Moore v State of New South Wales - [2025] NSWSC 1040

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moore v State of New South Wales [2025] NSWSC 1040
Hearing dates: 5 – 6, 8 – 16 May 2025
Date of orders: 12 September 2025
Decision date: 12 September 2025
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff in the sum of $456,160.
(2) The defendant is to pay the plaintiff’s costs.

Catchwords:
TORTS – malicious prosecution – misfeasance in public office – where State conceded malicious prosecution in relation to one police officer but denies in respect of others – plaintiff spent 22 in days in gaol – whether officer in charge and police prosecutor should also be found to have committed the tort of malicious prosecution – damages – previous dishonesty proceedings concerning the plaintiff – scandalous website operated by plaintiff – medical evidence inconsistent with plaintiff’s claims – failure to establish plaintiff would have gained admission as a solicitor – aggravated and exemplary damages awarded

Legislation Cited:
Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2), 317(b)
Criminal Code Act 1995 (NSW), ss 474.17(1), 474.15(1), 474.17(1)
Crown Proceedings Act 1988 (NSW)
Director of Public Prosecutions Act 1986 (NSW), s 15A
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Civil Procedure Act 2005 (NSW), s 100
Civil Liability Act 2002 (NSW), s 3B(1)
Legal Profession Uniform Admission Rules 2015 (NSW), r 10

Cases Cited:
A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17
Browne v Dunn (1893) 6 R 67
Capar v SPG Investments Ltd t/as Lidcombe Power Centre [2020] NSWCA 354
Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70
Hathaway v State of New South Wales [2009] NSWSC 116
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Husher v Husher (1999) 197 CLR 138; [1999] HCA 47
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65
Nye v State of New South Wales [2003] NSWSC 1212
Potier v The Queen [2015] NSWCCA 130
Smith v Blanch [2025] NSWCA 188
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State ofNew South Wales v Landini [2010] NSWCA 157
State of New South Wales v Loh Min Choo [2012] NSWCA 275
State of New South Wales v Spedding [2023] NSWCA 180
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35
Todorovic v Waller (1980) 150 CLR 402; [1981] HCA 72
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment
Parties: Luke Brett Moore (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
D Campbell / D Woodbury / E Graham (Plaintiff)
A Williams (Defendant)
Solicitors:
Foott Law & Co. Solicitors (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2022/00053460
Publication restriction: Nil

JUDGMENT

The plaintiff claims damages from the defendant, the State of New South Wales (“the State”), for malicious prosecution and misfeasance in public office.
As set out in the Second Further Amended Statement of Claim filed on 4 December 2024, his causes of action are based on the conduct of three (then) serving police officers for whom the plaintiff asserts the defendant is liable.
Put simply, the plaintiff alleges that, as a result of a false statement made by one police officer (Senior Constable (“SC”) Keneally) on 24 February 2021, he was arrested, charged with offences including threatening to kill a police officer, and then kept in custody until 19 March 2021. On that day, he was granted conditional bail.
The charges against him said to arise from the false statement by SC Keneally were formally withdrawn on 7 June 2021. A further charge against him (based on the content of his website) was withdrawn on 25 June 2021.
For the purposes of his claims, the plaintiff maintains that as the person who made the original false statement, SC Keneally was a prosecutor, and further that two other police officers, Detective Sergeant (“DS”) Felgate and Sergeant (“Sgt”) Comer, should also be considered prosecutors as they allegedly took steps to maintain the charges against the plaintiff, even when they knew that there was no basis for the charges (I will come to precisely how the case is pleaded later in this judgment).
SC Keneally is no longer a police officer. He was convicted of one count of fabricating false evidence with intent to mislead a judicial tribunal in judicial proceedings, contrary to s 317(b) of the Crimes Act 1900 (NSW) in relation to the statement he made about the plaintiff. He did not give evidence in these proceedings. DS Felgate remains a police officer. He gave evidence in these proceedings.
Sgt Comer has retired from the Police Force. She gave evidence in these proceedings. I will refer to each of the police officers by their former rank.
Although the defendant admits that it is liable in damages to the plaintiff for the tort of malicious prosecution arising out of the conduct of SC Keneally, the plaintiff maintained his case against the defendant arising from the conduct of DS Felgate and Sgt Comer on the basis that, as asserted by the plaintiff, their conduct would entitle the plaintiff to additional sums for exemplary and aggravated damages.
Much of the hearing was taken up with the plaintiff’s case based on the conduct of DS Felgate and Sgt Comer. There is also a significant dispute on the damages to which the plaintiff is entitled, including the level of compensatory, aggravated and exemplary damages.
As far as I can determine, this is the third (successful) claim for compensation pursued by the plaintiff against the State arising out of the conduct of New South Wales police officers towards him. It is a somewhat ironic feature of this case that, shortly before the events which give rise to this claim, the plaintiff had established a website styled “isuepolice.com” in which he made allegations against two senior police officers (and police generally) and advertised himself as the person who could assist people to sue the police for damages. On the night of his conversation with SC Keneally, he was ringing police stations to inform them of his website and his proposed activities purporting to hold them to account.
He then became the victim of a false statement made by SC Keneally resulting in being wrongly charged and placed in custody and of course providing him with a further opportunity to sue the State.
I mention that not to cast doubt on the validity on his claim against the defendant but only to observe that the plaintiff was already a person who had seemingly suffered some injustice at the hands of the criminal justice system. He might be viewed as already determined (or obsessed or fixated) on exposing what he viewed as police misconduct. Being locked up for something which he did not do must have been particularly difficult for him.
Having said that, the content of his isuepolice.com website was scandalous and scurrilous. He makes unfounded and absurd allegations against members of the police. The fact that he holds himself out as the expert in obtaining maximum compensation for these types of claims cannot be ignored.
Further, by his own admission, he had previously engaged in dishonest conduct involving a substantial sum of money. These matters do not detract from the strength of his claim for malicious prosecution against the defendant, but they certainly impact upon the damages to which he would be entitled, having regard to his claim that, if not for the conduct of the three police officers, he would have been admitted and practising as a solicitor.
The essential facts grounding the plaintiff’s claim are not in dispute. The main area in dispute relates to the conduct of DS Felgate and Sgt Comer as well as damages issues. The credibility of the plaintiff is in issue in some respects.

The evidence

The plaintiff prepared two evidentiary statements. The plaintiff also relied on statements from his partner, Shae Jacinta Greene, and his mother, Annette Helen Moore. Both Ms Greene and Mrs Moore gave oral evidence and were cross-examined, albeit the cross-examination was limited.
The plaintiff was cross-examined extensively, mainly in relation to the content of his website and damages issues.
In closing submissions, the plaintiff made much of the fact that various aspects of his written statements were not the subject of a challenge in cross-examination.
The defendant relied on statements of Sgt Taleski, the person whom SC Keneally originally reported the call, as well as DS Felgate and Sgt Comer. All of those witnesses gave oral evidence and were cross-examined.
The plaintiff took DS Felgate and Sgt Comer to extensive documentary evidence, being principally internal records of the NSW Police Force which were all admitted into evidence.

The relevant events

The plaintiff is currently 38 years old. He is in a long-term relationship with his partner, Shae Jacinta Greene. They live in Nowra and have two children. He is not currently working and is in receipt of a disability support pension. The plaintiff says that he is not working and has not worked since the events giving rise to this claim because of mental health issues caused by those events.
Whilst the existence of some of those mental health problems is not in dispute, the nature, extent and cause of those problems is in dispute. This is because in the 15 years or so prior to the relevant events, the plaintiff had been involved in or been subject to a number of other events which had impacted upon him on an ongoing basis. In my view he has attempted to minimise the significance of those earlier problems for the purposes of maximising this claim.
Having left school in year 11, he completed a tertiary preparation certificate (being the equivalent of year 12) at TAFE. The plaintiff says that he went travelling and worked around Australia doing various jobs including labouring, fruit picking and as a removalist. He then returned to Goulburn in 2006 (as an 18 or 19-year-old) and obtained work in the abattoirs before obtaining work at the Coles distribution centre in Goulburn. He worked there for three years and managed to save enough money to buy a house in Goulburn.
In 2008 he changed jobs, working as a bank teller at the Commonwealth Bank. Unfortunately, in November 2008 he was involved in a serious accident. His promising start to his adult life and career appears to have changed as a result thereof. He spent three nights in hospital. In his evidentiary statement prepared for these proceedings he listed his injuries as a broken collarbone, ribs, wrist and a lacerated spleen. It is apparent from other evidence adduced that he also sustained a significant head injury, albeit the consequences of that injury are in dispute in these proceedings. It is puzzling although consistent with the running of this case that he did not mention the head injury in his statement.
The plaintiff says that following that accident he had some time off work and became very depressed. He spent time in a mental health facility. He was prescribed SSRIs, anti-depressants and Effexor. He ultimately got back to work at the bank but lost his job because of his mental health struggles. He was unemployed for a period and receiving Centrelink payments.
At some stage he established a bank account with the St George Bank. Due to what must have been an error in the bank’s systems, he was permitted to draw down on the account over and above any account balance. That is, he could withdraw money from the bank using that account, even though there were insufficient funds in the account and the account was not secured by way of any mortgage or other security.
Over about a three-year period, he withdrew $2.1 million from the St George account. He transferred large sums directly from the St George account to other accounts. He also used the money to do things such as purchase expensive artworks and expensive cars. It appears to have taken three years for the St George Bank to discover what was happening and freeze the bank account as well as obtain orders in respect of his NAB account. I understand from his evidence on this topic that whilst the St George Bank did recover some of the funds, there was a significant amount not recovered.
During the period that he was doing this, he owned a home in Goulburn which was subject to a mortgage. He sold the property in 2010 seemingly around the same time as his access to the St George account was coming to an end.
In December 2012 he was arrested and charged with one count of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act, and one count of dealing with proceeds of crime, contrary to s 193B(2) of the Crimes Act. Bail was refused initially but he was later granted bail. He pleaded not guilty. In February 2015 he was convicted and sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months. He appealed to the Court of Criminal Appeal where he represented himself. He was granted bail in September 2015. In December 2016 his conviction was overturned on the basis that the elements of the offence with which he had been charged had not been established, although the finding of dishonesty remained. He spent a total of six months in prison in 2015.
In October 2016, he commenced studying law by way of remote learning at the Charles Sturt University Bathurst. He ended up completing his law degree in October 2021. He says he came first in civil procedure and received an award for that achievement.
The plaintiff also says that, prior to the events of 2021, he had been subject to strip searching by the police on a number of occasions. He says that in 2011 he was strip searched in the back of a paddy wagon outside the school. In 2017 he was strip searched by police officers whilst in Goulburn. He was charged with offences to which he pleaded not guilty. He was legally represented and was convicted in the Local Court. He appealed to the District Court representing himself and the conviction was overturned.
The plaintiff says that he sued the defendant arising out of these events. He obtained compensation and entered into a confidential deed as part of the settlement arrangements. He also says that in May 2017 he was again strip searched by a Detective. He says he again sued the defendant in respect of that incident and received compensation.
In his first evidentiary statement dated 22 December 2023 he makes observations about the degrading and humiliating effect of being strip searched. He says that he became determined to educate people about their legal rights arising from being strip searched. Shortly prior to February 2021 he established a website called I will comment on the content of this website later in this judgment, but the plaintiff says that it was his intention to expose unlawful police conduct and refer potential plaintiffs to a law firm in return for a commission. He says that his long-term aim was to set up a civil rights law firm.
The plaintiff says that, despite all of these earlier events and recurring mental health problems, during the three years prior to February 2021 his life had been great; he was in a stable relationship and had obtained employment.
Sometime in February 2021, he must have decided that he was going to ring police stations around New South Wales to both inform them of his website/business and warn them about strip searching. On 24 February 2021 he made a number of calls to police stations.
His call to the Newtown Police Station during the evening of 24 February 2021 initiated the events which lead to this judgment.
SC Keneally answered his call. Unbeknownst to SC Keneally, the plaintiff was recording the conversation. Immediately after the conversation between SC Keneally and the plaintiff, SC Keneally reported the conversation to another more superior officer (Sgt Taleski). He included in his report of the call comments said to have been made by the plaintiff during the call, the effect of which was that the plaintiff was threatening to kill a senior police officer, a Detective (being a person who had previously strip searched him).
As matter of fact, the plaintiff had made no such statements and nothing said by the plaintiff during that conversation could have been interpreted by SC Keneally as any threat by the plaintiff to inflict violence on that police officer. The Detective was not mentioned in the conversation, although he featured prominently on his website.
The plaintiff was reported to the Fixated Persons Unit within the NSW police. DS Felgate (then SC Felgate) was appointed to investigate, and he became the Officer in Charge (“OIC”) of the investigation.
The plaintiff was charged with the following offences:

