Mr J (a pseudonym) v State of New South Wales - [2025] NSWSC 406

Supreme Court

New South Wales

Medium Neutral Citation: Mr J (a pseudonym) v State of New South Wales [2025] NSWSC 406
Hearing dates: 28-29 August, 2-4 September, 13 November 2024
Date of orders: 30 April 2025
Decision date: 30 April 2025
Jurisdiction: Common Law
Before: Rigg J
Decision:
Judgment for the defendant

Catchwords:
TORTS – malicious prosecution – whether the police officer acted without reasonable and probable cause in charging the plaintiff – whether the police officer acted without reasonable and probable cause in maintaining the prosecution until taken over by the Director of Public Prosecutions – whether the police officer remained the prosecutor after the proceedings were taken over by the Director of Public Prosecutions – whether the police officer acted maliciously – whether the sole or dominant purpose of the police officer was other than the proper invocation of the criminal law
TORTS – false imprisonment – whether the plaintiff was wrongfully arrested – whether the police officer suspected on reasonable grounds that the plaintiff had committed an offence – whether the police officer used his power under s 99 of LEPRA to lawfully arrest and detain the plaintiff
TORTS – misfeasance in public office – whether the police officer committed an invalid or unauthorised act and did so maliciously – whether the police officer discharged the relevant power by arresting the plaintiff without a warrant and commencing proceedings against him – whether the police officer’s treatment of evidence demonstrated an intention to harm the plaintiff or that the police officer acted with reckless indifference to the harm that was likely to ensue

Legislation Cited:
Court Suppression and Non-publication Orders Act2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Reform (Vicarious Liability) Act1983 (NSW)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67 (HL)
Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Davis v Gell (1924) 35 CLR 275
Ea v Diaconu [2019] NSWSC 795
Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Madden v State of New South Wales [2022] NSWDC 647
Muriniti v Lawcover [2022] NSWSC 90
MWJ v R (2005) 80 ALJR 329; [2005] HCA 74
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65
Reeves v State of New South Wales [2024] NSWCA 125
State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308
State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40
State of New South Wales v Spedding [2023] NSWCA 180
Watson v Foxman (1995) 49 NSWLR 315
Wild v Meduri [2024] NSWCA 230
Wormald v Maradaca Pty Ltd [2020] NSWCA 289

Category: Principal judgment
Parties: Mr J (a pseudonym) (Plaintiff)
State of New South Wales (Defendant)
Representation:
Counsel:
A Sullivan KC / A Canceri / T O’Rourke (Plaintiff)
A Williams (Defendant)
Solicitors:
The law firm (a pseudonym) (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s): 2021/00248549
Publication restriction: By virtue of the operation of s 578A Crimes Act 1900 (NSW) and an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) publication is prohibited of any details that may identify the complainant in the criminal proceedings. This includes the name and address of the plaintiff and his co-accused in the criminal proceedings, and the name of the law firm of which the plaintiff is a partner and at which the complainant was employed at relevant times.

JUDGMENT

Introduction

In November 2019 the plaintiff was an experienced solicitor, and partner of a law firm, aged in his 50s. The law firm had a branch in Sydney and another branch or branches outside of Sydney. A 21 year old junior legal secretary who worked for the law firm outside of NSW made an allegation of sexual assault against him, and against another man also aged in his 50s, who undertook work for the law firm and was the plaintiff’s close friend, arising from the same occasion. The sexual assaults were said to have occurred in the Sydney home of the plaintiff on the morning after Melbourne Cup celebrations on 5 November 2019 organised by the law firm. Those allegations came to the attention of NSW police and on 19 December 2019 both men were arrested and charged with offences of aggravated sexual assault, and the plaintiff with a charge of sexually touching the complainant without her consent.
The arrest was made and charges instituted by Detective Sergeant Jesse Porter (then Detective Senior Constable) and taken over by the Director of Public Prosecutions (“the Director”) on 16 or 23 March 2020. These are conflicting dates in the evidence and the difference is immaterial. The Director issued a certificate pursuant to s 66 of the Criminal Procedure Act 1986 (NSW) on 4 June 2020 certifying that the evidence available was capable of establishing against the plaintiff each element of two counts of sexual intercourse without consent, and one count of intentionally sexually touching the complainant without her consent, knowing she was not consenting.
The circumstance of aggravation that formed part of the original charges but was not certified by the Director was the allegation that each man committed his own offence of sexual assault in the company of the other. The plaintiff takes no issue in these proceedings about Detective Porter’s view that this circumstance of aggravation was made out, and his view that the plaintiff was criminally responsible for the alleged sexual assault physically perpetrated by Mr K, and the Director’s decision to not allege this. The two charges of sexual assault maintained by the Director were based on the complainant’s allegations of two acts of sexual intercourse physically perpetrated by the plaintiff.
A joint jury trial of both men in the NSW District Court was terminated on 11 May 2021 when, during the course of the complainant’s evidence, she indicated that she was not prepared to continue, and the Director discontinued the proceedings.
The plaintiff now brings actions in tort for malicious prosecution, false imprisonment, and misfeasance in public office in connection with the actions of Detective Porter. The defendant is pursued on the basis of its vicarious liability for his actions. Detective Porter joined the NSW police force in August 2002 and was designated as a Detective in 2008. Between becoming a Detective and the date of preparation of his evidentiary statement in these proceedings (June 2024) he had investigated approximately 15 allegations of sexual assault.
On the application in the District Court of the Crown Prosecutor in the criminal proceedings, orders were made under the Court Suppression and Non-publication Orders Act2010 (NSW) as necessary to supplement the statutory prohibition against publication of material that could identify the complainant contained in s 578A of the Crimes Act 1900 (NSW). The Crown submitted, and it was accepted, that publication of the names of the two accused men, or the law firm of which the plaintiff was a partner and at which the complainant had worked, could act to identify the complainant.
On the plaintiff’s application in these proceedings I made orders to similar effect at the commencement of proceedings. The plaintiff will accordingly be afforded the pseudonym Mr J, or otherwise referred to as the plaintiff. His co-accused in the criminal proceedings will be referred to as Mr K. I will refer to the law firm of which the plaintiff is a partner and at which the complainant was employed in November 2019 simply as “the law firm”. The law firm is the solicitor on record for the plaintiff in these proceedings – which is relevant to one issue pertaining to liability.
The complainant in the sexual assault proceedings will simply be referred to as the complainant.
There were three important witnesses in the criminal proceedings who also worked at the law firm, and I will refer to them as Ms L, Ms M and Ms N. Ms M was a witness in these proceedings and in the criminal proceedings and has worked for the law firm at all relevant times, based in the State where the complainant lives and previously worked. Although I refused an application by the plaintiff for non-publication of her name on the basis that it was necessary to protect her safety, it does seem that naming her could identify the law firm.
Ms L was a female solicitor employed by the law firm and was in November 2019 in her late 20s and based in the Sydney branch. Ms M’s evidence suggests that Ms L still worked for the law firm in April 2023 when Ms M’s evidentiary statement was prepared. Ms L features very significantly in these proceedings because of the way in which the plaintiff has endeavoured to prove his case. Identification of her by name may lead to identification of the law firm. It is also the case that by virtue of the focus of the plaintiff’s allegations, her conduct is required to be subjected to significant critical analysis, in circumstances where she was not a witness in these proceedings and has not had a chance to respond to the imputations that have been said by Detective Porter to be available, and may objectively be raised, from her statements and alleged conduct.
Identification of Ms N could also lead to identification of the law firm and she will not be named, to protect the identity of the complainant.

Outline of the plaintiff’s causes of action and relief sought

There is no issue in these proceedings as to what the plaintiff is required to prove on the balance of probabilities to make out his claim of malicious prosecution. As set out in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A”) at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), for the plaintiff to make out his cause of action for malicious prosecution he must establish:

that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against him by the defendant;

that the proceedings terminated in his favour;

that the defendant, in initiating or maintaining the proceedings acted maliciously; and

that the defendant acted without reasonable and probable cause.

The first two elements are not in issue. No issue is taken with the fact that Detective Porter instituted the proceedings. It is common ground that he was at all material times deemed to be in the service of the Crown pursuant to s 6 of the Law Reform (Vicarious Liability) Act1983 (NSW), and the defendant was vicariously liable for his actions.
Whether Detective Porter maintained the proceedings until their termination in the plaintiff’s favour on 11 May 2021 is in issue, in circumstances where the prosecution was taken over by the Director in March 2020. Also in issue is whether he instituted the proceedings (and maintained them, to the extent he did) without reasonable and probable cause. Further in dispute is whether his institution and maintenance of the proceedings was done for a purpose other than the proper invocation of the criminal law (that is, maliciously). If so, an issue for determination is whether the alleged improper purpose was the sole or dominant purpose actuating Detective Porter.
Proof of absence of reasonable and probable cause involves a subjective and objective aspect: A at [38], [58]. Consideration is required of the material available to the prosecutor to assess what he made of it, and what he should have made of it: A at [58]. In the case of a prosecutor relying on accusations made by another, as here, the capacity of a police officer to verify information and form an opinion about where the truth appears to lie may be limited: A at [36]-[37], [69], [73]. In such a case the relevant mental state to be proved by the plaintiff is that Detective Porter did not form the view that the material was sufficient to warrant prosecution, or set the process of the criminal law in motion: A at [58], [71], [80], [118].
Malice in the context of this tort means acting for an improper purpose – not for the purpose of carrying the law into effect: A at [40], [55]. Absence of reasonable and probable cause may be evidence of malice but there are two separate issues to be decided. To constitute malice, the sole or dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law: A at [91].
The plaintiff is presumed to be innocent of the charges laid against him, as is Mr K. This judgment is not concerned in any way with consideration of or displacement of that presumption. What is required is analysis of the material available to Detective Porter from time to time in connection with the allegations, for the purposes of determining what he made and what he should have made of this material.
The intentional tort of false imprisonment requires the plaintiff to prove that he was arrested or imprisoned. The onus then falls on the defendant to prove justification. In this case there is no dispute as to the arrest and imprisonment of the plaintiff for a period of time on 19 December 2019 until granted bail. The evidence of the defendant including that of Detective Porter raises s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) for justification.
The elements of the tort of misfeasance in public office were stated by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 370, citing Lord Diplock in Dunlop v Woollahra Council [1982] AC 158 at 172: (1) an invalid or unauthorised act; (2) done maliciously; (3) by a public officer; (4) in the purported discharge of his or her public duties; and (5) which causes loss or harm to the plaintiff. This statement has been cited with approval by the Court of Appeal a number of times, including recently in State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308 (“Dickens”) at [141] (Gleeson JA with whom White and Stern JJA agreed). In the circumstances of this case, this claim added little to the plaintiff’s action in malicious prosecution.
The plaintiff seeks over $3,000,000 in damages comprising general, aggravated and exemplary damages for the claimed false imprisonment, malicious prosecution, and misfeasance in public office and additionally, as flowing from the malicious prosecution and misfeasance in public office, damages for reputational loss, legal costs, economic loss and out of pocket expenses.

