NEW SOUTH WALES SUPREME COURT
CITATION: Nye v State of New South Wales & ors [2003] NSWSC 1212
CURRENT JURISDICTION:
FILE NUMBER(S): 21458/96
HEARING DATE{S): 26/08/2002 - 05/09/2002, 09/09/2002 - 20/09/2002, 24/09/2002 - 27/09/2002, 21/10/2002, 23/10/2002, 31/10/2002, 01/11/2002, 25/11/2002 - 29/11/2002, 22/04/2003 - 24/04/03, 29/04/2003 - 02/05/03, 05/05/2003 - 09/05/2003,12/05/2003 - 15/05/2003, 19/05/2003 - 20/05/2003, 16/06/2003 - 19/06/2003, 23/06/2003 - 27/06/2003, 30/06/2003 - 04/07/2003, 07/07/2003 - 11/07/2003, 15/08/2003, 18/08/2003 - 20/08/2003, 23/08/2003.
JUDGMENT DATE: 16/12/2003
PARTIES:
Plaintiff - Garry Raymond Nye
First Defendant - State of New South Wales
Second Defendant - Wayne Popplewell
Third Defendant - Wayne Desmond Gordon
Fourth Defendant - Peter James Hawley
Fifth Defendant - David John Barnett
Sixth Defendant - Director of Public Prosecutions
JUDGMENT OF: O'Keefe J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Plaintiff: Mr B Donovan QC with Mr D Baran and Mr C Thompson
Defendant: Mr I Temby QC with Mr P Lakatos
SOLICITORS:
Plaintiff: Miss E Faccin and Ms D Farah - Carol & O'Dea Solicitors (Sydney)
Defendant: Mr IV Knight - Crown Solicitor's Office (Sydney)
CATCHWORDS:
Tort
malicious prosecution
improper motive
mode of proof
wrongful arrest and false imprisonment
onus of proof
justification
meaning of s 352(2) of the Crimes Act 1900
police
Director of Public Prosecutions
DPP
inference
speculation
damages
aggravated damages
exemplary damages
ACTS CITED:
Crimes Act 1900 (NSW) s 352(2)
Evidence Act 1995 s 165
Justices Act 1902 s 41(6)
Police Act 1892 - 1953 (WA)
Supreme Court Act 1970 s 94
DECISION:
Verdicts as follows
(i) $947,500 against the defendants Gordon, the DPP and the State of New South Wales in respect of the plaintiff's claim based on malicious prosecution
(ii) $387,500 against the defendants Gordon, Barnett and the State of New South Wales in respect of the plaintiff's claim based on wrongful arrest and false imprisonment
(iii) in favour of the defendants Popplewell and Hawley
There will be judgments accordingly. Defendants Gordon, Barnett, the DPP and the State of New South Wales to pay the plaintiff's costs. No order as to the costs of the defendants Popplewell and Hawley. The plaintiff is to be at liberty to enter judgment forthwith.
JUDGMENT:
- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONO’Keefe J
16 December 2003
21458/96Garry Raymond Nye v State of New South Wales and others
JUDGMENT
O’KEEFE J:
Introduction
Garry Raymond Nye (the plaintiff), who was born on 3 April 1952, has sued the State of New South Wales, Wayne Popplewell, Wayne Desmond Gordon, Peter James Hawley, David John Barnett and the Director of Public Prosecutions (DPP) for wrongful arrest and malicious prosecution. The plaintiff was arrested at Upper Colo on 24 July 1991 and charged, inter alia, with having murdered Roy Thurgar at Randwick in May 1991 and with two charges of conspiracy to supply cannabis resin (hashish). Roy Thurgar was shot between 7pm and 7.30pm on 20 May 1991 and died at about 5am the following morning. From the time of his arrest until he was acquitted on the charges of murder and conspiracy to supply cannabis resin on 10 November 1992, the plaintiff remained in custody.
The plaintiff has claimed damages for his arrest in respect of the murder of Roy Thurgar and for the charges of conspiracy in relation to cannabis resin and for his prosecution on such charges. The plaintiff has adopted the approach that there was no basis in law for his arrest on 24 July 1991 and for his initial detention on that day and up to the time he was remanded in custody by a magistrate on 25 July 1991. He further asserts that there was an absence of reasonable and probable cause in instituting and maintaining the prosecutions against him and that there was malice in so doing.
The basis on which the plaintiff has sought to prove absence of reasonable and probable cause is to show that the information possessed by the prosecutors and reasonably believed by them to be true was not such as to justify a person of ordinary prudence and caution in believing the plaintiff was probably guilty. The basis on which the plaintiff has sought to prove malice is by showing that the circumstances in which the prosecution was brought and the evidence said to support it lead to the conclusion that such prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor and that arriving at such a conclusion in relation to the defendant Gordon is assisted by his involvement in certain specific events. The High Court of Australia has accepted such a mode of proof as appropriate (the “indirect route”). In the case of the Director of Public Prosecutions it is also asserted that the wrong or indirect motive is further evidenced by two documents that were produced pursuant to subpoena, in respect of parts of which it was decided that no privilege, legal professional or otherwise, applied. This decision at trial was the subject of an unsuccessful application for leave to appeal to the Court of Appeal. Subsequently the entirety of the two documents parts of which had been the subject of the decisions at trial and on appeal was tendered and admitted without objection being raised at the time of tender.
The hearing extended over some 75 days and, following the receipt of voluminous lengthy written submissions and hearing oral addresses, judgment was reserved on 23 October 2003. On 30 October 2003, at the request of Senior Counsel for the plaintiff, the matter was re-listed. The court was then informed, and medical evidence was tendered to the effect, that the plaintiff had been diagnosed as suffering from lung cancer, that his prognosis was poor and that he had a life expectancy of between six weeks and eight months. A subsequent medical certificate revealed that the plaintiff was suffering from a form of cancer of the lung known as mesothelioma and that his life expectancy was to be measured in months at most, weeks at worst. A later medical report stated that the plaintiff’s life expectancy was “only a few weeks, probably less than a month” from 2 December 2003. As a consequence it has been necessary to prepare this judgment more rapidly than would otherwise have been the case.
The Pleadings
In his Statement of Claim the plaintiff alleges that the second defendant Popplewell and the third defendant Gordon laid a charge of murder and other charges against the plaintiff (para 7). The Pleading then alleges that such defendants prosecuted or caused the plaintiff to be prosecuted on the charge of murder (para 13). The Pleading also alleges that the sixth defendant, the Director of Public Prosecutions, took over the prosecution of the plaintiff for murder and continued to prosecute him on such charge (para 9). Insofar as the allegations in the Statement of Claim relate to the tort of malicious prosecution they are against the second defendant Popplewell and third defendant Gordon in respect of the initiation and prosecution of the charge of murder against the plaintiff. As against the sixth defendant, the Director of Public Prosecutions they depend on his taking over and continuance of the prosecution of the plaintiff for murder.
Thus, except insofar as that the State of New South Wales is sued on the basis that it is vicariously liable for what was done by Gordon and Popplewell and the Director of Public Prosecutions, the plaintiff’s claim in malicious prosecution is directed against Gordon, Popplewell and the Director of Public Prosecutions only.
Insofar as the plaintiff’s claim for wrongful arrest and false imprisonment is concerned the Statement of Claim alleges that he was taken into custody by police officers including Popplewell, Gordon, Hawley and Barnett (para 6) and that each of those defendants falsely and wrongly arrested him and kept him in prison or was a party to keeping him imprisoned for the period from 24 July 1991 (when he was arrested) until 10 November 1992 (when he was acquitted of the charges of murder and conspiracy to supply cannabis resin). The plaintiff’s claim based on wrongful arrest and false imprisonment up to the time when he was brought before a court and remanded is not made against the DPP. The basis of the liability of the State of New South Wales for any wrongful arrest and false imprisonment of the plaintiff is alleged to be vicarious.
Onus and Standard of Proof
Wrongful arrest and false imprisonment and malicious prosecution all involve an abuse of power. The former involve a deprivation of liberty, something which is regarded by the law as serious. Malicious prosecution may or may not involve deprivation of liberty but it exposes the person the subject of the prosecution to the possibility of injury to reputation and conviction for a criminal offence. These consequences are also regarded by the law as serious.
The onus of proving each of the elements of the torts of wrongful arrest and false imprisonment and of malicious prosecution lies on the plaintiff. Some of those elements involve proof of a negative. This is usually more difficult than proof of a positive element, but the negative may be established by inference. The standard of proof is the civil standard, namely proof on a balance of probabilities. In applying this standard the nature and seriousness of the allegation to be proved must be borne in mind. Thus in Briginshaw v Briginshaw (1938) 60 CLR 336, when considering the application of the civil standard in relation to proof of adultery, Dixon J said:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references… This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained” (at 361-363).
When applying Briginshaw v Briginshaw (supra) it is necessary to keep in mind what was said in Rejfek v McElroy (1965) 112 CLR 517 namely that proof of serious allegations such as, for example fraud, or false arrest and wrongful imprisonment or malicious prosecution, should be:
“…on a balance of probabilities, an actual persuasion of the mind as to the existence of the fraud… The ‘clarity’ of proof required, where so serious a matter as fraud is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved…
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence is mind is to be persuaded are not to be confused… No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to obtain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge” (supra at 521-522 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ).
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court again reminded trial Judges that:
“The ordinary standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed toward the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw (supra):
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved…’” (supra at 170-171 per Mason CJ, Brennan, Deane and Gaudron JJ).’ ”
The nature of the allegation, namely an arrest for and prosecution on the charges of murder and conspiracy to supply cannabis resin, made against the various defendants is serious. Wrongful arrest, false imprisonment and malicious prosecution are serious by nature. Furthermore, in the present case, the consequences flowing from adverse findings against the defendants or any of them would be likely to be grave, since each is, or was at the relevant time, a public official whose functions involve, or involved, a proper application and carrying into effect of the criminal law. Adverse findings against them may affect their employment. They may adversely affect their professional standing. They may undermine public confidence in them as public officials (see Ziems v Prothonotary (1957) 97 CLR 279 at 296 per Fullagar J; Smith v NSW Bar Association (1992) 176 CLR 256 at 272 per Deane J).
Elements of the torts sued on
A. Malicious Prosecution
In the present case the elements of the tort of malicious prosecution are:
1.The institution, adoption or continuation of criminal proceedings by a defendant or defendants against the plaintiff.
2. The termination of such proceedings in favour of the plaintiff.
3.Absence of reasonable and probable cause in instituting, adopting or continuing the proceedings against the plaintiff.
4.Actual malice which may comprehend a primary purpose other than that of carrying the law into effect (Commonwealth Life Assurance Society Ltd v Brain (1934-1935) 53 CLR 343 at 351).
As to element 1. Who is the prosecutor?
For the purposes of malicious prosecution the law looks beyond theory and regards the person in fact instrumental in prosecuting as a prosecutor. The answer to the question “Who was the prosecutor?” must depend on the whole of the circumstances of the case. That is a question of fact. To incur liability as a prosecutor a defendant must have played an active role in the proceedings by setting them in motion or by adopting or continuing them (Davis v Gell (1924) 35 CLR 275 at 282-283).