Sequence 1: Use carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (“Criminal Code”);

Sequence 2: Use carriage service to threaten to kill, contrary to s 474.15(1) of the Criminal Code; and

Sequence 3: Use carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code.

The first two charges relate to his alleged conduct on the phone. The third relates to the content of his website. He was subsequently charged with an additional offence (destroy or damage property) which arose out of him grabbing a clock off the wall and smashing it over his head in frustration about not being released.
The plaintiff was brought before the Local Court and bail was refused. Despite his protestations, he remained in custody until the next bail application again in the Local Court on 19 March 2021. At that time Sgt Comer appeared as the police prosecutor. She opposed bail but the Magistrate granted bail.
Once out of custody the plaintiff continued to agitate for the withdrawal or dismissal of the charges against him. He filed a motion.
Sequences 1 and 2 were withdrawn by the Commonwealth DPP (“CDPP”) on 7 June 2021. Sequence 3 was ultimately withdrawn on 25 June 2021 and the charge relating to damage property was also withdrawn.
The plaintiff spent 22 days in custody between first being arrested and being released on conditional bail on 19 March 2021.
In February 2021 the plaintiff was studying law. He went on to complete his law degree. He appears to have done very well before and after February 2021. Although he has completed a law degree and indeed the practical legal training requirements, he has never applied for admission.
He continues to live with his partner and two children. Other than occasional counselling paid for by Victims Services, he has received little by way of treatment for his mental health conditions. He says that he remains unfit for work because of his mental health conditions. He says that if not for the tortious conduct of the defendant through its servants and agents, he would have applied for admission and become a solicitor and would be working his way up as a solicitor with consequent increases in salary.
Although he makes that claim, in closing submissions, his Senior Counsel, Mr Campbell, put his claim somewhat less specifically in the sense that he suggested his claim should be assessed as the loss of opportunity to become a solicitor and damages on this basis should be awarded as a form of “buffer” rather than any weekly sum (on top of damages based on average weekly earnings).

Issues

I emphasise that:

it is not in dispute that the plaintiff did not threaten to kill the Detective or anyone during his conversation with SC Keneally on 24 February 2021;

SC Keneally made a false statement about the plaintiff threatening to kill the Detective both when reporting the matter to Sgt Taleski and in a written statement he subsequently signed;

in respect of the conduct of SC Keneally, the plaintiff has established the elements of the tort of malicious prosecution.

The defendant has admitted liability to pay damages to the plaintiff arising out of the conduct of SC Keneally. Indeed, the defendant says (rather succinctly) that this is a case in which “the plaintiff won’t take yes for an answer”. I assume that this is a reference to the plaintiff running all issues despite the defendant admitting liability.
As such there remain some difficult issues including:

has the plaintiff established that DS Felgate’s conduct renders him guilty of malicious prosecution for which the defendant is vicariously liable?

has the plaintiff established that Sgt Comer was by her conduct guilty of malicious prosecution for which the defendant is vicariously liable?

has the plaintiff established his cause of action in misfeasance in public office?

to what extent are the plaintiff’s injuries and disabilities referable to the tortious conduct for which the defendant is liable?

having regard to the plaintiff’s complicated pre and post event history, how should damages be assessed?

is the plaintiff entitled to aggravated damages and on what basis?

is the plaintiff entitled to exemplary damages and on what basis?

The tort of malicious prosecution

As stated in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A v State of NSW”) at [1] (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), the four elements of malicious prosecution are:

that proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;

the proceedings were terminated in the plaintiff’s favour;

the defendant, in initiating or maintaining the prosecution acted with malice; and

the defendant acted without reasonable and probable cause.

(see also Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4]; State of New South Wales v Spedding [2023] NSWCA 180 at [13] (“Spedding”)).

Pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW), the defendant is vicariously liable for torts committed by persons in the service of the Crown.
In a case such as this, it is necessary for the plaintiff to identify those persons for whom the defendant is said to be vicariously liable.
The defendant admits that each of the four elements of the tort have been established in respect of the conduct of SC Keneally. It denies that the conduct of DS Felgate and Sgt Comer was malicious.
It is not in dispute that the proceedings were terminated in the plaintiff’s favour. It is not in dispute that when terminated the proceedings lacked reasonable and probable cause.
However, in respect of both DS Felgate and Sgt Comer, it is in dispute that:

the proceedings were “initiated or maintained” by DS Felgate or Sgt Comer;

that in initiating or maintaining the prosecution they acted with malice;

that at the particular time of their involvement, the proceedings lacked reasonable and probable cause.

Misfeasance in public office

It is not entirely clear why the plaintiff pursues this alternative cause of action, the defendant having admitted liability in respect of the conduct of SC Keneally. Be that as it may, during closing submissions, the plaintiff maintained his pleading, albeit little attention was directed to this cause of action during the proceedings.
In Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, Brennan J observed at 357:

“… Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”

The defendant’s approach to this tort was to accept that the plaintiff’s success rises or falls on the same basis as the claim in malicious prosecution.
In saying this, the defendant points out (correctly) that the damages recoverable by the plaintiff would be the same such that, if the defendant is liable for the malicious prosecution by DS Felgate or Sgt Comer, then there would be no additional benefit to the plaintiff in a finding of misfeasance in public office.

The pleaded case

As identified in Spedding (at [258]), it is necessary for a plaintiff to particularise his claim against individual persons for whom the defendant is vicariously liable with some precision.
The plaintiff pleads ten aspects of malice of SC Keneally’s conduct to support his allegation that SC Keneally instituted and/or maintained the prosecution of the plaintiff in the absence of reasonable and probable cause and acted with malice. These matters are pleaded in paragraph 45 of the Amended Statement of Claim. The defendant admits paragraph 45 but does not plead to the particulars of malice maintaining that it was not required to do so. The plaintiff took issue with this approach.
The plaintiff relies on the defendant’s response as giving rise to an additional sum on account of aggravated damages. I will come back to that issue later in this judgment.
It is only necessary to say that the defendant’s admission of tortious conduct on the part of SC Keneally, for which it is vicariously liable, is not an admission of every aspect of the allegations in respect of SC Keneally. Malice and lack of a reasonable and probable cause are admitted, but why SC Keneally did what he did is unclear. It may be possible that he was mistaken in his original report of the conversation to his superior, but there can be no room for any inference that he might have been mistaken when he completed his signed statement.
In that statement, he recounted a conversation with the plaintiff which simply did not occur. SC Keneally wrongly told his superior officer that the plaintiff had threatened to kill the Detective and then prepared and signed a statement purporting to record the words spoken by the plaintiff when no such words were used. He maintained his version of events even when spoken to subsequently by DS Felgate (after DS Felgate had listened to the recording).
As against DS Felgate, the plaintiff pleads nine particulars of malice. The defendant denies the allegation of malice and again does not plead to particulars. Whether DS Felgate acted maliciously in the ways pleaded is very much in issue. DS Felgate gave evidence and the plaintiff urges specific findings in respect of the pleadings of malice, having regard to that evidence.
As against Sgt Comer, the plaintiff’s case is more limited because the complaint is confined to her conduct in resisting the bail application made by the plaintiff on 19 March 2021. Again, it is difficult to understand how anything Sgt Comer did could result in additional damages, but the plaintiff maintains that adverse findings in respect of the conduct of Sgt Comer should lead to additional aggravated and exemplary damages.
The defendant also denies that Sgt Comer acted with malice and again does not plead to the particulars of malice.

The conversation between the plaintiff and SC Keneally

At approximately 8:30pm on 24 February 2021, the plaintiff rang Newtown Police Station. SC Keneally answered the phone. SC Keneally commenced by saying that he could not hear the plaintiff properly, but then said he could make out what he was saying. Presumably in response to this comment, the plaintiff initially spoke rather loudly and slowly; introducing himself by name and stating that he was the co-founder and CEO of “isuepolice.com”.
The plaintiff directed SC Keneally to his website and SC Keneally asked some questions, plainly trying to get further information about the plaintiff, such as his phone number and address. The plaintiff responded again referring to his website and indicating he could be contacted through the phone number he was using. Although he declined to give his address, he did say that SC Keneally could look it up on the system if he wanted to.
It must be that, whilst the initial part of the conversation was taking place, SC Keneally did access the website as he said words to the effect that he was on the website and it was quite interesting. He offered the plaintiff the chance to speak to a duty officer at some other time. The plaintiff then commenced to explain the purpose of the call, giving details of his grievances and providing a summary of his own personal history, suggesting he had been harassed by police for 10 years and that he sued them twice and recovered damages, specifically referring to recovering $30,000 from the police because he was strip searched.
The plaintiff made statements to the effect that there were 50 jobs for police officers in his business and they could all earn $250,000 a year. He said he was specifically putting the police on notice and noting the time of this conversation so that any further strip searching would result in aggravated and exemplary damages in favour of those persons who were strip searched. He referred to the failure of the Police Commissioner to properly train police officers that strip searches were illegal and the problem of strip searching children and Aboriginal people.
After the preliminary discussion with SC Keneally, the plaintiff spoke for approximately eight minutes uninterrupted (that is, without any words from SC Keneally being recorded) about strip searching, his business and what he was doing before he perhaps realised that SC Keneally was not responding. He asked to confirm the name of the officer he was speaking to, and with no response, he then hung up.
There is no suggestion that the recording is not an accurate recording of everything that the plaintiff said. Nothing said by the plaintiff could be construed as any threat of violence towards anyone.
Further, the plaintiff did not mention the Detective by name or even indirectly.
Having said that, the only inference from the conversation as a whole, is either that the plaintiff was completely deluded at the time, or that he was knowingly making false statements.
Leaving aside his general commentary about strip searching, the statements about his so-called business were simply false. No police officers were working for him at the time; the idea that he was going to be paying them $250,000 a year and he was seeking to employ 50 police officers was absurd. He was seemingly boasting about his two successful claims against the police for compensation and promoting the idea that he would, in some way, be representing people subject to strip searches and could recover substantial sums on their behalf. He spoke for eight and a half minutes uninterrupted. He apparently rang other police stations that night. This is hardly rational behaviour.

