Murphy v The State of New South Wales

Case •

[2023] NSWSC 407

•

27 April 2023

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Murphy v The State of New South Wales [2023] NSWSC 407
Hearing dates: 29 August 2022 - 7 September 2022
Date of orders: 27 April 2023
Decision date: 27 April 2023
Jurisdiction:Common Law
Before: Davies J
Decision:

The plaintiff should bring in Short Minutes to reflect these reasons

Catchwords:

TORTS — trespass to the person — false imprisonment — wrongful arrest — where plaintiff arrested on two occasions — in relation to two sexual encounters with two separate women — ss 61J and 59(1) of the Crimes Act 1900 (NSW) — BDSM including acts of sex and violence — whether arrests lawful — ss 99 and 202 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that it was necessary to arrest the plaintiff — where failure to provide reasons for arrests — whether arrests became lawful when reasons provided later — materiality — where no satisfactory reason offered for failure on two occasions of non-compliance — where breach not technical but a failure to appreciate statutory obligations — where plaintiff falsely imprisonment for 2 hours in relation to first arrest — 24 hours in relation to second arrest — plaintiff entitled to damages for the two arrests

TORTS — malicious Prosecution — elements — where proceedings terminated in favour of plaintiff in relation to both complaints — whether defendant acted with malice — whether absence of reasonable and probable cause — objective and subjective tests — where relevant police officers suspected on reasonable grounds that plaintiff had committed offences of sexual assault in relation to first complainant — where police did not have reasonable grounds for suspicion in relation to offence alleged against second complainant — where failure to identify evidence relied upon to hold suspicion and justify second arrest — absence of contemporaneous WhatsApp messages and where police knew missing messages important — where, in relation to each arrest, no evidence of malice — claim for malicious prosecution fails

Legislation Cited:

Crimes Act 1900 (NSW)ss 59, 61J

Criminal Procedure Act 1986 (NSW)

Crown Proceedings Act 1988 (NSW) s 5

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 102

Law Reform (Vicarious Liability) Act 1983 (NSW) ss 6, 8

Cases Cited:

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

Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318; 213 LGERA 1

Christie v Leachinsky [1947] AC 573

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

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

Lamb v Cotogno (1987) 164 CLR 1

Lule v State of New South Wales [2018] NSWCA 125

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441

Michaels v The Queen (1995) 184 CLR 117

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

R v Rondo [2001] NSWCCA 540

Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262

State of New South Wales v Abed [2014] NSWCA 419

State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303

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

State of New South Wales v Smith [2017] NSWCA 194

Texts Cited:

Nil

Category:Principal judgment
Parties: Liam Murphy (Plaintiff)
State of New South Wales (Defendant)
Representation:

Counsel:
J Sheller SC (Plaintiff)
M S Spartalis & D Hume (Defendant)

Solicitors:
Greg Walsh & Co (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2019/376155
Publication restriction: Nil

Judgment

  1. The plaintiff claims damages against the State of New South Wales for what are said to be two wrongful arrests resulting in his false imprisonment and malicious prosecution. The arrests and the prosecutions arose out of two sexual encounters the plaintiff had with two separate women; SH in June 2015 and AC in August 2015.

  2. The charges against the plaintiff were dismissed on 20 June 2018 after a contested committal hearing.

  3. The plaintiff claims that the arrests and the bringing of the charges caused psychiatric problems and resulted in him losing his employment.

  4. The State of New South Wales is sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) and ss 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) in respect of the actions of three police officers. The plaintiff was arrested on the first occasion by plain-clothes constable Giselle Scantlebury at the direction of Sergeant Garren Hamilton, and on the second occasion by plains-clothes constable Tom Stillwell.

Background

  1. The plaintiff’s arrest and charging arises out of the activities of persons interested in BDSM (Bondage, Domination/Discipline and Sadomasochism). The two complainants, AC and SH, along with the plaintiff and a number of other persons involved, were subscribers to a blog called FetLife, a blog for people interested in BDSM, which published profiles of members of the group that outlined personal details and their fetishes. The subscribers to the blog used names other than their own name to conceal their identities.

  2. The plaintiff joined FetLife in 2014 and used the name “the Wolf”.

  3. His first arrest and set of charges related to AC. He first started communicating with AC on 4 March 2015. The usual practice appears to have been that the persons communicated through the FetLife website and then moved their communications to SMS or WhatsApp.

  4. The plaintiff had a number of casual sexual encounters with a number of women whom he met through FetLife, including the complainants AC and SH, as well as other people including LNP and GBC. Most of the encounters occurred at hotels or motels; most of the encounters involved consensual acts of BDSM including consensual acts of both sex and violence, with the plaintiff as the dominant person and the women as the submissive persons.

  5. The evidence disclosed that persons who engage in BDSM frequently have what are called safe words to indicate when they do not wish matters to proceed any further in the way they are occurring. A frequently used word in that regard is “red”. The plaintiff gave evidence that he understood that if someone said “’red’ or anything else that sounds unusual and could be a safe word, all activities should stop immediately”.

  6. Although the first set of charges involved AC, the incident which led to the charges, occurred in August 2015. That post-dated the incident which led to the charge involving SH. The incident involving SH took place in June 2015. AC made her complaint on 24 March 2016, whereas SH did not complain until 27 October 2016, two days after the plaintiff was arrested in relation to AC. It is convenient, nevertheless, to set out the detailed facts generally in chronological order.

  7. The relevant police officers who investigated, arrested and charged the plaintiff were (at the time) plain-clothes constable Tom Stillwell (both the AC and SH charges), plain-clothes constable Giselle Scantlebury (the AC charges), and Sergeant Garren Hamilton (officer in charge of both investigations). Neither Sergeant Hamilton nor Constable Scantlebury remains in the police force, but I will refer to them as Sergeant Hamilton and PCC Scantlebury respectively. Constable Stillwell is now Detective Senior Constable but I will refer to him as PCC Stillwell.

  8. A number of issues at the trial concerned messages between the plaintiff on the one hand, and AC and SH on the other. There appeared to be three separate ways the parties messaged each other; by SMS, by WhatsApp, or by means of the FetLife website which appeared to involve what is known as a chatroom. In some cases, it was not clear by what means the messages had been transmitted. There was the further difficulty, left unresolved, that a Cellebrite analysis of AC’s phone produced a number of messages between AC and the plaintiff, whereas other documents of transcribed downloads (for example, Ex E) contained not only those messages but additional ones throughout the same period as the Cellebrite analysis. No-one seemed able to explain how that could occur, but no expert evidence about those matters was called at the trial. The issue was of some importance in relation to the charges involving both AC and SH.

Events involving SH

  1. The plaintiff first spoke to SH online on 23 March 2015, and they first met for sex on 4 May 2015. The plaintiff had sex with her on five other occasions, the last being on 28 August 2015. On the fourth occasion, 2 June 2015, the plaintiff suggested they have a threesome with another woman. SH agreed. The other woman was GBC, whom the plaintiff had met online a short time before 2 June 2015,

  2. The statement of SH of 18 December 2016 sets out what she claims happened on 2 June 2015:

51.   Sometime in May 2015, I had a conversation with Liam [the plaintiff] via WhatsAapp about whether I was bisexual. During this conversation, he asked me if I'd been with a female. I confirmed that I had not. Liam suggested that we have a threesome.

52.   Initially, Liam tried to set up a threesome between myself, him and a person named Esther or another female who's [sic] name I can't remember. Esther uses the FetLife username of Eliva_Hancock. However, for some reason, neither of these worked out.

53.   Due to this not working out, Liam suggested that we have a threesome with a female named [GBC]. She used the FetLife username of 'goodgirlgg’. She messaged me on FetLife to introduce herself and I saw that she was aged 21 and from New South Wales. We had a short conversation on FetLife private messages but I no longer have access to that conversation with [GBC].

54.   I discussed the suggested threesome further with Liam via WhatsApp instant messenger.

55.   We all agreed to meet at the Rydges Hotel, located at 9 Missenden Road, Camperdown. When I arrived, I entered the lobby and saw Liam with a female in the lift. I now know this female to be [GBC] (I don't know her surname). He looked at me and held the lift. The lift is directly opposite the front door and the reception desk is to the left.

56.   I would describe her as Caucasian and tall with dark brown shoulder length hair. She was very attractive and slim. I thought that she was 21 due to her profile, but when I first saw her, I would have guessed she would be about 26 years old.

57.   The doors to the lift shut and Liam placed his hand over my mouth before saying to me, “Isn't she cute?”

58.   A short time later, we went to one of the rooms in the hotel. Liam must have already booked the room as he opened the door for us all.

59.   Once Inside, Liam instructed me to take all of my clothes off. [GBC] and Liam were talking in the kitchen area while I was in the bedroom, taking my clothes off. I was always nervous around Liam but with there being another girl there, I was even more nervous.

…

60.   Liam entered the bedroom area and I was still partially clothed. He said, “What are you doing?” I continued to take my clothes off until I was completely naked.

61. Liam got me to lay face down on the bed. I'm not sure if he told me to do this or guided me into this position. Once on the bed, Liam placed zip ties around my wrists and feet. I watched him zip-tie my hands before he moved me to a position where I was laying face down on the bed. I could hear and feel Liam link my hands together behind my back using a further zip tie. I could also feel the zip ties being placed on my ankles and could hear them as they were being tightened. Liam placed a zip tie on each wrist and each ankle. He tied my ankles together using a further zip tie and then connected my feet to my wrists. Once these were all connected, I was laying on my stomach, face down on the bed. I would describe this position as being “hogtied”.

62.   I could hear Liam and [GBC] talking. I heard [GBC] say, “Why have you tied her up like that?” I then heard Liam reply, “Cause it’s funny.”

63.   I'm not sure how long I was tied up, but it wasn't too long - maybe minutes. Liam untied me and took all of the zip ties off of me.

64.   Once he had done this, Liam hit me with a belt across my butt on several occasions. While he did this, I was on all fours on the bed, facing away from him. I heard Liam talk to [GBC], I can’t remember exactly what he said but he was telling her to hit me.

65.   I remained on all fours on the bed and was hit a few more time across the butt. I started to cry due to the pain I was experiencing and shouted, “No, no, no” while I tried to crawl away from them, up to the other end of the bed. I felt Liam hit me on one more occasion. I continued to cry due to the pain.

66.   A short time later, Liam placed me on the ground in a kneeling position on the floor in front of him. Liam guided my head towards his penis and I gave him oral sex.

67.   A short time later, Liam guided me towards [GBC], who was standing next to him. He pushed my head towards [GBC]'s vagina and I started to give her oral sex. This only lasted for a few seconds as I was uncomfortable doing this because she was a female.

68.   We all got onto the bed where Liam had penile-vaginal sexual intercourse with me and [GBC]. He alternated between us but used the same condom to have sex with us both.

69.   At one stage, Liam was having penile-vaginal sexual intercourse with me and I began to feel severe pain in my vagina. I was lying on my back on the bed and Liam was on top of me in the missionary position, it felt like something had ripped inside my vagina. I pulled away due to pain, I said, “No, no, no. stop, don’t do it.” I heard Liam say, "Should I hurt her?" A short time later, I heard [GBC] say, "Yes."

70.   Liam then said, "Say it." A short time later, [GBC] replied, “I want you to hurt her."

71.   At this stage, Liam pushed his erect penis, hard Inside my vagina. I screamed in pain and started crying. I immediately pulled away from Liam and got off of the bed a short time later.

72.   I started to dress myself before Liam moved me back onto the bed and hugged me. I was shocked by what had happened and automatically got ready to leave. I can remember just thinking that I wanted to go home but my head wasn't working properly. My natural instinct was to leave.

73.   Liam continued to hug me on the bed. He continued to talk to me but I was still crying. He was trying to calm me down and make me stay. I’m not sure why I decided to stay, I felt panicked.

74.   After I had stopped crying, Liam stopped hugging me and started to have sexual Intercourse with [GBC]. While he was doing this, I was kissing [GBC]. I felt obligated to join in as they were having sex right next to me.

75.   Liam tried to convince me to have sexual intercourse with him again by motioning towards him. I pulled away and refused to take part any further.

76.   After he had finished having sexual intercourse with [GBC], he hugged me again. Liam kept changing the subject to different topics. He kept trying to talk to me about music, as this is what I'm studying. I'm not sure why I decided to stay. At this stage, I was unable to process what had happened. I was still feeling panicked and I was in pain from what had happened. We stayed for another twenty minutes before all leaving together.

77.   Liam drove me home in a black convertible - the back seat is so small that I struggled to fit into it. I talked to Liam on the way home but we didn’t discuss what had just happened. Liam acted as if everything was okay.

