Crown case. The further matters are, in my view, irrelevant. In Fred Saad & Ors v State of New South Wales [2016] NSWSC 1247, RS Hulme AJ at [392] said this:

The police or the DPP do not choose the persons who witness offences or admissions and many of whom do have personal deficiencies and attributes of unreliability. Whether their accounts should be accepted in a particular case is primarily for a court or jury. Accordingly, the mere fact that a prosecution, depending for its success on witnesses easily discredited or not able to be corroborated, is continued, while obviously relevant to the issue of reasonable and probable cause, says little or nothing otherwise on whether the prosecution was motivated by malice.

The prosecution of the plaintiff failed because Connolly did not stand to proof of his statement. The testing of his evidence that Mr Costello made did not suggest to Mr Costello that Connolly would not stand to proof: see [64] to [66] above. True it is that he did not attend at the aborted trial because of his fear of possible repercussions, but he did appear for the actual trial, and had a conference with Mr Costello prior to it – and that conference suggested to Mr Costello that he would stand to proof. The only things which might have suggested a problem with Connolly’s evidence are these:

1. There was no deadlock on the front door of the plaintiff’s house, evident from the photographic evidence. Whilst Fernando directed the plaintiff to “deadlock” the doors, he may not have known the type of lock on the front door. Nevertheless the plaintiff may have locked the front door; in so far as it could be locked. In his statement, Connolly merely referred to running “out the front door”, without any mention of having to obtain a key, something added in his oral evidence.

2. Connolly’s description of his relationship with the plaintiff prior to 30 May 2015 appears understated. That is a credit issue, not an issue of substance, however. However, it did provide the Crown with material which could suggest a motive for Fernando – jealously of Connolly’s relationship with the plaintiff, referred to by trial Counsel as “mowing his grass”.

These deficiencies were, in my view, of no moment in objectively determining reasonable and probable cause.

179. Another matter that must be considered on the issue is that neither the plaintiff nor Fernando gave an interview to the police. There was no ERISP to be played to the jury, nothing which indicated to the Crown what the defence case might be, nothing to suggest what the Crown might have to rebut in its evidence, before any defence evidence was called. Sometimes an interview given by an accused person can raise issues which, if properly investigated, might lead to a charge or charges being withdrawn or no-billed. Nothing like this occurred in the current matter.

179. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the wounding charge available to Mr Costello.

(d) Objective element: Mr Costello: kidnapping charge

181. The plaintiff’s submissions on this aspect are these:

100. The issue of intoxication was relevant to the kidnapping charge. The plaintiff therefore relies on the submissions put in relation to the s 33 charge.

101. The evidence as to intoxication before Mr Costello, that evidence being in his brief, cast significant doubt upon the plaintiff being able to form the requisite intent.

102. Further, what happened to Mr Connolly was at the instigation of Mr Fernando who was hostile towards Mr Connolly from the outset. In other words, the kidnapping arose from Mr Fernando’s hostility towards Mr Connolly. This fact was apparent from Mr Connolly’s statement dated 31 May 2015.

182. When Mr Costello was delivered a brief and when he opened to the jury, intoxication was not an issue. As I said at [160] above it arose only during the trial, from the evidence given by Fernando. At the end of Day 3 of the trial, in the absence of the jury, his Honour was asking questions of Counsel, seeking to ascertain what directions he might be required to give. This exchange occurred:

HIS HONOUR: And then we'll wait and see whether they give evidence. Intoxication, is it likely, do you anticipate that there will be evidence - at this stage there is no evidence of intoxication, there's only evidence of a needle—

MASSEY: There will be evidence of intoxication, your Honour.

FITZGERALD: Not for my part.

MASSEY: Whether or not that amounts - and it depends on what happens with, which offence goes to the jury, as to—

HIS HONOUR: Well, it mightn't actually be as relevant to your client, because she's not actually said to be the person doing any of these things.