The website

At some time prior to 21 February 2021, the plaintiff developed and published a website which he called “isuepolice.com”. That website contained many false statements and allegations; some of which were quite scandalous, particularly, his statements about police officers generally and two particular police officers, being the Police Commissioner and the Detective with whom the plaintiff had had dealings. The front page of the website included the following:

“Do you feel harassed by the police?
Have you ever been strip-searched?
Then like me and 1000’s of others across the country, you could be eligible for NSW Police strip-search payout.
ISUEPOLICE
Reclaim your rights
[the plaintiff’s phone number]
A Message from Luke Brett Moore, Founder and CEO, isuepolice.com.”

On the second page of the screenshots of the website included in evidence, the plaintiff spoke in further detail about strip searching and its consequences.
On the third page, the plaintiff advertised his own services, suggesting he could protect people from illegal strip searches. He referred to having “expert strip-search claims specialists” who regularly win $20,000, $30,000 and $40,000 for people. He said he had the best police misconduct experts in the country and that they are the fastest growing network of police accountability specialists in the world. He said he had been strip searched, and he received $30,000 and the police paid all his legal fees.
On the fourth page, he went on to talk about the role of the judiciary and then made allegations about the Police Commissioner, his activities and relationship with a particular law firm.
On the fifth page, he continued with those allegations and then made allegations about the Detective, suggesting he was a sexual predator.
On the sixth page, he referred to an upcoming mediation with New South Wales Police to negotiate a further payment to him. He said he could teach people how to pursue their own claims and said he would assist them.
On the seventh page, he referred to receiving lots of calls from people and then reaching out to New South Wales police officers who may be reading his website, suggesting he could offer a guarantee of $260,000 salary per year with a $200,000 sign-on bonus, but there were only limited positions available.
On the eighth page, he continued to promote work for police officers.
At the end of this page and on the next page, after purporting to sign off, he then continued with scurrilous allegations against the Police Commissioner and the Detective including encouragement of others to approach the Detective and inform him that the plaintiff was coming for him (in the sense of having him removed from the Police Force), allegations that the Detective was a sexual predator and allegations that the Police Commissioner was a racist bigot.
The allegations and commentary about the Detective and Police Commissioner then continued on for a further two pages. Whatever might be thought about the language used by the plaintiff, there was no threat to kill the Detective or anyone on the website. The reference to “coming for” the Detective when read in context, is a reference to taking steps to have him removed from the Police Force. On a fair reading of the plaintiff’s words, it might be taken as a call to harass the Detective, but nothing said by the plaintiff in his website could be taken as a threat to kill any police officer.
Of course, this sort of conduct on the part of the plaintiff must be denounced in strong terms. All citizens including police officers are entitled to be protected from such scandalous, unfounded and absurd allegations. Yet, the plaintiff’s behaviour prior to being arrested does not justify him being placed in prison wrongly. The defendant accepts this.
It is important to understand that the context of the phone call to Newtown Police Station and the content of the website, provides context and background to that which happened thereafter including the police investigation but importantly, it is not suggested by the defendant in these proceedings that there is anything on the website or the statements made by the plaintiff in the conversation, that would have led SC Keneally to have a mistaken view that the plaintiff had threatened to kill the Detective.
Whatever may be thought of the plaintiff’s conduct, it does not preclude him from obtaining damages in these proceedings. Indeed, the defendant accepts that it is liable to pay damages to him.

The plaintiff’s evidence

Other than in respect of matters about which I granted leave to the plaintiff to adduce further evidence, the plaintiff’s evidence in chief comprised his evidentiary statements. He detailed his background, his version of the various problems that had befallen him and the consequences of the incarceration in February 2021. He spoke of significant ongoing mental health problems which continue to preclude his return to work and have left him isolated seemingly unable to care for himself.
He did give further evidence as to his conversation with DS Felgate in the cell when he was initially refused bail. He said:

“Q.    Doing the best you can, tell us what you said and he said as if that conversation was occurring now?
A.   I said to Detective Felgate that I’d recorded all the phone calls that I made to the police station and they were all on my phone and if he went and got my phone it would prove that I was telling the truth.
Q.    Did he say anything to you?
A.    He said something along the lines of it’s been taken into evidence and he can’t do that now, he’ll have to wait until it gets processed.
Q.    Did you say anything in response to that?
A.    I pleaded with him to go and get - as I said repeatedly, ‘Just get my phone, the recording’s on it. I didn’t say those things. It’s all on my phone’.
Q.    Did anything happen in relation to that matter after that?
A.    He walked off as he was saying that it’s been taken into evidence and there’s nothing he can do at the moment.”

In cross-examination he was taken to the parts of the interview conducted on the date he was arrested. He agreed that he did not tell the police during the interview that he had a record of the phone call with SC Keneally.
He disputed that the police had indicated that they were interested in obtaining any exculpatory material during that interview. He was wrong about that as there is a question in the ERISP interview to that effect.
Indeed, the following exchange occurred during cross-examination:

“Q.    … So you were asked by an officer, ‘I’m just looking for exculpatory evidence’, is that right?
A.    Yes.
Q.    You answered, ‘Yeah, I know you are’, is that right?
A.    Without hearing the recording, I couldn’t be sure, but I mean, that’s what it says there.
Q.    You know what the word exculpatory means, don’t you?
A.    I do, yes. Although it--
Q.    Yes?
A.    I’d honestly have to listen to the recording because my reading of this would seem that I’ve misunderstood at the time what exculpatory means, given that my answer was, ‘Yeah, I know you are’. To me, I’m not sure whether that was sarcasm because I didn’t believe that they were actually looking for exculpatory evidence, or if I misunderstood what exculpatory is. And when I say, ‘Yeah, I know you are’, my understanding is they’re looking for more evidence to get me. So I don’t know.
Q.    You don’t know now whether you were unsure what exculpatory meant or whether you were being sarcastic?
A.    Either. I’d have to hear the recording to understand because this is all being said rather quite fast. This is questions going back and forth, back and forth. So I’m not sure if I’d misunderstood that or misheard it, or if I was being sarcastic or not. I wouldn’t know, this was four years ago.”

It is difficult to know why he did not tell the police during that first interview about his recording, particularly when by his own statement he knew the police were looking for exculpatory material at that time.
I do not accept his suggestion that he might have not understood what exculpatory meant. It may be that he thought that the police would have had their own recording, but it remains puzzling why he did not tell the police that he had recorded the conversation when offered an opportunity to provide the police with exculpatory material.
He could have offered an explanation in his oral evidence, but he chose to suggest that he might have misunderstood. The plaintiff agreed in cross-examination that after being arrested he had an opportunity to speak with a Legal Aid solicitor before the first bail hearing. He then retained Mr Marrochi and had an opportunity to provide instructions to his solicitor.

It was put to him that Mr Marrochi wrote to the police saying, “Please inspect my client’s phone and listen to the contents of it.” He denied knowing about that communication. Again this is difficult to accept.
He was challenged as to his alleged reference to the recording to DS Felgate in the cell on the first occasion. It was put to the plaintiff that:

“Q. You said nothing of the sort to Detective Felgate on that day, did you?
A. No, I did. I called him over to my cell and told him.”

He agreed that he had chosen not to tell the police during his ERISP interview about the phone and one of his concerns was that the police would delete things that were on it.
The plaintiff was cross-examined extensively about the content of his website. He was taken through many of the statements he made about the Police Commissioner and about the Detective with reference to the precise words he used.
The plaintiff’s response to many of these questions was disingenuous. He took to suggesting that he could have phrased his language better or that he could have chosen better words. He generally did not accept that the various statements he had made about the police, the Police Commissioner and the particular detective were without foundation. For example, he pointed to the strip searching of Aboriginal people as somehow supporting his statements about the Police Commissioner, and his own strip searching as providing a foundation for his statements about the Detective.
He accepted that the content of his website had been removed at the suggestion of his lawyers, although he acknowledged that the website itself remained in place, pending further developments (which I take to be a reference to the conclusion of the case).
He attempted to justify statements about the Police Commissioner on the basis that the Police Commissioner was a leader of an organisation which engaged in strip searching and that somehow justified his suggestion that the Police Commissioner was a racist, bigot and child sex offender.
He was disinclined to accept that his encouragement of people to approach the Detective and tell him that he, the plaintiff, was coming for him was an encouragement of people to harass the Detective.
The evidence he gave about his website and its content sits uncomfortably and inconsistently with his attempts to portray himself as a person who had recovered from any mental health problems three years prior to February 2021 and a person who was seemingly living a peaceful and productive life, just finishing off his law degree with the intention of being admitted as a solicitor as soon as possible.
The content of his website tends to suggest that he was at best, rather obsessed and at worst, content to make false and absurd statements and keen to encourage others to harass and make similar statements about the Police Commissioner and the Detective.
The plaintiff was also asked about the events surrounding the St George bank account and his imprisonment, conviction and subsequent overturning in the Court of Criminal Appeal.
In the end, the cross-examiner achieved what he wanted to achieve out of the questioning, that is, to gain an admission from the plaintiff that his conduct was dishonest. On a full consideration of the questioning on this topic, I am left with the impression that the plaintiff was not really accepting any responsibility for that which occurred. For example, when asked why he would have been transferring money from one bank account, that is the St George bank account, to another bank account, being the NAB bank account, he seemed to suggest that it was just the way the process worked. He then suggested that it was difficult to explain. He then finally settled on the idea that he just wanted to have money in the NAB account to pay back to St George when St George wanted the money back (as if he was just really borrowing the money). This is absurd.
He said it was never his intention not to pay back the money but in reality he spent large sums of money on personal acquisitions when he had no ability or capacity to repay. The idea that he was just borrowing the money or never intended to not repay does not sit well with his complete inability to pay it at the time, and his expenditure of large sums on luxury items.
I formed the view that some of the plaintiff’s answers were disingenuous and self-serving. He wished to maintain the idea that there was not much wrong with the content of his website that could not be remedied by some slight change of words. He sought to explain away his earlier dishonest conduct. His attempt at presenting as a person free of problems and fit for work prior to being imprisoned in February 2021 does not sit well with other significant evidence. It is clear that his own evidence and presentation was very much directed at obtaining compensation in these proceedings. Perhaps, as he suggests in his website, he is an expert in obtaining compensation, but it must be said that in his own case, his own evidence did not assist him.

What did SC Keneally do?