78.   When I got out of the car, near my unit, Liam said, “Sorry for hurting you.” I said, “That's okay.”

79.   Due to what had happened, I didn't want to talk to anyone. I don't think I was able to process what had happened. I was fully aware that Liam had continued to have sexual intercourse with me after I had withdrawn consent. I just didn’t want to discuss it with him or anyone else as I felt numb about the whole incident. Also, it didn’t occur to me to talk to someone about it. I understood that what he had done was wrong, but I felt responsible in a way due to being aware of all of his writings on FetLife. I deliberately blocked out what had happened as I felt traumatised by the incident.

80.   A short time later, I received a message via WhatsApp from Liam apologising for what had happened. At no stage did he admit that it was his fault. I again told him that it was fine and told him I was okay. I said this because I didn’t want to deal with what had happened. I was aware that I was hurt physically, but I didn't recognise at the time, that I was hurt mentally by what had happened.

  1. As is apparent, there was another person involved in those events, GBC. GBC was a person whom the plaintiff had met through FetLife and with whom he had previously had a number of sexual liaisons.

  2. Her statement about what occurred with SH on 2 June 2015 dated 25 May 2017 relevantly says this:

22.   About May 2015, I became aware of a female profile on FetLife with the username 'madteaparty'. Initially, I didn't know her name but I remember that in her profile picture she had colourful hair. I had noticed her because she was getting a lot of likes for her photos on an area of the FetLife website called, 'Kinky and Popular'.

23.   About May 2015, Liam contacted me via text message and said, something Iike, “I want to fuck up, use and degrade a girl with you." He told me that he was seeing a girl from FetLife and described her as petite and ‘child like'. He told me that she was naive enough to do this. He told me to look at the profile 'madteaparty'. I had a look at the profile and saw that The_Wolf_ was listed as a friend and had liked some of her posts. I sent 'madteaparty’ a message on FetLife and we exchange [sic] messages about looking forward to meeting each other.

24.   Liam made all of the arrangements and told me to be at Rydges Hotel, located at 9 Missenden Road, Camperdown. I remember one of these messages specifically telling me, “No safe words with [SH].” I also remember that he said that [SH] had never had sexual intercourse with a female before.

25.   This would have been in May or June 20151. It was about 3:30pm or 4:00pm. I remember that it was around this time, as I finished school at Dulwich Hill Visual Arts and Design School and had to rush to get to the hotel in time. I took a bus from near my school to near Missenden Road in Newtown and walked up to the hotel. I used a school Opal Card registered in my name.

26.   When I arrived, I couldn’t see Liam so I waited In the lobby of the hotel. After about five minutes, Liam arrived in the lobby. He sat down with me and we waited for a few more minutes for 'madteaparty' to arrive.

27.   As [SH] wasn’t there, we walked towards the lift. As we were walking towards the lift, Liam told me that [SH] was the real name of the FetLife Identity 'madteaparty’. As we entered the lift, I turned around and saw a female, that I now know to be [SH], running into the lobby with several bags.

28.   [SH] got into the lift where Liam and I were standing. As soon as [SH] entered the lift, Liam grabbed [SH] by the throat with his right hand. His actions were very forceful and [SH] began to make small whimpering noises. Liam squeezed [SH]’s throat. I felt very uncomfortable about this and was shocked at the force that he used when he grabbed her throat. I was also shocked that there was no introduction in the lift as I had never met [SH] before.

29.   When the lift reached the floor, I left the lift first. Liam was a few paces behind me and he was dragging [SH] by the neck. We arrived at the room and Liam let go of [SH]'s neck to open the door. I can't remember the number of the room that we went to but I have drawn a picture of the layout. I remember being in the lift for a bit so I think it would have been one of the higher levels.

…

30.   Once we were all inside the room, Liam closed the door and put his phone, keys and chewing gum on the counter above the bar fridge. We all put our bags down on the floor near the door.

31.   I’m not sure where Liam got them from, but he had some zip ties in his hand. He looked at [SH] and instructed her to go to the bed. [SH] sat on the bed. Liam then zip tied her hands and ankles and hog tied her. [SH] was left facing down towards the bed sheets with her ankles and feet hog tied together behind her back. I think at this stage, when she was hog tied, [SH] was completely naked.

32.    I was still standing near the door by the bar. Liam walked back towards me and he said, “Should we have a drink?” He then opened the bar fridge and got a bottle of champagne out. He poured the champagne into two glasses. We drank champagne while [SC] remained on the bed.

33.   We chatted for a bit but didn’t discuss the fact that [SH] was tied up on the bed. Liam asked me about my day and we made small talk. We drank champagne for a few more minutes in the bar area. I knew that this ignoring of [SH] and the drinking/small talk was a form of degradation to show that she wasn’t included.

34.   I put my glass down on the table top area and we walked over to the bed where [SH] was still tied up. Liam began to touch [SH] while she was still hog tied. He was touching her around her vagina but also over her body and boobs. He did this for about five minutes.

35.   While this was happening, I sat on the edge of the queen bed. At this stage, I was fully clothed. Liam said to me, “Take your clothes off.” I took my clothes off, but kept my bra and undies on. At this stage Liam took the zip ties of off [SH]. I don’t remember how he removed them but I remember seeing some scissors on the bedside table later on.

36.   Liam instructed me to touch [SH]. I started to masturbate [SH] with my fingers. I only did this for a couple of minutes because she looked uncomfortable. She was tense and her face screwed up and the noises that she was making didn't seem to suggest she was enjoying what I was doing.

37.   I did as I was told and was happy to do this but I still felt uncomfortable. I didn’t want to have sexual intercourse with [SH] as I wasn’t attracted to her in that way. I felt obliged to participate to make Liam happy. The experiences that I had with Liam were designed to fulfil his fantasies/desires.

38.   I can’t remember if I had sexual intercourse with Liam on this occasion. I remember kissing [SH] at some point during the meeting but I don't think that we did anything else other than what I have described in this statement.

39.   I stopped touching [SH]. After I had stopped, Liam attempted to have sexual intercourse with [SH]. [SH] was still laying on her front on the bed, facing down. Liam was laying on top of her on the bed. He was trying to put his penis in her vagina but it didn’t go in very well. [SH] said, “Ow” and seemed to tense up again. She said, “Wait, wait, wait” as Liam kept trying to put his penis in her vagina. After a couple of minutes of trying, Liam managed to get his penis inside her vagina and started to have sex. He thrust himself backwards and forwards while he was inside her for about 30 seconds. At this point. [SH] kept repeating, “Wait” and “Ow” in between making whimpering noises. While he was doing this, he also touched me on my vagina for a brief time.

40.   I was sitting at the top of the bed at this stage and Liam kept looking at me. At some point, I had taken all of my clothes off. I was making faces towards Liam to try and convey my concern about what he was doing to [SH]. I tried to mouth the words, “Slow down.”

41.   Liam continued to have sexual intercourse with [SH] for another couple of minutes. While Liam continued to have sexual intercourse with [SH], I heard her say, “No please, stop, stop". Liam carried on having sexual intercourse with [SH] for another 15 seconds after she asked him to stop. After this time, Liam stopped thrusting himself but remained inside [SH] and on top of her. Liam looked towards me and said, “Should I stop or keep going?” I paused for about 10 seconds and said, “Keep going.”

42.   I was thinking about how I could make Liam happy and knew that this would be the response he was looking for. I felt uncomfortable to say no and was hesitant with my response as I thought that he should stop. Due to our relationship I knew that this wouldn't please him.

43.   Liam continued to have sexual Intercourse with [SH], in the same position as before. Liam continued for another couple of minutes and [SH] didn't say anything. All of a sudden, [SH] said, “Stop” very loudly but Liam continued to have sexual intercourse with her. As Liam didn’t stop, [SH] slid to one side to get away from him. This would have been after about five seconds.

44.   [SH] went to get her clothes and started to get dressed. I remained sitting on the bed with Liam. No one spoke for about 10 to 15 seconds. The atmosphere was very tense. At this point, Liam stood up and grabbed hold of [SH]. He started calling her 'baby' and attempted to convince her to stay. Liam made her sit on the bed but she stood up again. Liam eventually convinced her to come back to the bed. Throughout this whole process, [SH] was crying a lot. Liam placed [SH] on his lap and began to cradle her. After about 10 minutes or so [SH] stopped crying.

  1. SH first made complaint to PCC Scantlebury at Kings Cross police station when she attended at about 7.30pm on 27 October 2016 with a person known as JD as a support person.

  2. On 6 November 2016, SH appears to have provided to the police a copy of one WhatsApp conversation between herself and the plaintiff. Subsequently, on 13  May 2017 she provided to the police screenshots of other WhatsApp conversations between herself and the plaintiff. These conversations commenced on 26 July 2015 and went until 22 November 2015. I note in passing at this point that one of the issues in these proceedings concerns the absence of the messages prior to 26 July 2015.

  3. Subsequently, the messages predating 26 July 2015 were provided. Relevantly, those messages were these (where “P-q” is the plaintiff):

2/6/15, 7:56:56 pm:   P-q: Thanks again. Maybe not really your thing and I'm sorry I hurt you a little much. But it was nice to see you anyway. :)

2/6/15, 7:58:14 pm:   [SH]: Thanks for having me. I enjoyed it but yeah probably not an every weekend kinda thing for me. :)

2/6/15, 8:07:14 pm:   P-q: Haha, na. Being bi isn't a part time thing.

2/6/15, 8:09:22 pm:   [SH]: Haha yeah kinda the definition of bi lol

10/6/15, 7:34:41 pm:   P-q: Hey, not sure if you're keen but I would like to see you again. Just the two of us?

10/6/15, 7:34:59 pm:   [SH]: Yes please :)

10/6/15, 7:35:34 pm:   P-q: Hurrah!! You been banging the regulars through? (No offence haha)

10/6/15, 7:35:39 pm:   P-q: *though

10/6/15, 7:35:53 pm:   [SH]: Huh?

10/6/15, 7:36:04 pm: P-q: Meh, nothing. ;)

10/6/15, 7:36:12 pm: [SH]: Okies lol

10/6/15, 7:36:46 pm: P-q: Sweet. Maybe we can catch up next week? I loved the first time we met, as I'm sure you noticed. Haha.

10/6/15, 7:37:06 pm:   [SH]: Me too. And yeah :)

10/6/15, 7:37:13 pm:   P-q: Cool.

…

11/6/15, 11:40:34 am:   P-q: Maybe you can help me out a bit, and give some insights into what you like about me and the way we fuck... And what you'd love it to look like in an ideal world. (I'm fully aware that it might well be that asking that question might be exactly what you don't want, as I know girls usually like me because I don't ask.)

11/6/15, 12:59:23 pm:   [SH]: Its hard for me to answer because a lot of things about my sexuality are changing because of medication

…

But part of what I like is I don't know what to expect... You take complete control and I like that. I was really excited about the message you sent me on fet. That is really sexy. I've always hated making decisions in sex because of fear of judgement. And I've felt a bit worried about judgement with you because of all these amazing beautiful women you see.

I like the way you bring out a different aspect of me kind of a victim... Which I'm not but its a good release from my mind... Idk If any of that is what you meant lol

Events involving AC

  1. As mentioned earlier, the first arrest and set of charges arose as a result of a complaint by AC. The plaintiff first spoke to AC online on 4 March 2015, and they first met in person on 20 March 2015. They had casual sex on six occasions.

  2. AC and the plaintiff had not agreed on a safe word, but they both knew the safe word “red”.

  3. Initially the encounters involved light BDSM sex including spanking, hair pulling and light choking. However, AC asked the plaintiff to make it more intense.

  4. At one of the encounters between the plaintiff and AC in early August 2015, a photographer had taken artistic pictures of the two of them whilst they engaged in their activities. This was referred to in the proceedings as the “fetish photo-shoot”. This event was of some significance because of messages passing between the plaintiff and AC after the occasion which led to the charges

  5. On the penultimate occasion when the plaintiff had sex with AC, AC asked the plaintiff to “scare her”. The plaintiff choked her very hard, put a plastic bag over her head, and hit her very hard with his belt. She afterwards complained that she was not really scared.

  6. On 22 August 2015, the plaintiff and AC exchanged messages. On the face of the transcript of these messages (which became Ex E), they appear to be exchanged through a chatroom, presumably on the FetLife website, but Mr Sheller of Senior Counsel for the plaintiff asserted that they were SMS messages. The relevance of that will be made clear later, but it concerns the extent of the messages the police had obtained by the Cellebrite analysis. In the messages which follow, “e” is the plaintiff and the phone number ending in 677 is AC.

  7. The messages read:

Chat Room (Empty) 22/08/15 5:46 PM

e:         Wanna catch up next week? Do it properly?

8:09 PM

+XXXXX XXX677   Oh I would love to, it would need to be Monday though because I fly to Perth on Thursday to see my partner and he doesn't want me bruised or sore when I see him

+XXXXX XXX677   lf not I'll be back on the 1st

8:41 PM

e:         You're not free now are you?