Outline of the evidence

The evidence before the Court on liability included the evidentiary statement and oral evidence of the plaintiff (although this mainly addressed damages) and the evidentiary statement and oral evidence of Ms M. Ms M commenced employment as a temporary secretary with the law firm at the beginning of 2017, at the branch where the complainant came later to work. She became a full-time legal secretary in 2017 and by late 2019 she was employed as a paralegal. She remained employed by the law firm as a senior paralegal at the time of completion of her evidentiary statement on 18 April 2023 and was still employed by the law firm when giving evidence in August 2024.
An evidentiary statement of the plaintiff’s wife was directed mainly to damages (although it addressed the plaintiff’s arrest), and she was not required for cross-examination.
In evidence is also the entire police brief in connection with the criminal prosecution, subpoenas issued from time to time on behalf of the plaintiff in the criminal proceedings and documents produced, and the transcript of four days of proceedings in the jury trial before his Honour Mahony SC DCJ. His Honour was not the District Court Judge who made the non-publication orders earlier referred to, and transcript and court documents associated with that application are also in evidence. There were answers to interrogatories provided in these proceedings which are also before me.
On liability the defendant also relied upon the evidentiary statements of Detective Porter and his second officer in charge, Detective Luis Espinosa. Both officers gave oral evidence and were cross-examined.
Extensive documentary material was before the Court on damages, as well as this being addressed in the evidence of the plaintiff’s witnesses. A joint expert report was the culmination of the work of the expert for each party on damages and these experts gave evidence before me concurrently.

Order of consideration of issues

In my view it is appropriate to address the malicious prosecution claim first, and absence of reasonable and probable cause before malice. The first allegation of malice particularised in the pleadings is the assertion that Detective Porter was motivated to appease the complainant and her family because her stepfather (who was unknown to Detective Porter) is “a high ranking [another State] police officer”. This proposition will be able to be disposed of quickly because there is no foundation for it. However the balance of the allegations of malice revolve around consideration of different small steps taken in the process of the criminal investigation and prosecution. Understanding that background (through the prism of consideration of absence of reasonable and probable cause) will be useful.
The first particular of absence of reasonable and probable cause suggested by the plaintiff is “DSC Porter did not honestly believe in the case that was instituted and maintained against the Plaintiff in respect of the charges…”. Absent some admission by the defendant, the plaintiff must prove the subjective aspect of absence of reasonable and probable cause by inference and, if the defendant gives evidence, by cross-examination: A at [61]. Although this allegation was made, it was not the focus of the plaintiff’s case.
I am of the view that it is appropriate to address the objective aspect of absence of reasonable and probable cause in detail before addressing the subjective aspect. One reason for this is that absence of an adequate objective basis for formation of the requisite opinion would make it unnecessary to decide whether Detective Porter in fact formed the opinion that the material considered by him warranted laying a charge against the plaintiff: cf. A at [104].
Further, I accept unreservedly Detective Porter’s evidence that he believed, based on the material available to him by 17 December 2019, that the plaintiff had committed the offences with which he charged him two days later. A police officer does not need to personally believe in the guilt of a suspect before charging them; and of course the onus is not on the defendant to prove that Detective Porter did hold a sufficient state of satisfaction regarding the propriety of prosecution. However in this case that is Detective Porter’s stated belief and I accept his evidence in this regard. To understand the challenge to this stated belief, to the extent there was one, it is convenient to first analyse the objective aspect of whether the proceedings were instituted and maintained by Detective Porter without reasonable and probable cause. I will then turn to Detective Porter’s subjective belief, and the attack made on his credit to the extent this is necessary; and this will in turn lead on to (and is closely related to) consideration of malice.

It is necessary to address the issue of absence of reasonable and probable cause chronologically, because of the temporal dimension of the analysis referred to in A at [59]. I will deal firstly with the material available to Detective Porter as at the date of arrest, then up to the time the Director took over the prosecution. I will then determine whether Detective Porter maintained the proceedings after that time, and address to the extent it may be necessary what he made and what he should have made of the evidence in that third period of time that continued through until the resolution of the criminal proceedings.
The detail of the evidence included is responsive to the way that the plaintiff has advanced his case, and I will incorporate the relevant particulars relied upon.

Absence of reasonable and probable cause in charging

Material available to Detective Porter up to the point of charge

On 22 November 2019 Detective Porter received information regarding the allegations made by the complainant from the NSW Sex Crimes Unit. That unit had received material from interstate police, following the complainant’s stepfather’s notification to authorities in their State of the issue and provision to those authorities of the statements of the complainant and Ms M.
Detective Porter commenced investigating the matter. He received the typed statements from the complainant and Ms M by email. These are referred to in more detail below. The information available to Detective Porter by the time of charging the plaintiff was that a lunch function was hosted by the law firm at licensed premises in the Sydney CBD, with participants invited back in the late afternoon to the chambers of a number of barristers present. The allegation disclosed significant alcohol consumption at both venues. People from the branch of the law firm where the complainant worked (Ms M, Ms N and another secretary) left her at the chambers by about 9.30 pm. The complainant remained, and in the early hours of 6 November 2019 was in a small group in one barrister’s individual chambers. I will refer to this barrister simply as the barrister. Those present with her were the barrister, the plaintiff, Mr K and Ms L. It was alleged that cocaine was consumed. The complainant and Ms L travelled to the plaintiff’s home with the plaintiff and Mr K, which is where the sexual assaults allegedly occurred.
Over the next few days after 22 November 2019 Detective Porter obtained CCTV footage from the premises at which the Melbourne Cup function was held, the hotel where the complainant was staying, a bottle shop near the barristers’ chambers at which the celebration continued from about 5 pm, and the Council footage showing the taxi leaving the street front of the barristers’ chambers with the complainant, the plaintiff, Mr K and Ms L. He had a number of telephone discussions with the complainant. She did not want to participate in a pre-text telephone conversation with the plaintiff. He received a statement from the complainant’s mother on 28 November 2019.
On 3 December 2019 Detective Porter received, at his request, further versions of the statements of the complainant, her mother, and Ms M, witnessed (by the same person) and with a jurat included and their ages nominated rather than dates of birth. These statements were otherwise the same as the undated statements earlier received. The telephone services of the plaintiff and Mr K were intercepted. Call charge and reverse call charge records of the plaintiff and Mr K were obtained in early December.
Detective Porter’s statement of 13 February 2020 set out his investigative steps to that point. This included calls to Ms L including four on 5 December 2019 with a voicemail asking her to return his call left on the last, at 8:06 pm. Three minutes later the barrister called the plaintiff arranging to meet straight away. Ms L did not return Detective Porter’s call, but on 9 December he received an email from a solicitor who indicated he was assisting Ms L in relation to the investigation, advised Ms L was prepared to fully cooperate and had provided a detailed statement to that end, which was attached. This statement did not contain a jurat, and nor was it a sworn or affirmed affidavit. It was not signed. It did state that “The following statement is true to the best of my knowledge and recollection.” On 10 December Detective Porter sent an email to the solicitor with further questions he wished for Ms L to be asked.
The out of court representations made by Ms L forwarded by her solicitor to the police feature very heavily in the plaintiff’s case. I will interleave them, and other evidence relevant to the complainant’s account, topic by topic. However reference is also required to Ms L’s out of court representations to others after the complainant complained to Ms L, Ms M and Ms N. These are also important in assessing objectively the issue of reasonable and probable cause, and considering Detective Porter’s response to the representations sent to him by Ms L’s solicitor. This means however that the narrative of factual matters may seem chronologically awry at times.
Whilst at his residence, and shortly after being arrested, the plaintiff handed Detective Espinosa two USB memory sticks containing the CCTV footage from the pool area and front driveway of his residence. Detective Espinosa and Detective Porter watched aspects of this footage before the plaintiff was charged, and it features heavily in the plaintiff’s case. Some of it is relevant to the asserted absence of reasonable and probable cause at the time of charge, and some additional parts are relied upon to prove malice. It contained no audio recording.
Ms L signed an additional statement on 19 December 2019 which was forwarded to Detective Porter on the day he arrested the plaintiff. It is not entirely clear from the evidence whether he received this before or after the plaintiff was charged. Detective Porter agreed that he had decided to charge the plaintiff at least a day before he received it. The plaintiff has conducted his case on the basis that it was received after charge. I will proceed on the same basis, but for reasons that will become apparent when I consider its impact after charge, it would have made no difference to my determination of reasonable and probable cause to charge the plaintiff, had it been available to Detective Porter before that time.
Before setting out the evidence in further detail I will refer to the particulars of the objective aspect of absence of reasonable and probable cause pleaded by the plaintiff in his final amended statement of claim that pertain to this point in time. They have been re-ordered and numbered to reflect the chronology of receipt of the material, and names changed.
They were as follows:

It would have been apparent to Detective Porter that the witness Ms M was assisted by the complainant and/or the complainant’s mother and stepfather in the preparation of her statement as Ms M’s statement was forwarded to Detective Porter by the complainant’s stepfather giving rise to the suggestion of collusion between witnesses.

The complainant alleged in paragraph 58 of her first statement that she asked Ms L to order a cab immediately. Ms L said in her police statement that she recalled saying to the complainant that Ms L was keen to call a cab and go home. The complainant said that she would go with Ms L. That is when the complainant got out of the pool and got dressed.

The complainant alleged in paragraph 66 of her first statement that whilst in the taxi with Ms L, Ms L told her that she needed to report what the plaintiff and Mr K had done to her to the police. Ms L did not say in her statement that she told the complainant that the complainant needed to report the plaintiff and Mr K to the police.

None of the witness statements suggested that Ms L confirmed an assault took place in circumstances whereby Ms L confirmed she did not witness any assault.

The complainant alleged in her first statement that the sexual assaults by the plaintiff and Mr K occurred when the plaintiff and Mr K were in the pool at the same time and when Ms L was not in the pool area. A careful inspection of the CCTV footage reveals that the plaintiff was not near the complainant at any time when the plaintiff and Mr K were in the pool at the same time and when Ms L was not in the pool area.

The complainant alleged in her statement dated 3 December 2019 that while Mr K was in the pool of the plaintiff’s residence, she swam to the other side of the pool and the plaintiff followed her, putting one of his fingers inside her after tracing her anus with his finger. The complainant alleged that she swam to the other side of the pool and onto the pool steps where she sat and curled up to try and protect herself from the plaintiff. These events were not shown in the CCTV footage the plaintiff provided to Detective Porter on 19 December 2019.

The CCTV footage did not show Mr K corner the complainant into the pool steps and Mr K repeatedly touch the complainant on her breasts and buttocks, nor did it show Mr K putting his arms around the complainant to stop her from getting away, as alleged by the complainant at paragraph 50 of her first statement.

The complainant alleged in paragraph 53 of her first statement that she did not feel strong enough to get out of the pool. The CCTV footage showed the complainant getting out of the pool with apparent ease.

The complainant alleged in paragraph 58 of her first statement that she got out of the pool and immediately put her dress on. This allegation is inconsistent with the CCTV footage which shows the complainant stepping out of the pool, drying herself and, before putting her dress on, squatting at the edge of the pool and engaging in conversation with Mr K who was in the pool.

The complainant alleged in paragraph 58 of her first statement that when she got out of the pool she was very dizzy and unsteady and tripped over a few times as she was trying to put her dress on. The CCTV footage does not show the complainant to be unsteady and tripping over a few times as she was putting her dress on. The CCTV footage in fact shows the complainant to be steady on her feet and not tripping over at any time whilst putting her dress on.