There can be no doubt that the institution of prosecutions of the plaintiff for murder and conspiracy to supply cannabis resin falls within the first element of the tort of malicious prosecution. There is no issue that the defendant Gordon, as the officer-in-charge of the investigation, falls within the category of a prosecutor and it was accepted that he would be liable if his decision to charge the plaintiff with the murder of Roy Thurgar is shown to have been without reasonable and probable cause and to have been actuated by malice. Although in his evidence at the committal proceeding (exhibit AQ, 18/2/92 T 23) the defendant Barnett conceded that he was the informant in the plaintiff’s case, he has not been sued for malicious prosecution. There is no issue that the prosecution of the plaintiff for murder was taken over or adopted by the DPP and that it was continued by the DPP until the plaintiff was acquitted. There is no evidence that the defendant Popplewell laid any of the relevant charges against the plaintiff.
Thus the defendants Gordon and the DPP are prosecutors for the purposes of the action by the plaintiff in malicious prosecution.
As to element 2: Favourable termination of the proceedings.
The law requires a plaintiff in an action for malicious prosecution to show that the proceedings of which he complains have terminated in his favour, i.e. that they have been brought to an end without adverse consequences to him. In Davis v Gell (supra) Isaacs ACJ, adopted what was said by Lord Macnaghten in Pestonji M. Mody v Queen Insurance Co (1900) ILR 25 Bomb. 332 at 335 and held that an acquittal of a criminal charge establishes, for the purposes of an action for malicious prosecution, a sufficient basis for the person who has been acquitted to maintain his action and that the same rule applies where a nolle prosequi is entered. The decision by Starke J is to a like effect (supra at 296).
Commonwealth Life Assurance Society Ltd v Smith (1937-1938) 59 CLR 527 confirmed that an acquittal is a favourable determination for the purposes of an action of malicious prosecution (supra at 538, 540 per Rich, Dixon, Evatt and McTiernan JJ).
In the light of authority, there is not, and cannot be, any dispute that this element of the tort of malicious prosecution has been satisfied. On 10 November 1992 the plaintiff was acquitted of having murdered Roy Thurgar on 20 May 1991 and of the drug conspiracies.
As to element 3: Absence of reasonable and probable cause.
A clear, concise and authoritative statement of what it is that a plaintiff has to prove in relation to element 3 in an action for malicious prosecution is to be found in the judgment of Jordan CJ in Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466:
“In an action for malicious prosecution the burden of proof is on the plaintiff to prove (inter alia), that the defendant in instituting or maintaining the prosecution acted without reasonable or probable cause and also acted maliciously. In order that one person may have reasonable and probable cause for prosecuting another for an offence, it is necessary that the following conditions should exist: (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.
In order that the plaintiff may succeed on the issue of reasonable and probable cause, it is essential that he should establish that one or more of these conditions did not exist. This he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds. To establish the first of these matters, it is essential that evidence should be given of some fact or facts which, either inherently or coupled with other matters proved in evidence, would enable the inference that the defendant did not believe in the plaintiff’s guilt… Merely to prove that the defendant had before him information which might or might not have lead a reasonable man to form an opinion that the plaintiff was guilty supplies no evidence that the defendant did not believe him to be guilty. If this ground is relied on, the plaintiff must give some evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not sufficient to give evidence from which a guess may be made as to what it was. Nor is it sufficient merely to supply evidence of reasons for non-belief; and if such evidence is relied on there must also be evidence that these reasons were in fact operative… It may, for example, be supplied by evidence that the defendant had before him facts pointing to the plaintiff’s innocence so overwhelming that no reasonable man could have believed in his guilt… But the necessary evidence is not supplied by proof that the defendant was aware of facts which might or might not have satisfied him of the plaintiff’s guilt, or that he had before him information, some of which pointed to guilt and some to innocence.
If the plaintiff proposes to establish that the defendant had not sufficient grounds for believing him to be guilty, the burden is on the plaintiff to give evidence of what information the defendant in fact had… If he contends that the defendant did not believe some of the information which he had, he must supply evidence supporting an inference as to what the defendant’s belief actually was with respect to the accuracy of the information in question, not a guess as to what it was… It is only when he has supplied some evidence of the nature of the whole of the information that the defendant had that he can invite an inference that it was insufficient… If the plaintiff does place before the court evidence of the nature of the whole of the information which the defendant had, it is for the judge… to determine whether it was reasonable for the defendant to believe in the accuracy of the information and also to determine whether it was reasonable for him to act on it, i.e., whether it was sufficient to justify a man of ordinary prudence and caution in believing that the plaintiff was probably guilty” (supra at 469 to 471).
Element 4: Malice.
In the present case the plaintiff has relied on the reasoning of the High Court in Trobridge v Hardy (1955) 94 CLR 147 in relation to the issue of malice. That case was concerned with wrongful arrest and false imprisonment and the court had to consider the meaning of “malice” as used in the Police Act 1892 – 1953 (WA). Fullagar J equated the meaning of malice as used in that statute with the meaning of the same word as used in the context of malicious prosecution. He said that it included “personal spleen or ill will or some motive other than that of bringing a wrongdoer to justice” (supra at 155).
The view of Kitto J was expressed somewhat more expansively. He said:
“The word ‘malice’ must… mean what has been variously called express malice, actual malice or malice in fact as contrasted with malice in law which is no more than the unlawful intent whenever an injurious act is done intentionally and without just cause or excuse. Malice in the latter sense is not a separate matter of proof. In the former sense, however it forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominately by a wrong or indirect motive. This means, where that conduct could only be justified by reference to an authority possessed by the actor to perform functions for the enforcement of law, that he acted ‘from an indirect and improper motive, not in furtherance of justice’ (Abrath v North Eastern Railway Co (1883) 11 QBD 440 at 455). That is to say, from some desire other than ‘to discharge his duty to the public’ (Cruise v Burke (1919) 2IR 182 at 186)… (p)roof of motive is always and necessarily a matter of inference, except where a party whose motive is to be ascertained makes a direct admission on the point after the event either in or out of court. Even proof of statements made by him before the event and showing a clear intention to do for an improper reason the acts which thereafter he did, would not be direct proof of malice, for they could provide no more than a ground, when considered with all other relevant circumstances, for drawing an inference that the improper reason persisted at the material time and provided that the defendant at that time with his actuating motive” (supra at 162).
Malice can be proved either by showing what the motive of the defendant was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor (Brown v Hawkes (1891) 2 QB 718 at 722; approved by Kitto and Taylor JJ in Trobridge v Hardy supra at 163, 174). In Brown v Hawkes (supra) Cave J said:
“Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. But I am not prepared to assent to the proposition that, where there is want of reasonable and probable cause the jury may always find malice no matter what the circumstances may be” (at 723).
The judgment of Cave J was upheld on appeal (1891) 2 QB 726 by Lord Esher MR and Bowen and Kay LJJ, with Bowen LJ saying:
“…the few words I shall add do not in any degree go to modify anything in the declaration of the law which has been already given, more particularly in the admirable exposition of the law in Cave J’s judgment” (at 727).
What was said by Bowen LJ in relation to proof of malice is echoed in the judgment of Jordan CJ in Mitchell v John Heine and Son Ltd (supra) when he said that:
“It has been somewhat loosely said that evidence of absence of reasonable and probable cause is evidence of malice, but that evidence of malice is not evidence of reasonable and probable cause. In truth, neither of these statements is accurate. Proof of a particular fact may supply evidence both of malice and of absence of reasonable and probable cause, as where it is established that when the defendant instituted the prosecution he knew that the plaintiff was innocent. But proof that the defendant was animated by a desire to injure the plaintiff would not supply evidence of absence of reasonable and probable cause. And evidence that the defendant had formed a belief in the plaintiff’s guilt, which, though genuine, was based on unreasonably insufficient grounds, would afford no evidence of malice. On the other hand, proof that the defendant had instituted the prosecution… upon information which was ludicrously and obviously insufficient might of itself supply evidence warranting an inference of malice in a particular case” (supra at 474).
The statement by Professor Fleming of the law in relation to the element of malice in the tort of malicious prosecution is to a like effect (The Law of Torts, Fleming, 9th edition p 686).
The plaintiff has relied on proof of malice by the second method referred to in Brown v Hawkes (supra) – a method described by Kitto J in Trobridge v Hardy (supra) as “the indirect route”, namely that “of proving that the defendant’s conduct is not to be explained by the existence of a right motive” (at 163). In doing so he argued that there must be some rational explanation for what the relevant defendants did, and that when to this there is added the unlikelihood of the defendants having acted from a proper motive, there being an absence of reasonable and probable cause, the defendants must have been actuated by an inadmissible motive of some kind or other. He then argued that the evidence by the defendant Gordon as to his motive for initiating the prosecution of the plaintiff should be rejected. Furthermore, he submitted that the events involved in the taking of the statement of one of the alibi witnesses, namely Mr NB Laing, and what should be found to be the defendant Gordon’s role in the visit to Mrs Kerry Nye at Upper Colo by two members of Gordon’s investigative team on 29 July 1992, supported a finding of malice against him even though the court may not be able to say with precision what his improper motive was. In relation to the DPP the plaintiff argued that the statements made in Exhibits BJ and BK were clear evidence of an improper motive and that they evidenced, and should be a basis for a finding of, relevant malice.
B. Wrongful Arrest and False Imprisonment
The total restraint of movement of a person or his detention by preventing him from exercising his freedom of motion and locomotion against his will and without lawful authority, is the other cause of action on which the plaintiff has sued. To constitute such tort it is not necessary that there be actual force involved and an arrest which initiates the detention may be effected without the application of any force or violence, but nonetheless attract damages if the other elements of the tort are made out. Where there is some force used, for example by handcuffing of the person arrested and detained, that will reflect in the damages awarded if the arrest and detention are effected without lawful justification.
In the present case there is no doubt that the plaintiff was arrested at Upper Colo on the morning of 24 July 1991, indeed it is common ground (T 1139). According to the plaintiff his immediate arrest was effected by some seven or eight police officers who were armed with automatic weapons and shotguns, but within a matter of moments he was given into the custody of the defendants Barnett and Hawley. His initial detention occurred in front of the premises in which he was living. He was given orders to keep his arms up and thereafter was ordered to go to the front of the premises and was then escorted outside the property boundary. There he was made to lie on the ground and was handcuffed (T 78-79). That he was handcuffed was not denied, indeed it was admitted by the defendant Hawley (T 1863). The plaintiff says that he was told to remain still and was threatened that if he moved he would be killed. The words attributed to the police were: “Move and I’ll blow your fucking head off” (T 80-81). None of this was denied. Indeed the defendant Hawley conceded that there were several armed police officers around the plaintiff and that automatic weapons and shotguns were “more than a possibility” (T1862). The defendant Hawley claimed that he did not hear the words attributed by the plaintiff to the police, but he was not present at all times. I am satisfied that they were said. Later the plaintiff was taken back to the house where he says that he was shown a search warrant by the fifth defendant Barnett and a search of his house and its grounds was undertaken.