8:45 PM

+XXXXX XXX677   Nope I'm at my sisters tonight

e:         Pah.

8:52 PM

+XXXXX XXX677   I know..

+XXXXX XXX677   I'm really looking forward to doing it properly though

e:         Yeah me too.

e:         I'll sort something out.

+XXXXX XXX677   For Monday or after I get back?

e:   Let me let you know please. Hopefully Monday after work.

+XXXXX XXX677   Yea of course

Chat Room (Empty)23/08/15 11:44 AM

e:   This is weird but... Your gangbang video... I watch that a lot! I love your suffering. Lets meet tomorrow at 5:30.

12:32 PM

+XXXXX XXX677   I don't think i even have the link to it anymore haha

Ok sounds good

11:11 PM

e:         People really like your pictures. Top of K&P.

11:17 PM

+XXXXX XXX677   Yea I know I saw!!

  1. It was the encounter between the plaintiff and AC on 24 August 2015 that led to his arrest and charges. The encounter took place at the Mercure Hotel in Potts Point. The arrangements appear in a further exchange of messages on 23 and 24 August via the same medium:

Chat Room (Empty)24/08/15 11:11 AM

e:   get a cab here after work. What time do you think you’ll be ready? Mercure Sydney Potts Point 4.0 out of 5 226 Victoria Rd Potts Point NSW 2011 Australia

11:18 AM

+XXXXX XXX677   Ok, I'm pretty swamped today so probably 5:30-5:45ish

e:         Ok.

1:56 PM

e:          XXX677    XXX677

2:18 PM

e:          PM

+XXXXX XXX677   Yea I saw

e:         Hahaha.

+XXXXX XXX677   Ugh what a tool

5:39 PM 

+XXXXX XXX677   Leaving the office now

5:55 PM

e:   Great. Go to reception. I've left a key for you for room 133.

Go to the room, shower and snuggle up in bed like a good little girl.

+XXXXX XXX677:   3 ok, shall I text you when I'm there?

e.         Yeah.

6:13 PM

+XXXXX XXX677:   Showered and in bed

e:         Good girl.

9:07PM

e:         Great to see you.

Thanks.

+XXXXX XXX677   Yea likewise x

(emphasis added)

  1. In her statement made on 24 March 2016, AC described what happened on 24 August 2015 in this way:

13.   …He came into bed and started kissing my shoulder and neck, in a very out of character, affectionate way. He told me that I was a good girl for waiting for him and I recognised Liam's voice. This continued for about five or ten minutes before he suddenly grabbed my hair with one hand and dragged me by my hair out of the bed and into the bathroom. I was surprised by this, and it hurt, but I was fine with it. He dragged me into the bathroom, making me kneel on my knees in front of the bathtub. The lights were off, but there was streetlight coming in from the open window, and I recognised it was Liam as he dragged me. He was still naked from his shower.

14.   When I was kneeling down I felt him wrap a cord around my neck twice. This cord felt thick and heavy, about twice as thick as my fingers. He grabbed me by the back of the head and pushed my head forward, under the water in the bathtub. I can hold my breath pretty well, and while I was surprised, I was fine with it. He held me under for about ten seconds before pulling me up. I faked gasping, because I wanted him to think he had scared me. He did this again, forcing my head under water for another ten seconds, I could feel his fingers enter my vagina, but it was very hard for him as I was not lubricated. This was scary for me, but consensual. He pulled my head up out of the water, and after about a minute took his fingers out my vagina. He used the cable, which was still wrapped around my neck, to Iead me out the bathroom and onto the bed, still on my knees.

15.   He pushed me down onto the bed, face down, with my head pointing towards the window and my feet pointing towards the bathroom. He unwrapped the cord from my neck and doubled it over and stood next to me at the foot of the bed. He hit me with this cord, across my back, from my lower shoulder to my middle lower back. He hit me very, very hard, and it immediately hurt me a lot. I screamed and started crying because it hurt so much. I automatically brought my feet up in the foetal position and scooted to the corner of the bed, at the head of the bed to get away from him. I screamed at him; “Liam, don’t hit me! Please don't hit me again! Please don’t touch me! Stop! Red!.” He made shushing sounds and put down the cord, walked over to me and grabbed my right arm. He pulled me by my arm over to the foot of the bed, again on my stomach. He grabbed my legs and pulled them straight, so I was lying in the same position in which he had originally hit me. All this time I was crying and whimpering and he was still making shushing sounds. He hit me twice more in the same way, with the doubled up cord. This was in quick succession, with the second blow hitting the same place the original one had, and the third blow hitting me lower down, on my lower back across my bum and thighs. I screamed and cried and just lay there crying. Again, this hurt me a lot. He dropped the cord, walked around to my feet and grabbed me by my ankles. He pulled me towards him, so I was standing bent over the bed. He forced himself on top of me, I think that he had a condom on but I can’t remember him putting one on. I just laid there and let him do it. He forced his erect penis inside my vagina and it hurt, as his penis is quite thick. At one point he took his penis out of my vagina and tried to put it inside my anus, but as I was tensing he could not fit inside. He went back to putting his penis inside me, and moved it in and out. I don't how long exactly for, but it felt like about twenty minutes or so. While he was doing this I didn't say anything, but just lay on the bed crying. He made me climax, and it was horrible. He ejaculated inside the condom. He pulled his penis out and got into bed. I climbed into bed next to him and continued to cry. He pulled me close and hugged me while I was crying. I calmed down and just laid there and then I thought about him hitting me, and I started sobbing and hyperventilating. He kept hugging me until I stopped crying and he asked me why I was crying. I told him “Why didn't you stop? I begged you to stop hitting me and you hit me again? You always told me you knew when to stop and you didn't and It was really scary”. He said, “I thought you wanted to be scared though”. I said, “Not like that”. He said: “Sorry” and I said, “that doesn't make it better”. I think we laid in bed for another five minutes, before he got up and started getting dressed. I got I up too and started getting dressed. As I was getting dressed I saw that the cord that he had strangled me with was black and red, with large pincers. I asked him what this was, and he said it was a jumper cable that he had gotten from his garage. We got our things and we went back down to the lobby together. He didn’t check out, but left both key cards in the room.

  1. After AC made that statement, she was asked by PCC Scantelbury to make a further statement to clear up some matters. The further statement, dated 3 April 2016, relevantly said this:

11.   Liam and I had a conversation about safe words the first time I met him at the Civic Hotel. I remember saying to him, “Why don’t you use safe words" He said to me, “I like to have full control. If girls use safe words they opt out when they think they're about to reach their limits.” l don't remember exactly his words but it was similar to, “I don't like to use safe words because I like to push people to their limits to see how far they can go.” I asked him, “How do you know how they’ve reached their limit?” Liam said, “I am able to tell.” I had absolutely no doubt that he was aware of what safe words were including, green, orange and red but he chose not to use them for his own reasons. He definitely knew red as the safe word to stop, everyone in our community does. Besides safe words there are not really any other universal words that we use in the BDSM community.

12.   When I made my initial statement I forgot one meeting between Liam and I. I think this happened on the 24 April 2016. I had booked a hotel room for the night at the QT Hotel in Sydney. I had planned to go to the Hell Fire Club in Oxford Street which happens once a month. Liam had messaged me to meet up after I had finished dinner with a friend. I had left a key card at Reception with his first name and he said he would wait in my room for me. After dinner I went up to my room and all the lights were off. Liam was hiding behind the door when I walked in, he was naked. He put his hand around my mouth and closed the door and pushed me against the wall. He grabbed my hair and dragged me into the bathroom. He pushed my face up against the wall and pulled my hips out and stripped me. Once I was naked he started whispering degrading things to me but I can’t remember the specifics of what he said to me. I think he was saying he was going to beat me if I didn’t behave. Liam told me to stay still then walked out of the bathroom and walked back in holding his belt. He then hit me across my back and lower thighs with his belt. It hurt a lot and left red marks across my body. I think by that point I was crying because it hurt a lot. He wrapped his belt around my neck pushed me to my knees and made me crawl out of the room to the bed. Then as I was on my knees he made me perform oral sex on him. Five or ten minutes of that later he grabbed me by my hair and dragged me to my feet. He didn't ejaculate at this time. He bent me over the bed and penetrated me in the vagina with his penis. He was wearing a condom at the time. About twenty minutes later he ejaculated and then afterwards we lay on the bed cuddling for about ten minutes. All of this was consensual.

13.   We then went upstairs to the bar at the Hotel and sat and talked for about an hour and a half maybe two hours. He bought all my drinks and I remember Liam ordering tequila. I only had one (1) tequila but maybe four (4) or five (5) other drinks as well. By then I was really drunk and Liam helped me back to my room then he stripped me again and took me over to the bed. He bent me over it and put a condom on and penetrated my arse hole. I told him to “stop" because it hurt so he pulled out, and then started again but slower. Once he managed to fit in he then started to move his penis in and out faster and faster which I found quite painful. I started crying and then he ejaculated in the condom then sent me into the bathroom to have a shower. I never told Liam to stop as such but I was really drunk and was struggling to walk, I didn't have any Issues with it the next day so it was consensual. When I came out he was already dressed. He just hugged me goodbye and he left. l didn't end up going out after this I just went to sleep.

14.   On the night I was assaulted by Liam in the Vibe Hotel in Rushcutters Bay (sic) he hit me with jumper cable that he had doubled over. When he hit me the first time he hit me with such force that It was unbearable. I screamed out in pain and started crying out I was absolutely terrified and it went past wanting to “be scared” to complete terror. I had never been hit so hard by Liam before and previously he had only ever used his belt or his hand. So even though we had previously had a relationship where he had hit me it had never been to this degree and I wanted him to stop touching me altogether and for the scene to end. I yelled at him, “Liam don’t hit me! Please don't hit me again! Please don’t touch me. Stop! Red! I beg you, please don’t”. I had never previously said his name in our other scenes; it's not something that I would do in general. I never say the person's name generally if I am speaking to someone. It's in the first person. If I was comfortable in a scene I would not say the person's name or the safe word Red. So I was trying desperately to end the scene and Liam should have known that given I said his name, I said Stop, I said Red and I physically tried to get away and curl up. I don't know what else I could have done to show him I was not consenting to any further role play. I wanted the scene to end and him to stop but he didn’t.

15.   When he hit me a further two times I eventually just gave up and lay there. I lay there terrified because I was worried he would hit me again and it had been unbearable. He had sex with me and although I didn’t run away it was because I had gone numb and it was like I was in shock. Whilst Liam had sex with me I lay there and did nothing. In every other scene we have had I have participated in it actively but this time I was just so terrified I lay there hoping it would end. I think I faked an orgasm to get him stop and make it all end. Liam should have noticed I was not aroused; he had to provide lubrication which he has never had to do before. I was not aroused because I was so terrified. I did not consent to Liam having sex with me and I was terrified the whole time which is why I have now stopped speaking to him.

16. After the whole incident happened and Liam texted me, “That was fun”. I replied, “Yeah it was." I replied in this way because I just wanted to dismiss the whole thing from my mind. It was not because I had had fun, or because I had wanted this. I didn’t. I just didn’t want to speak to Liam anymore about it. I didn’t want to think about it at all.

  1. The date in par 12 is obviously wrong. It should be read as 24 April 2015.

  2. On 25 August 2015 AC and the plaintiff exchanged the following message:

Chat Room (Empty)25/08/15 10:58 AM

e:         Ha. Now your video is on K&P...

+XXXXX XXX677   Haha jeez!

  1. On 27 August 2015 AC and the plaintiff exchanged the following message:

Chat Room (Empty)27/08/15 8:21 AM

+XXXXX XXX677   I like the photo set

e:         Me too. You look amazing.

+XXXXX XXX677   Thanks

I like and I don't like the one of my face over your shoulder.. I like it because I remember the moment perfectly

But I also don't think it looks like me. What do you think?

8:31 AM

e:   No it doesn’t look much like you. It's weird... but it’s still pretty and still and great pic.

+XXXXX XXX677   Ok I'm glad it's not just me that thinks so! Like its a good photo but it somehow doesn't look like me.. Haha

e:         Na it doesn’t. haha

e:         Fits the story really well though.

+XXXXX XXX677   was a nice moment though

+XXXXX XXX677   Yea it really does

5:56 PM

e:         Haha, drama on your punching pic.

(emphasis added)

  1. On about 28 August 2015, AC flew to Perth to see a person, QD, with whom she had been in a non-monogamous relationship since about June 2015. QD, who subsequently made a statement for the criminal proceedings, said that around this time also AC sent photographs to QD of the injuries she said she had suffered at the plaintiff’s hands on 24 August 2015. Those photographs were never made available to the police nor were they available in the present proceedings.

  2. The plaintiff and AC continued to message each other, using the same medium, on 29 August, 14 September, 3, 4, 22, 23, 25, and 28 October 2015. Some of these exchanges were initiated by AC and some by the plaintiff.