The complainant alleged in paragraph 58 of her first statement that she had to sit down to put her shoes on as she could not stand up straight. The CCTV footage revealed that the complainant could stand up straight and that she was wearing footwear which required her to be seated whilst putting the footwear on.

The complainant alleged that she was scared after the alleged sexual assaults by the plaintiff and wanted to leave immediately. The CCTV footage shows the complainant relaxing by the pool for an extended period before getting into the lift at the plaintiff’s residence and smiling and waving at the plaintiff who was in the pool. Further, the CCTV footage recorded by the camera showing the driveway of the plaintiff’s residence showed the complainant turning back to the plaintiff and apparently waving goodbye.

I will refer to the three interstate witnesses’ unsigned statements received November 22 and 28 2019 and signed statements received December 3 as their statements, as they were effectively the same. There were statements provided later in time which will need to be referred to in relation to information made available to Detective Porter after the plaintiff’s arrest. I will refer to the document attached to the email sent to Detective Porter from Ms L’s solicitor on 9 December 2019 as Ms L’s statement.
The complainant’s statement was 7 pages long containing 83 paragraphs. It provided background information regarding some of her working relationships. She was a junior legal secretary who commenced employment with the law firm in January 2018. She travelled to Sydney with Ms N, Ms M and another secretary to attend a Melbourne Cup company function with members of the Sydney office of the law firm and others associated with it. They flew to Sydney on Monday 4 November 2019. On the morning of Tuesday November 5 she attended the Sydney office of the law firm in an observational capacity before returning to her hotel to change for the function.
The function commenced at about 1 pm at licensed premises in the Sydney CBD. The complainant stated that she consumed approximately five drinks and was extremely intoxicated during this part of the celebrations. She stated:

“[The plaintiff] (Partner of [the law firm]) noticed I was cold at the function and offered me his suit jacket, which I gratefully accepted as I was beginning to feel faint and dizzy from the alcohol and from the cold. I continued to wear the jacket for much of the night due to the cool temperature.”

The celebrations continued at the floor of chambers of a number of barristers who had been at the function. The complainant stated that there was a make-shift bar set up there, with lots of alcohol. Whilst at the chambers she consumed a large and unknown quantity of alcohol.
The complainant alleged that throughout the night the plaintiff gave her many compliments on her physical appearance and physique, which made her feel flattered and less out of place in a gathering of people she did not know. She stated that the plaintiff told her she was his favourite, and kept patting and kissing her on the head. He is alleged to have placed his hand on her stomach and said that he could see her belly-piercing through her dress and liked it. She alleged that he questioned her on whether she was still with her former partner. The complainant’s former boyfriend had suffered a very significant injury in dramatic circumstances a year or so earlier, and the law firm was aware of the significance of this on her life. She had been provided with support and time off work. Ms M’s evidentiary statement in the civil proceedings indicates that the complainant was off work as his full time carer until July 2019 when she returned to the law firm on a part-time basis. The complainant states she advised the plaintiff on 5 November 2019 that they had parted ways. She stated that he questioned her on whether she had any tattoos, and when she said she did not, he said that he liked that.
Ms M’s statement supported the chronology of events regarding attendance at the two functions and other details such as the plaintiff’s provision of the jacket. She saw the complainant hand back a cardigan she had been borrowing from a female guest. She said that when she was then speaking with the complainant and the plaintiff the complainant advised the plaintiff that she was going to leave the function to go back to the hotel to get her jacket, and he offered her his, which she accepted. CCTV footage of a shop attended by Ms M and the complainant on the way to the barristers’ chambers shows the complainant to be wearing the jacket.
At the chambers Ms M observed the plaintiff say to the complainant words to the effect “you are my favourite” and kiss her head, with the complainant responding “you flatter me [the plaintiff].” Ms M said that at one point the plaintiff said to her, of the complainant, “Isn’t she amazing?” She provided an account of a conversation between the plaintiff and complainant about tattoos that roughly accorded with the complainant’s account.
Ms M stated that she went to speak to the complainant before she left the chambers, advising her of the reason for her departure - which will be referred to further below. She stated that she sent text messages to the complainant between 9:30 and 10:15 pm asking her to message her when she returned to the hotel room so she knew she was safe; and said she was not alarmed as she received messages in return stating she would be leaving shortly. She sent her a last message at about 10:20 pm advising that she was going to try to sleep but would leave her phone on loud so that if she needed her she could call or text when she returned back to the hotel room. The witness went to sleep.
The statement of Ms L was consistent with the complainant’s chronology of events up until Ms M and the other people from the complainant’s office left the barristers’ chambers.
The complainant stated that she was told by Mr K that the group that was left was moving into the private chambers of the barrister. She stated that after entering the chambers of the barrister she began to feel very ill and went to the bathroom twice, vomiting on each occasion. She said that when she was then sitting on a couch in the barrister’s chambers with the plaintiff, Mr K, the barrister and Ms L in the room, Ms L sat next to her and told her that everyone was going to have cocaine, and asked whether she would have some. She had never consumed cocaine before but did not want to appear childish. She stated that Ms L swore her to secrecy no matter what.
The complainant stated that the cocaine was produced by Mr K, and the barrister and Ms L prepared the cocaine into four lines on the barrister’s desk with a card. She said that she, Ms L, the barrister and Mr K all had cocaine. She stated she was given four lines of cocaine in about a 15-20 minute period. She stated that she saw the plaintiff consume the powder in the bottom of the bag by licking the plastic and rubbing the remaining bits on his gums. She stated that the plaintiff repeatedly patted her head and gave her compliments throughout the period of cocaine consumption. She stated that after she had consumed this cocaine she felt dizzy and sick.
The use of cocaine at the function and its association with Ms L was supported by the statement of Ms M regarding the circumstances in which she left (shortly before the complainant went to the barrister’s private chambers). She stated that she was in the barrister’s chambers for half an hour to 45 minutes discussing a personal matter. They left the room at the same time and Ms L and a secretary from the complainant and Ms M’s office came out from the next room, to which Mr K said “hey sniffies.” Ms M looked in and could see a group of people consuming what she assumed to be cocaine as they were bent over a table. She understood cocaine to have been consumed in the barrister’s chambers on several other occasions and decided to leave, stating to Ms N and Ms N’s husband “coke is out, I’m leaving.” They agreed. She said she approached the complainant who was surrounded by four barristers. She said that she told the complainant she was leaving because “the coke is out.” The complainant advised her that she wanted to stay and finish her drink.
Ms M’s statement addressed in detail conversation she had with the complainant and Ms L separately and together in the early hours of the morning of 6 November 2019 after the alleged sexual assaults and the complainant’s return to her hotel. This included an account provided to her by the complainant in the hotel room on the morning of 6 November in which she said to her in Ms L’s presence, without correction, that she, Ms L, the barrister, the plaintiff and Mr K were left in chambers and Mr K provided a bag of cocaine for everyone to share, and that she had approximately five lines of cocaine which is roughly what everyone else had as well, and that the plaintiff had not snorted it but put his finger in the near empty bag and rubbed the residue on his gums. Ms M’s statement also narrated a conversation she had on a long stool in the lift bank of the hotel with Ms L by herself, after she had asked her to leave the complainant, before she went back to the complainant herself. Ms M stated that “I asked whether she had also consumed cocaine and she confirmed that she had”.
Ms L’s statement referred to a period of about an hour with this small group in the barrister’s chambers with no reference to consuming cocaine, but to a number of them having a cigar, and to drinking, dancing and chatting.

The complainant’s statement indicated that after the group of five had consumed cocaine, the barrister left. The plaintiff then suggested that they go back to his home for a swim as he had a nice heated pool. The complainant stated that she was cold and very intoxicated and agreed. She stated that her memory was extremely hazy as to this period but that at about 1:35 am she got into a car (she could not recall whose car this was, and thought it may have been a cab) and drove to the plaintiff’s home. She said that Ms L said to her during the car ride that the plaintiff was “not an option” but she would let her sleep with Mr K. The complainant said she was surprised and confused and told Ms L she did not want to sleep with either of them as they were over 50 years old and she thought the idea gross.
Ms L’s statement indicated that after the barrister left Mr K started talking about the plaintiff’s pool, and invited her and the complainant to come for a swim. She said that she declined and she could not recall what the complainant said. She stated that all four went down in the lift to the ground level and she said goodbye to the men, intending to walk the complainant back to her hotel, but the complainant followed the men, saying she wanted to go swimming. Ms L said she tried convincing the complainant to retire for the night but she repeated that she wanted to go swimming, and so she accompanied her as she did not know if the complainant was familiar with Sydney. The Council CCTV footage obtained by Detective Porter before the plaintiff’s arrest showed the four getting in a taxi at 1:34 am on 6 November 2019.
Ms M’s statement includes, as part of the joint conversation she had with the complainant and Ms L at the hotel, Ms L’s report that after they left chambers she began to walk the complainant back to her hotel but both the plaintiff and Mr K had requested they come back to the plaintiff’s house for a night swim, and that she (Ms L) got into the taxi with the complainant because she was worried Ms M would be upset if she left the complainant on her own. Ms M also described, as part of the conversation with Ms L by herself, Ms L repeating that both the plaintiff and Mr K invited the complainant to go back to the plaintiff’s house for a night swim.
The complainant’s statement provided a coherent account of events in the pool at the plaintiff’s house after they arrived there. She described going up in the lift at his home straight to his pool area. She stated that the plaintiff undressed and entered the pool in shorts (it was actually underwear), engaged with her and “was encouraging me to get into the pool and he said it was 36 degrees and very warm and it would warm me up. He was talking about the steam coming off the pool and told me it would make me feel better.” She was encouraged as well by the fact that he was asking Ms L to get in. Although Ms L did not get in, the complainant knew the plaintiff to have known Ms L for a long period of time and so assumed she would be safe. She said that she got into the pool in her underwear.
The complainant said the warm water made her feel better as she had been feeling sick and dizzy from so much alcohol and the cocaine. She said she felt disorientated and dizzy so closed her eyes and leant against the side of the pool. She described the plaintiff coming up close behind her, suggesting she look out to the view. She felt uncomfortable and pushed him away with her legs, and swam away. She said she felt unable to say anything negative as he was her boss. She stated that he followed her, and blocked her into the side of the pool. She said she tried to keep a distance from him but he kept trying to press into her back, and grabbed her leg and held it against him.
The complainant stated that Mr K entered the pool wearing shorts and a rash vest. He gave her an alcoholic drink which was very strong. She stated that she swam to the other side of the pool, and as she took a drink from the glass at the side of the pool the plaintiff:

“...put his hand in my underwear and put one of his fingers inside me after tracing my butthole with his finger. I was extremely freaked out so I put down my drink and moved away to the other side of the pool and onto the pool steps where I sat and curled up to try and protect myself.”