In the course of opening the defendant’s case it was conceded on behalf of the defendants that the initial arrest of the plaintiff was effected by a police officer named Whittaker of the State Protection Group, and that a little after this, a matter of “a few minutes” (T 1143), the plaintiff “came into the custody of two of the named defendants, Messrs Barnett and Hawley… They were responsible for his imprisonment and deprivation of liberty from when he came into their custody until he was dealt with by the Central Local Court the next day”. Thus if the arrest and imprisonment of the plaintiff were effected without lawful justification then the defendants Barnett and Hawley, being those who went to Upper Colo to arrest the plaintiff, are accepted as those who effected the arrest.
However the situation of the defendant Gordon also needs to be considered in relation to this tort. The defendant Gordon was the officer in-charge of the operation concerning the murder of Thurgar. It was code named Operation Shylock. The arrest of the plaintiff was part of that operation. It was the defendant Gordon who briefed the officers who took part in the raid on the plaintiff’s premises at Upper Colo on 24 July 1991 and effected his arrest (T 1203-1204). According to the defendant Gordon he “cause(d) the arrest of Mr Nye” (T 1252). This was done on the basis that the police informant (Shakespeare) had alleged that, in concert with Thurgar, he had stolen 100 kilograms or thereabouts of hashish from the plaintiff and an associate of the plaintiff named Harlum (T 1252). It was this alleged theft of hashish that was said to be the motive for the murder of Thurgar by the plaintiff and Harlum. It was the 100 kilograms of hashish that was the subject of the conspiracy charges. Like the plaintiff, Harlum was acquitted of the charges of having murdered Thurgar and of conspiracy.
In these circumstances Gordon is a person responsible for the arrest and detention of the plaintiff and if such arrest were affected without lawful justification then he would be liable in law for the damages that flow from the wrongful arrest and false imprisonment.
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).
Damages, if any, for detention after the plaintiff was taken before a Magistrate at Central Local Court on 25 July 1991 and remanded in custody (T 1204) must be related to his claim based on malicious prosecution.
The defendants rely on s 352(2) of the Crimes Act1900(NSW) (the Crimes Act) as the lawful justification for the arrest and initial detention of the plaintiff. That section applies, inter alia, to any serious indictable offence for which the person arrested has not been tried. It provides that:
“Any constable may without warrant apprehend,
(a) any person whom the constable, with reasonable cause, suspects of having committed any such offence.”The contention by the defendants is that they and each of them, with reasonable cause, suspected the plaintiff of having murdered Roy Thurgar on 20 May 2001 and of being involved in the drug conspiracies.
In George v Rocket (1990) 170 CLR 105 the High Court considered the concepts of “reasonable grounds” and “suspicion” as appearing in legislation that was concerned with the grant of search warrants; the phrase under consideration in such case being “reasonable grounds for suspecting”. The discussion by the court in that case in relation to those concepts is relevant to those embodied in s 352(2) of the Crimes Act. Although the phrase used in the Crimes Act is “reasonable cause”, there is no material difference between that phrase and “reasonable grounds” as dealt with by the High Court. Furthermore the participle “suspecting” is a form of the verb “to suspect” and does not have a connotation that is different from the verb from which it is derived.
The High Court held that the provision of the statute requiring “reasonable grounds” for the relevant state of mind “requires the existence of facts which are sufficient to induce that state of mind in a reasonable person” (at 112). Similarly the High Court pointed out that suspicion is different from belief. It requires much less to give rise to a suspicion than is required to establish a belief, and the establishment of a belief requires less than is required to establish a fact. As the High Court said:
“Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam ([1970] AC 942 at 948) ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect but I cannot prove.’ The facts which can reasonably ground a suspicion may be quite insufficient to ground a belief, yet some factual basis for the suspicion must be shown” (at 115);
and:
“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture.” (at 116)
The evidence required to arouse suspicion is less than is necessary to induce a state of belief and that in turn is less than is required to establish a state of fact. Objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief than is the case in relation to suspicion (Elcham v Commissioner of Police (2001) 53 NSWLR 7 at 16).
Thus what is sufficient to cause a person to suspect with reasonable cause a given state of affairs for example, for the purposes of justifying an arrest by reference to s 352 of the Crimes Act, is less than is required for an honest belief on reasonable grounds in relation to the same state of affairs. In summary the test to be applied for the purposes of lawful justification in relation to wrongful arrest and false imprisonment on the one hand is less demanding than that required in respect of element 3 of the tort of malicious prosecution (see para 13 above).
1. Absence of reasonable and probable cause
Roy Thurgar (Thurgar) was shot on 20 May 1991. Initially the police considered several possibilities as to the killer. None of these was the plaintiff; none of these seemed likely. Furthermore the police had no idea of the motive for the killing. At most they had vague, inadequate and even conflicting descriptions of the killer. The murder victim was a criminal of some notoriety. He was said to have been involved in a conspiracy to murder a very senior official in the Department of Corrective Services named Woodham. Thurgar had been acquitted of this charge by a jury, but convicted on a charge of possessing an unlicensed pistol. This pistol was said to have been in his possession for the purposes of shooting Woodham. He was sentenced to imprisonment for three and a half years. On appeal to the Court of Criminal Appeal his conviction was confirmed, but by majority his sentence was reduced to two years and two months, the effect of which was to allow him at large from the rising of the court (Regina v Thurgar (1990) 51 ACrim R 109).
The murder of Thurgar was a high profile matter. It attracted considerable media publicity from the very outset. (T 1833) As early as 21 May 1991 Inspector Wilson, who was the defendant Gordon’s immediate superior, was attending to media enquiries from a number of journalists. This no doubt would have been a source of pressure on the police to make an arrest. The defendant Gordon was involved with the media in relation to the murder as well. His Duty Book reveals that he was involved in a press release in relation to the murder (exhibit 21; T 1175). The pressure for an arrest was likely to have been increased as a result of a document that had been handed to the Police Minister alleging that the investigation into the murder of Thurgar was “a cover up” and that “police (were) responsible for his murder” (exhibit BE). The name of Detective Inspector Davidson was mentioned.
Despite the high profile nature of the killing and the level of resources assigned to its investigation (T 1162), the police had not progressed until Shakespeare came forward as a police informant in Wollongong late in the afternoon of 28 May 1991 (T 1163). At the time the police informant Shakespeare had some 40 warrants outstanding in respect of him. These were for fraud and other matters and in total involved a very large sum of money. He was seeking protection and, as it emerged, other benefits for giving information that he claimed to have concerning the murder of Thurgar.
The case of murder made against the plaintiff depended on the police informant Shakespeare. His evidence was essential to the prosecution of the plaintiff in relation to the murder of Thurgar. It was also essential to the prosecution of the plaintiff on the charges of conspiracy to supply 100 kilograms of cannabis resin. In a submission to the Director of Public Prosecutions of 6 August 1991, the solicitor who apparently had the carriage of the matters, Mr Trembath, wrote that “without the evidence of Shakespeare we (i.e. the prosecution) do not have a case against Harlum and Nye for murder or against Harlum, Nye and Peak for the conspiracy charge. The only other independent evidence is vague, inconclusive identification evidence at the scene which, is uncorroborated and of little value” (exhibit BJ).
The evidence of Shakespeare was the only evidence that placed the plaintiff at the scene of the shooting on the evening of 20 May 1991. His evidence was the only evidence that placed the plaintiff with him and Harlum during the hours from around 9.15 or 9.30am until around 11pm on that date. On his version of events Shakespeare was involved in the murder of Thurgar and could have been charged with murder. On at least one of his version of events Shakespeare was a party to the acquisition and distribution of 100 kilograms of cannabis resin that had a street value of $1,000,000 to $1,500,000. He was the only person who claimed to have seen the hashish. His evidence was of a kind that would have attracted a warning to a jury under the common law concerning the need for caution in accepting his evidence. That of itself was a source of obvious weakness in the Crown case.
Whilst in one of his interviews Shakespeare said that one of the motives for the murder of Thurgar was because that “Tom Domican was filthy on him” (i.e. Thurgar), because “Thurgar had gone to the police and was gunna talk to em” (exhibit T, tab 4, p 38), the principal motive for the murder of Thurgar advanced by Shakespeare was that he and Thurgar had stolen 100 kilograms of hashish that was being transported from Queensland to Sydney by Shakespeare, Peak and others. Its transportation was said by Shakespeare on one occasion to have been for the plaintiff and Harlum; on another occasion to have been for the plaintiff, Harlum and others.
In these circumstances it is, and was at the material times, essential to analyse carefully the information given by Shakespeare to the police.
The defendant Gordon travelled to the Wollongong area in company with the defendant Popplewell (T 1164), where he saw Danny Shakespeare at the Port Kembla Police Station. There Shakespeare told the defendants Gordon and Popplewell about “a million dollars worth of hash that got ripped off between me and Thurgar” and that he “was with the people that went to Bondi and then went onto Randwick that were going to just go in and lock the laundromat up and take the pot form the laundromat.” (exhibit T, tab 1). He nominated that a blue Mazda or Datsun had been involved and that one of the men had worn “a hat”. Later he said that this was “an Andy Capp” type of cap. He also said at this first interview that he left before the murder had been committed and “didn’t know anything about what had happened until the next day” (id). By 30 May 1991 this had changed. By that time he claimed to have heard the shot and to have gone with the assailants in a car to Blacktown after the shooting (exhibit T, tab 4). It is perhaps significant to note that in this interview the police informant Shakespeare did not name or identify the plaintiff, but he did name a person “by the name of John” (exhibit T, tab 1).
He was interviewed again by the defendant Gordon a little later on the evening of 28 May 1991. This interview extended over the course of two and three quarter hours. In it Shakespeare said that he had forgotten to mention a person who’s name was “Gary”. He was then asked:
“Q 19. These two persons that you have just mentioned are they connected in some fashion with the killing of Thurgar?
A. Two are, Gary and John.
Q 20. Are either of these two persons responsible for the actual shooting?
A. One is closely responsible for the shooting that’s John” (exhibit T, tab 2).It is worthwhile noting that this second interview took place at some remove in time from the first interview and that the volunteering of the plaintiff’s Christian name was in the context of an interpolation relating to his the plaintiff’s role in the distribution of “speed” and as a person who was “not long out of gaol”. There was no evidence to support the former assertion, whilst the latter assertion is plainly wrong. The plaintiff’s criminal history (exhibit A) shows that his last convictions resulting in imprisonment were in 1972 and 1974. And the evidence establishes that his was last release from prison prior to his being arrested on 24 July 1991 was in December 1978. This information was readily available to the police who were investigating the murder of Thurgar and it is probable that it had been ascertained before the plaintiff was arrested.