  3. In about October 2015, LNP, another woman on FetLife with whom the plaintiff had had sexual encounters, posted a blog entitled “The Footballer” on FetLife. As a result of the blog, LNP was contacted by AC on about 22 October 2015. She asked LNP if she was writing about any specific person. LNP said that the blog was about the plaintiff. LNP and AC agreed to meet up on 24 October 2015.

  4. On the day the blog was posted, QD said in his statement that he rang AC and asked if she had anything like what was described in the blog happen to her with the plaintiff. She said that she had not. The next day AC sent an SMS to QD saying that she needed to talk to him, but she wanted to speak to LNP first.

  5. In a statement which LNP subsequently provided to PCC Scantlebury on 11 August 2016, LNP said this about the meeting with AC on 24 October 2015:

18.   I met [AC] at the cafe. We spoke generally at first because it was our first proper meeting. She told me that her meeting with Liam wasn’t all consensual. Specifically she mentioned jumper cables and screaming 'no!’ curling into a ball and sobbing while he continued. She never told me exactly where this had taken place but as she described it to me she appeared anxious and shaken. She was crying throughout our meeting and was crying heavily. She was visibly distressed. She took me through the whole encounter. I remember her saying something similar to, “He started by putting my head under water in a bathtub. I had asked him to scare me. This did scare me but wasn't too far. He dragged me onto the bed on my stomach and hit me once with the jumper cable which I immediately reacted to and cowered away. She motioned that she had moved away and said, “I went to the other side of the bed and curled into a ball.” She said she was crying and in a lot of pain. She said she told him no when it became clear he was going to strike her again. She said she screamed “No!” I Interpreted what she had said to mean that no person would have taken her actions to being consent. We chatted for close to two hours. She was anxious at the start of the meeting but became much more distressed when she actually talked about what had happened. Her face was red and blotchy when she cried and she really couldn’t stop crying.

19.   Once she had calmed down she asked me why I had posted “The Footballer” and whether I had gone or was planning to go to the police about these stories. I told her that the reason I posted the article was to act as a warning to other girls but not to go to the police with other people's stories. She told me I was brave for posting online and I said to her that she should consider posting her story online. I said I was just the mouth piece for other people’s stories.

20.   We left the cafe and by the next day she had sent me a draft of what she was going to post on Fetlife and then she posted her story online. The story that she had written was called, “It’s all fun and games until someone gets hurt.” Her story was pretty much exactly what she had described to me when we met in the cafe.

  1. The evidence pointed to this meeting being the first time that AC had made a complaint to anyone about what happened on 24 August 2015.

  2. On 5 December 2015, the plaintiff and AC exchanged the following messages:

Chat Room (Empty)5/12/15 1:03 PM

+XXXXX XXX677   Hey, did you know that there's still a photo of me on your book website?

Could you do me a favour and take it down, my partner is getting riled up and it would just be easier..

Thanks

1:06 PM

e:         Shit!!! Sorry no I didn't know. Yes of course I'll remove it.

+XXXXX XXX677   I figured as much, I didn't know either but since my partner is obsessed with hating you he found it ….(sorry about that btw)

No worries, thank you x

e:         Haha. Is he? He should come for a beer with me.

Everything good otherwise?

+XXXXX XXX677   Haha oh god that is such an awful idea!

Yea aside from that everything is really good with me. How about you?

e:         Haha. Yeah probably.

Not great. Business associates of mine and the parents of my god daughter have heard rumours I'm a rapist and a peodophile.

+XXXXX XXX677   Oh shit! I'm so sorry that's happened!! God I don't think you're a rapist, you've had some no so-bright moments but you don't mean to.

+XXXXX XXX677   Maybe it's time to take a break from all this?

e:         Yeah, it's pretty bad.

When I took a break from it, it made it worse. It left JD to tell people that shit and no one to shut him up.

+XXXXX XXX677   lt's died down a bit now. If you're not on there for a while then I doubt he'll keep going. It will kick up for a while but people will move on, it’s in our nature. (Posting via your friends probs didn't help though)

e:   He will. He's obsessive. He's no job and nothing else to do.

e:         This was yesterday.

+XXXXX XXX677   Is staying on fet really worth all of this though?

I would've thought it would just be better to cut it all out of my life if I were you..

+XXXXX XXX677   Fucking hell...

e:   No, as I said. I don't want to be on FL. But I left for two weeks and he just got louder and louder. At least if I'm there I can counter him when he lies like that.

+XXXXX XXX677   I suppose so.. Well it's your choice anyway.

e:         Meh.

Anyway, glad you're well. I can't access that site until I'm home. I do it later.

+XXXXX XXX677   Yea that's alright, as long as you do then I'm not too fussed

2:06 PM

e:         Gone.

e:         Oh. Haha. You've FL blocked me!

+XXXXX XXX677   Thanks x

Haha yea I blocked you when everything turned to shit. I didn't need to see all of the posts n crap. I've got a fair few people blocked now haha

+ XXXXX XXX677   Plus I figured if I needed to contact you or vice versa I'd just text you

2:17 PM

e:         Haha, yeah I figured. That's cool.

(emphasis added)

  1. In March of 2016, AC first made a complaint to the police and gave a statement to Constable Lockyear at Redfern Police Station.

  2. On 11 August 2016, LNP gave a statement to PCC Scantlebury.

  3. On 16 August 2016, QD made a statement to PCC Scantlebury. He related what I have set out earlier (at [33] to [37]), and then said that he received a phone call from AC later on the day she met LNP. His statement then records:

She said, “Daddy, I've got to say that I've actually been assaulted by Liam. It was another meet after the professional photos had been out. We went to a hotel room and he grabbed me and forced me into the bathtub. He played with me and carried me into the other room. He beat me with jumper cables and as I was screaming NO he forced himself upon me. Up until the point with the jumper cables it was consensual. The jumper cables stopped me but I couldn’t stop him. I became quite angry and said, “I didn’t want you to play with him again.” I was previously worried because the plays had been getting rougher and rougher and it was getting to the point where I was concerned he wouldn't stop. [AC] just broke down and cried. She said, “I hope you're not going to break up with me.” I said, “No I'm just worried about you.”

I just tried to comfort her over the phone and calm her down. I couldn't do much because I was in a different state. I said to her, “Do you want to press charges?” She said, “No I don't want to. I just don’t want to fight it out in Court.” I asked her to write down her account of things and she said she would. She said she would do it that night and might post it online the next day

  1. Following this conversation, on the next day, 9 May 2016 AC posted a blog on the FetLife website entitled “It’s all fun and games until someone gets hurt”. In that blog she said (relevantly):

There have been a lot of accusations shooting around on here lately about a certain someone and incidents where he has mistreated women he has been with.

I'm not one to normally get involved and before yesterday I had no intention of doing so this time. I have had a very rough few days and for readers to fully understand where I am coming from, I will start from the beginning.

The last time I saw him was back in August. I had asked him to really scare me that night.

After work I went to the hotel and following his instructions, showered and got comfy in the bed. He enters and has a shower. Leaving the water running into the bath he comes back into the room, climbs on to the bed and begins gently kissing me all over. After a few minutes of this he violently grabs my hair, drags me out of bed into the bathroom and kneels me before the bathtub. Turning off the tap he forces my head under the water, I struggle (to no avail) to come up for air. As I run of of [sic] breath he pulls me back up for a breath and sends me back under as he starts to play with me.

(I just have to point out that at this point it is all still consensual)

After a few minutes of up and under he picks up a jumper cable and wraps it around my neck and chokes me. I'm scared and I love it. Loosening the cord he leads me into the bedroom and up onto the bed. He unwraps the cord from my neck as I lay on my stomach.

He lands the first hit across my thighs.

(This is where things stop being fun.)

I wail as the cord makes contact with my flesh. I burst into a violent sob and instantly curl up. The line still burning in my legs as he lines up for another. I scramble away to the corner of the bed and curl into the foetal position, attempting to protect myself I say no, not again. "Please no!" I call his name as I beg him not to hit me again.

He hushes me and says one more.

At the thought of being hit again I become frantic. "Please no no! Don't hit me again I beg you!"

He grabs my ankle, pulls me over to him again and stretches me out.

I am not ok. I am terrified.

Laying there frozen, sobbing into the bed, he hits me again twice in quick succession, from my shoulder, across my back to my ass. The marks that were left lasted for weeks afterwards, a constant reminder.

I scream, curl up and cry harder into the sheets.

He pulls my legs out from under my limp body and climbs on top of me, gently hushes me as he enters me.

At the end of the scene he lets me cuddle up to him. I think about what has just happened to me and I begin to cry again. He lets me get it all out and asks me what’s wrong, unaware of my distress.

I tell him it was really scary to which he responds, it was meant to be.

I then try to explain to him that I didn't mean that in a good way. I was genuinely terrified and I hated it. "I begged you to stop and you kept going. You are supposed to know when to stop and it was pretty damn clear."

On my way home that night I couldn't help but think back to that terrifying moment. It made my skin crawl. I decided to push it down and ignore it. I get a follow up text from him saying Great to see you. Thanks.

I lie and reply likewise.

  1. At the end of the blog, this appeared, (presumably added later):

NOTE:   Quote from Wolf: I don't disagree. Unlike all the other rubbish I've been reading this one is 100% true. It doesn't happen often but I do sometimes make mistakes. We‘ve played a lot and this is the first with you. I misjudged how much “scared” you could handle this time and I agree that when playing this close to the edge, there should be a safe word.

  1. On 25 August 2016, PCC Stillwell completed an analysis of the messages from the Cellebrite of AC’s phone. Of the messages set out at [27] and [32] above, only those portions in italics and underlined appeared in the Cellebrite. None of the exchanges set out at [39] appeared in the Cellebrite. No-one was able to explain why the remainder of the messages did not appear.

The first arrest – 25 October 2016

  1. The police determined to arrest the plaintiff after he left his house. He was driving along Bunnerong Road in Little Bay. PCC Scantlebury, who was driving the police car, activated her warning lights and siren, and pulled the plaintiff over.

  2. When the vehicles had stopped PCC Scantlebury showed her warrant card. The plaintiff handed his driver’s licence to her.

  3. PCC Scantlebury had a conversation with the plaintiff at 7.50am as follows:

She said:   Mr Murphy, my name is Constable Scantlebury from Kings Cross Detectives. I am advising you that you are under arrest for sexual assault. You do not have to say or do anything you do not want to. Do you understand that?

The plaintiff said:   Yes.

Constable Scantlebury said:   Anything you do say or do I will record. I can use this recording as evidence in court. Do you understand that? Please step out of the car and approach that officer in the blue jumper.

  1. PCC Scantlebury says that as the plaintiff got out of his car she realised that he had his child in the car. The child was very upset.

  2. The arrangement that was made was that Sergeant Hamilton would travel with the plaintiff in his car to drop his daughter off at child care in Kent Street, Sydney.

  3. After that was done, at 8:55am, PCC Scantlebury had a further conversation with the plaintiff as follows:

Constable Scantlebury said:   My name is Constable Scantlebury from Kings Cross Detectives. As I mentioned earlier you are under arrest for sexual assault. You do not have to say or do anything you do not wish to. Do you understand that?

The plaintiff said:   You didn’t say that earlier.

Constable Scantlebury said:   I did but to be clear you have a right to silence. You do not have to say or do anything you don’t want to. Do you understand that?

The plaintiff said:   Yes.

Constable Scantlebury said:   Anything you do say or do I will record. I can use this recording as evidence in court. Do you understand that?

The plaintiff said:   Yes.

Constable Scantlebury said:   We will take you back to Kings Cross Police Station where your rights will be further explained to you by the custody manager. After this we will offer you the chance to be interviewed. You have the right to silence if you wish or you may choose to speak with us.

The plaintiff said:   Okay.

  1. PCC Scantlebury then drove Sergeant Hamilton and the plaintiff to Kings Cross Police Station where they arrived at 9:08am.

  2. At about 10:15am the plaintiff’s ERISP commenced. Sergeant Hamilton said:

Liam, as you know my name is Detective Sergeant Hamilton and this is Detective Scantlebury. We are both from Kings Cross Detectives and we are investigating the sexual assault of AC at the Mecure Hotel here in Kings Cross on the 24 August last year. Do you understand that?

The plaintiff said:   Yes.

Sergeant Hamilton said:   You have been arrested in relation to that offence. You are not obliged to say or do anything unless you wish to do so. Do you understand that?

The plaintiff said:   Yes.

  1. During the ERISP, the following exchanges occurred:

DETECTIVE SERGEANT HAMILTON

Q9   Yeah. O.K. All right. As I said earlier we are investigating the sexual assault of [AC], um, on the 24th of August last year. You are not obliged to say or do anything unless you wish to do so. Do you understand that?