The complainant stated that Ms L had disappeared when this started happening and it made her even more scared. She stated that Mr K then blocked her into the corner of the pool steps. She said he repeatedly touched her on her breasts and buttocks and put his arms around her to stop her from getting away. She was scared to make a scene and risk losing her job. She said Mr K said that both he and the plaintiff wanted to have sex with her. She said that would never happen and he said that he could “make it happen.”
The complainant said that Ms L came back and Ms L and the plaintiff began an argument at the side of the pool. She stated that from what she could hear they were arguing about the fact that the plaintiff was touching the complainant, and it made Ms L angry. She stated that Ms L seemed very upset and angry with the plaintiff.
The complainant’s statement described Mr K as “trying to distract” her at this point, and very aggressive towards her. She stated that while she had her legs up against her chest to protect herself, he put his hand under her buttocks and then between her “butt cheeks” and pushed his fingers roughly inside her vagina which hurt a lot. She stated that she pushed him away and told him to stop and he kept pushing her back against the wall of the pool and kept putting his fingers inside her. This occurred three times.
The complainant stated that immediately after Mr K sexually assaulted her she was very scared and unsure what to do. She was very drunk and woozy from the cocaine, which she had never had before, and was not used to excessive amounts of alcohol. She thought she was going to be sick again and felt her head spinning and did not feel strong enough to get out of the pool.
The complainant said she swam away from Mr K, and the plaintiff approached her again. She said that he took her hand and put it on his penis and testicles and squeezed it with his hand around hers. She “freaked out” when she realised for the first time that he was naked and felt “scared and disgusted”. She said she felt panicked and unsure how to react, because he was her boss and she was scared of the repercussions including not only losing her job but having her name tarnished in the legal industry. She stated that she swam up to Ms L at the side of the pool and said “can you help me?” She said she told her she was scared and needed to get out of there. She said Ms L asked her if she needed to go right away and she said she did.
The complainant said that she got out of the pool and immediately put her dress on. She said she was dizzy and unsteady and tripped over a few times as she was trying to put her dress on. She said she had to sit down to put her shoes on as she could not stand up straight. She sat close to Ms L and asked her to call the cab immediately. She said that she was scared the plaintiff and Mr K would be angry she was leaving so she told them she had to be up for a flight back to where she lived in a few hours, but they continuously attempted to convince her to stay against her will. She said Ms L phoned for the cab and said it was 10 minutes away. She said:

“[The plaintiff] was very upset when we were leaving, [Mr K] and [the plaintiff] repeatedly yelled down to me from the pool area when I was waiting to get into the cab. They were yelling at me to come back, and [the plaintiff] said, “you’re not seriously going, are you?””

She stated that she knew Ms L was aware that the plaintiff was naked, because he asked Ms L “can you see my cock?” and she said “Yes but I don’t want to.” The complainant said that she waved goodbye and left because she was nervous and unsure what else to do.
Ms L’s statement confirmed arrival at the plaintiff’s house at around 2 am, and taking the lift up to the outdoor pool area. She stated that the plaintiff removed his clothes and jumped into the pool in his underwear. She said that shortly afterwards the complainant removed her dress and heels and got in the pool in her underwear. She confirmed that Mr K entered the pool in shorts and a rash vest, and that she herself did not enter the pool but sat close by. She described twice leaving the poolside to go inside. She described no occasion of seeing the plaintiff in close proximity to the complainant. She said that after about 20 minutes, when she went inside to have a glass of water, she came back out and was “chatting” with the plaintiff while the complainant was in the shallow end near the step and seemed to be “chatting” with Mr K. She provided no account of arguing with the plaintiff or of being aware he was naked.
Ms L’s statement made no mention of the complainant asking to go or looking upset, or having cause to ask the complainant if she wanted to go. Her statement said: “At approximately 3.15 am, I recall saying to [the complainant] that I was keen to call a cab and go home. [The complainant] said she would come with me and then got out of the pool and got dressed. I then called a cab.”
Ms M’s statement described the conversation in which she was talking with the complainant and Ms L in the hotel room later that morning as including the following:

“[The complainant] then disclosed that at some point during the swim, [the plaintiff] had taken his underwear off though she does not know when this was. I then asked [Ms L] whether this was true and she confirmed it was. I asked her whether she had seen [the plaintiff] naked and she said she hadn’t but that she had looked in the pool and it was obvious that he was no longer wearing anything to cover his modesty.”

Ms M said that in this same conversation Ms L told her that at one point after seeing that the plaintiff was not wearing underwear anymore she asked him “what he was doing” and said he “needed to pull his head in.” Ms M said Ms L told her the plaintiff said Ms L was overreacting, and that he was not doing anything wrong.
Ms M’s statement included an assertion that Ms L said, in the conversation involving just the two of them at the lift bank, that she saw the complainant looking upset after being there for a maximum of half an hour and asked her if she wanted her to call a taxi to which the complainant said “yes”. Ms M also described the complainant’s account to her when they were by themselves as having mouthed words to Ms L along the effect of “help me” and “get me out of here.”
Detective Porter’s May 2020 statement explained that he used the 1:34 am departure from chambers to work out that the plaintiff’s CCTV footage was about 10.5 hours behind. This may have been worked out after Detective Porter charged the plaintiff, but it is not controversial. He calculated that this showed Ms L and the complainant leaving the plaintiff’s home at 3:25 am on 6 November 2019.
The CCTV footage confirmed that within about five minutes of the four exiting the lift at the plaintiff’s house the plaintiff removed his clothing except for a pair of underpants and entered the pool. Within a few minutes after that the complainant, who was facing the pool after the plaintiff entered it, removed her dress and entered the pool as well. Mr K came in some time later. Ms L stayed outside of the pool and was mostly near it but moved away a few times. The CCTV footage is not sufficiently clear to determine what occurred between people in the pool. The complainant was in the pool for approximately an hour.
It is not apparent from the portion of the CCTV footage showing the complainant getting out of the pool that she had difficulty getting out of pool; although I would not go so far as to say that it shows clearly that she did not.
The CCTV footage shows that the complainant did not get straight into her dress after exiting the pool. She spent close to three minutes drying herself with a towel before she put her dress on. In part of this time she appeared to be crouched down at the side of the pool engaging with a person or persons who were still in the pool.
The complainant did not appear to trip over in the time between getting out of the pool and leaving, although she was mostly seated. She did not appear stable throughout. She can be seen to lean backwards, sway slightly, stumble back on her seat after putting her shoes on and so on.
The complainant stated that she waved goodbye when she left because she was nervous and unsure what else to do. The CCTV footage confirmed a small wave as she left the pool area, a turn and smile when in the lift, and a movement when walking down the driveway to the taxi (which is the point at which I understand she stated the plaintiff and Mr K were yelling down at her to stay) that could have been a small wave up to the pool area – or a turn of her head with her hand up to her brow or covering her face. The CCTV footage (including the separate Exhibit F) shows a number of minutes before Ms L and the complainant entered the lift to leave where Mr K was out of the pool and engaging with the complainant in a way that appeared to make her uncomfortable.
The complainant said of the trip in the taxi after leaving the plaintiff’s house that Ms L was meant to drop her at her hotel and go home, but because she was so panicked and distressed Ms L said she was uncomfortable leaving her alone and came back to the hotel with her. She said Ms L told her in the cab that she needed to report what the plaintiff and Mr K had done to her to the police. She said that in the cab she asked Ms L if she had ever seen the plaintiff do this before and Ms L said she had never seen him act like this and could not believe he had done this. She said the plaintiff was ringing Ms L over and over but she did not answer her phone.
Ms L’s statement indicated no knowledge of anything being wrong until she left the plaintiff’s house and was in the taxi with the complainant. She described the complaint to her as follows:

“Whilst in the cab I noticed [the complainant] looked uneasy and I think at this stage I may have asked her if there was something wrong as she seemed fine when we were leaving [the plaintiff]’s place. [The complainant] then started whispering to me either that [Mr K] or “he” (which I assumed was referring to [Mr K] as she was near him in the pool) had touched her while in the pool to which I believe I asked words to the effect “touched you where?” and she said down there and I asked front or back and she said both and inside.
[The complainant] then also started saying that she had said no and told him to stop and then kept apologising to me. I said she didn’t need to apologise and asked her why she didn’t get out of the pool if she was uncomfortable to which I believe she said she felt like she couldn’t because he was the boss. Seeing as [the plaintiff] is our boss, I was confused by this and believe I asked [the complainant] “did [the plaintiff] touch you?” and she said yes.
By the time we got to the hotel, [the complainant] had told me that [Mr K] had digitally penetrated her three times and [the plaintiff] twice while she was in the pool.”

This statement by Ms L includes no reference to raising with the complainant the prospect of reporting her allegations to the police. Ms M’s statement indicated that Ms L told her, as they talked on the long stool at the lift bank of the hotel, that after the complainant told her in the taxi what happened she advised her they should call the police, but the complainant was adamant she did not want to call the police. She also said of this conversation “[Ms L] was very adamant that she cannot believe that this had happened as she had been working with [the plaintiff] since she was 17 years old and he had never acted this way before in front of her.”
The complainant, Ms M and Ms L all described their interaction back at the hotel. The complainant said that when she got to the hotel she started shaking violently and had a complete panic attack. She said she was crying and in total shock. She felt ashamed and embarrassed about what had happened and begged Ms L to not tell anyone. Ms L said to her she was not comfortable leaving her and that she needed to report what had happened to someone. The complainant said Ms L could call Ms M. Ms L called Ms M and said something bad had happened and the complainant needed her, and she came promptly. CCTV footage from the hotel obtained by police demonstrated the complainant arriving back to her room at 3:42 am. Ms M describes being woken by a call from Ms L apologising for waking her, but telling her she needed to come to the complainant’s room.
The complainant said that she tried to explain what had happened to Ms L and Ms M. She said the plaintiff called Ms L during this time and Ms L ignored it. She said Ms L kept saying over and over again that she could not believe this had happened to her (the complainant). The complainant stated she was scared and yelling hysterically. Ms M left the room for a period and the complainant hyperventilated and had a panic attack. Ms M returned with Ms L and she told Ms M that both men had sexually assaulted her.
The complainant stated that she begged Ms M to not tell anyone. She said “I’m not sure how much time had passed but not long after [Ms M] came to me and told me that she had told [Ms N], the Solicitor that I work under at [the law firm]” She described a conversation with Ms N, and her feeling of devastation and humiliation, and terror about what would happen and whether she would lose her job. She told Ms N what had happened. She said they both cried, Ms N hugged her and she herself broke down and started to sob.
Ms M stated that Ms L called her and said she needed to come to the complainant’s room and when she went there Ms L looked extremely upset and on the verge of tears and the complainant looked extremely upset. She confirmed that she saw Ms L’s phone indicate an incoming call from the plaintiff which Ms L did not answer.
Ms M stated that most of the initial information came to her from Ms L, while the complainant sat there with tears running down her face. Ms L advised Ms M that the complainant had made allegations about the plaintiff and Mr K but Ms L’s demeanour “was not of a caring matter so I then asked [the complainant] to confirm what she had said.”
I have referred earlier to the complainant’s report to Ms M in Ms L’s presence of their cocaine consumption, and Ms L’s report of both the plaintiff and Mr K having requested they attend the plaintiff’s premises for a night swim. Ms M also stated that Ms L said she accompanied the complainant because she was aware Ms M had been messaging the complainant and was worried Ms M would be upset if she left the complainant alone. The complainant told Ms M what everyone was wearing in the pool. I have referred earlier to Ms L’s acknowledgment to Ms M of her awareness that the plaintiff came to be naked.
Ms M’s account of the conversation included the complainant disclosing five different times the plaintiff and Mr K placed a finger inside her – Mr K penetrating her vagina three times and the plaintiff twice. She recalled Ms L sitting cross legged rocking back and forth. She said Ms L’s telephone buzzed again and she did not answer it.
I referred earlier to Ms M’s account of Ms L saying she asked the plaintiff what he was doing and telling him he needed to “pull his head in.” This was allegedly at this point in the conversation, Ms M stating that Ms L said this after referring again to seeing the plaintiff not wearing underwear anymore. Ms M became upset after being informed of the sexual assaults and asked Ms L whether she had witnessed any of this. Ms L said she had not but confirmed the plaintiff was naked and she only found out about the assaults when they were in the taxi.