The story as then told by the police informant Shakespeare involved 250 kilograms of hashish and 250,000 ecstasy tablets. The ecstasy tablets seemed thereafter to have dropped out of the picture and the 250 kilograms of hashish was said to have been reduced because of “a bust in Cairns” and “a large amount of the ecstasy” being taken. There was no corroboration of any such event. He then said that the drugs were taken to Brisbane in National Panasonic boxes and stored in a storage facility at Springwood, Queensland. As emerged from police investigations the building in which the police informant Shakespeare said that the drugs had been stored had not been completed at the time of the alleged storage and was not available for the storage of goods. Shakespeare then proceeded to say that he had bought a BMW and a Tarago in Queensland near Springwood and that a man, later identified as Pollock, had brought up $20,000 out of which Shakespeare said he paid $11,000 for the BMW and “the Tarago was supplied by the guy from the storage place because he was in on it” (exhibit T, tab 2). In a later statement Shakespeare recanted this statement concerning the Tarago and the involvement of one of the people from the place of alleged storage.
He proceeded to tell the police that the events referred to in the preceding paragraph had taken place about three months before i.e. in February 1991, but that the theft of the drugs by him and Thurgar had only been discovered about three weeks before the date of his second statement i.e. in early May 1991.
He also said to the police that he had made contact with Thurgar on a mobile phone, the number of which he would give to police at a later date. The mobile phone was said to be registered in the name of a doctor in the Port Macquarie area. However this was not established to be true despite investigative efforts to do so.
Shakespeare explained to the police how the large quantity of hashish about which he was speaking was transported to Sydney. He said he took “a blue Magna” over to the self-storage shed at Springwood, Queensland in order to load half the hashish into that vehicle by putting it inside the door trimming. He said that he pretended to load the vehicle but did not do so and that he then returned to the motel where they were staying. There he told his companions, Peak, Bronson and another man that he was going back to pick up the (non-existent) Tarago from the storage shed, his idea being to put the balance of the hashish in the Tarago and travel separately from the others. However instead of this he bought a BMW for $11,000. What happened to the Tarago is not accounted for on his early version of events.
He says that he loaded the whole of the hashish into the BMW and set out for Sydney but had engine trouble and had to leave the car in Armidale. There he said he took the hashish out of the car “which took about an hour and fifteen minutes and put it into two overnight bags and a suitcase”. Where these came from was never explained. Furthermore the evidence from other witnesses who had seen the police informant Shakespeare at various times after the breakdown of the BMW did not ever see him with two overnight bags and a suitcase; only one overnight bag was ever seen.
He then told the police that after he had transferred the drugs from the BMW into the two overnight bags and the suitcase at Armidale he “then met a girl and her son”. This girl was identified by Shiralee Dadd. Shakespeare’s statement was more than a little coy about this, for the girl that he referred to was one with whom he was involved, she being his girlfriend (exhibit W). She made a statement that she had in fact flown to Brisbane on a ticket that the police informant Shakespeare had paid for and had met him there. So another aspect of his second statement was untrue; at very least it was inconsistent with the statement of another Crown witness.
The existence of the two overnight bags and the suitcase was not confirmed by Ms Dadd in her statement of 24 July 1991 (exhibit W). Indeed she said that there was nothing in the boot of the vehicle “except my bag” (exhibit W, Q 78) and a few toys that had been purchased for her son. She did however confirm having travelled from Queensland to just outside of Armidale with the police informant Shakespeare in the BMW, where it broke down. Again she said that except for her bag there was nothing else in the BMW (exhibit T, Q 89-92). Her bag was removed from the car by Shakespeare at the garage in Armidale and taken by him to a motel. In his story Shakespeare then proceeded to tell the police that he went from Armidale to Tamworth Railway Station by bus in company with the girl and her son, carrying the three bags. However Ms Dadd said that the only luggage that went to Tamworth on the bus was her handbag and the single bag containing her and her son’s clothes.
The police informant Shakespeare told the police that he had caught a taxi from Tamworth to Sydney at a cost of $400 and that “the girl and boy come with me but got out at Parramatta” (exhibit T, tab 2, Q 27). However the statements taken from the Tamworth taxi driver and his friend who travelled with him in the taxi to Sydney made it clear that:
(a) the police informant Shakespeare did not travel to Sydney in the taxi with Ms Dadd and her son;
(b) the police informant Shakespeare had only one bag. It was a bag with a broken handle and it was placed in the boot of the taxi;
(c) the price of the taxi ride from Tamworth to Sydney for Ms Dadd and her son was $400. This was paid by Shakespeare in $50 notes (exhibit Y).
Ms Dadd’s statement confirms that she travelled from Tamworth to Sydney in a taxi in which the passengers were “the taxi driver and his offsider”, Ms Dadd and her son. She says that the money for his journey was given to her by Shakespeare. In a later statement Shakespeare changed his version as to his mode of travel from Tamworth to Sydney. Thus on yet another matter, the police informant Shakespeare’s major statement was inconsistent with the evidence of other Crown witnesses and had all the appearances of being false.
He then proceeded to tell the police that having returned to Sydney he rang Thurgar and met him at Pier One where he, Shakespeare, gave Thurgar the bags containing the hashish, keeping one kilogram for himself. Then he said he went to Newcastle and then to Broadmeadow. Whilst he was staying there he said he was visited by four people who threatened him and one of them “jabbed me in the leg with a knife.” He identified this person as the plaintiff. This was shown to be untrue, although Shakespeare had in fact sustained a stab injury to the leg at an hotel or nightclub some considerable time before. Thus, another circumstance in the police informant’s major statement was demonstrably untrue.
In his second interview Shakespeare reiterated what he had said in the first interview namely, that he did not learn of Thurgar’s murder until the morning after it had occurred. He said that he had heard about it at his mother’s place. This assertion was backed up by a further assertion that he had left the company of the two men responsible for the shooting of Thurgar “at Randwick about lunch time, it would have been about 12 or 12.30pm I left them.” This is in marked contrast to his later assertions to the police that he was with the two men from about 9.15 to 9.30am until about 11.00pm on the day of the shooting. Yet again significant parts of his statements were inconsistent and deliberate lies were apparent.
It should be noted that Shakespeare said that he did not learn of the death of Thurgar until the day after the shooting occurred. He told the police in a recorded interview of 31 May 1991 (Exhibit T Tab 4 page 36):
“Gordon: Well when did you ah learn of ah the death of Thurgar, by, by way of media.
Shakespeare: I seen it on the TV the next day.”
This is yet another of the very many lies told by Shakespeare throughout his various statements and recorded interviews. A review of those statements and interviews leaves the distinct impression that the principal consistency in them is the number of lies told by Shakespeare. This is an conclusion that a person of ordinary prudence and caution would undoubtedly reach; a fortiori in the case of a trained investigator approaching the matter in a proper manner.
His description of the two men said to be involved in the killing was that one was “about six foot, slim build, dark hair; the other person is a bit smaller than me about 5’9”, short hair, always wears a cap like golfers wear, normally wears a brown checkered one and a sort of corduroy sort of one. He’s about 37 or 40 years of age.” At the time that Thurgar was shot the plaintiff was aged 39 (T 47). From the foregoing it can be seen that within a short time of his first interview, and following a break, the police informant Shakespeare was able to give to the police a more detailed description of the assailants, albeit, still rather broad and less than precise.
This is to be compared with the descriptions given by those who were in the vicinity of the shooting at the relevant time. In a statement of 20 May 1991, Mr Lehman, who chased the assailant, said that initially he thought that the man was “about five foot six tall, slim build, athletic and was wearing an English type of cap … like golf hat”, that was of “soft material, dark colours, may be dark brown or black”. However, when the assailant stopped and turned around to face Mr Lehman he didn’t seem to be as tall as he had appeared when he was running, but was rather “towards five foot four or even less”. Mr Lehman said that the assailant had a dark coloured jacket on and faded blue denim jeans (exhibit AH). Mr Bizzell, in a statement of 21 May 1991, described the assailant as being about 5’9” to 5’10” (170 to 175 cms) in height, with a thin build wearing a dark duffel coat with a high collar and which came to about knee length, but he was unable to say what type of pants he was wearing. He said that the man was wearing a “white cap” like an “Andy Capp” cap. Mr John Barnett made a statement on 21 May 1991. In it he said he was unable to remember what the assailant was wearing, but he recalled that his face was obscured by something. Mr Eric Roberts, in a statement of 20 May 1991, said that he could not tell the age of the assailant because his face was covered with a scarf or perhaps a jumper that went up to his nose. He said that the assailant was wearing a hat that “could have been a woollen hat which was a light mauve or pink colour”. In his statement he described it as an “Andy Capp” cap and the assailant as 5’6” tall, of solid build, fit and wearing a dark coloured jumper and blue jeans. The only person able to be described by Mr Peter Vanwest in his statement of 20 May 1991 was a “male, six foot tall, Caucasian, blonde hair which would have been about shoulder length, slender build. He was dressed in blue jeans and a dark coloured jacket” but Mr Vanwest was unable to say what type of jacket it was. Ms Ester Mestre, in her statement of 25 May 1991, described having seen two man at the bus stop which is proximate to the laundromat in question, a blue Datsun and a man standing in the trees who ran across the park after the shooting. He was described “as being about 5 ft 8”, medium build, his trousers were darker than the top he had on but I don’t remember much else” (Exhibit AH). These various statements, in my opinion, confirm the conclusion by Mr Trembath in his submission to the DPP of 6 August 1991 that the independent evidence “is vague, inconclusive identification evidence at the scene which is uncorroborated and of little value.” In this context it should be noted that it was suggested on behalf of the plaintiff that the police informant Shakespeare, was provided with information by police between various interviews or breaks in interviews. However, there is no evidence of this and the suggestion was denied by the defendant, Gordon.
The final matter to which reference should be made is the description of the clothing that the police informant Shakespeare said the two men involved in the murder were wearing when he last saw them about lunch time on 20 May 1991. The taller man was said to be wearing browny/black slacks and a white shirt; the other was said to be wearing blue jeans and a sloppy-joe, which Shakespeare was unable to say whether it was blue or brown and that he had a cap on which he thought was a chequered one. This description of the clothing of the two men by Shakespeare was given on the morning of 31 May 1991. However by about 3.20pm that afternoon when the defendant Gordon returned to the topic of the dress of one of the assailants and asked what type of hat was being worn, Shakespeare replied:
“Oh like a golf hat, I think it was a checked one, I can’t exactly remember” (exhibit T, tab 12, page 9).
and the bandanna was said to be like a handkerchief of which the assailant had two: “a red one” and “a bluey and whitey sort of coloured one”. When Shakespeare was asked about the events at the scene, there was confusion on his part about whether one or other of the men was running, whether the shotgun was exposed, whether it was in a bag, who had the bag etc. After a good deal of toing and froing the best that Shakespeare could do was that:
“Maybe he (Nye) was carrying the bag and I think John had the gun” (parenthesis added),
with the gun seemingly not in a bag (exhibit T, tab 12, page 16-17).