A   Yes, sir.

CONSTABLE SCANTLEBURY

Q35   Ah, no, just, um, when the allegation, um, about sexual assault was put to you I think, um, the good sergeant mentioned the 24th of October, it’s actually the 24th of August, 2015, just an error there. And the time that we started was 10.17am, for the record, not 9.17.

DETECTIVE SERGEANT HAMILTON

Q36   Right.

CONSTABLE SCANTLEBURY

Q37   …

DETECTIVE SERGEANT HAMILTON

Q38   …

CONSTABLE SCANTLEBURY

Q39   Do you agree that…

DETECTIVE SERGEANT HAMILTON

Q40   [10:25] …   

CONSTABLE SCANTLEBURY

Q41   Do you agree that it was 10.17 rather than…

A   Yeah.

Q42   Yeah.

A   Yeah.

CONSTABLE SCANTLEBURY

…

Q45   Yeah. All right. O.K. What I want to, um, the reason, what I want to discuss with you is the allegation of a sexual assault against, ah, made by [AC], ah, on the 24th of August last year.

A   Yes.

Q46   Yeah…do you know [AC]?

A   I think I do but   I don't know.

Q47   O.K. Would it, would it help you if I, um, ah, told you that she is the, ah Fetlife user name of Willing Pet.

A   Yes.

Q48   Yes, so who is   that person?

A   I, I assume it’s   [AC].

Q49   O.K. What is, what is your relationship with her?

A   Ah, we were friends, um, and we had some, um, play sessions together.

Q50   [10:26] Yeah. When you say play sessions what, what do you mean?

A   Um, would you be able to describe the, the allegations before I answer any further questions?

Q51   Well, I’ll, um…

A   Would that be O.K.?

Q52   I can do that. The, the allegation is that, ah, you and [AC], or you and [AC], ah, met in a hotel room…

A   Yes.

Q52   …ah, on the 24th of August…

A   Yes.

Q52   …and, ah, during that meeting, ah, that she was sexually assaulted by a, by a person…

A   Ah hmm.

Q52   …and that person is, ah, you, or you’ve been arrested because that person is you.

A   Yeah, O.K.

Q53   …

A   I got you, O.K.

Q54   Urn, so getting back to, to my   question, ah, play, you were saying, when you say you met with [AC] for play sessions…

A   Yeah.

Q54   …what do you mean by that?

A   So, um, I will say that, ah, the person you describe and I met, um, a number of times previously.

Q55   Yeah.

A   Um, played in exactly the same way.

Q56   Yeah.

A   Um, I have full documented evidence of text messages from her…

Q57   Yeah.

A   …um, saying that she   enjoyed it…

Q58   Yeah.

A   …and asked me to do it again and again and again.

Q59   Yeah.

A   Um, this, that time, I think, nothing was, was really different. Um, and, um, as far as I, I, I don't know for sure but I think, um, the issue is that she hadn’t told her new boyfriend that she was seeing me that time and he got very upset so I assume, and he's been, sort of, harassing me ever since, and I assume that these allegations are borne out of that. Um, like I said, [AC] and I, ah, did the same thing a number of times. She asked me specifically for, for what we did.

Q60   [10:28]   Yeah.

A   Um, if she didn’t enjoy it that time then, um, then I’m extremely upset about that and, ah, I apologise to her profusely about it but I think she needs to take some responsibility that we both agreed to do it and she, she specifically asked me for it, asked me for it repeatedly over and over again, um, and it’s, it’s disappointing that, that she seems I'm at fault. Um, like I said if she didn’t enjoy it then, ah, I'm extremely upset…

Q61   Yeah.

A   …um, but all I was doing is what she specifically asked me to do.

Q62   Yeah.

A   Um, further from that if, if you don’t mind. I’d prefer not to answer any further questions today. Um, It’d be great if I could, um, ah, grab a lawyer. Ah, I need to talk to a few, um, find out who the best person is, um, and then, and then go from there so, ah, hopefully that's O.K. Yeah.

Q63   Yeah.

A   Um…

Q64   We, we can, um, would you like to know some more about the allegations, ah, first before you do that?

A   Ah, if, yeah, please,

Q65   O.K. All right. So the, um, can you tell us what it was that you, um, you did on that occasion?

A   No. As I’ll say, at this stage, if I could…

Q66   Yeah.

A   I’d prefer to, um, to not go any further into it without a lawyer present…

Q67   Yeah.

A   …and some advice from a lawyer.

Q68   Yeah.

A   Um, yeah, I really don't want to go into details, at this stage, if that's O.K.

Q69   O.K. Well, then, um, are you prepared to tell us, um, some background about your relationship with [AC] and, ah, the agreements and things prior to, ah, or after that, that particular day?

A   Ah, look…

Q70   [10:29] We won't talk about the allegation itself.

A   Yeah, look, I need you, only what I just said, like I said. Um, we didn’t know each other particularly well, we were just friends…

Q71   Yeah.

A   …and I thought quite good friends…

Q72   Yeah.

A   …and we'd met a number of times, did the same thing a number of times. Um, she always really enjoyed it. She, she wrote to me in text messages, which I still have, saying that she really enjoyed it and….

Q73   So do you have those text messages still?

A   Yeah. I have, ah, after her boyfriend started harassing me…

Q74   Yeah.

A   …I, um, I, I kept a document   of, um,   I, I used, on MAC you can just, um, record the whole thing…

Q75   Yeah.

A   …so I just kept a file of…

Q76   So you, you, that, is that, where is that, ah, file?

A   It's on the MAC that I think you guys   have.

Q77   O.K.

A   And so messages from the very start until, till today and everything she’s ever said. Um, she seemed to really enjoy it. After, ah, that, that particular date she didn’t seem to have any problem. Um, I drove her home, she was very happy, um, and she seemed to be fine. Ah, if only came out later that she wasn't and I apologise profusely and very upset if she wasn’t fine and, ah, I’m very sad about it and, but she specific, and she specifically said afterwards, and I have the text messages that said, um, you know, you are not a rapist, I don’t think you’re a rapist, I just think, you know, it’s a bad idea. Um, and again, I apologise profusely so it’s, you know. I’m very sad that we’re, we’ve reached this stage, um, but I just can’t see how it's a crime if someone specifically asks for something and then decides they don’t enjoy it.

Q78   And, um, those text messages that you spoke about…

A   Yeah.

Q78   …where are, where are they?

A   On the MAC.

Q79   They’re on the MAC.

A   Yeah.

Q80   [10:31] Yeah. Is there a file name, a file name or how, what    to identify that particular file?

A   Oh, I’d have to find it for you. Like, it’s old now.

Q81   O.K.

A   I'm not sure, I’m sorry but…

Q82   All right. When was it last accessed, for example? When did you last modify that file?

A   The particular file?

Q83   Yeah.

A   It would have been a year ago.

Q84   O.K. Like, twelve months ago?

A   I think, I don't know.

Q85   O.K.

A   I don't know.

Q86   O.K.

A   Um, she, ah, I don't know if she’s told you but she's, she also wrote specifically about what happened that evening and in that, in that writing she, she said that she specifically asked for what happened and she didn’t enjoy it. Um, so I, yeah, I just don’t know why I’m here.

Q87   Yeah. O.K. And the, um, can I just confirm then, urn, ah, you and [AC] met through a website called Fetlife?

A   Correct.

Q88   F-E-T-L-l-F-E, dot.com.

A   Correct.

Q89   And what is, and, oh, we’ve been told that she uses the, um, the user name, if you like, of Willing Pet. Urn, what is your user name, or would you agree that that’s [AC’s], um, user name that she uses?

A   I think so. At this stage, though. I'd prefer not to answer any questions if that’s O.K.

Q90   [10:32] Right. O.K. What about, um, so you met, but you agree that you met [AC] through Fetlife?

A   Yes.

Q91   Yeah, O.K. And there was a series of, do you agree that there’s a, a series of, um, what you might call play scenes um, between yourself and [AC] prior to the events of the 24th of August?

A   Yeah, but as I said, I'd prefer not to answer any further questions…

Q92   Yeah.

A   …at this point, if that's O.K.

Q93   O.K. All right. Um, are you prepared to answer, ah, questions, just some background about the, um, the BDSM community and that sort of thing?

A   I'd prefer not to, please.

Q94   O.K. All right.

A   I just don’t know if that's a good idea for me.

Q95   O.K. All right. Um, have you got any questions at this stage?

CONSTABLE SCANTLEBURY

Q96   Um…um, the document that you have on your MAC is it screen shots of the text messages or how have you, sort of, recorded…

A   Ah, both, um, I took screen shots and then I think I worked out a way when you can actually export the whole file.

Q97   Oh, O.K.

A   With the whole, the whole text message conversation from start to finish.

Q98   O.K.

A   So I'm pretty sure I have both.

Q99   O.K.

DETECTIVE SERGEANT HAMILTON

Q100   [10:33] Did you say you put Fetlife messages as well through their messaging system?

A   Text messages, no.

Q101   Oh, O.K.

CONSTABLE SCANTLEBURY

Q102      O.K, Um, why, why, why did you do that? Why did…

A   Because I was being harassed by her boyfriend who kept accusing me of, of things and, and obviously, and he said I’d be here at some point.

Q103   Oh, O.K.

A   So it made sense for me to, to just, to just keep the evidence.

Q104   O.K. Yeah. O.K. Um, and you’ve said that, sorry, you mentioned that she said specifically in, in some sort of writing that I don't think you’re a rapist, where did she…

A   In a text message.

Q105   Ah, oh, in one of the ones you’ve…

A   Yeah.

Q106   Oh, O.K.

A   After the fact,   yeah.

Q107   O.K. All right. Um, and did your, did you continue to correspond with her for some time?

A   Briefly afterwards, um, we seemed to still be friends. Um, she said we were still friends, um, and then later on she asked me not to contact her again to which I said, "Of course, I won’t.”

Q108   O.K. So how long, roughly, afterwards, after the 24th do you think you were…

A   Ah, maybe a month.

Q109   A month?

A   I'm not sure.

Q110   [10:34] O.K.

A   Yeah.

Q111   Um, and she never mentioned to you that she, um, felt like what had happened was, wasn’t, was non-consensual?

A   Yeah. Ah, no not not non consensual at all.

Q112   Yeah.

A   And she mentioned that, that she hadn’t enjoyed it and she didn’t think it was, was good and, um, like I said…

Q113   Mmm.

A   …I was very apologetic.

Q114   But on the night was, did she express something different?

A   Absolutely not.

Q115   Ah hmm. So on the night she didn't say anything about not enjoying it?

A   Absolutely not.

Q116   Oh, O.K.

A   No.

Q117   All right. Um, so on the night of the 24th do you remember what she did say?

A   Afterwards, um, I drove her to the, to the station,

Q118   Ah hmm.

A   Um, she was happy, jovial, the way she always is, didn't mention it at all.

Q119   O.K, But during, what, sorry, ah, during the scene. I mean, did she mention anything then, like, did she express…

A   I'd prefer not to go into details of, of any of that…

Q120   [10:35] O.K.

A   …at the moment if that’s O.K.

Q121   Yeah,

A   But, um, nothing that she hadn’t done every, all the other times that we’d seen each other.

Q122   O.K. Yeah. Um, um, no. I don’t think. Sergeant, there’s…

DETECTIVE SERGEANT HAMILTON

Q123   All right. Um, just a couple of, you know, I know that you, you know, you don’t want to, ah, go into any further detail or any sort of thing until you’ve spoken to some legal representative, something like this.

A   Yes, please. Just because I’m, I’m worried that I might incriminate myself…

Q124   Yeah.

A   …and I don’t know how, um, yeah, please.

Q125   Yeah. For sure.

(emphasis added)

  1. It is agreed that where “CONSTABLE SCANTLEBURY” occurs above Q 45, that should be a reference to Sergeant Hamilton.

  2. Mr Sheller SC drew attention to the portions underlined above, and to what he described as a promise by the interviewer not to ask questions about the night in question (in bold). He submitted that it was inappropriate for the police to have persisted with the questioning, and particularly in relation to the night in question, when the plaintiff had indicated that he wanted to get a lawyer and not answer any more questions.

  3. The ERISP concluded at 10.41am. PCC Scantlebury then took the plaintiff back into the custody area of the police station and a forensic procedure was carried out.

  4. At the conclusion of the forensic procedure the plaintiff was taken back to the interview room. At about 12.15pm, Sergeant Hamilton said:

Liam, are you still not prepared to tell us anything about what happened that night?

The plaintiff said:   No. I need to speak to a lawyer in case I say something that hurts me. Is that all right?

Sergeant Hamilton said:   Liam, you are now going to be charged with two counts of aggravated sexual assault and attempted sexual assault.