According to Ms M, Ms L then asked the complainant whether she had led the plaintiff and Mr K on. This caused Ms M to ask Ms L to leave. She then spoke further privately with Ms L (on the long stool in the hotel lift bank). Aspects of this conversation have been referred to earlier. Ms M described Ms L as visibly upset. She said Ms L said she did not know what to think.
Ms M and Ms L both state they went to the street level with the complainant for her to have a cigarette, and Ms L left in a taxi. Ms M went back to the complainant’s room with her. Ms M described the complainant becoming upset when she told her the police would need to be called, punching herself in the head. Ms M stated:

“When it became quite apparent that [the complainant] did not want to call the Police, I advised her I would call her parents and again she became distraught grabbing a pillow and putting it over her head and saying words to the effect of “I’m stupid”, “I don’t want anyone to know” “this is humiliating” “No one will believe me because they are solicitors”.”

Ms M stated that she said “I don’t know what you want me to do then”, with some force. She said she left and became regretful, returned and apologised profusely. She remained seated on the floor stroking the complainant’s hair and telling her this was not her fault. They spent about two hours alone.
Ms M was told more information that had not been revealed when Ms L was present. This included the plaintiff putting her hand on his erect penis, which is when she realised he was naked in the pool, his attempts to kiss her, and Mr K’s statement that “[The plaintiff’s] never done this before but he wants you to stay the night and will pay for another flight home for you.”
Ms L’s statement indicated that when the taxi arrived at the hotel she offered to walk the complainant to her room as she “had a concerned look on her face.” Mr K rang Ms L from the plaintiff’s phone while they were in the lift and asked her if the complainant was going back to the plaintiff’s house. She said she told him she did not know what he was talking about and that she could not talk, and hung up. She saw the complainant in to her room and stood outside trying to process what had occurred. She rang Mr K on the plaintiff’s phone and asked him what he had meant, to which he said he was wondering if the complainant was coming back because she had said she would do so when she left. She told him the complainant would not be coming back. At some stage she contacted Ms M to come to the complainant’s room.
Ms L described the complainant, in Ms M’s presence, reporting “touching” by Mr K in the pool (with his fingers inside her) and that she told him to stop. She said both men had touched her but that Mr K was more forceful. She stated that her phone rang again from the plaintiff’s number, then Mr K’s, and she did not answer these calls. She stated that the complainant repeatedly apologised to them, and referred to the plaintiff’s family circumstances. Ms L stated that both she and Ms M advised the complainant there was nothing they could do to help her if she did not want to take it further.
Ms L described a private conversation with Ms M in Ms M’s room in which she told Ms M that she did not notice anything untoward going on in the pool, thought everyone was getting along fine and that the first time she became aware of anything was in the cab. Ms L’s version of her private conversation with Ms M is very different from the account of the private conversation as outlined in Ms M’s statement.
Ms M stated that in the morning after Ms N was advised Ms N, in the presence of Ms M, rang Ms L and put her on speaker phone to ask her what happened. Ms L kept repeating “I don’t know, I don’t know” and was extremely emotional.
The complainant’s statement described the flights for her, Ms M and Ms N being changed to mid-afternoon, with the other secretary from their office keeping the planned morning flight. She described a panic attack at the airport and communication with her mother, and going home. Ms M’s statement similarly described the complainant as upset at the airport. She took the phone from the complainant when she became too distraught to speak with her mother. Ms M conveyed the complainant home from the airport, and informed her parents what she had been told.
Ms L’s statement indicated that she spoke to the plaintiff about the incident on the evening of Wednesday 6 November 2019, telling him there had been an allegation of sexual assault or touching in the pool against both him and Mr K.
On 4 December 2019 Detective Porter received, additionally to the signed statements of the complainant and Ms M, the statement of the complainant’s mother. This was a four page statement with 21 paragraphs. It set out her belief as to the complainant’s vulnerability, due to the stressful year up to the complainant’s trip to Sydney as a result of her boyfriend’s very significant injury, and the law firm’s knowledge of this. She described the conversation with her daughter when she was waiting to board the flight home at Sydney airport, having received a text message from the complainant saying she was quitting her job, urging her mother to be home when she got back, and stating something bad had happened. On the telephone the complainant was distraught and barely coherent. Ms M took the phone and told the complainant’s mother that the complainant had told her she had been sexually assaulted in a swimming pool at the plaintiff’s house by the plaintiff and Mr K.
The complainant’s mother’s statement described her daughter in an extreme state of distress when she arrived home, going straight to her room. She was provided with a second hand account from Ms M, generally consistent with the account recorded in the complainant’s statement. After Ms M left the complainant’s mother and her husband were provided with an account from the complainant regarding what happened, generally consistent with the account recorded in the complainant’s statement. She explained her support for her daughter through medical assessments. She said that on 20 November 2019 the complainant asked her stepfather to call the police on her behalf and inform them that she had been sexually assaulted by the plaintiff and Mr K.
On 13 December Detective Porter made enquiries in relation to CCTV from the ground level foyer of the building in which the floor of barristers’ chambers is located, but was told this had been overridden. He later received it on 18 December 2019.
In answering interrogatories regarding the CCTV footage provided to police by the plaintiff on 19 December 2019, Detective Porter stated “I watched the entirety of the CCTV footage prior to charging the Plaintiff but I am not certain whether the CCTV footage I watched was the enhanced or the unenhanced version.” In evidence he said that he spent over an hour, watching the enhanced and unenhanced footage before charging. The questions asked of him in cross-examination were focused on what was shown after the complainant exited the pool, except for one question as to whether it suggested she had been in the pool for 10 minutes or 20 minutes when Ms L went to get a drink.

The parties’ submissions regarding the objective aspect of reasonable and probable cause at the time of charge

It was submitted for the plaintiff in closing written submissions that the document forwarded by Ms L’s solicitor on 9 December 2019 called into question the complainant’s version of events as she did not notice anything untoward going on in the pool and thought everyone was getting along fine, footnoting in support reference to her version of her conversation with Ms M when they spoke alone at the hotel. It was submitted that an objective person would have held reservations about the credibility of the complainant and Ms L after receiving Ms L’s first statement. It was submitted that after viewing the CCTV footage an objective person would have only held reservations about the credibility of the complainant, not Ms L, because the CCTV footage corroborated Ms L’s version of events.
The following opening submission had been made for the plaintiff:

“The plaintiff submits that an objective person with reasonably sound judgment, faced with the CCTV footage of the pool area, would not have regarded the facts and materials available as sufficient for establishing a reasonable and probable cause to institute the criminal proceedings.”

It will be recalled that the final amended statement of claim included the suggestion that aspects of the complainant’s account directly relevant to the offending conduct were inconsistent with or not shown in the CCTV footage (particulars v to vii above at [41]). These assertions were not pressed.
Paragraph [130] of the plaintiff’s written closing submissions was far more focused than the particulars in the final amended statement of claim regarding the relevance of the CCTV footage. This focus was on the complainant’s conduct exiting the pool and afterwards – to suggest she did not have difficulty getting out, did not immediately put her dress on, was not unsteady, sat down to put her shoes on because of the nature of the shoes, and seemed relaxed and not in fear afterwards and gave a slight wave or smile to the plaintiff as leaving. These submissions corresponded generally with particulars viii to xii, above at [41].
The plaintiff’s closing written submissions still made far-reaching assertions as to the importance of the CCTV footage, such as:

“It is difficult to overstate the importance of the CCTV footage in completely undermining the credibility of the complainant. It is submitted that an objective person, after viewing the footage, would have concluded that the complainant was an untruthful witness and for that reason would not have held an honest belief in the case against the plaintiff.”

There was still some reference to asserted inconsistency between the complainant’s account of what occurred in the pool and the CCTV footage. In the context of a submission regarding Detective Porter’s credibility it was submitted:

“DS Porter also did not mention exculpatory aspects of the CCTV footage in the Facts Sheet such as the absence of any evidence of the alleged offending in the pool, the placid nature of the scene in general, inconsistency with the complainant’s evidence as to the movements of [the plaintiff], [Mr K] and [Ms L] at the time of the alleged offences, the lack of any support for the suggestion that any sexual assault had occurred and the relaxed and happy demeanour of the complainant at the scene and as she smiled, laughed and waved when leaving the Plaintiff’s home, which further undermines DS Porter’s credibility as a witness.” (emphasis added)

The following closing written submissions were made regarding the sufficiency of the material available to Detective Porter, albeit not limited to the point at which the plaintiff was charged:

“Quite simply, there was a staggering amount of material undermining the credibility and reliability of the complainant. This material served to demonstrate that the complainant was not a witness of truth. The most important part of the material was the CCTV footage of the pool area which contradicted the complainant’s version in several important respects, whilst corroborating the account given by [Ms L]. The CCTV footage was available to DS Porter before charging the plaintiff.
The CCTV footage paints a picture of a placid scene, completely at odds with the complainant’s assertion that she was the victim of a violent sexual assault. The unenhanced footage was sufficiently clear for an observer to have been able to discern that there was no evidence of violence occurring, such as water splashing or the water surfaces being disturbed by quick movement or persons thrashing around as would be expected in the circumstances alleged by the complainant. The positioning of the plaintiff, [Mr K], [Ms L] and the complainant at different times also clearly contradicted the evidence of the complainant as to the respective circumstances of the alleged offending as well as the timeline provided by the complainant in her statements.
The plaintiff submits that it is beyond doubt that an objective person faced with the material, at the point of institution of the criminal proceedings, would not have held an honest belief in the case against the plaintiff and [Mr K]. Alternatively, by no later than 21 January 2020, an objective person confronted with all of the material at that point would not have held an honest belief in the case against the plaintiff and [Mr K].” (emphasis added)

The italicized portions of these two passages must be considered in light of the absence of cross-examination of Detective Porter on any such inconsistency, the Court not being taken to any part of the CCTV footage showing any such inconsistency, the lack of elaboration of this issue in the written submissions as to absence of reasonable and probable cause, and the express concession made by Mr Sullivan KC for the plaintiff during closing submissions. The focus in the written submissions on what happened after the complainant left the pool was raised, and Mr Sullivan confirmed “As I stand here now, I don’t make a submission that it’s clear from the footage that you can see various things, or what happened in the pool.”
The following submission was made in the plaintiff’s closing written submissions:

“The complainant alleged in her statement that she was scared after the alleged sexual assault and wanted to leave immediately. The CCTV footage shows that the complainant put her footwear on and then re-entered the pool area, sitting next to [Ms L] and appearing to smoke a cigarette or vape. The conduct of the complainant in this regard is hardly consistent with a person who is in fear as a result of being violently sexually assaulted. Such a person would not re-enter the pool area and put themselves in close proximity to the alleged perpetrators.
The so-called ‘leaving footage’ shows the complainant turning to the plaintiff and giving him a slight wave. The footage also shows the complainant getting into the lift and looking in the direction of the pool area and smiling, obviously smiling at the plaintiff who was in the pool. Once again, this is conduct of the complainant which is inconsistent with her being in fear.”