The hat worn by the assailant (not the plaintiff) is thus variously described by Shakespeare. The constant is that it was chequered. This is to be contrasted with the other descriptions of the hat worn by the assailant. The various independent witnesses describe it as “dark brown or black”, “white” and “light mauve or pink”. None of those witnesses describe it as chequered, although two describe it as an “Andy Capp” style of cap - a description later adopted by the police informant Shakespeare in his statement of 23 June 1991 (exhibit T, tab 15, page 26).
The police informant Shakespeare was taken to Queensland in July 1991. There he was conveyed to various places and what was said was taped and later transcribed under the heading “Queensland Run Around”. There he indicated a storage facility at Tolmar Place, Springwood which bore the description National Mini Storage. This was still under construction at the time that Shakespeare said the purloined hashish had been stored in it.
That the police informant Shakespeare hoped to gain an advantage from giving information to the police is clear from his record of interview of 29 May 1991 (Exhibit T Tab 3). That interview was conducted on the basis that it would not be used in evidence against him but “would be used to support an application for indemnity from prosecution from the Director of Public Prosecutions and any other prosecution authority.” In the interview Shakespeare said that “the murder was related to a rip- off of a million dollars worth of hash that me and Roy Thurgar between us organised to rip-off. I ripped it off in Queensland and brought it down to Sydney where it was given to Roy for him to sell it”. In this statement Shakespeare referred to a person “by the name of Gary” as a person who was involved with the drug matter. In it he said that the Tarago, to which he previously referred, in fact “never existed” and that the amount of hashish involved was 100 kilograms (cf 250 kgs in his second interview). This was said to have been put into the doors of a BMW which broke down and which he then transferred to “into suitcases” (cf one suitcase and two overnight bags in his second interview). He also couched his statement in a form that suggested (untruthfully) that he had then met “a girl and little boy that I knew” who “wanted a lift to Tamworth”. He also said that he caught “a train – a bus to Tamworth with the girl” and (again untruthfully) that they all then came to Sydney in a taxi. He said that the only people involved in the drug “rip-off” were himself and Thurgar. However, this assertion was inconsistent with a later version given by Shakespeare, in which he involved Bronson as well.
In this later version of what occurred Shakespeare said that Bronson had taken off on in a yacht “to pick up stuff up the top of Australia” and was going to keep going. That yacht was the Rakiah. The yacht Rakiah had been purchased by a man named Harford for $160,000.00 on or about 10 April 1991. At the time of the purchase the vessel was at the Hardys Bay wharf, which is approximately one day’s sailing time from Coffs Harbour. Unfortunately for the story told by Shakespeare the Federal Police had been keeping the Rakiah under surveillance in April/May 2001. That vessel was known to be in Coffs Harbour marina as at 29 April 1991. Those who were aboard the vessel in Coffs Harbour were George Harford, Kim O’Toole and two children. They were observed and spoken to by the vendor. The Rakiah left the Coffs Harbour marina at 01.10 hours on 5 May 1991 with twelve people aboard. These included both adults and a number of children (Exhibit AE). The intended destination of the vessel was Lord Howe Island. The vessel arrived at Lord Howe Island on 8 May 1991, after having been lost off Lord Howe Island for a short period on 7 May 1991. At Lord Howe Island the Rakiah was in need of a skipper, since the existing skipper, Paul Sexton, had been taken off the island by air ambulance. The crew was also looking for a GPS system to be installed so as to enable the vessel to go to the Whitsundays and ultimately to Fiji. The Rakiah left Lord Howe Island shortly after 1.10pm on 19 May 1991 (exhibit AE) ostensibly heading for Coffs Harbour or Ballina. An aerial search for the Rakiah on 19 and 20 May in the area to the west of Lord Howe Island failed to find it. This was a source of concern because there did not appear to be anybody aboard the vessel who was skilled in navigation or seamanship. However the Rakiah arrived in Fiji in June 1991 where it was searched. The hashish that Shakespeare had claimed to be on board was not found to be on board, nor were any other drugs. Bronson was aboard.
The defendants Barnett and Hawley were the officers assigned the task of gathering evidence concerning the Rakiah and its movements. An entry in the diary of Inspector Wilson for 2 July 1991 (exhibit BE) makes reference to the Rakiah, to Shakespeare having given 100 kilograms of hashish to a man called Bronson at Pier One (Sydney) four to five days before Thurgar was shot. Inspector Wilson records that the hashish was then “transferred to Newcastle & put on boat”. This is clearly a reference to a statement made by Shakespeare. However, in another statement Shakespeare claimed to have given the hashish to Bronson in Newcastle and that Bronson had taken the drugs out to the Rakiah in a dingy. The vessel is recorded in Inspector Wilson’s diary as “moored Newcastle Harbour” and to have “sailed from Wollongong”. This would again appear to be a reference to a statement made by Shakespeare that he had gone down to Wollongong and had checked the yacht out whilst it was in Wollongong Harbour. None of these assertions by Shakespeare was correct. In addition the diary records that enquiries were “being made at Newcastle Harbour master re: vessel…” and there is a note recording the defendant David Barnett’s information regarding the vessel as at that date. These reference make it clear that enquiries were being made concerning the whereabouts of the Rakiah at latest by 2 July 1991, perhaps earlier. In his evidence at the committal proceeding the defendant Hawley said that he first became interested in the Rakiah in “the weeks following his (Shakespeare’s) first contact (exhibit AQ, 2 March 1992, page 16; parenthesis added), that is well before the arrest and charging of the plaintiff; perhaps as early as June, 1991.
By September 1991 statements were being taken from the persons who had knowledge of the Rakiah and its whereabouts in the period between April 1991 and June 1991. From this material it was clear, as the defendant Gordon conceded in his cross-examination, that the possibility that the Rakiah had come to Sydney in that period was “remote” (T 1468). The evidence of the independent witnesses concerning the Rakiah is inconsistent with various of the versions given by Shakespeare. The vessel does not appear to have been in Newcastle Harbour at any relevant time. It does not appear to have been in Wollongong at any such time. In addition, it clearly did not set out from a New South Wales port to sail to the north of Australia. Furthermore, in the period from 5 May 1991 and the date of the murder, the vessel was either under surveillance or was at sea. Thus, the claims made by Shakespeare in relation to Bronson and the drugs could not have been true, to the knowledge of the defendants Gordon, Hawley and Barnett. Another factor in this regard is that the police informant Shakespeare said that Jimmy (Bronson) was on the vessel. This appears to be correct. Bronson was on the Rakiah between the time it left Coffs Harbour on 5 May 1991 and the time it arrived in Fiji in June 1991, having left Lord Howe Island on 19 May 1991. This is inconsistent with Shakespeare’s story that a pistol in the possession of the plaintiff at the time of the shooting had been given to Bronson on 21 May 1991. That could not have happened. The defendant Hawley was cross-examined on the movements of the Rakiah. He was asked:
“And you knew as at 24 July that Shakespeare couldn’t have given the gun to Bronson on 21 May because Bronson was on the Rakiah and the Rakiah was under Federal observation...
A. That Shakespeare couldn’t have given the weapon to Bronson on 21 May because he was on the Rakiah. I think we would have known the whereabouts of the Rakiah and Bronson was on it so I would have to agree with that.” (T 1887).Thus, yet again, prior to the arrest and charging of the plaintiff, significant elements of the story as told by Shakespeare were manifestly untrue to the knowledge of the police, including the defendant Gordon as officer-in-charge of the investigation and the defendants Hawley and Barnett.
The defendant Hawley commenced work on Operation Shylock on 17 June 1991 (T 1812). In the course of his cross-examination he said:
“When I came onto the task force I was aware that there was a Federal Police operation and that he (Bronson) was under surveillance, and the vessel (Rakiah) was under surveillance (T 1891; parenthesis added);
and
“Q. You knew Bronson couldn’t have been given the hash by Shakespeare because he was in Coffs Harbour and Lord Howe Island at the time?
A. I knew that Bronson was in Coffs Harbour as you say for a period of time, which is documented, in April. I knew he was also in the vessel at Lord Howe Island, those periods of time are documented. I knew he was on the boat in Fiji, those periods of time are documented. Prior to, I knew where he was at the time he purchased the boat… Whether I knew where he was prior to that I don’t know.
Q. You see Mr Hawley, Shakespeare claimed he gave the hash to Bronson well after 29 April didn’t he?
A. I don’t recall but if he did he obviously couldn’t have.” (T 1891)
and
“Q. His story was that both Bronson and the boat were in Wollongong during May and were in Newcastle during May of 1991?
A. I think that’s right.
Q. And you knew from the matters I previously raised with you that the boat was not in those areas during May?
A. Yes.
This is an acceptance that there was knowledge in the investigative team headed by the defendant Gordon that significant parts of at least one of the versions advanced by Shakespeare to the police were untrue.
Following the above cross-examination, counsel for the plaintiff further cross-examined the defendant Hawley concerning evidence that he had given at the committal proceedings to the effect that the movements of the Rakiah were “corroboration of Shakespeare’s story”. His answers in which he sought to explain how this could be were confused, at times evasive and, in my opinion, not frank. The following serves to illustrate this:
“Q. Have you got your committal evidence with you?
A. Yes.
Q. Can I take you to page 15, third last question, see you were asked this question:
‘Q. In relation to the boat, what was your concern in relation to the boat?
A. We’d been told that – certain things by the informant in relation to this matter, Robert Smith, in relation to this defendant, the movements of that boat, the Rakiah were corroboration of his story.’
Q. That person Robert Smith referred to in that answer was Danny Shakespeare, wasn’t he?A. Yes.
Q. His story was that both Bronson and the boat were in Wollongong during May and were in Newcastle during May of 1991?
A. I think that’s right.
Q. And you knew from the matters that I previously raised with you that the boat was not in those areas during May?
A. Yes.
Q. When you said to the Magistrate that the movements of the boat, that is the Rakiah, were corroboration of Shakespeare’s story, that answer was incorrect, wasn’t it?
A. No, I don’t believe it was.
Q. Which story of Shakespeare since there were two, at least two, which of those do you say you don’t agree with in relation to the proposition put to you by counsel?
A. I understand the question to be in relation to a response I made to the Coroner.
Q. The response you made to the Coroner was that the movements of the boat Rakiah were corroboration of Shakespeare’s story, and my question to you is which story?A. The general story I suppose.
Q. What do you mean by that, which general story?
A. In relation to his involvement with Harlum in relation to the existence of a number of people one of which being Bronson, in relation to the existence of boats and specifically with this boat, and its involvement in the whole thing
…
Q. Perhaps if I could ask, were you seeking by our answer at page 15, to which you have just referred, to convey to the Magistrate that the movements of the boat as independently ascertained corroborated the story that Shakespeare had told you linking Bronson with the defendant Nye?
A. What I was trying to say, bearing in mind that this is a response given 11 years ago, was that our concern, I was asked the question ‘What is you concern in relation to the boat’, and I have said we were told certain things by the informant in relation to this matter, in relation to this defendant, which was Bronson, the movements of the boat the Rakiah, was corroboration of his (Shakespeare’s) story” (T 1894-1895; parenthesis added);and:
“Q. What Mr Thompson is how does the movement of the boat as independently ascertained corroborate either of those (Shakespeare’s) stories.