  1. PCC Scantlebury then commenced charge proceedings against the plaintiff. The plaintiff was charged with two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), one count of attempted aggravated sexual assault, and one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

  2. The plaintiff was subsequently released on bail at 3.20pm.

  3. On 26 October 2016, the DPP took carriage of the prosecution of the offences charged on 25 October 2016.

  4. On 28 October 2016, the plaintiff met with a woman called Sarah Vissaritis, with whom he had been friends for about four and a half years. They were also linked through FetLife. The plaintiff handed to Ms Vissaritis a black USB. He said that it contained every text message between him and AC. He said the messages proved her to be a liar. He asked Ms Vissaritis to give it to the press if “it all goes pear shaped”.

  5. Ms Vissaritis subsequently on 28 December 2016, gave it to Sergeant Hamilton and PCC Scantlebury.

  6. Between 11 and 14 November 2016, the plaintiff said that he attempted suicide on four occasions. The last such attempt resulted in serious damage to one of his wrists where he had cut them.

  7. In the meantime, on 27 October 2016, SH made her complaint to Kings Cross police.

The second arrest – 8 June 2017

  1. Arrangements were made by the police either with his solicitor (as Sergeant Hamilton said) or with Charles Waterstreet SC (as the plaintiff said), for the plaintiff to attend at Kings Cross police station on 8 June 2017 in relation to another charge. When the plaintiff attended, he was approached by Sergeant Hamilton and PCC Stillwell in the foyer at 11.40am. The following conversation occurred:

Stillwell:   Hi Liam, my name is Constable Stilwell from Kings Cross detectives. At this point in time you are under arrest for a sexual assault and ten counts of filming a person engaged in a private act.

Plaintiff:   What was that?

Stillwell:   Ten counts of filming a person engaged in a private act. You do not have to say or do anything if you do not want to. I will record what you say or do. I can use that recording in court. Do you understand?

Plaintiff:   Yes.

Stillwell:   I don’t have to put handcuffs on you do I?

Plaintiff:   No

Stillwell:   Okay. It’s this way. I’ll remind you that any attempts to get away will result in further charges.

  1. The plaintiff was then taken to the charge room where a forensic procedure was carried out.

  2. At 1.07pm PCC Stillwell approached the plaintiff and the following conversation occurred.

Stillwell:   Hi Liam, my name’s constable Stillwell from Kings Cross Detectives. Just so you know, I am making an audio recording of this conversation.

Plaintiff:   No worries.

Stillwell:   Okay, the time is 1.07 on Thursday the 8th of June 2017. I would like to remind you that you do not have to say or do anything if you don’t want to. Do you understand that?

Plaintiff:   Yep.

Stillwell:   I would like to offer you the opportunity to make an electronically recorded interview regarding an allegation of sexual assault on the 2nd of June 2015 at the Rydges Hotel, 9 Missenden Road, Camperdown. This allegation was made by [SH]. Do you have anything to say?

Plaintiff:   No.

  1. Thereafter, the plaintiff was asked if he wished to participate in an interview or make a statement, and he declined. He was then charged with having sexual intercourse without consent contrary to s 61J(1) of the Crimes Act. At 2.27pm he was refused bail by the police. At 6.15pm the plaintiff was transferred to Surry Hills Court Cell Complex. The following day he was granted conditional bail at Central Local Court.

  2. On 13 June 2017, the DPP took carriage of the prosecution of the charge laid on 8 June 2017.

  3. The occasions where the plaintiff was alleged to have filmed SH preceded the date on which it was alleged the plaintiff had sexually assaulted SH. The charges concerning the filming did not go ahead because it was ascertained that they were statute-barred.

Committal proceedings

  1. All of the charges were heard at committal proceedings on 19 and 20 March 2018 and 14 May 2018. On 20 May 2018, Magistrate Halburd dismissed all of the charges against the plaintiff.

  2. In relation to the charges concerning AC, the Magistrate reached the following conclusions:

•   The first complaint made by AC was to LNP on 24 October 2015. The complaint did not make it plain that sexual intercourse was not consented to. The magistrate was of the view that a jury might find that a fair reading of paragraph 18 of the statement of LNP was a description of a withdrawal of consent to an assault rather than to sexual intercourse.

•   The lack of consent to sexual intercourse appears explicitly for the first time in the second last paragraph of AC’s second statement to police made on 3 April 2016.

•   There was a text exchange between the parties following the incident on 24 August 2015 which the jury might find on its face was inconsistent with a situation where someone had been raped. This was the exchange where the plaintiff sent a text to AC saying, “Great to see you, thanks”. And AC replied, “Yes likewise x”.

•   Although AC attempted to explain this in her second statement at par 15 by saying that she wanted to dismiss the whole thing from her mind and did not want to speak to the plaintiff anymore about it, the evidence was that she did speak to the plaintiff about it by text on 22 October 2015. The magistrate said that it seemed to her that a jury would conclude that the complaint in that exchange was about the striking with the cables. Nothing suggested withdrawal of consent to the subsequent sexual activity, and no concern about that was raised in the exchange.

•   There was no mention in LNP’s statement or in the complaint that AC made to QD, that she used the word “red” when she related what occurred between her and the plaintiff.

• The clearest indication about whether AC had actually withdrawn consent for the act of sexual intercourse is to be found in the message exchange on 5 December 2015 ( at [39] above) where AC says she is sorry to hear that people were suggesting the plaintiff was a rapist, and she said, “God, I don’t think you’re a rapist”.

  1. In concluding that she did not believe there was a reasonable prospect that a reasonable jury properly instructed would accept beyond reasonable doubt that the complainant did not consent to sexual intercourse at the time of the incident, the Magistrate said:

Given the prior relationship of these parties as described in the complainant’s statements and as shown on the video excerpts played at committal, the fact that the complainant had specifically asked the accused to “really scare her” during the encounter, the assertion by the accused, when interviewed by police that his encounters with the complainant had been consensual and, in particular, the complainant’s evidence that immediately after the incident the accused was unaware of her distress I do not believe that a reasonable jury properly instructed would find the element outlined above made out beyond reasonable doubt and accordingly the accused is discharged with respect to sequence 4.

  1. In relation to SH, the magistrate concluded as follows:

• A reasonable jury would be unlikely to accept SH’s evidence that she would not accept that she was a party to three WhatsApp messages of 2, 10 and 11 June 2015 (at [19] above) because the Crown had conceded that the first of the messages was one that SH had told the prosecution in January 2018 was her message. SH’s credibility would be significantly damaged as a result of her evidence in that regard.

•   A jury would find that the behaviour and writings of SH after the incident complained of were inconsistent with someone who had actually withdrawn consent. Those matters included SH continuing to participate in the sexual activity at the time after the alleged withdrawal of consent and she allowed the plaintiff to take her home. SH sent a text message later the same day saying, “Thanks for having me. I enjoyed it but yeah probably not an every weekend kind of thing for me:)”; text messages on 10 June 2015 arranging to meet again; the text message on 11 June 2015 where SH tells the plaintiff what she likes about having sex with him; the fact that the parties met again on a couple of occasions for BDSM sex; a WhatsApp exchange on 12 August 2015 where SH said that she did not regret “in the slightest” meeting the accused; her Fetlife post on 22 October 2015 where SH said that “something close to rape happened to her when she was 16” but that “I don’t believe anything like this has happened to me since”; her Fetlife post on 24 October 2015 where SH said that she did not feel like a victim of the plaintiff; and a WhatsApp exchange on 25 October 2015 where SH said to the plaintiff that she had not taken sides because he knew that she did not enjoy it but he did not try to push it on her again.

  1. It was no surprise that QD had a particular view of the plaintiff; he was seeing AC at the time she was involved with the plaintiff, and QD and AC ultimately commenced a monogamous relationship. QD was also a person AC saw and spoke to shortly after the events of 24 August 2015 when AC travelled to Perth within a few days to see QD. JD attended at Kings Cross Police Station with SH on 27 October 2016 as her support person. SC Scantlebury, in a statement of 1 June 2017, refers to JD’s presence on that occasion, but does not record that he said anything at all. There is no other evidence of JD’s involvement with the police, other than when police went to the premises where he was living, when they were enquiring about the welfare of GBC.

  2. Issues arising from witnesses living together, or being in a sexual relationship, or having a grudge against the plaintiff, were properly matters to be dealt with at trial or, if it was permitted, at the committal hearing under Div 6 of Chapter 3 of the Criminal Procedure Act 1986 (NSW), as in fact occurred with some witnesses at the plaintiff’s committal hearing. I do not consider that those matters impacted the reasonableness of the suspicion held by the police in respect of either AC or SH.

  3. The State submitted that, in respect of false imprisonment, the period is from the time of the unlawful arrest to the time when bail is granted or refused.

  4. In Nye v State of New South Wales [2003] NSWSC 1212 O’Keefe J said:

[33]   The period of detention relevant to the cause of action for wrongful arrest and false imprisonment is that which commences with the arrest of the plaintiff and extends at most up to the time he was taken before a Magistrate on 25 July 1991 and remanded in custody. As was said in Diamond v Minter (1941) 1 KB 656 in relation to a claim for damages for false imprisonment:

“I think that the periods of detention which I have to consider are the period during which the plaintiff was in the custody of the two defendants… and the period during which he was detained at Bow Street police station before he went into court. What happened after that, with regard to his being remanded in custody, was the result of a judicial act by the learned Chief Magistrate, and no liability can attach to the police officers for that” (supra at 663).

  1. Nothing in Nye suggests that a bail decision other than one by a judicial officer is relevant to ascertaining a period of detention. The plaintiff had been refused by bail by a police officer on the day of his arrest in relation to SH. The plaintiff’s continued detention occurred by a decision of the police. Where the plaintiff’s claim is for false imprisonment brought about by a wrongful arrest by the police, a refusal of bail by the police does not bring an end to that wrongful imprisonment.

  2. As noted above (at [69]), the plaintiff was granted bail at Central Local Court on 9 June 2017. The period of his wrongful detention was approximately 24 hours.

Malicious prosecution

  1. In A v New South Wales (2007) 230 CLR 500; [2007] HCA 10, the High Court said at [1]:

…For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

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

(2) that the proceedings terminated in favour of the plaintiff;

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

(4) that the defendant acted without reasonable and probable cause.

  1. The Court also said at [2]:

… malice is a broader concept than ill-will or spite, and means an improper purpose.

  1. The authorities have at times interchanged the third and fourth elements. When I refer to the elements by number I am following what was said in A. In relation to the fourth element, there are two aspects to the matter. The first is subjective (“What did the prosecutor make of the material available?”). The second is an objective test (“What should the prosecutor have made of it?”): A at [58].

  2. In Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 Basten JA (Gleeson and Leeming JJA agreeing) said:

[11]   With respect to the third and fourth requirements, the appellant accepted the statement in Fleming in the following terms:

“Malicious prosecution postulates two fault requirements: the proceedings complained of must have been instituted without reasonable and probable cause and for an improper purpose. Both must be satisfied because the prosecution of persons reasonably and honestly suspected of crime is considered of greater social importance than disapproval of unworthy motives.”

[12]   The absence of reasonable and probable cause includes both objective and subjective elements; the latter being the absence of a belief by the prosecutor that the person charged “was probably guilty of the crime imputed.” The canonical statement, from the judgment of Hawkins J in Hicks v Faulkner, defined reasonable and probable cause to be “an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

[13]   In short, the prosecutor must have an honest belief that the defendant was probably guilty and that belief must be based upon grounds which a reasonable person would accept as supporting the belief. However, as explained by the High Court in A v New South Wales, it is sufficient to demonstrate that the prosecutor did not believe the accused was probably guilty of the offence. That is, reference to “honest” belief adds nothing to that which must be disproved.

…

[19]   The fourth element [the third as stated in A] is that of malice. The term is somewhat archaic and, as the High Court noted in A v New South Wales, quoting Fleming, it “has proved a slippery word in the law of torts”. The Court adopted the language of Fleming in the following passage:

“At the root of it is the notion that the only proper purpose for the institution of criminal proceedings is to bring an offender to justice and thereby aid in the enforcement of the law, and that a prosecutor who is primarily animated by a different aim steps outside the pale, if the proceedings also happen to be destitute of reasonable cause.”

[20]   As the High Court further noted, the elements of malice and honest belief in the guilt of the defendant may overlap but are not coterminous. A prosecutor who has an honest and reasonable belief in the guilt of the accused may nevertheless seek to pursue a prosecution out of spite or ill-will. That circumstance alone would not base an action for malicious prosecution. Prosecution of criminal charges motivated by disgust at the conduct of a person believed to have indulged in criminal activity, with the intention that he or she should be punished, might be thought to constitute malice in a colloquial sense, but it would not constitute an extraneous purpose for the tort of malicious prosecution. On the other hand, if it can be shown that the prosecutor had no actual belief in the guilt of the accused, it might more readily be inferred that he or she acted for an improper motive. Nevertheless, the two subjective elements must remain separate and be addressed separately.