It was submitted for the defendant that any differences between the complainant’s account and the CCTV footage were not of a kind that would mean the allegations lacked sufficient value to constitute cause for a prosecution. It was submitted that “The CCTV does depict the complainant, in her underwear, in the pool with the plaintiff and his friend [Mr K].” It was submitted that it was difficult to view, did not enable vision of the pool, and covered only surrounding circumstances. There was a clear account from the complainant as to what occurred. It was submitted that aspects of the complainant’s account such as the plaintiff being naked were supported by Ms M’s statement regarding the disclosures made to her by Ms L.

Determination regarding the objective aspect of reasonable and probable cause at the time of charge

The statement of the complainant made out the elements of the sexual assault of her by the plaintiff by his digital penetration of her vagina without her consent, and unlawful sexual touching by taking her hand and putting it on his penis and testicles. It was a coherent account in a detailed statement which provided relevant surrounding detail supported by other evidence available to Detective Porter. It was a particularly serious allegation given the very significant power imbalance between the complainant and plaintiff.
It is frequently the case when allegations of sexual assault are made that no one is suggested to have witnessed the offending. The complainant did not allege that Ms L witnessed the offending conduct itself. Particular (iv), above at [41], does nothing to support absence of reasonable and probable cause. On the complainant’s account Ms L would however have likely witnessed the plaintiff touching the complainant or keeping very close to her in the pool, and was aware he removed his underpants, with one or both of these observations causing her to argue with him. On the complainant’s account Ms L realised she was upset in the pool and wanted to leave, because she communicated this to Ms L. On the complainant’s account Ms L would inevitably have heard the plaintiff and Mr K placing pressure on the complainant to stay.
There will be occasions when, despite a statement from a complainant which makes out the elements of an alleged sexual assault, there is other evidence which significantly calls into doubt the reliability of the complainant’s account. A complainant’s account may be undermined to such an extent that it is not appropriate to charge the suspect. This case comes nowhere close to such a situation. There was no basis for Detective Porter to do anything other than charge the plaintiff.
No submission or cross-examination was directed towards the first particular – that Ms M should have been understood to have been assisted by the complainant or her parents in the preparation of her statement giving rise to the suggestion of collusion between witnesses. There was not an evidentiary basis to suppose this at the time the plaintiff was charged. Incidentally, Ms M was a witness for the plaintiff, and her evidence made plain that this assertion was not correct. She said her first statement was drafted by her completely independently of anyone else, on 8 November 2019.
The two particularised inconsistencies between the complainant’s account and Ms L’s statement (ii and iii above at [41]) did not require, by themselves or in combination with any of the other factors, devaluing the complainant’s allegations to the extent that it was not appropriate to charge the plaintiff. There will inevitably be discrepancies between witnesses. Such differences, and the existence of points for cross-examination of a complainant, do not generally indicate that a person should not be charged when a serious criminal allegation has been made. The trial process exists for resolution of such issues.
Of further importance in relation to Ms L’s account at this stage, and even more clearly by early 2020, is the significant body of evidence which if true suggested that by the time her solicitor forwarded her versions of events to police she was covering up important observations she had made which were supportive of the complainant’s allegations. As I indicated at the outset Ms L was not a witness and has not had an opportunity to respond to the allegations of what she saw and heard, and what she is alleged to have said to Ms M and Ms N. However the requisite analysis of what Detective Porter made of Ms L’s accounts, and what he should have made of them, requires consideration of all material available to him as to Ms L’s out of court representations and reactions. These were capable of bearing on whether the prosecution would be obliged to call Ms L as a witness at all, the extent to which she could be discredited by the Crown by cross-examination as an unfavourable witness if called; and, in a more basic way, the police officer’s view as to where the truth lay.
The first particular relying on Ms L’s statement was the asserted discrepancy between the complainant’s account of seeking help from Ms L while she was in the pool, and Ms L’s account that she was the one who raised her own wish to leave. The available evidence also included Ms L’s far more immediate alleged report to Ms M that she offered to call a cab because the complainant looked upset in the pool and answered affirmatively Ms L’s question whether she, the complainant, wanted her to call a taxi (see above at [73]). Also relevant is that Ms M’s account of the complainant’s report, no more than an hour or two after she exited the pool, was that what she had done was mouth the words “help me” and “get me out of here” (see above at [73]). This far more contemporaneous version than her typed statement would have been consistent with Ms L’s alleged account to Ms M of seeing the complainant upset and asking her, for that reason, whether she wanted a taxi called.