A. It didn’t” (T 1896; parenthesis added).
and:
“Q. The movements of the boat did not corroborate his (Shakespeare’s) story, did it?
A. No” (T 1897; parenthesis added).
When it was suggested to him that the movements of the Rakiah contradicted the stories told by the police informant Shakespeare to explain the fact that the 100 kilograms of hashish had never been found, the defendant Hawley was not prepared to say other than that “they weren’t the same” (T 1897). At the time this evidence was given it impressed me as an attempt at evasion of the question, albeit a fairly poor attempt. The denials by the defendant Hawley that he had not been truthful to the Magistrate did not impress me and I do not accept them (T 1897).
In the diary complied by Inspector Wilson there is a note against the date 2 July 1991 that refers to Bronson taking the Rakiah to Papua New Guinea and mooring it in the main harbour. The note proceeds:
“Message to be placed in a Sydney newspaper approximately 6/7/91 for him to contact Bronson. Reason taken to PNG because Bronson has drug conn. there. No problem getting rid of dope.”
This information mirrors what was said by Shakespeare in a statement made by him on 16 July 1991 (exhibit T, tab 17, para 2). In that statement Shakespeare said that the advertisement was to be put “in the ‘Greetings Messages’ column in the Daily Telegraph”. This version of events differs fundamentally from an earlier version given by Shakespeare that the hashish had been given to Thurgar, not to Bronson and stored by Thurgar in the laundromat, not by Bronson on the Rakiah. Furthermore there is no evidence of any newspaper search by police at the relevant time, nor anything to indicate that any such advertisement ever appeared. On its face the story about the advertisement presents as fanciful, and the absence of any evidence as to search by police for an advertisement of the kind spoken of suggests the conclusion that they were of a like mind.
From the foregoing it is apparent that at the time of arrest and charging of the plaintiff there was no evidence to corroborate Shakespeare in relation to his assertions that the hashish had been given to Bronson, in Newcastle or elsewhere, that it had been taken by Bronson, in a dingy or otherwise, and put on board the Rakiah, that Bronson had been given a pistol that had been carried by the plaintiff at the time of the shooting, that the pistol was with Bronson on the Rakiah or even that 100 kilograms of hashish existed. Indeed the material available at the time of the arrest and charging of the plaintiff in essence negated these statements by Shakespeare. In these circumstances the story as told by Shakespeare would have been regarded by an ordinary person of ordinary prudence and caution as fundamentally flawed, unreliable, in a number of instances made up as he went along and changed from time to time to suit the exigencies of the questioning. Such conclusion should, in my opinion more readily have presented itself as obvious to a trained and experienced investigator. I am satisfied that it did. However accepting or believing in any particular version of events as told by Shakespeare has even more problems.
Shakespeare gave a detailed description of the movements that he engaged in with the plaintiff and Harlum on 20 May 1991. These were wholly inconsistent with alibi evidence provided by eight different people. All of this material was undoubtedly within the possession of the police, including the defendant, Gordon and probably others who were senior members of the Task-force Shylock by at least 29 July 1991, probably a little earlier. An examination of this evidence is undertaken below.
The police informant Shakespeare made a 46 page statement on 31 May 1991 in the presence of the defendant Gordon, the defendant Popplewell and another police officer. According to the time record it took only 30 minutes, that is between 11.10am and 11.40am to record this statement (Exhibit T Tab 4). In this statement Shakespeare recanted what he had previously said about leaving the two men who had been involved in the murder of Thurgar at lunchtime. Now he asserted that he had not been dropped off but that all three went to “near Centennial Park … after lunch” (Italics added). At first he fixed the time of this as “half past twelve or something” but later changed it to “half past one”. This is at variance with the statement made by a Park Ranger, Walker, who recalled that about two months before he made his statement on 30 July 1991 he had seen three males sitting in a car in Grand Drive, Centennial Park. Grand Drive is in Centennial Park, not near Centennial Park. This observation was made after he had completed his lunch, which he usually took between 1 and 2pm. He thought that the men may have been smoking marijuana because there was a lot of smoke in the car. He was unable to give a description of the occupants saying: “I can’t remember the description of the occupants, however, I remember the bloke in the front passenger seat had darkish scraggy hair about collar length” (Exhibit AM). He was unable to describe the face of this man or any of the other occupants. The ranger left the scene, drove around the park and then returned to Grand Drive, soon after which the vehicle that he had observed left Centennial Park. Except for the vehicle being blue and having three men in it the park ranger’s statement does not corroborate the police informant Shakespeare’s story in relation to the presence of the plaintiff near Centennial Park on 20 May 1991.
In his statement of 31 May 1991 Shakespeare claimed that he, the plaintiff and Harlum had later returned to the vicinity of Centennial Park where they met a detective by the name of Langres, who was said to be corrupt and who later left the police service. There is no corroboration of this and the matter does not seem to have been effectively followed up by the Taskforce.
In this same interview Shakespeare also said that he had been stabbed by the plaintiff at Newcastle shortly before the murder. This was said to be part of a process of intimidation by the plaintiff and Harlum to get Shakespeare to reveal what he had done with the 100 kilograms of hashish. However, it emerged in the course of the investigation that whilst Shakespeare had been stabbed, he had not been stabbed by the plaintiff. He had in fact been stabbed by another person, not shortly before the murder, but in or about October 1990. Thus yet another of the supposedly supporting surrounding circumstances was known by the police to be untrue.
In this statement Shakespeare also made reference to his mother as able to provide corroboration of his association with the plaintiff and Harlum. This was inconsistent with the statement of Mrs Nye, concerning the length of time that the plaintiff had known Shakespeare. Furthermore, when the police pressed him on this he retreated, as the following passage demonstrates:
“Gordon: All right. So, if we go and see your mother she’ll be able to substantiate ah …
Shakespeare: Oh, she’ll say I was there but she’s um blind in one eye and can’t hear, she wears a hearing aid.
Gordon: But ah she can see in one eye, can she see ah see you?
Shakespeare: Yeah, yeah.
Gordon: She’d see the other two people if you were with someone.
Shakespeare: Yeah, but she’d most probably tell ya nothing, you’d have to sort of get her in front of me and I’ll ask her the questions.” (Exhibit T Tab 4)
At least three things are apparent from this questioning. First, that when pressed Shakespeare backed off from his former statement; second, that Gordon gave every appearance of not believing him – and justifiably so. I am satisfied that he did not really believe Shakespeare’s assertions. In this context it is apt to recall the warning that had been given to Gordon by Detective Superintendent Harding about Shakespeare, the need to treat what he said with caution i.e. his lack of credibility, on the day after Gordon and Shakespeare had met at Port Kembla. The third thing that emerges is from the last answer above namely, that on the very first day the two met at Port Kembla, Shakespeare was contemplating that any meeting between the police and his mother should involve him asking the questions, in a situation in which he would be able to influence the answers that his mother gave; to use a colloquialism, to wise her up as to what he wanted her to say. Such a situation would itself have given rise in the mind of a person of ordinary prudence and caution to disbelief in the person who wished to engage in such a stratagem. I think it is probable that it had such an effect on the mind of the relevant police, including the defendant, Gordon.
This same statement contains a number of inconsistencies and recantations some of which would plainly indicate to an observer of ordinary prudence and caution, and should have so indicated to an experienced police officer, that Shakespeare was making a good deal of his story up as he went along. An example of this is to be found by comparing his various answers concerning the time at which Thurgar was supposed to be coming to the laundromat on the day of the murder and when and from what source this information came to the knowledge of Shakespeare. In one place he said that John Harlum told him (exhibit T, tab 4, page 24). Almost immediately after this he said that Harlum didn’t tell him and that is where the corrupt police officer, “Langres might have come in” (Exhibit T page 24). A little later he said that it was he, Shakespeare himself, who told the others that Thurgar was “not supposed to be there till ten to eight” (Exhibit T page 26). Shakespeare then described the discussion between the plaintiff and Harlum concerning the way in which they were going to deal with Thurgar, ie, “they were just gunna grab him and bring him over to where we were, me”. (Exhibit T page 26) This description led to a comment by Gordon that “… that’s ah a little bit hard to swallow”; as indeed it was. This remark by Gordon is a further indication of the improbability of Shakespeare’s story as then current to the mind of Gordon. It is indicative of a lack of belief on Gordon’s part.
In the same statement Shakespeare described what the plaintiff and Harlum were wearing. The plaintiff was said to be dressed in “brown and black, browny black slacks, black shoes um a white shirt, that was it”. Harlum was said to be wearing blue jeans, runners and a sloppy joe and when asked whether he was wearing anything else Shakespeare said: “yeah he had a um hat and a bandanna” (exhibit T, tab 4, page 31). This head dress is to be contrasted with the “Andy Capp” type of head dress previously referred to. Although at first blush this may be regarded as a relatively minor discrepancy it assumes some significance because of the statements that had been made earlier by some of the independent witnesses who were at the scene of the shooting.
Shakespeare also said in this statement that it was not until they all arrived at Blacktown that he learnt that Thurgar had been shot. This knowledge was said by Shakespeare to have been conveyed to him “when we got back to the house at Blacktown”. He was then asked what was said, and replied:
“They told me that Thurgar wouldn’t ? (not decipherable) up so they fuckin’ blasted him”.
Gordon: Sorry?
Shakespeare: They, they blasted him, then they hassled me where would he hide the dope. They, they believed that I didn’t have it then, they knew he had it” (exhibit T, tab 4, pages 33-34).
This is to be contrasted with what Shakespeare had said in his first statement namely that he didn’t know anything about the shooting until the next day (exhibit T, tab 1, page 2), a claim that was confirmed in his second statement (exhibit T, tab 2, Q 45). The improbability of the version told by Shakespeare is further highlighted by the fact that, although he asserted the hashish had been “ripped off” in February 1991, the plaintiff and Harlum did not become aware of this until about three weeks before 31 May 1991 (exhibit T, tab 4, page 40). The basis on which they are said to have learnt about the stealing of the hashish is quite inconsistent with the statement made by Shiralee Dadd (exhibit W) and by Chris Peak (exhibit X).
Former Detective Hawley painted the plaintiff’s arrest as if it was a calm event. He denied that the plaintiff was screamed at or yelled at or shouted at in his presence. However, the very circumstances surrounding the plaintiff’s arrest bespeak a high state of excitation on the part of the police who were involved. It was quite an event. It was not the sort of circumstance in which calm could be expected to prevail. I do not think that it did. I find that it is not credible that at his arrest the plaintiff was told “We are making enquiries in relation to the death of Roy Thurgar” (T1866) as the defendant Hawley deposed. In my judgment the scene was very much as deposed to by the plaintiff.
The arrest of the plaintiff that was effected by police officer Whittaker and was taken over very quickly by the then Detectives Barnett and Hawley, was for murder. It was only later when the plaintiff was back at the Major Crime Squad premises in Sydney that he was told that he was going to be charged with murder, conspiracy to supply a prohibited drug and offences relating to the weapons and drugs found at the premises during the search that was conducted by the police. His arrest for murder was, as I have held, not justified. Nor was his arrest for the drug conspiracies with which he was later charged.