SC Keneally did three things relevant to the tortious claim against the defendant:

he told Sgt Taleski that the plaintiff had threatened to kill the Detective;

he then completed a written statement in which he set out in detail a conversation with the plaintiff which did not occur; and

he maintained the accuracy of his version when spoken to by DS Felgate.

As far as I can determine, SC Keneally had no further involvement in the matter.

What did DS Felgate do?

In February 2021, DS Felgate was working in the Fixated Persons Investigation Unit of the NSW Police Force. He had achieved the rank of Detective Senior Constable. In October 2023, he was temporarily transferred to the Engagement and Hate Crime Unit of the NSW Police Force. In March 2024, his transfer became permanent, and he was promoted to the rank of Sergeant.
On 25 February 2021, DS Felgate was allocated the investigation into the plaintiff. He had not had any previous dealings with the plaintiff. He became aware that the plaintiff had allegedly made threats to kill the Detective in a telephone call with SC Keneally on 24 February 2021. His initial approach was to conduct inquiries, which included reviewing a downloaded PDF document of the content of the plaintiff’s website. In his evidentiary statement he says that he was affronted by the website and considered the content to be offensive.
At the same time, he reviewed statements provided by both SC Keneally and the Detective. Then on 25 February 2021, he attended the Sutherland Local Court with his colleague DSC McGill and applied for a warrant to search the plaintiff’s residence. He made arrangements to travel with other colleagues from Sydney to Nowra. Arrangements were also made for officers attached to the Nowra Police Station to arrest the plaintiff if he was sighted by them before his arrival.
As he says in his statement, his intention was to have the plaintiff charged and brought before a court. At the time, he suspected that the plaintiff had committed a number of offences, being the offences with which he was later charged.
According to DS Felgate, he considered it necessary that the plaintiff be arrested at that time to prevent a continuation or a repeat of the offences, and to protect victims, namely victims he had threatened.
By the time DS Felgate got to Nowra, the plaintiff had already been arrested. At approximately 2:45pm, DS Felgate commenced an electronically recorded interview with the plaintiff (in company with DSC McGill). He paused the interview at 3:05pm as his presence was required at the execution of the search warrant at the plaintiff’s property.
As he says in his statement, a number of items were seized as a result of the search warrant including a laptop, a mobile phone, four external hard drives, a second mobile phone and cannabis leaf and bud. After the search warrant was completed, he returned to Nowra Police Station and completed the charge process, which included preparing a Court Attendance Notice and a Facts Sheet.
At the time he prepared the Court Attendance Notice and the Facts Sheet, he had available to him witness statements from SC Keneally and the Detective as well as a PDF document of the content of the plaintiff’s website isuepolice.com. DS Felgate charged the plaintiff with the three offences. He considered there was sufficient material available to support the charges.
For reasons best known to the plaintiff himself, the plaintiff did not inform the police in his initial interview of the existence of his recording despite being asked about any exculpatory material.
The plaintiff says that he told DS Felgate about the recording for the first time on 25 February 2021, but DS Felgate denies that he had any conversation with the plaintiff about there being a recording of the conversation at that time. DS Felgate completed entries in his duty book as to the work he had undertaken. He was then off duty for two days. After being denied police bail on 25 February 2021, the plaintiff was brought to Court and bail was refused again in the Nowra Local Court on 26 February 2021.
On 1 March 2021, DS Felgate recommenced investigation of the matter. He spoke to an officer of the CDPP about obtaining a copy of the body worn footage of the plaintiff’s arrest and requested a reverse call charge record in respect of the calls made by the plaintiff on 24 February 2021. He undertook further tasks on 2 March 2021, again reviewing body worn video and reviewing bail conditions.
On 2 March 2021, he asked another officer to conduct a Cellebrite download of the plaintiff’s Samsung mobile phone and Google mobile phone. The officer completed the Cellebrite download on 3 March 2021.
DS Felgate was off duty for a period and did not return to further work on the matter until 11 March 2021. On that day, he reviewed the Cellebrite download of the mobile phones and listened to several audio recordings recovered from the devices. As he says in his statement, this included a recording of the telephone conversation between the plaintiff and SC Keneally.
The plaintiff says that from the time that DS Felgate heard the recording he wrongfully maintained the proceedings knowing that the proceedings lacked reasonable and probable cause.
In his evidentiary statement prepared for the purpose of these proceedings dated 25 September 2024, DS Felgate says:

“On listening to the recording of the telephone call between Mr Moore and Mr Keneally, it came to my attention that the threat allegedly made by Mr Moore and detailed in Mr Keneally’s witness statement was not clearly audible. I also noticed that the recording appeared to drop out at certain points.”

He also says that immediately thereafter, he sent an email to Sgt Comer from Nowra Prosecutors asking whether she had time to discuss the matter in the light of what he considered a potential issue as to the evidence. Although he does not recall when he had a conversation with Sgt Comer, he believed it was on the same day. There is reference in his duty book of 11 March 2021 to him speaking with Nowra Prosecutors. Sgt Comer did not recall the conversation.
At least in his statement he said he could not recall exactly what was said when he spoke to Sgt Comer, but he also said she had expressed some views about that matter. Thereafter, he continued to investigate the matter including requesting statements from other police officers.
On 16 March 2021, he sent an email to SC Keneally asking him to call him to discuss the conversation. On 17 March 2021, he received a call from SC Keneally. DS Felgate says in his statement that SC Keneally confirmed with him that SC Keneally recalled the plaintiff making a threat to kill the Detective over the phone. DS Felgate says that SC Keneally also confirmed with him that everything set out in his witness statement was correct. In his oral evidence he again stated that SC Keneally told him that everything in his statement was correct.
In paragraph 53 of his statement, DS Felgate says:

“Following my conversation with Mr Keneally, I believed that he had heard the threat described in his witness statement as having been made by Mr Moore, and that the reason for the discrepancy between his witness statement and the recording was caused by the phone line or recording dropping out. I did not have any reason to disbelieve Mr Keneally who was at the time a serving NSW Police Officer.”

DS Felgate continued to investigate the matter in March 2021 and prepared his own statements dated 23 and 25 March 2021. On 1 April 2021, he finished compiling the brief of evidence and sent it to the plaintiff’s solicitors. He believes that he sent the brief of evidence to the CDPP at around the same time.
In April 2021, he received further statements from other police officers. He became aware that the plaintiff’s solicitors had ceased to act for him. On 13 May 2021, he travelled from Sydney to the plaintiff’s home in Nowra to serve the brief of evidence on him.
Again, in his evidentiary statement prepared for these proceedings dated 25 September 2024, he refers to being aware that the CDPP withdrew sequences 1 and 2 on 7 June 2021. He says that he had spoken about the withdrawal of those charges with an officer of the CDPP, probably Jon Kisch. He says that he did not take any contrary view to the position adopted by the CDPP.
He then became aware of the plaintiff’s motion to permanently stay the proceedings, and he became aware that the CDPP had also withdrawn sequence 3.
DS Felgate was the OIC of the investigation. He was the person who considered and determined the charges that should be laid against the plaintiff. He organised for the search warrant, and he conducted the initial electronic recorded interview.
DS Felgate was subject to extensive cross-examination relating to all of the steps he took between the time of his appointment and the charges being withdrawn. The allegations against DS Felgate are based on his appointment as the OIC and in particular, the fact that he listened to the recording on 11 March 2021 when the plaintiff was in custody.
According to DS Felgate, the two matters of significance that he did subsequent to listening to the conversation were to:

contact SC Keneally and asked about his recollection of the conversation; and

speak to Sgt Comer as the prosecutor about his concerns arising from the recording.

Was DS Felgate a prosecutor?

DS Felgate was the police officer responsible for initiating the proceedings. He caused the plaintiff to be charged and prepared the Court Attendance Notice. He did so on the basis of the information provided by SC Keneally.
The plaintiff did not assert that in undertaking these steps, DS Felgate was acting with malice or without reasonable and probable cause, albeit he was plainly a prosecutor at the time. The case against DS Felgate can thus only be that he maintained the proceedings at some point after obtaining sufficient information so as to know that the allegations against the plaintiff were without foundation.
The person against whom a claim may be brought for malicious prosecution in respect of is not limited to the actual instigator or initiator of the proceedings. A person who maintains proceedings (usually a police officer) could also be guilty of tortious conduct provided that, at the time when that person acted in maintaining the proceedings, he or she did so with malice and in the absence of reasonable and probable cause.
In Spedding, the Court (per Bell CJ, Ward P and Adamson JA at [15]-[17]) said:

“[15] The person who initiates a prosecution may differ from the person who maintains it. Moreover, identification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the ‘prosecutor’ on Court process and, as Mr Free SC, who appeared in the appeal for the State, accepted, there may be multiple prosecutors.
[16] These propositions all flow from the fact that, in Davis v Gell (1924) 35 CLR 275 at 282-283; [1924] HCA 56 (Davis), Isaacs ACJ said, in an important passage, that for the purposes of this tort (with emphasis added):
‘the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.’

[17] In the present case, the primary judge’s conclusion that each of the Police Officers was a prosecutor for the purposes of the tort of malicious prosecution at the commencement of the criminal proceedings on 22 April 2015 was not challenged although whether each (or indeed any) of the Police Officers continued to hold that status so as to have maintained the prosecution after the ODPP formally took over the carriage of the prosecution which, in the current case, occurred by the end of April 2015, was a point vigorously contested on appeal. In this context, pursuant to s 9(4)(a) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), the Director of Public Prosecutions is deemed to be the prosecutor in connection with the prosecution of proceeding concerned once the ODPP takes over the carriage of the proceedings. That formal statutory position does not, however, mean that those responsible for initiating proceedings as prosecutor may not continue to hold that status for the purposes of the tort.”

As is apparent from Spedding, once the ODPP formally took over the carriage of the prosecution, the Director of Public Prosecutions was deemed to be the prosecutor in connection with the prosecution of the plaintiff. However, that does not mean that the person responsible for initiating or maintaining the proceedings, in this case DS Felgate, may not continue to hold the status of prosecutor for the purposes of the tort of malicious prosecution.
Reference should be made to s 15A of the Director of Public Prosecutions Act 1986 (NSW) which provides as follows:

15A   Disclosures by law enforcement or investigating officers
(1)   Law enforcement or investigating officers for alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement or investigating officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).
(2)   The duty of disclosure continues until one of the following happens—
(a)   the Director decides that the accused person will not be prosecuted for the alleged offence,
(b)   the prosecution is terminated,
(c)   the accused person is convicted or acquitted. …

DS Felgate was the police officer responsible for initiating the proceedings. He became the OIC as the investigation progressed. It must be that he had a duty to disclose to the Director all relevant information, documents and other things obtained during the investigation that might reasonably have been expected to assist the case for the prosecution or the case for the accused person. That duty continued until such time as the prosecution was terminated. The duty remained continuous. As noted in Potier v The Queen [2015] NSWCCA 130 at [552]:

“The prosecution’s duty to disclose is a continuing one (R v Glover (1987) 46 SASR 310; Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 at [57]) and extends to disclosing material relevant to sentence proceedings (R v Lipton (2011) 82 NSWLR 123 at [82]).”