MASSEY: All I can say at the moment, your Honour, is there will be evidence of intoxication. That will come in the Crown case, and—

HIS HONOUR: As to Ms Melmeth. MASSEY: As to Ms Melmeth. What use can be put to that, I haven't—

HIS HONOUR: Well, intoxication would be relevant to her in terms of - it will be complicated, because it will be in terms of whether she's part of a joint criminal enterprise that included an intent. But I won't be giving a direction on intoxication re intent for Mr Fernando. Then arguably, I'll have to give a direction on intoxication re intent as part of her having a joint criminal enterprise to commit this particularised offence, which would include that she's got a joint criminal enterprise involving an acceptance that, if there is an intent to commit - it is because it says "with intent to commit".

MASSEY: Of course, yes.

HIS HONOUR: So that's a complication where the intoxication - if there's no evidence of intoxication for Mr Fernando, then there's not a problem, but for your client it would be an issue, but then it's complicated because she's not the person said to have done the act, but she is the person, in order to be guilty of this offence, who must have had a joint criminal enterprise, meaning an agreement that in fact there was an intent to intimidate. And so as part of her reaching the agreement, or being in an agreement with an intent, intoxication would be relevant.

FITZGERALD: The jury will understand that.

HIS HONOUR: Oh, yes. Well, I don't make the law.

Of course, evidence of intoxication was given by Fernando, called by Mr Fitzgerald, and Mr Massey called no evidence! This issue was revisited at the end of Day 6 after DSC Green had given evidence of what he perceived her state was when he spoke to her at the service station at her arrest:

Q. Just in relation to Ms Melmeth's behaviour at that point, what was her behaviour like?

A. I refer in my statement to her as fidgeting, erratic and her eyes blurred. I formed the opinion that she was affected by some kind of substance, other than alcohol.

However the discussion concerning intoxication only occurred after Mr Costello discussed the issue of taking no further proceedings against the plaintiff on the wounding charge. The discussion was this:

HIS HONOUR: I still need to give those directions in relation to Ms Melmeth on the issue of intoxication.

CROWN PROSECUTOR: I did have a look at that. I can print something out that I prepared as a working copy of ideas for myself if it assists.

HIS HONOUR: All right.

CROWN PROSECUTOR: It was effectively a slightly modified version of the intoxication direction in the benchbook. It would appear that—

HIS HONOUR: Yes, I've sort of done that a bit myself.

CROWN PROSECUTOR: It's a curious situation because the specific result is not as clear cut as some results, in terms of intoxication offences and Ms Melmeth's participation is not directly, it's—

HIS HONOUR: No and you've got an intent to commit an indictable offence which, of itself, involves a state of mind, namely intimidation.

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: So specific intent, to have a specific state of mind, yes, all right. And then so for Ms Melmeth it will be no evidence and no ERISP?

MASSEY: That's so, your Honour.

Mr Fitzgerald then indicated that he would call Fernando to give evidence. Of course, DSC Green was the final witness in the Crown case, and although DSC Green’s evidence in chief was not complete, defence Counsel had clearly decided what he wanted to do and were prepared to advise his Honour accordingly. This premature raising of “intoxication” does not cause me to resile from what I have earlier found. To take into account what DSC Green observed over half an hour after the event, as being the fact during the event, required expert evidence.

183. Whilst the instigation of the detention of Connolly was initiated by Fernando, the plaintiff acquiesced in the plan by complying with Fernando’s direction or request, and was furthered by her providing the pistol and the rope to Fernando. It can not be disputed that at the time Mr Costello opened to the jury there was evidence to support a joint criminal enterprise on the charge of kidnapping.

184. I am not persuaded on the balance of probabilities that there was no objective reasonable and probable cause for the kidnapping charge available to Mr Costello.

Damages

185. On my findings thus far, the plaintiff’s action fails. However, in case the matter go further, I am required by the Court of Appeal to make findings about damages. The plaintiff’s Schedule of Damages (filed 28 September 2020) contains this table:

Head of Damage	Amount
General damages	$125,000.00
Aggravated damages	$50,000.00
Exemplary damages	$25,000.00
TOTAL	$200,000.00

The plaintiff makes no claim for:

1. Loss of income or earning capacity;

2. Out of pocket expenses;

3. Personal injury damages;

4. Legal costs (these are covered by the order made by Ellis DCJ on 31 August 2017).

The defendant submitted that general damages up to $100,000 might be thought to be appropriate, but only if the proceedings were found to have been malicious from the outset. The defendant also submitted that were aggravated damages to be awarded, the total compensatory damages ought not exceed $100,000. In respect of exemplary damages, the defendant conceded that a sum up to $25,000 might be thought to be appropriate, if awarded at all (see MFI 7).