  1. There can be no doubt about the first two elements of the tort in relation to either AC or SH.

  2. The fourth element is that in initiating or maintain the proceedings the police acted without reasonable and probable cause.

  3. The amended statement of claim was ultimately filed on the fifth day of hearing, at the conclusion of the evidence. However, the form of the statement of claim had been provided at an earlier time. It contained 28 particulars of the absence of reasonable and proper cause, but during Mr Sheller SC’s final address these were reduced to eight.

Reasonable and probable cause

Charges concerning AC

  1. Mr Sheller SC accepted that if the State satisfied the onus that there was a reasonable and honest suspicion for the arrest, then, absent anything happening in between arrest and charge, the plaintiff would probably not satisfy his onus on proving absence of reasonable and proper cause. I have determined that the State has satisfied its onus in that regard concerning AC. Nevertheless, I will consider the particulars the plaintiff relies on to show there was no reasonable and proper cause.

  2. The plaintiff pressed the following four particulars in relation to AC:

19.1.   That neither PCC Scantlebury nor PCC Stillwell made any proper enquiry of Complainant AC as to why the vital safe word “red” was not referred to in her internet post “It's all Fun and Games” from her boyfriend [QD]’s statement, and from all text messages between herself and the Plaintiff commencing on 22 October 2015.

19.2.   That neither PCC Scantlebury nor PCC Stillwell, when a further statement was obtained from AC, disclosed in AC’s witness statement the fact that AC had not referred to the vital safe word “red” in her internet post “It’s all Fun and Games” in respect of which AC was referring to the sexual encounter which constituted a charge against the Plaintiff of aggravated sexual intercourse without consent (x 3) and one charge of inflict actual bodily harm.

19.3.   At no time did PCC Scantlebury nor PCC Stillwell enquire of AC as to why the description of the sexual intercourse detailed in her police statements were (sic) so significantly different from the description detailed in her online post entitled “It’s all Fun and Games”.

19.7.   That PCC Stillwell had been informed in October 2016 by a witness SM that [JD] aka Master James had ill will to the Plaintiff and had himself made and caused others including AC, SH, LNP and GBC and occasioning actual bodily harm against the Plaintiff.

  1. I have already determined that that the relevant police officers (PCC Scantelbury and Sergeant Hamilton) suspected on reasonable grounds that the plaintiff had committed the offences of sexual assault. The test that makes up the fourth element of malicious prosecution is similar but not identical to that test. It asks the question whether there was reasonable and proper cause for instituting or maintaining the proceedings. The onus in this regard is on the plaintiff to show “the absence of a belief by the prosecutor that the person charged ‘was probably guilty of the crime imputed’”: Bailey at [12]. It is nevertheless significant that the State has demonstrated, (proof of the justification for the arrest being on the State) that the police officers did suspect on reasonable grounds that the offences had been committed. What the plaintiff appears to be suggesting is that, even if the arrest was justified, no charges should have been laid until the factual matters contained in these particulars had been satisfactorily resolved, and that, in the absence of such a resolution, the plaintiff demonstrated an absence of reasonable and proper cause in addition to malice.

  2. The first three of the particulars can be dealt with together, as they all involve allegations that the police officers did not clarify differences between AC’s statements and the blog she posted entitled “It’s all Fun and Games”.

  3. While the description of what occurred in the blog is shorter and contains less detail than what appears in AC’s statements, the narratives are largely consistent. Certainly, the blog does not mention anything about AC’s use of the safe word “Red”. Whilst that is certainly an inconsistency, it is not something which detracts from the remainder of the account contained in AC’s statements. I made reference to this earlier at [116]. The police officers had seen this blog at the time of the plaintiff’s arrest; it was not something that later came to their notice in a way that cast doubt on the reasonable suspicion they had at the time of the arrest.

  4. Any inconsistencies were matters that would need explanation at some point, even as late as when AC was being cross-examined at the trial, but in themselves they do not show that the police lacked a belief that the plaintiff was probably guilty of the crimes alleged. It will frequently be the case that contemporaneous messages or other contemporaneous material will contain inconsistencies from what a complainant says in a statement and/or evidence in chief at a trial. The mere existence of such inconsistent material does not mean that the police do not have reasonable and proper cause for charging a person with a crime. Nor can it be overlooked also that the plaintiff was charged with assault occasioning actual bodily harm, and there was little doubt on the basis of the statements and the blog that that offence had occurred.

  5. It is difficult to understand the significance of particular 19.7 and, indeed, even what it is asserting. The particular originally read:

That PCC Stillwell had been informed in October 2016 by a witness SM that [JD] aka Master James had ill will to the Plaintiff and had himself made and caused others including AC, SH, LNP and GB-C to make false allegations of sexual assaults and occasioning actual bodily harm against the Plaintiff.

  1. In his final address, Mr Sheller SC said that he was no longer asserting what was contained in the underlined words. He said that the particular concerned the co-habitation issue (which was discussed at [146]-[150] above). For the reasons I there gave, this issue did not impact on the reasonableness of the suspicion the police then had at the time of the arrest of SH, nor does it impact on the reasonable belief which the police had at and after the time the plaintiff was charged with the offences concerning AC. At best, it raises an issue that can properly only be determined at any trial or, possibly, at a committal hearing, as outlined at [150] above.

  2. In my opinion, the plaintiff does not show that the police did not have reasonable and probable cause to charge him with the offences.

Charges concerning SH

  1. The particulars ultimately relied upon in respect to SH were these:

19.13.   That PCC Stillwell was aware of conduct of Crown witnesses [JD], [LNP] and [GBC] throughout 2017 which wilfully breached the Court’s non-publication, orders, thus not only providing evidence of the commission of a serious criminal offence but prejudicing the interests of justice including that of the Plaintiff and in particular that he, PCC Stillwell, took no action to have the posts removed nor took any action to direct [JD], [LNP] and [GBC] from desisting in their contentious conduct and to have the posts taken down. This conduct on the part of PCC Stillwell and the persons referred to, continued into 2018 when on 27 May 2018 Mr Waterstreet of Counsel alerted a Ms Wong of the DPP who then contacted PCC Stillwell. Ms Wong again alerted PCC Stillwell on 7 June 2018 and directed him to contact the witnesses and have the posts removed. The posts remained.

19:14   That PCC Stillwell was aware before the Plaintiff was initially arrested, that there existed contemporaneous text messages between Complainant SH and the Plaintiff from 29 March 2015 to 6 April 2016, such text messages being recorded on the Plaintiff’s iPhone 6 and Mac Book Air which had been seized by Kings Cross Police on 25 October 2016 (the first date of arrest of the Plaintiff). The said text messages provided probative evidence of major inconsistencies and the allegations made by the Complainant SH against and in respect of the Plaintiff, such that in the interests of justice, a Police Officer such as PCC Stillwell could not have ignored such probative evidence in the proper investigation of such serious allegations of criminality against him in respect of the Plaintiff. PCC Stillwell wilfully concealed the said text messages and otherwise refused to disclose such text messages to the Court.

19.18.   That on 19 March 2018 and in the course of the committal hearing in respect of the charges against the Plaintiff, PCC Stillwell gave evidence to the Court that SH had provided two mobile phones but they were not capable of being forensically examined. In the course of cross-examination at the Downing Centre Local Court on 19 March 2018, PCC Stillwell had to concede that he had not even asked SH for the passwords to access the phones which by use of such passwords would have enabled them to be readily accessed. Further, that PCC Stillwell on 19 March 2018 gave evidence that SEEB (forensic section of the Police Force) could not access the mobile phones of SH. When asked for a report from SEEB, PCC Stillwell said “There is no report”. PCC Stillwell wilfully took active steps to prevent highly probative evidence from being examined forensically and otherwise being disclosed to the Court and to the Plaintiff and his legal representatives.

19.19.   That PCC Stillwell knew that situated on Complainant SH’s mobile telephones were Whatsapp messages which were highly probative of the vital issue of consent in respect of the charges relating to SH against the Plaintiff.

19.20.   That PCC Stillwell was aware before the initial arrest and subsequent arrest of the Plaintiff and also during the course of the committal hearing in respect of the Plaintiff, that the Complainant SH had made two public internet posts on her Fetlife profile which were highly probative of the vital issue of consent and otherwise inconsistent with her allegations against and in respect of the Plaintiff.

  1. I have already determined that the police did not have reasonable grounds for holding any suspicion that the plaintiff had committed the offence against SH. There were two bases for that conclusion. The first was the failure to identify what evidence was relied upon to hold the suspicion and thereby justify the arrest. The second was the absence of the WhatsApp messages prior to 26 July 2015, in circumstances where PCC Stillwell knew that the plaintiff and SH subsequently had consensual sex and he knew that the missing messages were important.

  2. Although the onus is on the plaintiff to demonstrate an absence of reasonable and probable cause (whereas the onus is on the state to prove a suspicion on reasonable grounds for the arrest), it follows from my earlier determination in this matter (the two matters are not necessarily linked in all matters) that the plaintiff shows an absence of reasonable and probable cause. PCC Stillwell’s belief in the guilt of the plaintiff (which was not challenged) was not one held on reasonable grounds because of the absence of the evidence of the messages which he knew to be important, and his knowledge of a continuing sexual relationship with SH. As noted, the messages discovered after the plaintiff’s arrest in relation to AC threw a different light on that complaint. It was not reasonable for him to have charged the plaintiff with the sexual assault of SH until those messages of hers had been tracked down, and further enquiries made of SH in the light of them. In reaching this conclusion, I do not overlook what the High Court said in A at [86] about further enquiries which could have been made.

  3. I do not accept, as particulars 19.18 and 19.19 assert that PCC Stillwell wilfully took active steps to prevent highly probative evidence from being examined forensically or that he knew the messages were in fact highly probative.

  4. No submissions were made about particular 19.20.

  5. For reasons I gave when considering the plaintiff’s arrest for offending against SH, the knowledge the police had about the House of Cadifor did not provide any basis to show an absence of reasonable and proper cause.

Malice

  1. It may be accepted that, if no reasonable and proper cause is shown, that would assist the plaintiff in showing an improper motive: Bailey at [20]. The obverse is also true; where the evidence demonstrates that the police acted with reasonable and proper cause, it will be more difficult for the plaintiff to establish an improper motive or purpose. However, these elements are not coterminous, and they must be addressed separately.

  1. It is apparent from the particulars of malice for both AC and SH that the plaintiff relies on largely the same behaviour that was said to show the absence of a reasonable and probable cause.

  2. The particulars of malice are these

20.1.   That PCC Scantlebury and PCC Stillwell had no bona fide belief that there were materials sufficient to prosecute, namely material to establish the Plaintiff was probably guilty of the charges that were laid against him in respect of AC and SH.

20.3.   The Plaintiff repeats the particulars referred to in paragraph [19] above, namely [19.1]-[19.27].

20.4.   That PCC Scantlebury and PCC Stillwell knew or ought to have known that in the circumstances as particularised at [19.1]-[19.27] that their conduct was unlawful and without justification.

20.6.   That PCC Scantlebury and PCC Stillwell wilfully failed to properly investigate the allegations against the Plaintiff in such circumstances as particularised at [19.1]-[19.27] and the Plaintiff relies upon those matters set out in relation to the absence of reasonable probable causes evidence of the prosecution and/ or circumstances were being conducted maliciously.

20.7.   That PCC Scantlebury and PCC Stillwell failed to disclose to the Office of the Director of Public Prosecutions deficiencies in the investigation of the allegations against the Plaintiff.

…

The references to the particulars in paragraphs 19.1 to 19.27 were said to be to those particulars which survived the culling of them in Mr Sheller SC’s final address.

  1. Mr Sheller SC accepted that there was no evidence of malice as it concerned ill will. He did not point to any improper purpose to demonstrate malice. He submitted that the other basis on which malice could be established was to show knowledge by the police of the absence of reasonable and probable cause. He said the highest that he could put the submission was the proposition that he had put to Sergeant Hamilton as follows:

[I]s it fair to say that your attitude in a relation to a matter such as this - this is an allegation of serious sexual assault - was to gather what material could be gathered and once whatever could be gathered was gathered, leave it to the Court to decide via a prosecution process?

  1. Sergeant Hamilton denied that proposition. I accept his denial in relation to his approach in this matter. Whilst some things could have been explored in greater depth, and the failure to access the missing WhatsApp messages in relation to SH was a good example, that was not any indication that there was any improper purpose. Nor did it show a knowledge of the absence of reasonable and proper cause in charging the plaintiff.

  2. I accept that PCC Stillwell had an honest belief that an offence had been committed by the plaintiff against SH based on the statements he had from SH and GBC, and from the other evidence that at least corroborated where the offending took place. There is no evidence to show that he knew that he had no reasonable basis for charging the plaintiff in relation to the offence against SH.