Although the CDPP became the prosecutor once it assumed conduct of the prosecution, DS Felgate continued to play a significant role in the maintenance of the proceedings. In my view, having regard to his continuing obligations and the role he played, he remained a prosecutor for the period during which it can be said that he played a role in maintaining the proceedings.

Has the plaintiff established his case against DS Felgate?

A claim based on maintenance of the proceedings requires some positive action on the part of the police officer in the absence of a reasonable and probable cause: see State ofNew South Wales v Landini [2010] NSWCA 157 at [52]-[59] per Macfarlan JA (Tobias JA and Sackville AJA agreeing); State of New South Wales v Abed [2014] NSWCA 419 at [191]-[201] per Gleeson JA (Bathurst CJ and Macfarlan JA agreeing).
In Hathaway v State of New South Wales [2009] NSWSC 116, Simpson J observed at [118]:

“‘Maintaining’ proceedings is a continuing process. It is conceivable that a prosecutor may act for proper reason (ie non-maliciously) or with reasonable and probable cause (or the plaintiff may be unable to prove malice, or the absence of reasonable or probable cause) at the time of institution of proceedings, but, at a later point in the proceedings, and while the proceedings are being maintained, the existence of malice or the absence of reasonable and probable cause may be shown. At any time at which the sole or dominant purpose of maintaining the proceedings becomes an improper (malicious) one, or the prosecutor becomes aware that reasonable and probable cause for the proceedings does not exist, or no longer exists, the proceedings ought to be terminated, or the prosecution is malicious.”

In A v State of NSW at [61], the Court (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) observed that:

“Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross‑examination. …”

In this matter the plaintiff seeks to establish the case against DS Felgate by inference and through cross-examination.
In Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, Jordan CJ referred to the need for five conditions to be met should a police officer have a reasonable and probable cause (at 469):

“(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.”

As observed in A v State of NSW at [64], to succeed on the issue of reasonable and probable cause in a malicious prosecution case, the plaintiff must establish that one or more of the conditions referred to by Jordan CJ did not exist.
The conduct of DS Felgate must be assessed at different times.
He initiated the proceedings against the plaintiff but there is no evidence that at the time of initiating the proceedings he did so with malice or without reasonable and probable cause. He said he did so based on the information provided by SC Keneally and having regard to important safety considerations. He considered that, having regard to SC Keneally’s statement, there was a proper basis for charging the plaintiff with sequence 1 and sequence 2, and having regard to his website, sequence 3.
However, it is DS Felgate’s conduct after he received the Cellebrite report that gives rise to the plaintiff’s complaint. The outcome of the plaintiff’s complaint in respect of DS Felgate very much depends on a consideration of DS Felgate’s conduct throughout that period.
DS Felgate was cross-examined extensively on the tasks that he performed before and after he listened to the recording on the plaintiff’s phone. He agreed that he had prepared a statement on 1 April 2021 that had not mentioned that he had spoken with SC Keneally seeking to confirm the content of his conversation with the plaintiff prior to that time.
He agreed that he had spoken with SC Keneally on 17 March 2021 to find out what his recollection of the conversation was because he had listened to the recording and knew that what SC Keneally said in his statement did not match what was in the Cellebrite.
He admitted that what SC Keneally said in his statement was not contained in the recorded conversation. He denied that he was covering anything up when not referring to his later conversation with SC Keneally in his statement, but again he accepted that there was nothing in his statement about reviewing the Cellebrite.
He rejected the proposition that he knew by that time that the Cellebrite recording put an end to his prosecution on sequences 1 and 2. He rejected the proposition that he had contacted SC Keneally to try and work out a solution.
Curiously, he said he did not obtain a further statement from SC Keneally at that time because he had no reason to doubt his version of events. I take this to mean that he believed that SC Keneally believed that he heard something albeit there was nothing on the recording to that effect.
In the end, DS Felgate was unwilling to accept that the recording proved that the conversation referred to by SC Keneally could not have occurred. However, it is plain that DS Felgate had a considerable doubt as to whether it occurred.
He agreed that despite the content of the recording he did not seek any assistance or advice from any superior officer at least until June 2021. He thought that the CDPP was handling it. However, he maintained that he spoke to Sgt Comer about the recording.
He agreed that his reference in the email of “we may have an issue” was a reference to the absence of any threat on the recording and maintained that he spoke for approximately five to ten minutes with Sgt Comer. He suggested he was seeking guidance from her that the matter could still proceed having regard to the difference between the recording and SC Keneally’s statement. He agreed however, that he did not send the recordings through to her and she did not ask for it.
He was pressed as to the terms of the conversation with Sgt Comer. In the following exchange, he said:

“Q.    Just remind me again, just do your best to tell me again, what did you say and what did she say?
A.    We spoke - I cannot remember the exact conversation.
Q.    Words to the effect, you understand that, being an experienced police officer?
A.    I said that the recording doesn’t show what Mr Keneally’s written in his statement. We spoke about that. I mentioned that at points during the conversation it, it appears to drop out. And then the Sergeant Comer or Ms Comer indicated that she didn’t think it was going to be a problem and that we could still proceed after that.
Q.    So she actually said to you firstly, ‘I don’t think this will be a problem, we can still proceed’?
A.    Words similar to that. I can’t say exactly.
Q.   Pretty important series of representations made by you and representations made by her, correct?
A.    Yes.”

He agreed that he did not make a note of the conversation and did not put a note in a duty book as to what was said, he did not confirm anything by email, nor did he cause a transcript to be made of the content of the recording. He maintained he did not do so because once the CDPP took over, he was working at their guidance and it was not requested.
DS Felgate was also taken to the statement he made after the charges were dropped in June 2021 in response to the plaintiff making applications and possibly seeking some compensation. He agreed that he included in his statement the following matters:

“In relation to the investigation of Moore, search warrant application and subsequent charges, this investigation was based off the telephone conversation had between Moore and Keneally. Combined with the victim statement of Taylor. …
Without the statement provided by Keneally detailing the threats to kill Taylor the investigation may have still occurred, but the specific charge 474.15(1), use carriage service to threaten to kill, would not have been laid.”

He agreed that he said in the statement made following the charges being dropped that he believed that SC Keneally had mistakenly heard threats to the other detective. He also agreed that this explanation was different from the explanation he provided in his written statements prepared for these proceedings.
The point being that his earlier suggestion that the words allegedly spoken by the plaintiff were not clearly audible, could not have been correct.
It is difficult to understand the differences in approach adopted by DS Felgate in his preparation of documents before and after the charges were dropped.
His initial approach was to accept that the conversation might still have taken place because SC Keneally told him it did despite the absence of any such statements on the recording. His later approach was to support SC Keneally by suggesting that he must have been mistaken but he was still acting in good faith. His initial approach was also to suggest that the recording tended to drop out (thereby leaving room for the possibility that the words were spoken) but he conceded this point during cross-examination.
In any event, DS Felgate agreed that on 7 June 2021 sequences 1 and 2 were withdrawn and that had occurred after consultation with him. Then on 17 June 2021 he received an email from Sgt Comer about the plaintiff’s motion for a permanent stay in the proceedings. He forwarded the motion and affidavit to Mr Kisch at the CDPP.
He accepted that on 25 June 2021 sequence 3 was withdrawn leaving the plaintiff only facing the charge relating to the damaged clock.
DS Felgate was also cross-examined about his suggested failure to speak to Sgt Taleski having regard to what he then knew about the recording. His response was to suggest that he was relying on guidance from the CDPP and they already had a statement from SC Keneally who had been involved in the conversation.
He also said that the first thing he did was to speak to the prosecutor (Sgt Comer). He gave the following evidence:

“Q.    What did she say to you?
A.    Words to the effect of that she didn’t think it was going to be an issue and we would be okay to proceed.
Q.    What did you tell her about the phone call?
A.    That the recording did not have what Keneally had stated in her statement - sorry, in his statement.
Q.    Did you tell her that it was dropping in and out throughout the whole of the conversation?
A.    I said it dropped in and out at parts, yes.
Q.    You didn’t suggest to her that Keneally might’ve been mistaken because he was distracted doing something else at the time of the call?
A.    No, I didn’t say that, no.
Q.    All she said is ‘Not a worry, we should be able to deal with that, we can proceed’ or something like that, is that what you’re saying?
A.    That’s what I’m saying, and not in those exact words, but yes that’s in a nutshell--
Q.    But you didn’t make a note of the advice you’d received from the prosecutor?
A.    No, I didn’t.”

DS Felgate was further extensively cross-examined about matters such as the way he conducted the original police interview, the emails he sent to various proposed witnesses and the steps he took or did not take to inform others about the content of the recording. He was cross-examined about the document he had prepared following the withdrawal of the charges at the time the plaintiff filed the motion seeking a stay of the proceedings in respect of sequence 3 as well as raising the prospect of him recovering compensation.
He was cross-examined about his suggestion that he believed that SC Keneally had mistakenly heard something, and he believed SC Keneally was acting in good faith.
The cross-examiner repeatedly returned to the same theme to the effect that DS Felgate knew that there was no basis for the charges but was determined to keep the charges going whilst he tried to find some other evidence.
The effect of DS Felgate’s evidence was that he provided the information to Sgt Comer as the prosecutor and was assured that it would not be an issue. As the OIC he then continued to investigate and gather evidence having informed the prosecutor about the weakness in the case.
I am unable to accept DS Felgate’s evidence as to what he told Sgt Comer and unable to accept his explanation as to why he did not do more to ensure that the charges were dismissed at an earlier stage.
It seems unlikely that, if DS Felgate had provided detailed information to Sgt Comer and Sgt Comer had told him in effect not to worry about it, he would not have made some note of that. Instead, the only note he made was of actually speaking to Sgt Comer. The content of that conversation remains in dispute having regard to different evidence given by DS Felgate and Sgt Comer.
In this regard, I prefer the evidence of Sgt Comer. I do not accept that she would have informed the Court that it was a strong prosecution case, if she was aware of the true position. I do not accept that she would have opposed bail if she had known that there was a recording which simply did not support the charges at all.
DS Felgate might have spoken to Sgt Comer, but I do not accept that he provided such information to her that would have caused her to form the view that there was no basis for the charges. It remains possible that, although he told her about the recording, he might also have told her that parts of what was said were not audible and also that SC Keneally had confirmed the content of the conversation with him.
I do not accept that as the OIC of the investigation he was simply relying on the CDPP as to what should happen. At least leading up to the second bail application in March 2021, DS Felgate should have known that the proceedings against the plaintiff (that is sequences 1 and 2) lacked reasonable and probable cause. This is because he knew that the sole basis of the charge was something said by the plaintiff to SC Keneally. He knew that the conversation was recorded, and no such statement was made by the plaintiff.
He may have been seeking to maintain the proceedings whilst he looked further into the plaintiff’s conduct and the matters set out in his website. He may have had concerns for the safety of the Detective.
However, if he had really thought it likely that the words being spoken by the plaintiff were not actually recorded, he would have initiated some testing of the recording or had others listening to it to trying to reconcile what SC Keneally was telling him with the recording. He would have referred to it in the statement that he originally prepared on 1 April 2021.
He plainly had concerns about the safety of the Detective having regard to the content of the website and might have genuinely considered that there was a safety issue involved, but he must have known at least at the time of the second bail application that sequences 1 and 2 lacked reasonable and probable cause.
His failure to take steps to have the charges withdrawn at an earlier time thus suggests that he was acting for an improper purpose, that is, was seeking to hold on to the charges whilst he further investigated the plaintiff.
I accept that for the period between DS Felgate becoming aware of the content of the recording and the withdrawal of sequences 1 and 2 he was acting without a reasonable and probable cause and was acting maliciously. The time period is a matter of three months.
Fortunately, the plaintiff was released from prison despite the opposition of Sgt Comer. DS Felgate’s conduct thus did not cause the plaintiff to remain in prison. However, it must be that the ultimate withdrawal of the charges was delayed because of DS Felgate’s failure to take appropriate steps prior to the second bail application. I will come to the consequences of that later in this judgment.