There is no evidence suggesting that Ms M and the complainant had ceased being friends by January 2020. It seems now that Ms M had ambivalent feelings about the complainant at that time, as some people do for their friends. Ms M was not then in contact with the plaintiff due to his bail conditions which prevented contact until April 2020. Ms M has remained working for the law firm, and the complainant ceased working for the law firm immediately after the alleged sexual assaults.
January 21 2020 was the first occasion Ms M met face to face with Detective Porter. Ms M’s previous statement, typed out by herself, portrayed a caring, concerned and supportive attitude towards the complainant. It demonstrated the steps she took to keep an eye out for the complainant on the evening of 5 November 2019. Ms M’s first statement expressed criticism of Ms L for not acting in a caring way towards the complainant when the three women were in the hotel together in the early hours of 6 November 2019, and protection of the complainant when Ms L asked the complainant whether she had led the men on, causing Ms M to ask Ms L to leave. Ms M described an extended period of time in which she stroked the complainant’s hair and assured her this was not her fault. The statement described Ms M crying on many occasions on 6 November (and this flowed through to her report to police on 21 January 2020 of crying when she apologised to the complainant’s mother on the phone). She took the complainant home to her parents and ensured her parents understood what had been alleged. It revealed no negative thoughts whatsoever about the complainant.
Detective Porter met with Ms M in that context for a meeting scheduled well in advance of Ms N’s revelation to him. However despite the apparently caring and supportive tenor of Ms M’s first statement, Detective Porter was an experienced investigator. Although Ms N had just told him she thought on the evening of 5 November 2019 there was a prospect the complainant may be raped because she was worried about her, he was keen to see what Ms M would say about the comment “She’s going to call rape”, because it was a strange thing to say, and concerned him because it could indicate that Ms M thought the complainant would fabricate an allegation of rape. Detective Porter may very well have said something like “We need to address this so that it can’t be picked apart at trial.” However Ms M did not say that this is what she meant.
On 21 January 2020 Ms M provided police with screenshots of messages in which she showed her care and concern for the complainant on the evening of 5 November 2019, as her previous statement had described. Her messages were affectionate. They included a message Ms M sent to the complainant at 9:58 pm within what must have been less than half an hour after the alleged “What if she calls rape?” comment, in which she said “let me know when you are back safe please. i know you are a big girl but worried about you being there alone” That is consistent with what was included in paragraph [4] of her 21 January 2020 statement. It included the message to Ms N on 7 November indicating that Ms M, like Ms N, was angry about what had occurred, as it was predatory, and had set back the confidence the complainant had just started to get back.
These text messages were shown to police and annexed to Ms M’s statement, at the very meeting under consideration. The messages would obviously have been looked at and considered, if not also discussed. Ms M’s consideration of them and production of them to police, and discussion about them, is not addressed in Ms M’s evidentiary statement. I have no information as to the order in which the issues in the typed police statement were discussed, as a laptop was being used and can accommodate insertion of points discussed towards the end of the meeting, towards the top of the statement. Ms M’s evidence that she told the police she was happy with paragraph [4] of her 21 January 2020 statement as she typed it, because she wanted them to leave, tends to suggest that this was being discussed towards the end of the meeting (that is, after the consideration of the abovementioned text messages) rather than at the beginning. Paragraph [3] in the 21 January 2020 statement is about the complainant not previously consuming cocaine, whereas in Ms M’s evidentiary statement she narrates it as being discussed after the “call rape” comment. This confirms that the material before me does not indicate the order in which issues in Ms M’s 21 January 2020 statement were discussed.
Ms M’s reference on 21 January 2020 back to her expression of anger on 7 November 2019 at the predatory conduct, which would have set back the confidence the complainant had just started to get back, is connected with what I see as another obvious gap in Ms M’s evidentiary statement about conversation relevant to the topic of how paragraph [4] ended up in her 21 January 2020 statement. She states that she told the police the complainant had mental health problems, but has included no conversation as to what she said about this. Ms M was clearly on the day, by reference to the abovementioned text messages, recalling concern for the complainant being left by herself, and about some improvement, recently prior to November 2019, in a confidence problem the complainant had suffered.
The evidence indicates that the complainant did have a history of anxiety and depression. Ms M stated in Court that the complainant was suicidal in the days after they arrived back in their home city, and this is consistent with the statement police also obtained from the complainant herself on January 21 2020. Ms M stated in Court that the complainant had engaged in self-harm prior to the alleged sexual assaults. The detail of Ms M’s understanding of the complainant’s mental health vulnerabilities is not referred to in her evidentiary statement.
Detective Porter’s main recollection of the conversation that followed when he asked Ms M to elaborate on the “call rape” comment was that it was to do with the complainant’s mental health. He was not challenged about this evidence, but it is missing from Ms M’s evidentiary statement. One particular aspect of that topic Detective Porter recalled being discussed was the traumatic injury to the complainant’s boyfriend (which he wrongly remembered as death). Discussion about this injury and the ramifications for the complainant is not referred to in Ms M’s evidentiary statement but I accept it was discussed. It was volunteered by Ms M in cross-examination as demonstration to the Court that the complainant is a “topper”. As with most of Ms M’s other examples, this disclosed nothing negative about the complainant’s credibility, but only about Ms M’s judgmental thought processes about the complainant.
A further indication that Ms M’s account of how paragraph [4] came to be in her January 2020 statement is not complete, is the evidence of Detective Espinosa that Ms M was asking a lot of questions and seeking guidance as to how best to frame aspects of her statement. This was not challenged. It is unlikely that this related to the bulk of the rest of her statement, which was more mechanical explanation of when she spoke to people and what was said.
The passage from Watson v Foxman quoted above at [392] is highly instructive in understanding the importance of nuance. A relevant example here is Ms M’s evidence of what she first said when asked why she made the comment to Ms N “What if she calls rape?”. Ms M’s evidentiary statement says she said words to the effect of “She has mental health issues and I was worried she would do something like this”. This is clearly consistent with having said “She has mental health issues and I was worried something like this would happen.” There was no obligation to cross-examine on every possible variation that could be consistent with words the witness only stated she remembered the gist of – particularly in light of the problem of suborning not being pleaded.
Even if Ms M was at the time subjectively thinking in a judgmental way about the complainant, such different phrasing or words would have meant her dark thoughts were not apparent to Detective Porter. This then ties in with the conversation about the complainant’s mental health vulnerabilities, in a way that would no doubt have been regarded as sympathetic by police. The information available to Detective Porter included the complainant’s mother’s statement which expressly linked the occurrence with the complainant’s boyfriend – discussed with Ms M in relation to the relevant topic at the meeting – with her daughter’s vulnerability in travelling to Sydney.
On the face of Ms M’s evidentiary statement and evidence in Court, the police acted towards her on 21 January 2020 as though they regarded her as aligned with the complainant, making reference to problems in what “the other side” might do, and commenting that certain information would not help the complainant’s case, using the complainant’s nickname, on the seeming understanding that Ms M would want to help the complainant’s case.
Given the context of the meeting, I regard it as highly improbable that Ms M would have expressed clearly and starkly to police that the complainant “tends to make crap up”. Ms M’s evidentiary statement says that she said words to that effect when asked what it meant to be a “topper”. When asked in Court what it meant to be topper her answer was more suggestive of someone who seeks attention or tries to outdo others in reports of her own life. Ms M also suggested twice in Court that she said that the complainant was a liar (which is not contained in her evidentiary statement), before asking, when questioned as to whether it was incidents such as the complainant saying her bottom had been touched which made her a liar, “At what point did I call her a liar?”: see above at [220]-[221].
I indicated earlier that Ms M was cross-examined lightly but effectively regarding the meeting on 21 January 2020. She was simply asked in a non-leading way to state again what she said, and stated “I remember advising them that she – and I apologise for the language I am from [birthplace], I called her a bit of a slag and a topper (because she would constantly make up stories while she was out on junior duties). And they advised me that being a slag doesn’t really give the right to be sexually abused” (parentheses added).
I have added the parentheses because I take what is within them as Ms M explaining to the Court why she said what she did to the police, not what she said to the police. This is similar to the point I explained in relation to the absence of reasonable and probable cause – Ms M’s evidentiary statement does not go so far as to state that she told the police she thought the events were untrue.
Ms M’s response to the non-leading question as to what she said also confirmed that which is apparent from her evidentiary statement – that the only thing she said to police which attracted a negative comment and express indication that it should not be included was the reference to the complainant’s alleged promiscuity.
I accept that Detective Porter steered Ms M away from including reference to the complainant being “a bit of a slag” and the nominated demonstration of this, if she gave it. “That’s not an invitation to sexually assault somebody” would have been a perfectly appropriate response. However I have no doubt that police officers regularly speak in a colloquial way with witnesses who have a misunderstanding of the real issues in an investigation or the appropriate focus of a witness statement. After Ms M called the complainant “a bit of a slag” Detective Porter might also have said “We won’t put that in there because the other side will tear it up” (Ms M’s account in her evidentiary statement) or that “being a slag doesn’t really give the right to be sexually abused” (her account of Detective Porter’s response in Court). These are much more realistic responses than a discussion of the law of evidence.
It is important to recognise that in both Ms M’s evidentiary statement and in her evidence in Court it was only following reference to the complainant’s promiscuity that Detective Porter is said to have made any negative comment at all about what Ms M was telling him. Particulars (ix) and (x) of the plaintiff’s case on the absence of reasonable and probable cause (above at [180]), and the submission reproduced above at [368] do not fairly reflect Ms M’s evidence in these proceedings. It was only after Ms M raised the complainant’s alleged promiscuity that anything was alleged to have been said by Detective Porter regarding not including what Ms M was saying in the statement.
The observations in Watson v Foxman about the fallibility of human memory for conversation, particularly where disputes or litigation have intervened, offer important guidance in this case. Ms M provided two statements to police which were of assistance in the prospective prosecution of the plaintiff. They were also important in establishing, if true, that Ms L had considerable direct knowledge of the allegedly problematic conduct of the plaintiff with the complainant on the morning in question. Ms M and Ms L have remained employed at the law firm. Ms M gave evidence that she has suffered panic attacks two to three times every day since the events of 6 November 2019, through until giving evidence in 2024.
Ms L was the solicitor at the law firm responsible for assisting in the preparation of Ms M's evidentiary statement in these proceedings. I do not suggest for a moment any impropriety on Ms L’s part in her involvement in that process. However in my view it potentially amplified the reasons that Ms M otherwise had for reconstructing, even subconsciously, the course of events on 21 January 2020 in a way which emphasised the negative comments she had made about the complainant, and downplayed the sympathetic ones.
Ms M has come to feel a need to justify why her 21 January 2020 statement is in the terms it is in, and aggrieved that nothing negative she told police about the complainant ended up in the statement she typed herself. The evidence provided of the relevant part of the conversation is unstable and clearly incomplete. I noted earlier also the plainly incomplete aspect of her evidence about provision of the Crime Stoppers number. The only comment I am persuaded was said, and would clearly have been regarded as critical of the complainant by a police officer hearing it, was about the complainant’s alleged promiscuity. She may have said the complainant was “a bit of a topper” amongst all the other things discussed, but I am not satisfied any criticism of the complainant would have thereby been apparent to police.
I expect that Ms M’s attempt to explain what she meant by the “call rape” comment would not have been clear to the police. It seems from Ms N’s statement to have been made following discussion about whether the complainant was flirting with the plaintiff. Ms M seems to have engaged in speculation, because of the complainant’s alleged promiscuity, that she might engage in (consensual) sexual activity that evening. The prospect that she may call it rape is not logically connected with any of the incidents Ms M states she told police about. Ms M had difficulty in Court explaining what she meant.
If Ms M, for example, was asked why she made the comment, and then started talking about the complainant having mental health problems (which were discussed further), and stating that the complainant’s partner had suffered significant injury in dramatic circumstances (which were discussed further), and that one day the complainant left the office and came back and said hysterically that someone had touched her bottom, and another day said that someone said in Japanese they liked her body, and said that someone in a meeting in the Sydney office on Melbourne Cup day 2019 had been flirting with her, and once Ms M saw her kiss three strangers on one night, a police officer may well gain the general impression that the witness was providing information that was irrelevant, but the gist of which was that the complainant was vulnerable, and received male attention. This in combination with the contemporaneous record of Ms M’s text messages to the complainant just after she made the comment on the evening of 5 November 2019 and to Ms N on 7 November 2019 (see above at [211], [213] and [407]) – shown to police in this meeting on 21 January 2020 – is in a general sense consistent with paragraph [4] of Ms M’s 21 January 2020 statement.
I do not have a positive state of satisfaction that Detective Porter said words to the effect of paragraphs [52] and [53] of Ms M’s evidentiary statement in the circumstances there described. I do not draw the inference that anything he did say came of his own creation, without being based on what Ms M was telling him. I accept there was likely an exchange between Ms M and police in working out exactly what she meant (other than that the complainant was promiscuous), based on Detective Espinosa’s evidence. Her meaning remained (and remains) difficult to understand.
The plaintiff has not proved that paragraph [4] of Ms M’s 21 January 2020 was false, far less that Detective Porter knew it was false and encouraged Ms M to make a false statement. I do not need to turn to the materiality requirement of perjury (although I have earlier outlined why the issue was not material). The case for suborning, which has not been pleaded, and was not squarely put to Detective Porter, is based (to the extent I have surmised it to be) on inexact proofs, indefinite testimony and indirect inferences: cf. Briginshaw at 362.

Telephone intercepts

A subpoena to police issued on 1 May 2020 by the Downing Centre Local Court required production of material on 7 May 2020. It did not seek telephone intercept material. A further subpoena returnable on 8 October 2020 was issued by the District Court. It did not seek records of intercepted communications.
A third subpoena returnable on 14 January 2021 sought a copy of all telephone intercept material recorded as a consequence of the two warrants including, but not limited to, material deemed to be “legally privileged” regarding the plaintiff. Correspondence indicates that the Commissioner of Police raised an objection to this paragraph, but discussions were continuing.
I dealt on the first day of the hearing with a Notice of Motion to produce records of telephone intercepts. This related to a subpoena issued on 29 May 2024. This was pursued on the basis that it related to the absence of reasonable and probable cause (by analysis of the intercepts available to Detective Porter). Ultimately there were two calls produced which were tendered and played in the plaintiff’s case. They made no difference to the issue of reasonable and probable cause. It was also submitted, in seeking access to the recordings, that the calls were relevant to malice if indicating the suppression of evidence.
It was submitted for the plaintiff that there was uncontradicted evidence that Detective Porter was the one who advised the Crown Solicitors that certain intercepted calls were the subject of legal professional privilege. However Detective Porter had not heard the relevant calls, as he was not allowed to. He had submitted a Request for Assistance to people at the telephone intercept branch and they provided this advice to him.
There is no evidence to suggest that any call Detective Porter had access to did or should have made any difference to his belief in reasonable and probable cause. Detective Porter had not previously heard the two calls played in the plaintiff’s case, and as I have explained above, they were not significant.
A sub-heading of the long analysis of Detective Porter’s credibility and reliability in the closing written submissions for the plaintiff was entitled “False instructions provided to the Crown Solicitor regarding the phone recordings being privileged and the Travertine log”. By reference to Exhibit I, it was submitted that none of the phone recordings or text messages had been marked “prohibited for use”. It was submitted that most, if not all, of the recordings have been marked “Not protected”. The issue was referred to again under the heading of malice, with the non-disclosure of the two telephone calls tendered by the plaintiff submitted to be of grave concern.

Counsel for the defendant reiterated that the telephone intercept issue was simply not pleaded as an aspect of malice and suggested that it was perhaps just a credit point. The written submissions for the defendant contended that the plaintiff appeared to have spent much of the cross-examination trying to develop new bases of malice, not pleaded. The telephone intercepts was one example. The defendant submitted that for good reason (legal professional privilege) Detective Porter was not privy to the content of all the telephone intercept material. If errors of classification were made, they were not errors of his and were incapable of supporting findings of malice.
Junior counsel for the plaintiff acknowledged that the evidence indicated Detective Porter had never seen Exhibit I before it was shown to him in cross-examination.
There is no demonstration of malice arising from Detective Porter’s non-disclosure of the two intercepted conversations relied upon by the plaintiff.

Inaccurate still-photograph chronology

An additional particular of malice relied upon in closing submissions, said to be aligned with the preparation of a Facts Sheet with demonstrably false representations, was the presentation of an incomplete or inaccurate still-photograph chronology for the purposes of the police brief to be delivered to the Director and the plaintiff for his criminal trial. This was developed no further in oral submissions. In written submissions it was contended that a misleading chronology of CCTV footage in the pool area had been produced, omitting parts which contradicted the complainant’s version of events.
The evidence indicated this chronology of still photographs had been produced by Detective Porter in February 2020. It included only four still shots from the pool CCTV footage (one with a caption stating that it showed the group arriving, another stating that it showed them socialising, then two of Mr K with the complainant near the lift before she left, with one including the caption indicating he was trying to stop her from leaving). Detective Porter was cross-examined about only including these four. He said he included these four because they were clear, and they were only intended as an aide memoire. The plaintiff submitted that he should have included many other still shots which were exculpatory in the sense that they undermined the complainant’s version of events.
To the extent that this is related to the particular of malice pertaining to the Facts Sheet, although created three months later in time, I am prepared to determine the issue although not pleaded.
There is no suggestion other than that the entirety of the relevant files of the CCTV footage were served on the Director by Detective Porter – and it was always within the possession of the plaintiff. Neither the Director nor the plaintiff needed further assistance to understand what was shown on the CCTV footage. The entire footage after the complainant exited the pool is less than 15 minutes long. Still shots with time stamps showing the length of time between the complainant emerging from the pool and completing drying herself could theoretically have been included as well – but so could many other things that were supportive of the complainant’s account, which were not included.
I repeat my earlier findings regarding the relative insignificance of these issues, and in particular repeat my earlier finding that the fact that the complainant sat with Ms L having a cigarette while they waited for the arrival of the taxi is not exculpatory in the sense the plaintiff has suggested. Detective Porter not including a still image of this for the assistance of the representatives of the Director with carriage of the matter – who were obviously going to watch the footage for themselves – did not indicate malice on Detective Porter’s behalf.