The circumstances of his arrest at Upper Colo fall within a category that is apt to attract both aggravated and exemplary damages. Those circumstances persisted until he was charged later the same day, not only with murder and the conspiracies relating to the 100 kilograms of hashish, but also with possession of illegal firearms and of a prohibited drug. There is no doubt that illegal firearms and a quantity of prohibited drug were found on his premises subsequent to his initial arrest that was effected somewhere around 7.00am. However, no words of separate arrest were uttered to him in respect of the firearms offences or the possession of cannabis. The behaviour involved in the arrest of the plaintiff was excessively violent, high handed and unnecessarily added to the insult, humiliation and impact on him of his arrest and detention.
The plaintiff was initially refused bail by the officer in charge of police at the station where he was charged and was again refused bail by a Magistrate on 25 July 1991. The damages in respect of his wrongful arrest and false imprisonment relate to a limited period. I fix such period as that between the time of his arrest and the time he was charged at the Police Centre, Surry Hills. This is a period of some nine hours. However they included hours of terror. For this period, there should in my opinion be an award of $25,000 by way of compensatory damages. Furthermore, as emerged from the evidence of Dr Phillips, the events of that day had ongoing effects.
In February 1998 the plaintiff was examined by a consultant psychiatrist, Dr Jonathan Phillips. He took a history from the plaintiff, noted his mental state, formed an opinion in relation to the plaintiff and prepared a report (exhibit U). A number of his observations in relation to the plaintiff were quite positive. Dr Phillips had the benefit of a report from the plaintiff’s general practitioner, Dr Fisher, who had seen the plaintiff on eight occasions between 3 August 1993 and 17 October 1995. The plaintiff was diagnosed by Dr Fisher as suffering from post-traumatic stress disorder in consequence of the events to which he had been subjected as a result of his arrest and imprisonment.
Dr Phillips noted the events on the day of the plaintiff’s arrest, the media interest and his subsequent frightening time in prison. He referred to a number of psychological symptoms that the plaintiff had displayed whilst in the Remand Centre a Long Bay Goal. He opined that the plaintiff’s relationship with his wife had “failed probably as a result of pressures of his imprisonment”. He also noted the adverse effects of such imprisonment on his relationship with his son and recorded the fact that the plaintiff “fears that police will eventually kill him”.
Dr Phillips diagnosed the plaintiff as suffering from an adjustment disorder with mixed anxiety and depressed mood (DSM IV 309.28). He said that ”Mr Nye has lost self esteem and self respect and hope for his future”. He sheeted this home to the events of 24 July 1991, as an initiator and thereafter to those events which followed. He expressed the view that the plaintiff’s prognosis was relatively poor and that the plaintiff would probably continue to experience his current symptoms for the rest of his life.
Dr Phillips saw the plaintiff again in February 2000 and reported in respect of the consultation in August 2000 (exhibit U). On this examination Dr Phillips found that the plaintiff remained angry about the charge of murder that had been laid against him and that it remained on his record despite the fact that he had been found not guilty. An examination of his criminal history as printed out on 29 March 2000 confirmed that the charge of murder and the two charges of conspiracy to supply a prohibited drug indeed remained on his record (exhibit A).
The history given by the plaintiff to Dr Phillips at the consultation in February 2000 presents a sad and sorry picture. It reveals the plaintiff as a virtual recluse who is agitated, unable to control his ruminations, fearful for the future and suffering from memory difficulties. Dr Phillips thought there had been an evolution of the plaintiff’s symptoms that had been triggered by the events in which he had been involved, more especially those of 24 July 1991. He expressed the opinion that the plaintiff’s capacity for pleasure in life was much reduced and his prognosis poor.
In his oral evidence Dr Phillips detailed the treatment programme that might assist the plaintiff. It usually requires ten to twenty consultations with a success rate of about seventy percent. However where a patient is over 40, as the plaintiff was, the success rate of the treatment programme drops.
The end point of the doctor’s evidence in chief was that his view remained the same as expressed in his reports notwithstanding the fact that he had been informed that the plaintiff had what he described as a “pre existing vulnerability” (T 602).
Dr Phillips was cross-examined about the extent of his knowledge of the antecedent psychiatric history of the plaintiff. He informed the court that he had not obtained any history of psychiatric problems, other than that the plaintiff had been examined by a psychiatrist or psychologist at Long Bay (T 612). On this basis he viewed the plaintiff as a man without any prior psychiatric history. When that history was put to him he pointed out that the bulk of the plaintiff’s psychiatric admissions were through his teenage, adolescent and early adult years (T 615). He was properly asked whether a conclusion based on certain premises would change if the premises were changed. To this he answered:
“It may change the conclusion. It might probably change the conclusion. On the other hand it may not” (T 618).
He was then asked if the plaintiff’s prior psychiatric history may be of relevance diagnostically and it was suggested that it could cast doubt on his conclusion that the disorders that he had diagnosed arose from the police raid. Dr Phillips said:
“A. Well, taking the matter simply, the answer has to be yes” (T 218).
He was then asked what he meant by “taking the matter simply”. To which he replied:
“A. Well… If one has a disorder in early life that that diagnosis persists and you will be able to make the diagnosis sequentially over a number of years.
The more appropriate understanding of this is that a person can have an early disorder which is self limiting or where there is a marked reduction in symptoms but where that disorder leaves a psychological scar… it makes the person vulnerable later in life. The person because of an earlier experience travels on vulnerable but not necessarily symptomatic then comes another trauma and the person then develops psychiatric symptoms” (T 619).
When pressed by senior counsel for the defendants as to whether he could “say confidently” that the process just referred to was the way the plaintiff’s condition had developed, Dr Phillips said “I can not state the level of confidence you ask” (T 619). However he conceded that, had he known that prior to his arrest the plaintiff was not in normal employment but was making his living as a drug dealer, such knowledge would cast doubt on his diagnosis (T 620).
In the final analysis Dr Phillips expressed the view that:
“…the raid is the sentinel event which caused him to decompensate with a cascade of symptoms initially in the depressive area and at least by 2000 in the post traumatic stress disorder area. I do not think that the selling of leaf marijuana for a period of one year or thereabouts would be the cause of post traumatic stress disorder;
Q. …You referred to the raid. Mr Temby asked you about that. In terms of what the plaintiff has expressed to you about his concerns, was there an element which referred not just to the raid but to the fact that he was wrongly accused and spent some 15 or 18 months in gaol?A. Yes, that is so.
“Q. You may not be able to split this up, and if you can’t please tell me. …as you see it, is that all rolled into one in terms of impact on him, or is there one component that is the raid and one component that is the 15 or so months of imprisonment?
A. It’s very difficult to make the split. I believe the raid because of the acuteness of it… as the history was given, was the sentinel event. On top of that, and I include right through to the business of charging, on top of that there was a period where on the history he was fearful about a number off matters, and that would add, but the sentinel issue in my view was the raid as I called it” (T 624).Dr Philips defined the “raid” to which he had referred in his reports and oral evidence as the events at Upper Colo on 24 July 1991 and the subsequent events that day.
The defendants did not call any psychiatric evidence to contradict Dr Phillips.
The causes of psychiatric symptoms are often difficult to determine. This is particularly so where a person has experienced antecedent psychiatric problems. The plaintiff had experienced such problems and they left a psychological scar that made him vulnerable to psychological trauma. He had, however, been in a stable relationship with Mrs Nye for some twelve years prior to his arrest. There was no suggestion that, prior to 24 July 1991, he was suffering from any of the symptoms of which he complained to Dr Fisher and Dr Philips and in respect of which he had sought treatment after his release. I accept the view expressed by Dr Philips that the events of 24 July 1991 were the trigger for his decompensation. I also accept that his period in prison, with its attendant anxieties, fears and frustrations played a part in producing the psychiatric disorders from which the plaintiff was suffering. I further accept that the breakdown of the relationship between the plaintiff and his wife was a consequence of the psychiatric disorders that Drs Fisher and Phillips diagnosed and come out of his experiences on 24 July 1991 and subsequently. Since part of the cause of the plaintiff’s psychiatric disorder arises out of the wrongful arrest and false imprisonment and part arises out of the malicious prosecution, there should be an apportionment of the damages related to the plaintiff’s psychiatric condition between the two causes of action. Neither of the plaintiff’s doctors nominated a percentage apportionment. However, the court has to do the best it can on the available material. I would apportion 75% to the action for wrongful arrest and false imprisonment and 25% to the action for malicious prosecution.
The psychiatric condition that the plaintiff has developed has fundamentally changed his life for the worse. His sense of self worth has been diminished. He is sad and depressed, socially isolated, remains angry, is fearful and has difficulties with his memory (exhibit U). His psychiatric condition has adversely affected him for more than a decade. Such matters are difficult to assess. There is no conventional sum recognised by the law for compensatory damages for such a disorder. Insofar as aggravated damages are concerned they are at large. I am of opinion that a figure of $100,000 would be appropriate as compensatory damages. These damages will have to be apportioned between the plaintiff’s claim for wrongful arrest and false imprisonment on the one hand and malicious prosecution on the on the other, in the proportions referred to above. I will deal with aggravated damages when I have considered the compensatory damages that should be awarded in respect of the plaintiff’s deprivation of liberty as a consequence of his being prosecuted for murder and conspiracy.
The plaintiff is also entitled to damages for the tort of malicious prosecution. He is entitled to damages that will compensate him for the period that he was in prison. That period commences at the time of his first refusal of bail, through his remands in custody, up until the time he was acquitted of the murder of Thurgar and the drugs conspiracies relating to the 100 kilograms of hashish. They are damages that are payable by the defendant Gordon and the DPP.
The behaviour of the defendant Gordon and of the DPP was in serious derogation of the plaintiff’s rights. The defendant Gordon did not believe in his guilt but caused him to be prosecuted nonetheless. The DPP took over the prosecution and proceeded with it not because he thought the plaintiff was guilty but in order to bolster prosecutions against other defendants. Such an approach to the rights of a citizen is high handed and unacceptable. In my opinion such behaviour sounds in both aggravated and exemplary damages, in addition to the general damages that flow from the deprivation of liberty, and all that such deprivation entails.
The plaintiff spent just short of sixteen months in prison. That period was unpleasant. Any period of imprisonment will, of course, be unpleasant. However the imprisonment of the plaintiff was particularly unpleasant. The first eight days were spent at the Police Centre (T 102) where he shared a cell with Harlum for seven of those days. During this time he had but little conversation with his cell mate because they were concerned that there was a microphone in the roof. Whether there was or was not a microphone in the roof was not established by the evidence. Moreover during the time that he was in custody at the Police Centre he was subjected to a degree of taunting, it being suggested that Thurgar’s friends would be waiting for him at Long Bay (T 102).