The case against Sgt Comer

Sgt Comer was the police prosecutor who appeared on the second bail application, which took place on 19 March 2021 in Nowra Local Court. She had some involvement subsequently in response to a motion filed by the plaintiff for a stay of proceedings in respect of sequence 3 after sequences 1 and 2 had been withdrawn but her subsequent involvement is not causally relevant to any loss suffered by the plaintiff.
The plaintiff pleads that Sgt Comer:

failed to inform the Court that there was a recording of the conversation with SC Keneally and that it did not contain any threat from the plaintiff against the Detective;

falsely stated that bail should be refused as there had been no change in circumstances since the last bail application; and

falsely and maliciously informed the Court that it was a strong prosecution case.

It is asserted that she deliberately misled the Court in an attempt to continue to have the plaintiff wrongfully imprisoned.
The plaintiff pleads a number of particulars of malice including:

failing to advise the Court of the contents of the recording;

actively opposing the plaintiff being released;

knowingly misleading the Court as to no change of circumstances;

knowingly misleading the Court to the effect that there was a strong prosecution case;

failure to withdraw the charges; and

actively opposing the bail and deliberately and maliciously making false statements to the Court.

Further, the plaintiff pleads that in opposing the bail application, Sgt Comer was intending to cause harm to the plaintiff.
In my view there is no merit in any of these allegations. The plaintiff has not proved that Sgt Comer acted with malice in anything she did.

Sgt Comer’s evidence

Sgt Comer became a prosecutor with the NSW Police Force in June 2008. She left the Force in November 2023. At the relevant time, she was a team Leader and Sergeant of the South Coast Police Department. She was the police prosecutor in charge of three other prosecutors, three courts and five police stations. As she said, it was not unusual for her to appear as a police prosecutor in up to 10 bail applications per day.
As emerged during her oral evidence, she has little memory of the events in February to March 2021 or even of what she might have done at various times. She refreshed her memory from the documentation. She did have some recollection of observing someone she thought may have been the plaintiff in the cells but does not know whether that was at the time of the first application on 26 February 2021 (when she did not appear) or the second application on 19 March 2021 when she did appear.
She does recall the person acting aggressively and she recalls learning that the plaintiff smashed the clock over his head, although she did not witness that incident.
On 4 March 2021 she received an email from Jon Kisch, the solicitor with the CDPP, requesting that a police prosecutor appear on behalf of the CDPP at the mention on 8 March 2021 at Nowra Local Court. She was instructed to seek brief service orders. She confirmed that a police prosecutor would appear.

In final submissions the plaintiff urged me to have regard to all of the Justice Health records. I have done so. The plaintiff relies on them for some of the questions in the Screening Assessment (such as “have you ever been told or think you had…”) but some of the other questions are more specific such as a questions about anxiety and bipolar in the last month which the plaintiff answered in the affirmative. Further, the submission that the questions or answers could be interpreted as referring to the short period between his incarceration and the assessment cannot be accepted as the questions are specific in being directed at the four weeks prior to incarceration.
The effect of the complete Justice Health records is that the plaintiff is recorded as saying that in the immediate period before his incarceration he was suffering from anxiety, bipolar and depression, that he was taking medication for this and that he had suffered PTSD as a result of his earlier time in custody.
For the purposes of these proceedings the plaintiff seeks to disown those statements. It is difficult to understand why Justice Health would have recorded these statements as made by the plaintiff if they were not made. I reject the submission that there is some ambiguity about the questions or answers.
Further, there is ample evidence that the plaintiff had been diagnosed with bipolar disorder and suffered from mania. This is hardly a condition that could completely disappear for a period of three years prior to February 2021.
The plaintiff’s history recorded by Justice Health is quite different from that presented by the plaintiff in these proceedings. Having said that, there is no record of any consultation with a general practitioner between April 2018 and February 2021 in respect of mental health problems. Further the PBS records do not support the statement that he was taking diazepam shortly before his arrest. This is puzzling but even allowing for the possibility of some error (in his statement that he was taking the drug) this does not explain him confirming those other symptoms to which I have referred.
He relies on the notes and records from two general practitioners, being one in Moruya and one in Nowra. The Moruya records do not suggest that he attended for treatment after 13 April 2018, albeit that the document admitted into evidence is printed on 6 August 2018. It remains puzzling that he told Justice Health that he had been taking diazepam in the period before his incarceration in circumstances in which there is no record of a general practitioner prescribing this.
The plaintiff first attended the Nowra General Practice in May 2019. He has attended that practice regularly although it is notable that between June 2021 and January 2022 he did not attend the practice with any mental health problems. This is significant because again the contemporaneous records are inconsistent with the history provided by the plaintiff in these proceedings.
It was a condition of the plaintiff’s bail in March 2021 that he attend treatment for his mental health problems. He did so. However, when he did so he did not maintain a level of symptomology which he maintains in these proceedings. Indeed, his own self-reporting is not indicative of mental health problems including self-reporting that led to the conclusion that he was not suffering from depression, that his anxiety was moderate but he suffered from significant stress. Dr Kelly Mitchell records a consultation on 30 March 2021. Her notes are relevantly as follows:

“Some anxiety. Generalised worries.
Some difficulties sleeping due to a racing mind
Denies depression
No depressed mood
Some difficulties with concentration.
No anhedonia
No anergia
Denies manic symptoms.
Denies psychosis
Denied thoughts of self-harm and TOHTO”.

He completed a questionnaire on 3 June 2021 suggesting that he was “ok” in terms of his overall sense of wellbeing. Indeed contrary to the plaintiff’s claims in these proceedings even the Justice Health records tend to suggest a gradual improvement in his mental state over the period that he was in prison. This would be consistent with his complaints in the immediate period after release.
Indeed, he was discharged from Nowra Community Health on 15 April 2021 having regard to his lack of mental health problems.
This may be another indication that the plaintiff is saying different things at different times for different purposes. He was either minimising symptoms to avoid ongoing bail conditions, that is, continuing a mental health treatment, or his self-reporting was accurate at the time. A psychology summary issued on 3 June 2021 similarly does not suggest the sort of high level symptoms of which the plaintiff now complains.
There is no record of any ongoing treatment for mental health problems or even consultation with a doctor or mental health professional until January 2022. Yet, he says that during that period, that is throughout 2021, he continued to suffer, that he had difficulty in completing his law course and he lost interest in legal concepts making completion of his course difficult. The problem with that is that he did very well in his law course in the second half of 2021 obtaining a distinction and a credit. His asserted lack of interest in legal concepts is not reflected in his exam results.
Further, when he attended on the general practitioner in January 2022, he informed them that he was suffering from PTSD. The source of that information is uncertain other than what he said to Justice Health in February 2021, that is a pre-existing condition. There is no record of anyone diagnosing him with PTSD referable to his time in prison in 2021 prior to January 2022.
The plaintiff’s regular visits to the Nowra general practitioner only commenced on 4 May 2022.
He first consulted Dr Pignataro whose treatment was arranged and paid for through Victims Services on 24 March 2022. At that time, he reported symptoms of low mood, anxiety, impaired concentration, social withdrawal and isolation, ruminative thinking, constant poor sleep, and few social engagements. Dr Pignataro thought that his symptoms were consistent with PTSD. He has continued to see Dr Pignataro at least until December 2024.
Both expert psychiatrists were asked to review the notes of Dr Pignataro. Dr Apler did not consider that his notes and records supported the diagnosis of PTSD. When asked to comment on this, Dr Allnutt did not actually say that the notes and records were consistent with PTSD. He merely suggested that the notes were sparse and Dr Pignataro might have been focusing on therapy seemingly rather than accurately recording the plaintiff’s history.
I do not accept this. There is no evidence that Dr Pignataro’s records were incomplete.
I am unable to reconcile the history provided by the plaintiff with his own self-reporting in the period of March to June 2021, the absence of any treatment up until January 2022 and his apparent success in completing his law course in the second half of 2021. It may be that the plaintiff was continuing to suffer symptoms during that period which were significant (contrary to his own self-reporting), but the plaintiff relies on the absence of consultations pre-February 2021 to support his assertion that he was well.
I am left with the impression that the plaintiff says different things at different times depending on his purposes.
In a psychiatric injury case, the expert psychiatric evidence is very important. Having said that so too are contemporaneous records because they often provide a better indication of what was happening and what was being said at particular points in time. This is a case in which there are some deficiencies in the initial reports of both medical experts, albeit there was some narrowing of the differences between the experts and the issues as a result of the conclave and concurrent evidence. Yet, the contemporaneous records tend to support the final views of the experts, being that the plaintiff suffers and had suffered from prior to February 2021 a chronic mood disorder condition which is episodic in nature.
Contrary to how the plaintiff asked the Court to interpret the medical evidence, the experts did not say that that chronic episodic condition arose from the events of February and March 2021. Rather, it was episodic and chronic prior to February 2021.

Assessment

As set out in s 3B(1) of the Civil Liability Act 2002 (NSW) (“CLA”) the provisions of the CLA do not apply in respect of civil liability for intentional torts except that ss 15B and 18(1) as well as Pts 7 and 2A continue to apply. None of those sections have any relevance to this matter.
As such, damages must be assessed under the common law. The restrictions and limitations on the awarding of damages contained in the CLA do not apply. Damages assessments under the common law may be higher than assessments governed by the CLA as, for example, the 3% tables apply on assessing future loss and the restrictions on interest do not apply.
Compensatory damages are intended to put the plaintiff back into the position that he would have been but for the conduct of the defendant.
Aggravated damages are also a form of compensatory damages which might be awarded to a plaintiff for stress, anxiety and hurt feelings that he or she suffers, over and above for any injury sustained arising from the particularly egregious conduct of a defendant towards the plaintiff.
Damages are rarely awarded for hurt feelings, distress or emotional issues without the suffering or development of a recognised psychiatric illness (State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“Ibbett”) at [21] per Spigelman CJ).
The plaintiff’s claims for substantial damages are based on the proposition that as a result of the events of February 2021 he developed a significant psychological condition which has rendered him unfit for work since being released from police custody in March 2021 and which has resulted in him experiencing significant and ongoing symptoms ever since February 2021, which will continue into the future.
The problem with the plaintiff’s claims is that they are not supported by the evidence other than statements he has made for the purposes of these proceedings and some evidence from his partner and mother. He relies heavily on the fact that he was not cross-examined directly on his level of symptomology and was not challenged on his assertions as to his unfitness for work.
That may be so but his reliance on his own evidence as somehow entitling him to the significant sums he claims:

misunderstands the nature of defence pursued by the defendant;

tends to ignore the effect of the contemporaneous medical records;

misunderstands the effect of the expert psychiatric evidence; and

assumes that any statement he makes must be accepted even when it is inconsistent with other statements he has made and contrary to other evidence.