Wrongful arrest

The plaintiff was arrested on 19 December 2019 and detained for a period of time until released on conditional bail by the Local Court. The defendant relies upon Detective Porter’s power pursuant to s 99 of LEPRA to justify that arrest and detention. Section 99 of LEPRA is in the following terms:

99   Power of police officers to arrest without warrant (cf Crimes Act 1900, s 352, Cth Act, s 3W)
(1) A police officer may, without a warrant, arrest a person if—
(a)  the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b)  the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i)  to stop the person committing or repeating the offence or committing another offence,
(ii)  to stop the person fleeing from a police officer or from the location of the offence,
(iii)  to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv)  to ensure that the person appears before a court in relation to the offence,
(v)  to obtain property in the possession of the person that is connected with the offence,
(vi)  to preserve evidence of the offence or prevent the fabrication of evidence,
(vii)  to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii)  to protect the safety or welfare of any person (including the person arrested),
(ix)  because of the nature and seriousness of the offence.
(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.
(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.
Note—
A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer—see section 105.
(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
(7) In this section—
arresting police officer means the police officer arresting a person under this section.

For the reasons set out in support of my determination that the plaintiff has failed to prove absence of reasonable and probable cause, it is clear that Detective Porter suspected on reasonable grounds that the plaintiff had committed an offence.
The plaintiff’s opening submissions on liability for wrongful arrest indicated that this would be addressed once the defendant had explained Detective Porter’s justification. It was however submitted that exemplary damages for wrongful arrest should be awarded because the arrest was undertaken for the primary purpose of placing the plaintiff in a cell with Mr K so that Detective Porter could utilise a listening device that had been placed in the cell.
Detective Porter’s evidence was that by 17 December 2019 he had formed the view that not only had the plaintiff and Mr K committed the offences and should be charged, but that they needed to be arrested. He stated that he took into account the need to preserve evidence, prevent interference with witnesses, and prevent fabrication (or further fabrication) of evidence. He also took into account the nature and seriousness of the offences and the need to protect the safety and welfare of the complainant.
There was no cross-examination of Detective Porter regarding his holding of the view outlined in the last paragraph, and it being based upon the matters he said that he took into account. He agreed in cross-examination that he wanted the plaintiff in a cell with Mr K to see if any incriminating evidence could be recorded.
The plaintiff’s closing written submissions in reply contended that in circumstances where the plaintiff’s phone calls were being monitored so his location could be known, and the complainant and complaint witnesses lived interstate, the arrest for a purpose set out in s 99 of LEPRA was properly characterised as manifestly unreasonable or arbitrary, capricious, irrational or not bona fide, citing Reeves v State of New South Wales [2024] NSWCA 125 at [108]-[122] (Bell CJ, with whom White and Stern JJA agreed).
I am satisfied that Detective Porter regarded the arrest as reasonably necessary for the reasons set out in s 99(1)(b) of LEPRA, as listed in his evidentiary statement. There was no challenge to the bona fides of his stated subjective belief. Particularly in light of the seriousness of the alleged offences and the information available to Detective Porter regarding Ms L’s change of account on important issues, his decision is not properly characterised as manifestly unreasonable or arbitrary, capricious, or irrational. It was appropriate for the plaintiff to be quickly brought before a Court (or police officer acting as bail authority), with bail conditions such as non-contact with witnesses to be imposed. Further, Detective Porter was being given only limited access to intercepted telephone communications because of the concern that he should not be provided access to calls with potential legal professional privilege claims.

Misfeasance in public office

The plaintiff’s closing written submission argued that the elements are unsettled, referring to Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [48] (Payne JA). The plaintiff nonetheless accepted that proof was required of the five elements I have set out above at [19].
The plaintiff submitted that malice for the purposes of this tort required proof that:

“In relation to the element of malice, what is required is proof that the defendant acted in bad faith, which may be established in either of two ways:
(a) By showing that the defendant’s unauthorised act or acts were carried out with the intention of harming the plaintiff; or
(b) By showing that the unauthorised act or acts were carried out with reckless indifference to the harm that was likely to ensue: Northern Territory v Mengel at 347; (1995) 129 ALR 1 at 18-19; 188 CLR 307 at 370.”

The plaintiff relied upon the pleaded particulars of malice in paragraph 24 of the final amended statement of claim (paragraph [295] above) to support malice in this context. The asserted inaccuracy of Detective Porter’s treatment of the CCTV footage of the pool area in particular was said to have demonstrated an intention on his part to harm the plaintiff, or alternatively shown that he acted with reckless indifference to the harm that was likely to ensue. It was submitted that his “neutralising of the damaging evidence of [Ms M]” was in breach of his duty of disclosure and demonstrated an intention to harm, or reckless indifference to the harm likely to ensue.
The parties do not agree that the fourth element of this tort (see above at [19]) was established. The plaintiff submitted that in arresting the plaintiff without warrant and commencing proceedings, Detective Porter was purporting to discharge relevant power.
The submissions for the defendant confirmed that the question of whether to arrest and charge is an exercise of a power deriving from the public office held by Detective Porter was in issue. The defendant did not admit this to be the case, however submitted that “the matter will not likely turn on the question in circumstances such as the present where malice at the time of arrest and charge will lead to a judgment for the plaintiff in malicious prosecution.” In those circumstances the argument as to whether this element would be made out was not elaborated upon, other than to remind the Court that the ability to arrest or charge does not belong only to police officers, notwithstanding that the grounds on which an arrest may be made by a police officer pursuant to s 99 of LEPRA are more extensive than for others.
In oral submissions King’s Counsel for the plaintiff accepted that in the circumstances of this case, it would be hard, if not impossible, to succeed on misfeasance in public office if not successful in the claim for malicious prosecution.
For reasons set out in relation to the claims in malicious prosecution and wrongful arrest, I am not persuaded on the balance of probabilities that Detective Porter committed an invalid or unauthorised act, nor that any act was done maliciously.
It is not necessary in these circumstances to resolve the dispute between the parties as to the fourth element. The plaintiff’s claim for misfeasance in public office must fail.

Conclusion on liability

Each of the plaintiff’s claims fails. Judgment will be entered for the defendant.

Damages

Although there is benefit in determining as many issues as possible, I am of the view that it is not appropriate to endeavour to assess damages in this case.
Counsel for the defendant acknowledged the general good practice, even where there is a judgment for the defendant, of assessing damages. However the following submission was made:

“The difficulty with that practice is it can be, in these sorts of matters, very hard to identify the basis on which the damages would be awarded, but for the fact that the defendant succeeded. It’s not like a medical negligence case where the extent of the injuries, disabilities, care needs, and future treatment are known. The damages here depend almost entirely, in every category, on the fact findings. While theoretically it’s a good practice, and I know Walton J in the matter of Edwards endeavoured to follow it in that matter, which was a malicious prosecution, it seems to be now more honoured in the breach than the observance in this area.”

It was further submitted that:

“The difficulty is, it can create more problems. I’m not inviting your Honour to take any particular approach. If your Honour is in that position, and you think you can identify, in a stable way, what the damages would be, that would be prudent, and I’ll put it no more than that, to perhaps identify at least the counterfactual on which they’re based. Because absent that, they’re a little bit like orphans. The purpose of assisting the Court doesn’t exist, because it can be very difficult to identify the basis.”

Junior counsel for the plaintiff made the following submissions in response, on this issue:

“In terms of damages, I agree with my learned friend that, if there’s a judgment for the defendant, it’s difficult to assess various sets of damage. For one, how does one assess exemplary damages? Because that largely depends on the facts that your Honour finds. If your Honour finds that there has been malice, then that definitely sounds in a substantial award of exemplary damages, as well as other conduct in the prosecution. But the same doesn’t apply in respect to the other heads of damage.”

It was submitted that it would be easier to assess some heads of damages than others. Apart from these submissions of the parties which I accept, there are significant variations as to the timing of any tortious conduct. The evidence led in support of damages was itself complex, and it would need to be assessed differently depending upon whether the plaintiff was maliciously prosecuted from the commencement of the criminal proceedings, or only from January 2020, and whether Detective Porter was a prosecutor at all from March 2020.

Orders

I make the following order:

Judgment for the defendant.

**********

Decision last updated: 06 May 2025

Medium Neutral Citation:	Mr J (a pseudonym) v State of New South Wales [2025] NSWSC 406
Hearing dates:	28-29 August, 2-4 September, 13 November 2024
Date of orders:	30 April 2025
Decision date:	30 April 2025
Jurisdiction:	Common Law
Before:	Rigg J
Decision:	Judgment for the defendant
Catchwords:	TORTS – malicious prosecution – whether the police officer acted without reasonable and probable cause in charging the plaintiff – whether the police officer acted without reasonable and probable cause in maintaining the prosecution until taken over by the Director of Public Prosecutions – whether the police officer remained the prosecutor after the proceedings were taken over by the Director of Public Prosecutions – whether the police officer acted maliciously – whether the sole or dominant purpose of the police officer was other than the proper invocation of the criminal law TORTS – false imprisonment – whether the plaintiff was wrongfully arrested – whether the police officer suspected on reasonable grounds that the plaintiff had committed an offence – whether the police officer used his power under s 99 of LEPRA to lawfully arrest and detain the plaintiff TORTS – misfeasance in public office – whether the police officer committed an invalid or unauthorised act and did so maliciously – whether the police officer discharged the relevant power by arresting the plaintiff without a warrant and commencing proceedings against him – whether the police officer’s treatment of evidence demonstrated an intention to harm the plaintiff or that the police officer acted with reckless indifference to the harm that was likely to ensue
Legislation Cited:	Court Suppression and Non-publication Orders Act2010 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Reform (Vicarious Liability) Act1983 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 (HL) Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Davis v Gell (1924) 35 CLR 275 Ea v Diaconu [2019] NSWSC 795 Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Madden v State of New South Wales [2022] NSWDC 647 Muriniti v Lawcover [2022] NSWSC 90 MWJ v R (2005) 80 ALJR 329; [2005] HCA 74 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 Reeves v State of New South Wales [2024] NSWCA 125 State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308 State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 State of New South Wales v Spedding [2023] NSWCA 180 Watson v Foxman (1995) 49 NSWLR 315 Wild v Meduri [2024] NSWCA 230 Wormald v Maradaca Pty Ltd [2020] NSWCA 289
Category:	Principal judgment
Parties:	Mr J (a pseudonym) (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: A Sullivan KC / A Canceri / T O’Rourke (Plaintiff) A Williams (Defendant) Solicitors: The law firm (a pseudonym) (Plaintiff) Crown Solicitor’s Office (Defendant)
File Number(s):	2021/00248549
Publication restriction:	By virtue of the operation of s 578A Crimes Act 1900 (NSW) and an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) publication is prohibited of any details that may identify the complainant in the criminal proceedings. This includes the name and address of the plaintiff and his co-accused in the criminal proceedings, and the name of the law firm of which the plaintiff is a partner and at which the complainant was employed at relevant times.