186. In Gibb-Smith v NSW [2018] NSWDC 204 I said at [129]:

Malicious prosecution is an action in case rather than in trespass and so the plaintiff must prove damage. It is not actionable per se. The types of damage that may be recovered include economic loss, e.g. legal costs incurred in defending the prosecution; lost income from the need to take time off work to attend upon one’s lawyers or the courts; necessary travelling expenses for those purposes. The damages include:

(a) loss of or damage to reputation: see State of New South Wales v Landini [2010] NSWCA 157 at [40], [102];

(b) the conditional loss of liberty by reason of one’s liberty being curtailed by being on bail: ibid at [42], [104];

(c) “mental distress and agitation” which includes anxiety and depression: ibid at [43], [105]-[110]; and which would also include “the stress and uncertainty” experienced while proceedings were pending, whilst awaiting the court’s decision.

Of course, the damages do include those for actual loss of liberty. In Gibbs-Smith the plaintiff brought a separate action for the false imprisonment by the police for “a few minutes short of 4 hours” after his arrest, mainly at a police station.

187. In the present case the plaintiff was arrested at 4:14pm on 30 May 2015 and was not released from custody until 24 November 2015, a period of almost six months. She was initially taken to Waratah Police Station, thence Newcastle Police Station for 4 or 5 days, thence Silverwater Gaol, thence Dillwynia Correctional Centre and thence Silverwater Gaol prior to the release on bail. I discussed her incarceration at [24] to [25] above. Thereafter she was on very onerous bail conditions which I outlined at [26] above, noting, in particular, her inability to care for her son who would have been 9 years old at the commencement of her bail.

188. Other matters to be taken into consideration include her being strip-searched by a male police officer – see [16] to [17] above. Another matter is completely understandable: that was concerned about the progress of the prosecution, anxious about it, vexed by the adjournment of the trial in 2016, and feeling “scared” during the trial, scared that she might be found guilty and go back to gaol [T39.21]. I was not, however, particularly impressed by her reaction to the articles which appeared in the Newcastle Herald, which really focussed on Connolly, rather than the plaintiff. She said she felt “Humiliated. Just… disgusted with how they could write stuff [like] what was in the articles” (T36.62). That smacked to me of hyperbole, but I accept that the plaintiff would have felt concerned and disappointed that the allegations against her were published in the press, which publication could make its way onto the internet. Another matter to take into account is her age: she was 30 years old at the time of the event, Fernando was 27 years old and Connolly was 35 years old.

189. Quite frankly, I would be quite prepared to award the plaintiff $125,000 compensatory damages, if the whole of what happened to her was malicious ab initio. However, I should indicate other findings. If the plaintiff had established her case against DSC Green, for the period he was the prosecutor, a lesser sum would be called for. That should reflect her initial arrest, charging and incarceration. Although the decision to refuse her bail was initially made by the OIC at Waratah Police Station, rather than DSC Green, it was because of the gravity of the charges that she was bailed refused. That remained the case until she appeared for and was granted bail by Schmidt J. I would allow $70,000 for such damages. If the plaintiff had made out her case against Mr Costello, I would allow $35,000 for the damages for what could be attributed to him.

190. The principles of the awarding of exemplary damages are well known: see Zreika v NSW [2012] NSWCA 37 at [60] to [64]; Gibb-Smith v NSW [2018] NSWDC 204 at [122]. On my findings, the plaintiff is not entitled to any such damages but, considering the parties submissions, if the whole prosecution was malicious ab initio it would be reasonable to award $25,000 under this head.

Orders

191. Verdict and judgment for the defendant against the plaintiff.

192. Unless an application be made by a party at the time of publication of these reasons, I order the plaintiff to pay the defendant’s costs.

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Decision last updated: 26 February 2021