He was then transferred to the remand section of Long Bay Gaol (T 102) where he and Harlum were initially separated. However they were later placed in the same cell, where they remained until the trial. The plaintiff said that when he first went to Long Bay Gaol “it was a very touchy situation” in relation to protection and initially each stood guard whilst the other took a shower. The other prisoners did not speak to them for the first five or six days and they were told that they were going to be stabbed (T 103). This threat was thought to be real by the prison authorities because they were called up by the Governor of the prison, told that an attempt would be made on their lives and were advised to “go on protection”. However the plaintiff declined this on the basis that to go into protection “would be admitting to guilt and I’m not an informant. I’m not a child molester, nothing like that. I dare not go on protection” (T 103). Although things settled down somewhat after that, the plaintiff was “always on guard” for his safety (T 104). This persisted until he was acquitted in November 1992 when he was released on bail (T 107). During the time he spent in prison the plaintiff was not only fearful but also ruminated on the injustice to which he had been subjected. He had a lot of time to do so.
When the plaintiff was giving evidence about the effect on him of the dangers that he was subjected to in prison and about his separation from and concern about his family during this period he became quite emotional. I noted his reaction at the time and was convinced that it was genuine. Furthermore I thought it mirrored some of the feelings that he had experienced whilst in custody.
During his time in prison the plaintiff also experienced feelings of extreme anger and frustration. This was because he knew he had not killed Thurgar, indeed he had nothing to do with his killing (T 107). These feelings persisted even after his release and were not helped by the fact that none of the defendants Gordon, Popplewell, Barnett, Hawley or the DPP spoke to him after his acquittal or offered any apology to him. Until the time he gave his evidence the plaintiff’s reaction was that he could never “forgive the police for what they done to us” (T 108). He said that the events “rule my life” and that he thinks “of nothing but the way the police arrested us, destroyed my life and that of my family”.
All of these matters call for an award of compensation.
Counsel for the defendants has submitted that the damages that might otherwise have been awarded in respect of this period should be reduced because the plaintiff would not have been granted bail in respect of the charges relating to the possession of illegal firearms and the possession of some 2.25 kilograms of cannabis leaf. Although this submission has some force a perusal of the documents relating to bail (exhibits CB and 4) suggest that bail was successively refused because of the murder charge that was a “serious matter concerning violence”, because there was “no presumption of bail for conspiracy (drugs)” (exhibit CB) and because of the plaintiff’s prior convictions The other charges do not seem to have been the subject of any decisions as to bail. On 29 November 1991 the plaintiff applied for bail when the committal proceedings were about to stand adjourned until 10 February 1992 (exhibit AQ). The application was for bail in relation to the Thurgar murder and the two drug conspiracies. Bail was opposed by Mr Trembath on behalf of the DPP. In relation to the plaintiff he said “this accused of course is charged with murder, they’re serious offences there’s no presumption (of bail) and in Mr Nye’s case he does have a substantial record” (exhibit AQ, 29 November 1991, p 14). Bail was refused for the plaintiff in respect of the murder charge because “violence occurred” and in respect of the conspiracies because “there’s no presumption to bail” (ibid, p 16). From the foregoing I conclude that the detention of the plaintiff in gaol and the refusal of bail to him related to the charges of which he was later acquitted and that his period of detention forms part of the damages in the plaintiff’s claim based on malicious prosecution.
Liberty is one of mankind’s most important right. To deprive a man of his liberty is very serious. In one sense the right to liberty is priceless. However the court must determine an amount that will compensate the plaintiff for the loss of such right. I am conscious that the plaintiff has already been compensated for the economic consequences that flow from his imprisonment. However the consideration of deprivation of liberty is a matter over and above the economic compensation that has already been awarded. There is no standard. However, in my opinion, a figure of $100,00 would be appropriate compensation for the deprivation of liberty for sixteen months which the plaintiff suffered.
In addition to the compensatory damages which have been awarded to date there should be aggravated damages. These should recognise the sense of humiliation, frustration and anger that the plaintiff experienced as a result of his arrest and wrongful imprisonment. In my opinion an amount of $200,000 should be awarded as aggravated damages. This amount should be apportioned equally between the two causes of action on which the plaintiff has succeeded.
B. Exemplary/Punitive Damages
The behaviour of the defendants Gordon and Barnett in causing and effecting the arrest and detention of the plaintiff on 24 July 1991 was not only high handed but in my opinion showed a contumelious disregard for the rights of the plaintiff. It was behaviour that was conscious. It was behaviour that should be punished. The award of exemplary damages should be such as to teach the wrongdoers that such a tort will not be tolerated in our society. It should reflect the need for both moral retribution and deterrence. The defendants and others must be made aware that conduct of such a kind is not to be tolerated. The same is true in relation to the conduct of the defendant Gordon and the DPP in instituting and maintaining the prosecution of the plaintiff. The exemplary damages that are awarded should be such as to sting.
There is little guide for such damages. As set out above they are at large. In this context it should be remembered that in Excel Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd a jury awarded $400,000 as exemplary damages in a case in which the wrong done to the plaintiff was to spike the plaintiff’s underground petrol tanks, so as to prevent the plaintiff from using the tanks in competition with the defendant. On appeal the Court of Appeal reduced the award of exemplary damages to $150,000. On further appeal to the High Court Gibbs CJ with whom Mason and Wilson JJ agreed, thought that the award of $400,000 by the jury was excessive but that the amount of $150,000 that had been substituted by the Court of Appeal was not excessive. Interestingly Murphy J took the view that the appeal should be allowed and the jury’s verdict should be restored. Brennan J was of the view that it could not be said that the award of $400,000 was not appropriate to provide an effective deterrent against the defendant. Thus, although the amount of $400,000 was held by the majority to be excessive, the jury’s verdict and the decisions of the two dissenting judges are nevertheless worth noting. So too is the fact that the figure of $150,000 that was ultimately awarded for exemplary damages accorded with the values of 1984. Those values have changed in the last 20 years.
Senior counsel for defendants properly conceded that should exemplary damage be awarded they should be substantial. Counsel for the plaintiff has submitted that the award of exemplary damages to the plaintiff should total many millions of dollars. This was based on the proposition that the worth of the defendant should be looked at in order to know what it was by way of exemplary damages that would sting the defendant. For this purpose the plaintiff put before the court the budget speech made by the Treasurer of New South Wales in relation to the 2003-2004 budget showing, inter alia, the total expenditure of the government and the amount to be expended on the New South Wales Police Service. In addition reference was made to a number of cases in other countries in which large awards of exemplary damages had been made. In one case the amount received as total compensation was $C10,000,000. In respect of a plaintiff who had been wrongly convicted of murder and had served 23 years in gaol. One case, in 2002 involved exemplary damages of $C300,000 in a case in which the plaintiff had been maliciously prosecuted for murder. All of these cases were in Canada. I do not think that the achievement of the purposes of an award of exemplary damages in a case in New South Wales is to be determined by reference to what has been done in another country.
In resolving the tension between the need for adequate punishment, retribution and deterrence on the one hand and the references by appellant courts to reasonableness and moderation on the other, I am of opinion that the invitation extended by counsel for the plaintiff to be awarded many millions of dollars in exemplary damages should be resisted. Whilst it is true that the State of New South Wales will pay the damages, either because those against whom they are awarded are or were officers of the state or because of the vicarious liability of the State as a defendant, I do not think it appropriate to award exemplary damages by reference to a percentage of the budget of the State of New South Wales. To do so would in my opinion produce an outcome that would be excessive.
What is needed is the award of a sum that will sting, a sum that will cause notice to be taken of what has occurred, of the wrongs that have been done to the plaintiff and of the disapprobation of the court. In the light of these considerations I am of opinion that the amount that is appropriate by way of exemplary damages is $750,000 and this should be apportioned as to 25% to the claim based on wrongful arrest and false imprisonment and as to 75% to the claim based on malicious prosecution.
The damages which have been awarded to the plaintiff can be summarised as follows:
(i.) In respect of the tort of malicious prosecution:
(a.) $100,000 for economic loss;
(b.) $60,000 as interest on such economic loss;
(c.) $100,000 as compensation for imprisonment;
(d.)$100,000 being 50% of the aggravated damages awarded;
(e.) $25,000 as the appropriate proportionate part of compensation
for psychiatric injury;(f.)$562,500 being 75 percent of the exemplary damages awarded.
The total of these amounts namely $947,500 is the amount payable as damages by the defendants Gordon and the DPP.
(ii.) In respect of wrongful arrest and false imprisonment.
(a.)$25,000 as compensation for the arrest and period of detention on 24 July 1991;
(b.)$75,000 as the appropriate proportionate part of compensation for psychiatric injury;
(c.)$100,000 being 50 percent of the aggravated damages awarded;
(d.)$187,500 being 25 percent of the exemplary damages awarded.
The total of these amounts namely $387,500 is the amount payable by the defendants Gordon and Barnett.
The total amount awarded to the plaintiff is therefore $1,335,000, and in respect of which sum the defendant State of New South Wales is vicariously liable.
For the foregoing reasons there will be verdicts as follows:
(i) $947,500 against the defendants Gordon, the DPP and the State of New South Wales in respect of the plaintiff’s claim based on malicious prosecution.
(ii) $387,500 against the defendants Gordon, Barnett and the State of New South Wales in respect of the plaintiff’s claim based on wrongful arrest and false imprisonment.(iii) In favour of the defendants Popplewell and Hawley.
There will be judgments accordingly.
I order the defendants Gordon, Barnett, the DPP and the State of New South Wales to pay the plaintiff’s costs.
There will be no order as to the costs of the defendants Popplewell and Hawley.
The plaintiff is to be at liberty to enter judgment forthwith.
**********
Note: paragraphs 304(i), 305 and 306(i) have been amended pursuant to the slip rule.
LAST UPDATED: 09/02/2004
- AGLC
- Nye v State of New South Wales [2003] NSWSC 1212
- Case
- [2003] NSWSC 1212
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the police had a proper motive in making the arrest, and if so, whether the plaintiff could prove malicious prosecution. The primary issue was whether the police acted with an improper motive, contrary to section 352(2) of the Crimes Act 1900. The court also considered the onus of proof, particularly whether the plaintiff needed to prove malice beyond reasonable doubt, or if a balance of probabilities was sufficient. Additionally, the court had to address the implications of justification under the Act and the standard of proof required to establish it.
The court held that the plaintiff must prove malicious prosecution by a balance of probabilities, not beyond reasonable doubt. The court found that there was sufficient evidence to suggest that the police acted without a proper motive, thereby satisfying the plaintiff's burden. The court determined that the police had not acted in accordance with section 352(2) of the Crimes Act 1900, as they had not acted in good faith. The court concluded that the plaintiff had suffered damages as a result of the wrongful arrest and was entitled to compensation, including aggravated and exemplary damages.
The court ordered the State of New South Wales to pay the plaintiff a sum for general damages, aggravated damages, and exemplary damages. The precise amount was left to be determined in further proceedings. The court also noted that the Director of Public Prosecutions would not be held liable as the actions of the police did not reflect the DPP's instructions.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.