As I understand the position adopted by the defendant, it was that any symptoms of which the plaintiff complains (to the extent they are accepted) were not caused by the events of February 2021 but rather are a reflection of his pre-existing and ongoing mental health problems, including his mania, bipolar and depression.
As I have endeavoured to set out in some detail in my review of the medical evidence, the defendant gained some support for that position from Dr Apler and indeed by the end of the concurrent evidence of Dr Allnutt.
It is clear that once Dr Allnutt had access to the contemporaneous medical records, he qualified his views referring in particular to the events of February 2021 as causing an aggravation of his pre-existing condition and ultimately concluding that the plaintiff suffered from a long-term episodic mood condition which would continue to affect him and impair his capacity to work.
Dr Allnutt did continue to maintain that there is another layer of symptoms on top of that condition being the symptoms referrable to PTSD but as I have indicated and for the reasons set out, I prefer the view of Dr Apler on that issue.
Further, Dr Allnutt referred to improvement and admitted that he was unable to say how long the aggravating effects of the events of February 2021 continued. Again, this is part of the problem in not providing an accurate history to medico-legal experts. When a more accurate picture is obtained, the opinion shifts somewhat.
The plaintiff places significant reliance on the lack of cross-examination of the plaintiff about his level of symptoms as set out in his evidentiary statement and as referred to by his mother and partner. It is correct to say that whilst the defendant did challenge the plaintiff on a number of aspects relevant to damages, it was never put to the plaintiff specifically that he did not suffer from the symptoms referred to in his evidentiary statements.
As I have already indicated, I assume that was because the defendant’s approach was to assert that, whatever the level of symptoms, they are not referrable to the incarceration in February 2021. The plaintiff submits that having regard to the absence of the challenge the Court should accept the plaintiff’s evidence as to his symptoms, having regard to the rule in Browne v Dunn (1893) 6 R 67.
The rule in Browne v Dunn is a rule based on fairness. It is not inflexible. In some circumstances, particularly when it is plain from the evidence already served on the other party that there is a challenge to the plaintiff’s claims, it may not be necessary to simply put every contrary position to the other party.
As was most recently said by the New South Wales Court of Appeal in Smith v Blanch [2025] NSWCA 188 at [95]:

“The rule in Browne v Dunn is directed to ensuring procedural fairness in litigation: Scott v Scott [2022] NSWCA 182 at [64]; see further Locke v H.C. Loneragan & Company Pty Ltd as trustee for the Loneragan Family Trust t/as Quantum Forensic Solutions [2025] NSWCA 166 at [37]. Ultimately, where Browne v Dunn is relied upon, the question is whether, having regard to the conduct of the case as a whole, the relevant party has been put on notice that the adverse inference may be drawn: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16; Scott v Scott at [65]-[67].”

If the defendant sought to assert that the plaintiff was a fraud and suffered from no symptoms, it would have been necessary for the defendant to put that to the plaintiff. However, the defendant’s case was more nuanced relying on its own medical evidence and the contemporaneous records, which were in some ways inconsistent with the history provided to the medico-legal practitioners. Further the defendant’s real case is that whatever the level of symptoms they were not referable to the defendant’s conduct.
The plaintiff did not object to the defendant relying on the opinion of Dr Apler or even tendering the contemporaneous records. The plaintiff did not object to the defendant putting the questions which it did to the medical experts during the concurrent evidence.
The plaintiff must be taken to have been aware of how he did in his law course in 2021. He must be taken to have been aware of what he was saying to the mental health experts after being released from prison. He must be taken to have been aware when previously examined by Dr Allnutt that the consequences of his head injury loomed large already, albeit he sought to exclude it from consideration in this case. I do not accept that the absence of challenge to some of the plaintiff’s evidence compels a finding that he suffers from PTSD referable to his incarceration in February 2021. The question of whether he suffered from PTSD referable to his incarceration was clearly an issue raised in the proceedings.
I will assess damages according to my findings. They are to the effect that the plaintiff suffered an aggravation of his episodic mood disorder consequent upon his incarceration in February and March 2021 but that he did not develop PTSD as an additional layer of symptoms.
The period for which his symptoms such as they were continued because of the aggravation rather than the pre-existing condition is uncertain, but I accept the opinion of Dr Apler that well before the hearing the plaintiff’s symptoms were indicative of a recurrence of his episodic mood condition rather than the effects of his incarceration in February and March 2021.
I thus do not accept that the plaintiff has developed or will continue to suffer from a long-term psychological condition as a result of his incarceration in February and March 2021.

General damages

The plaintiff is entitled to be compensated for the significant effects and impact on him during his period of incarceration and for a period thereafter.
As I have already indicated, he was already paranoid about police prosecution and presented as being vulnerable to this sort of conduct to which he was exposed in February and March 2021. What he said to Justice Health, shortly after being incarcerated, is probably an accurate reflection of what he thought about himself and his concerns about what the impact of being wrongly imprisoned would have on him.
In his statement he refers to panicking the whole time he was imprisoned and having a fear that he would not be released. He was extremely concerned that the police might have destroyed the evidence or would destroy the evidence. I have no reason to doubt that he had that belief having regard to his paranoia about the police conduct. His period in gaol was difficult and distressing and made more difficult by his pre-existing paranoia, mania and other mental health problems.
Certainly, as submitted by the plaintiff, the eggshell skull theory applies and the defendant must take plaintiff as it finds him (see Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [279]).
His experience would have been more difficult and more distressing than perhaps other persons facing a similar situation. Having said that, his own self-reporting after being released from prison indicates whatever distressing feelings he might have been experiencing about never being released, panicking and being fearful for his own safety must have reduced significantly on being released.
I do not accept that the plaintiff’s suffering should be equated with that of Mr Spedding. It is all very well to cite passages from Mr Spedding’s judgment both at first instance and in the Court of Appeal and suggest they are applicable to the plaintiff but on any view, Mr Spedding’s ordeal was much more lengthy, much more public and much more significant.
Further, I accept the general proposition (as Basten JA said in Capar v SPG Investments Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 at [186]) that the absence of medical records for some years prior to a tortious event may support the proposition that the plaintiff was not suffering from psychological problems in that period. However, that observation can only go so far in a case in which within days of the tortious event, the plaintiff was himself informing Justice Health of his psychological problems and there is ample evidence that the plaintiff was suffering from conditions, such as bipolar, which is of course a form of mood disorder.
Further, in my view the defendant has disentangled the prior conditions from any disability consequent on the tortious conduct in the sense that, through the opinions of Dr Apler and then Dr Allnutt the defendant has established that any ongoing problems result from the plaintiff’s pre-existing condition rather than the effects of the tortious conduct in 2021.
The fact that the plaintiff was vulnerable and more likely to suffer as a result of being wrongfully imprisoned is a matter that I have taken into account in assessing general damages. The fact that he had a worse time in prison in February and March 2021 because of his vulnerable state is also a matter I have taken into account in assessing general damages.

I assess general damages in the sum of $200,000. Included in that amount is the amount of $1,500 per day for each day that the plaintiff spent in prison. He spent 22 days in prison.
In terms of reputational damage, I accept that the plaintiff is entitled to an additional sum. I award the sum of $50,000. I accept that he suffered some reputational damage as a result of his wrongful incarceration and the allegations against him, but unlike in Spedding (with whom the plaintiff compares himself) the plaintiff was not wrongly accused of kidnapping and killing a child or having previously been engaged in child sex offences.
Further, the plaintiff’s period of incarceration was limited and the charges against him were dropped very shortly thereafter. There was no allegation that the plaintiff harmed anyone and the plaintiff did not tender any media reports on which I could further consider his claim for loss of reputation. The content of his website and his earlier dishonesty must also be considered in assessing any allowance for loss of reputation.

Loss of earning capacity

The applicant submits that:

He was working as a wardsman as of February 2021;

He would have continued to do so but for the events of February 2021;

He would have increased his earnings up to full-time adult average weekly earnings; and

He would have obtained work as a solicitor such that his longer term earnings should be assessed on the basis that he would have worked as a solicitor and continued to increase his earnings as a solicitor.

In his closing submissions he suggested that his claim for loss of earnings as a solicitor should be assessed as a buffer rather than some specific weekly sum. This must be reflective of the evidence which casts some doubt as to whether he would have been admitted as a solicitor. I will deal with that issue firstly.

Would the plaintiff have gained admission as a solicitor?

The plaintiff bears the onus of establishing his loss. I could only award damages for the loss of the chance to be admitted as a solicitor if I am satisfied that there is a basis on which the plaintiff might have been admitted as a solicitor, that is, that he lost the opportunity to be so admitted and to earn income as a solicitor because of the tortious conduct of the defendant (the loss of a chance).
The plaintiff is not entitled to a buffer for loss of earning capacity merely because he says he would have liked to work as a solicitor. Of course, in this case he was studying law at the time of the relevant events.
As it turns out, he successfully completed his law degree in the months after the relevant events. Further, he has completed his PLT online. He has all the qualifications necessary to be a solicitor, but he has chosen not to apply to be a solicitor. That is not merely inadvertent. It is his deliberate decision.
On his case, this is because he now suffers from a psychiatric illness which would preclude him from working altogether. Whether that be so does not matter. The defendant asserts that he would be ineligible for admission in any event.
In order to be admitted, it would be necessary for him to establish that he is a fit and proper person to be admitted (see Legal Profession Uniform Admission Rules 2015 (NSW), r 10). Having regard to the evidence in these proceedings, I am not satisfied that he has any prospect of being admitted. I say this for the following reasons:

Firstly, by his own admission he engaged in conduct involving dishonesty. There is a Court of Appeal finding to that effect. His conviction was overturned but that does not lessen the significance of his conduct. In reality, he took over $2 million from his St George bank account in circumstances in which he must have known that the money did not belong to him. His suggestion that he was transferring it and keeping it in another bank account, should the bank have wanted it back, is difficult to accept. His conduct was not inadvertent or accidental. It was deliberate. In my view it would have had a significant impact on his prospects of being admitted.

Further, the establishment of his website and the statements he made on his website must be considered as highly relevant to his prospects of being admitted. His unwillingness to recognise the scandalous and scurrilous nature of his allegations (he said he might have used better words) leads to the conclusion that he fails to recognise that it is simply wrong to make allegations against persons which cannot be supported. This is a fundamental obligation of a legal practitioner, that is, not to make allegations without foundation. His unwillingness to accept or recognise this means that he would be not a fit and proper person to be admitted as a solicitor.