  3. Accordingly, the element of malice is not made out in respect of either AC or SH. The plaintiff’s claim for malicious prosecution fails.

Damages

  1. The plaintiff is entitled to damages only for two arrests carried out contrary to the requirements of s 99(1)(a) of LEPRA (in the case of SH), and the requirements of s 202(1)(c) of LEPRA (in the case of both SH and AC).

  2. In the case of AC the plaintiff was falsely imprisoned for two hours and 25 minutes. In the case of SH, because the arrest was also carried out contrary to the provisions of s 99(1)(a), the plaintiff was falsely imprisoned for 24 hours which included being held overnight in a police cell.

The arrest relating to AC

  1. The plaintiff is entitled to compensatory damages for his wrongful arrest and detention. Although there was no satisfactory reason offered for the failure on two occasions to comply with the requirements of s 202, I do not consider that the behaviour of the police amounted to contumelious behaviour, to justify an award of exemplary damages: Lamb v Cotogno (1987) 164 CLR 1 at 13; Randall at [52].

  2. There was nothing about the circumstances of the arrest to justify an award of aggravated damages. Apart from the failure to state the reason for the arrest, the arrest was otherwise justified, and the subsequent charging of the plaintiff did not constitute a malicious prosecution.

  3. Nevertheless, in Lule v State of New South Wales [2018] NSWCA 125 Macfarlan JA (with whom Beazley P and Barrett AJA agreed) said at [62]:

As pointed out by the High Court in George v Rockett (1990) 170 CLR 104 at 110-1; [1990] HCA 26, statutory provisions permitting the issue of search warrants or, I add, the arrest of individuals, “authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect”. The High Court indicated that in those circumstances strict compliance with the conditions on the exercise of the powers is required.

Further, the breach (twice made) was not technical, but a “failure to appreciate the statutory obligations with which [the police] were required to comply in responsibly exercising powers reposed in them as police officers”: Smith at [161].

  1. In Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 Spigelman CJ said at [49]:

A substantial portion of the ultimate award must be given for what has been described as “the initial shock of being arrested”.

  1. In my opinion, the plaintiff should receive compensatory damages in the sum of $10,000 for his wrongful arrest and false imprisonment.

The arrest relating to SH

  1. The wrongful arrest and period of false imprisonment in respect of SH was in a more serious category. Not only did PCC Stillwell fail to comply with his obligations under s 202(1) in circumstances where the arrest was pre-arranged and carried out at leisure in the police station, his suspicion of the commission of an offence by the plaintiff was not reasonably held at that time. Further, as has been noted earlier, the fact that other messages had subsequently become available in respect of the offences charged in relation to AC before he arrested the plaintiff for the SH offence, only highlighted the extent of the unreasonableness of his suspicion, especially when he wanted to obtain access to the contemporaneous messages relating to SH.

  2. The measure of damages is only confined to a 24-hour period for the false imprisonment, not because of any steps PCC Stillwell took in relation to the investigation, but because a judicial officer granted the plaintiff bail.

  3. In State of New South Wales v Smith, McColl JA said at [103]:

Because the law places a high value on personal liberty, a statute which authorises the detention of a person must be strictly construed. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether, in a case of arrest without warrant, the requirement that there be reasonable grounds for the suspicion (or the belief) said to justify the arrest is satisfied. Contrary to the SNSW’s submission, the mandatory language in the chapeau to s 99(3) and the requirements that the suspicion be held “on reasonable grounds” and that it is necessary to arrest a person for a s 99(3) purpose, give effect to the statement in the Second Reading Speech “that arrest is a measure that is to be exercised only when necessary [and] should only be used as a last resort”.

(citations omitted)

  1. While the circumstances of the arrest made that experience less confronting than what had occurred on Bunnerong Road relating to AC, the plaintiff should not have had to undergo that experience, and may never have been charged with the SH offence if PCC Stillwell and Sergeant Hamilton had considered the evidence carefully, and diligently sought what they knew was missing. This is not, however, a claim in negligence, but those matters inform the measure of damages in circumstances where the plaintiff was falsely imprisoned for 24 hours.

  2. In my opinion, the plaintiff should be awarded compensatory damages in the sum of $20,000 for the second wrongful arrest and false imprisonment.

Interest

  1. In addition, the plaintiff is entitled to interest at court rates on $10,000 from 25 October 2016 and on $20,000 from 8 June 2017.

Other damages

  1. Although I have held that the plaintiff fails in his claims for malicious prosecution, I should say something briefly about what damages he might have been entitled to, lest I am held to be in error in my determination of those claims.

  2. It is not really possible to separate the two sets of criminal proceedings and to attribute damage to one rather the other. However, it is certainly the case, because of the time between the arrest and charges relating to AC on the one hand, and the arrest and charge for SH on the other, that much of the damage was done arising from the first set of charges. The plaintiff claimed that he lost his job, his marriage broke up, and his mental health declined to the point where he attempted suicide a number of times within one months of the first arrest.

  3. Although the plaintiff was diagnosed as having major depression as a result of the criminal charges by both Dr Lewin who examined him for the State and Dr Matthew Jones who examined him for the plaintiff’s solicitors, it became clear that that depression was not the first time the plaintiff had suffered from the condition. Indeed, Dr Lewin described it as Recurrent Unipolar Major Depression and said that it was a recurrence of a pre-existing psychiatric condition.

  4. The evidence disclosed that the plaintiff had first suffered depressive symptoms in 2010 at the time of his father’s death. Thereafter, he had a second depressive episode at and after the birth of his daughter. The plaintiff actually described that episode as post-natal depression. It lasted for about a two year’ period, and he undertook some consultations with a psychologist and a psychiatrist but did not find the treatment helpful. He described depressive feelings, feelings of guilt and low self esteem, a lack of engagement with his daughter, and concerns that he would be “a terrible parent”. He described loss of energy and sustained low mood, harsh self-critical ruminations and feelings of hopelessness.

  5. The plaintiff said that he and his wife drifted apart in the first 12 to 18 months after the child was born. The plaintiff felt that his wife focused exclusively on the needs of the baby, and he felt neglected and undervalued in the relationship. He and his wife began to live separate lives, were not communicating, and felt estranged from one another.

  6. A report from a psychologist, Suzanne De Bakker, of 7 March 2016 provide some indication of the plaintiff’s position earlier in the year he was first arrested. The plaintiff presented to Ms De Bakker on 29 February 2016. The report relevantly reads:

He indicated that he wanted help to deal with perceived stressors, which included unemployment and relational problems. Mr Murphy reported that he had mood swings and anger management problems, both of which have been long term. He mentioned that he tends to get into rages and is prone to hitting objects and self-harm. Mr Murphy that he had been irritable and prone to quick temper most of his life. He also talked about chronic unfaithfulness and he worried that he might be found out one day. Mr Murphy is married and he has a three year old daughter. He provided a statement that indicated problems around poor emotional regulation skills, obsessional sex drive, persistent difficulty with his own identity and attachments and possible narcissistic characteristics.

  1. By the time the plaintiff came to be examined by Dr Matthew Jones in March 2020 and Dr Lewin in August 2020, both psychiatrists considered that he was no longer suffering from a psychiatric disorder, with Dr Lewin noting normal functioning in the previous 12 months. Both psychiatrists accepted that the cause of the depression in 2016 was the plaintiff’s arrest and charging.

  2. The position is, therefore, that, although the arrest and charging triggered a further depressive episode, the plaintiff had experienced similar problems in the past and was seemingly prone to suffer from mental health issues. Further, although his marriage finally came to an end as a result of the arrest and charging, there had been significant problems in it for some years prior. The plaintiff agreed, for example, that it wasn’t his arrest in October 2016 that caused his wife to want to divorce him; it was the fact that she found out about the life he was pursuing through Fetlife.

  3. The depressive episode suffered by the plaintiff as a result of the arrest and charging was nevertheless a significant one. Despite the challenge made by the State, I accept that the plaintiff did attempt suicide in a serious way on a number of occasions at the end of 2016.

  4. If I had found that the plaintiff had been maliciously prosecuted in respect of the offences charged, I would have assessed general damages in the sum sought of $50,000.00. In addition I would have awarded legal costs of defending the proceedings of $68,000 as claimed.

Economic loss

  1. The plaintiff confined his claim for economic loss to past economic loss.

  2. The plaintiff relied on tax assessments to show his taxable income for the years before the charges were brought and up to the present time. The evidence was otherwise somewhat unsatisfactory about the details of the plaintiff’s employers and when he commenced and left its employment.

  3. Nevertheless, the evidence did indicate that the plaintiff had had a chequered employment history. He had started a business called Scout Brand Research with a friend in around 2013, although he continued to engage in other employment at the same time. Scout ceased to operate a few years later. The plaintiff said that his partner wanted to pursue other avenues, but the business does not appear to have been very successful. The plaintiff was retrenched from, or was made redundant by, Bacardi in 2015.

  4. The plaintiff’s tax assessments show his taxable income and tax payable, so that his net income can be calculated. Those assessments show the following:

Tax year

Taxable income

Net income

Year ending 30 June 2010   

$116,388.00

$84,711.56   

Year ending 30 June 2011

$155,618.00   

$110,089.34

Year ending 30 June 2012

$15,223.00

$13, 839.55

Year ending 30 June 2013

$1,213.00

$1,213.00

Year ending 30 June 2014

$43,606.00

$37,887.05

Year ending 30 June 2015

$104,074.00   

$77,619.62   

Year ending 30 June 2016   

$19,738.00   

$19,445.78   

Year ending 30 June 2017

$27,961.00

$26,106.41

Year ending 30 June 2018

zero dollars

zero dollars   

Year ending 30 June 2019

$31,959.00

$29,344.79

  1. It can be seen that, in the five tax years preceding the plaintiff’s first arrest, in all but one, his net income was well below what would be regarded as an average income, and in three of those years was below the poverty line.

  2. Taxable income was identified for the years ending June 2020, June 2021 and June 2022 in the amounts of $84,691.00, $105,803.00 and $135,268.00 respectively, but no assessments were provided for those figures.

  3. On 5 August 2016 the plaintiff received an offer of employment with Max Brenner Australia. The position was National Marketing Manager on a salary of $100,000 plus 9.5% superannuation. His salary was to be reviewed after 8 months dependant on performance. The plaintiff accepted that offer and commenced with Max Brenner.

  4. On 16 November 2016 the plaintiff received a letter from Max Brenner terminating his employment. The letter relevantly read:

Thank you for taking the time to talk to me earlier today. Following our conversation, I wish to advise you that effective today 16/11/16 we will terminate your employment with MB Australia P/L.

Unfortunately, your overall performance since commencing employment does not align with the expectations I have for the position of National marketing Manager.

As you are still in your probation period, all entitlements and 1 weeks’ (sic) pay in lieu of notice will be paid to you at the end of the month.

  1. The State submitted that the letter showed that the plaintiff was dismissed for matters other than his arrest and charging, but I accept the plaintiff’s evidence that he had received positive feedback for his performance, and that the true reason for his dismissal was the arrest and the charges. I also accept the plaintiff’s evidence that he was unable to get further employment within the industries he had worked because of the notoriety of the charges. In any event, the psychiatric and psychological evidence tends to show that he had limited capacity to work until after the charges were dismissed.

  2. The plaintiff subsequently, in January 2019, obtained a job as a beer representative with Phoenix Beers. In December 2019 he was promoted to National Account Manager. His taxable income for 2021 ($105,803) is comparable to what he was to earn at Max Brenner, albeit five years earlier. It seems likely, although there was no direct evidence of the matter, that his taxable income for 2022 ($135,268) means that by the time of trial he was earning approximately what he would have been earning, had the arrest and charges not intervened.

  3. I would have awarded past economic loss based on his net income from Max Brenner from August 2016 with increments up to his taxable income actually earned in the June 2022 tax year.

Conclusion

  1. The plaintiff should bring in Short Minutes to reflect these reasons and to indicate an agreed interest calculation. Since the result is mixed one for each party, I will hear the parties on costs

**********

Amendments

27 April 2023 - Para [39] amended to anonymise telephone number.

28 April 2023 - Paragraphs [163] and [168] anonymised

Decision last updated: 28 April 2023

Key Legal Topics

Areas of Law

  • Tort Law

Legal Concepts

  • Trespass to the Person

  • False Imprisonment

  • Wrongful Arrest

  • Compensatory Damages

  • Malicious Prosecution

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Cases Citing This Decision

6

Irving v Pfingst (No 2) [2025] QSC 224
AA v Constable Michael Moore [2025] NSWSC 1241
Carvana v State of New South Wales [2024] NSWSC 254
Cases Cited

20

Statutory Material Cited

5

A v New South Wales [2007] HCA 10
A v New South Wales [2007] HCA 10
A v New South Wales [2007] HCA 10