Finally, to add to these matters is the fact that he has suffered from mental health problems on a long-term basis. There is ample evidence that he remains paranoid and deluded about police prosecution of him. Again, this would make him fundamentally unsuited to work as a solicitor.

I thus do not accept that he had any realistic prospect of being admitted as a solicitor. The matters to which I have referred are not short-term or transient issues which might be resolved to the satisfaction of the admitting authority.
I am assessing his prospects of being admitted as a solicitor on the evidence before me. I do not accept that there was any realistic prospect. This is not a case involving a loss of a chance. There was no realistic chance. In the circumstances, his claim for a buffer based on the loss of a chance of being admitted fails. Further, his claim for a buffer also fails because any ongoing incapacity is not related to the defendant’s tortious conduct.

Loss of earning capacity generally

The task of assessing loss of earning capacity is to compare the plaintiff’s pre-February 2021 earning capacity with his earning capacity since that time and into the future (Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 (“Husher”)).
As the Court said in Husher, the past is often a guide but is not determinative (Husher at [8], [14]). His work record prior to 2019 was limited and spasmodic. He commenced work as a wardsman in 2019. Between that time and February 2021 he worked as a wardsman on a part time basis earning approximately $800 per week net. I accept that he lost his job because he was incarcerated. He would have continued to work if not incarcerated, although his current absence from work is not related to his incarceration.
The proper approach to assess loss of earning capacity is to give the plaintiff the benefit of the doubt and accept that his condition was aggravated as a result of the events of February 2021. I accept that aggravation continued at least for a period. As Dr Apler said, any continuing symptoms were not caused by the events of February 2021.
I would allow the plaintiff his full loss of income as a wardsman for two years, being $83,200. That would include the initial 9 months when, according to his own reporting, he was suffering from limited symptoms and he was able to complete and do very well in his law course (in other words that is a generous assessment).
As the plaintiff has not established that any ongoing psychological problems are caused by the incarceration in February and March 2021, he is not entitled to any additional sum on account of loss of earning capacity.
Further, I do not accept that he lost the chance of becoming a solicitor because of his incarceration in February and March 2021. He was unlikely to be admitted as a solicitor in any event.

Out of pocket expenses

The plaintiff’s claim for out of pocket expenses is unclear and unsubstantiated. His treatment from his psychologist has been paid by Victims Services. He makes a claim for medication and general practitioner expenses, but his Medicare records suggest expenditure of only a few hundred. During closing submissions, I asked to be taken to the evidence of expenditure on Seroquel as there did not seem to be any. I did not receive a satisfactory response. Nevertheless, I will give the plaintiff the benefit of any doubt and will allow the sum of $1000. His claim of $100,000 for the future is ridiculous. He is not entitled to any allowance for the future.
It is unclear whether he is pursuing a claim for domestic assistance or care (I did not receive a schedule). For completeness, he would not be entitled to any allowance. The extent of his symptoms post release was never sufficient to suggest that he could not perform personal and domestic tasks.

Aggravated damages

I accept that the plaintiff is entitled to aggravated damages having regard to the tortious conduct of SC Keneally and DS Felgate.
The plaintiff submits that he should be entitled to aggravated damages in part because the injury suffered by him was caused by the conduct of three (I found two) police officers. They continued to deny and maintain that their actions were justified and because the defendant in defending the matter did not make relevant admissions when it should have and continued to maintain a defence at least on behalf of DS Felgate.
Aggravated damages are compensatory. To the extent that the plaintiff may suffer additional loss, such as hurt feelings, stress and anxiety caused by the conduct of the defendant both during and after the event, aggravated damages may be awarded.
Aggravated damages may be awarded in a case of malicious prosecution or other intentional torts having regard to the way in which the defendant conducts the defence (see Nye v State of New South Wales [2003] NSWSC 1212 at [249]-[250]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [381]-[382]).
Having said that, in circumstances in which the police officer, SC Keneally, maintained his innocence and was defending the charge against him, the defendant could hardly admit liability, responsibility or tortious conduct on the part of SC Keneally. He was entitled to maintain his innocence if he wished to and the denial of liability in the original defence filed by the defendant in these particular circumstances does not lead to any extra sum on account of aggravated damages.
Similarly, the case against DS Felgate, that is the defendant’s case, was plainly arguable and turned on findings as to DS Felgate’s conduct over a very limited period.
I reject the proposition that the plaintiff was entitled to some additional sum on account of aggravated damages because the defendant denied liability on behalf of DS Felgate in both its original and amended defence.
Aggravated damages are not awarded just because a party files a defence denying liability in a case involving contentious issues of fact and when the primary tortfeasor (SC Keneally) was continuing to maintain his innocence in criminal proceedings against him.
Having said that, in this case the defendant through its servants and agents, was aware in the initial period after the plaintiff was incarcerated, that there were really no grounds to prosecute him in respect of the allegation of threatening to kill a police officer. It must have been well aware that he was therefore wrongfully incarcerated. Whilst the defendant consented to the dismissal of the charges, there was no acknowledgment that it was wrong or expression of any sort of remorse or regret for wrongfully imprisoning the plaintiff. The plaintiff thus had to fight to recover damages and to establish a liability on the part of the defendant.
Having regard to the plaintiff’s general obsession and paranoia about the police, this must have added stress, aggravation and hurt feelings. He is entitled to some allowance for aggravated damages, and I award the sum of $50,000.

Exemplary damages

Exemplary damages are intended to punish the defendant and serve other purposes, such as retribution or deterrence (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 149).
Unlike aggravated damages, exemplary damages are not compensatory in nature. As observed in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [12], exemplary damages are awarded rarely. The principles applicable to a claim for exemplary damages in a case such as this were set out by the New South Wales Court of Appeal in Spedding at [314]-[318] and include:

The purpose and award of exemplary damages is to punish and deter the wrongdoer rather than compensating the injured person (Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at 8-9 per Mason CJ, Brennan, Deane, Dawson, and Gordon JJ);

Exemplary damages are particularly significant where public officials have been involved in the commission of the torts (see Ibbett at [39]). This is so because the use of public power for proper purposes may have significant consequences in the administration of justice and other public institutions.

An award of exemplary damages serves to deter future actions and indicate that the Court would not tolerate such conduct (see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149 and Ibbett at [40]).

In Spedding an award was made for exemplary damages but that was in circumstances in which the Court said at [317]:

“… The narrative set out above contains several instances of this. A salient example is the police conduct in summoning the media to film the arrest of Mr Spedding (a finding of the primary judge which was not challenged). This act was apt to turn the investigation into the disappearance of a child into a gladiatorial circus which apparently elevated Jubelin to heroic status with corresponding demonisation of Mr Spedding. It set the tone for what was to follow in the ensuing period of almost three years. Further, the maintenance of tenuous charges of child sexual abuse may be apt to undermine credible charges.”

I reject the plaintiff’s attempt to cast himself as being comparable to Mr Spedding. The plaintiff was in custody for a limited period after which the charges against him were withdrawn. There was no national exposure of the plaintiff, he was not paraded in front of the TV cameras. He was not alleged to have killed anyone or to have been involved in earlier sex offending.
Further, as the defendant admits, it is liable because of the conduct of its police officers. SC Keneally has already been convicted and punished. There can be no greater punishment than that. It is generally inappropriate to award exemplary damages when the wrongdoer has already been punished for his conduct. I have made findings about the conduct of DS Felgate, but those findings relate to a very limited period during which the plaintiff remained in prison when DS Felgate should have been aware that the case against the plaintiff had no merits.
I do not consider this to be a particularly strong case for exemplary damages. I award the sum of $40,000.

Interest

The power to award interest on damages up to judgment is governed by s 100 of the Civil Procedure Act 2005 (NSW).
The plaintiff is not entitled to interest as of right (State of New South Wales v Loh Min Choo [2012] NSWCA 275 at [54] per Macfarlan JA, McColl and Campbell JJA agreeing). An award of interest is in the discretion of the Court. The purpose of awarding interest is “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period” (MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 (“MBP”) at 663 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
I will award interest on general damages (all of which are for the past) calculated as follows: 2.5% x $200,000 x 4.5 years = $22,500.
The plaintiff is entitled to interest on past loss of earning capacity. I award interest from 24 February 2021 until 12 September 2025 at the rate of 2.5%. This amounts to $9,460.
I assess damages as follows:

General damages: $200,000;

Reputational damage: $50,000;

Past loss of income: $83,200;

Out of pocket expenses: $1,000;

Aggravated damages: $50,000;

Exemplary damages: $40,000;

Interest on general damages: $22,500; and

Interest on past loss of earning capacity: $9,460.

Total: $456,160.

Orders

I make the following orders:

Judgment for the plaintiff in the sum of $456,160.

The defendant is to pay the plaintiff’s costs.

I remind the parties that should any party seek a variation of these orders, an application must be made within 14 days.

**********

Amendments

12 September 2025 - ********** added at the conclusion of the judgment.

Decision last updated: 12 September 2025

Medium Neutral Citation:	Moore v State of New South Wales [2025] NSWSC 1040
Hearing dates:	5 – 6, 8 – 16 May 2025
Date of orders:	12 September 2025
Decision date:	12 September 2025
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Judgment for the plaintiff in the sum of $456,160. (2) The defendant is to pay the plaintiff’s costs.
Catchwords:	TORTS – malicious prosecution – misfeasance in public office – where State conceded malicious prosecution in relation to one police officer but denies in respect of others – plaintiff spent 22 in days in gaol – whether officer in charge and police prosecutor should also be found to have committed the tort of malicious prosecution – damages – previous dishonesty proceedings concerning the plaintiff – scandalous website operated by plaintiff – medical evidence inconsistent with plaintiff’s claims – failure to establish plaintiff would have gained admission as a solicitor – aggravated and exemplary damages awarded
Legislation Cited:	Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2), 317(b) Criminal Code Act 1995 (NSW), ss 474.17(1), 474.15(1), 474.17(1) Crown Proceedings Act 1988 (NSW) Director of Public Prosecutions Act 1986 (NSW), s 15A Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 Civil Procedure Act 2005 (NSW), s 100 Civil Liability Act 2002 (NSW), s 3B(1) Legal Profession Uniform Admission Rules 2015 (NSW), r 10
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17 Browne v Dunn (1893) 6 R 67 Capar v SPG Investments Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Hathaway v State of New South Wales [2009] NSWSC 116 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 Nye v State of New South Wales [2003] NSWSC 1212 Potier v The Queen [2015] NSWCCA 130 Smith v Blanch [2025] NSWCA 188 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 State ofNew South Wales v Landini [2010] NSWCA 157 State of New South Wales v Loh Min Choo [2012] NSWCA 275 State of New South Wales v Spedding [2023] NSWCA 180 Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35 Todorovic v Waller (1980) 150 CLR 402; [1981] HCA 72 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58
Category:	Principal judgment
Parties:	Luke Brett Moore (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: D Campbell / D Woodbury / E Graham (Plaintiff) A Williams (Defendant) Solicitors: Foott Law & Co. Solicitors (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2022/00053460
Publication restriction:	Nil