SB v The State of New South Wales

[2016] NSWDC 189

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	SB v The State of New South Wales [2016] NSWDC 189
Hearing dates:	19 – 23 October 2015; 17 – 18, 22 February 2016; and 31 March 2016. Written Submissions: 7 March 2016 (Plaintiff); and 23 March 2016 (Defendant). Supplementary Written Submissions: 21 April 2016 (Plaintiff); and 22 April 2016 (Defendant)
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict and Judgment for the Plaintiff in the sum of $21,662
Catchwords:	INTENTIONAL TORTS – WRONGFUL ARREST – FALSE IMPRISONMENT – whether arrest and detention for lawful purpose; MALICIOUS PROSECUTION – absence of reasonable and probable cause – failure to obtain corroborative evidence and make further inquiries – malice – improper purpose – maintenance of proceedings – application of principles – damages
Legislation Cited:	Crimes Act 1900 (NSW) ss 61J(1), 61M(1), 61N(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 49(1)(c) Director of Public Prosecutions Act 1986 (NSW) s 9(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99(3) Uniform Civil Procedure Rules 2005 (NSW) rr 15.1, 15.4
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500 Clavel v Savage [2013] NSWSC 775 Clavel v Savage [2015] NSWCA 61 Dare v Pulham (1982) 189 CLR 658 Dowse v State of New South Wales [2012] NSWCA 337 Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17 George v Rockett (1990) 170 CLR 104 Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 234 HD v State of New South Wales [2016] NSWCA 85 Hussien v Chong Fook Kam [1970] AC 942 Jones v Dunkel (1959) 101 CLR 298 JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd [2003] NSWCA 66 Kuhl v Zurich Financial Services Limited (2011) 243 CLR 361 Lamag Holdings Pty Ltd v Reylan Pty Ltd (NSW Court of Appeal, unreported, 19 November 1992) Manly Council v Byrne and Anor [2004] NSWCA 123 Nestle Limited v McDougall [1998] NSWCA 158 Nuhic v Rail and Road Excavations (1972) 1 NSWLR 204 Payne v Parker (1976) 1 NSWLR 191 Pupo v Pupo [2015] NSWSC 1633 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Ruddock v Taylor (2003) 58 NSWLR 269 Sahade v Bischoff [2015] NSWCA 418 Sangha v Baxter (2009) 52 MVR 492 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 State of New South Wales v Abed [2014] NSWCA 419 State of New South Wales v Delly (2007) Aust Tort Reports 81 – 920 State of New South Wales v Landini [2010] NSWCA 157 State of New South Wales v Riley (2003) 57 NSWLR 496 State of New South Wales v Zreika [2012] NSWCA 37 Thomas v State of New South Wales [2008] NSWCA 316 West v Government Insurance Office (NSW) (1981) 148 CLR 62 Zaravinos v State of New South Wales (2005) 214 ALR 234 Zreika v State of New South Wales [2011] NSWDC 67
Texts Cited:	JD Heydon, Cross on Evidence (LexisNexis, 10th ed, 2014)
Category:	Principal judgment
Parties:	SB (Plaintiff) The State of New South Wales – New South Wales Police (Defendant)
Representation:	Counsel: Mr D Campbell SC with Mr J Sheller (Plaintiff) Mr D Villa (Defendant) Solicitors: Greg Walsh & Co (Plaintiff) I V Knight – Crown Solicitor’s Office (Defendant)
File Number(s):	2014/137200
Publication restriction:	Pseudonym order made in relation to SB, R, and CB. Attention is drawn to the provisions in Part 2, Div 3A of the Children (Criminal Proceedings) Act 1987 (NSW), and in particular, s 15A.

Judgment

Table of Contents
Introduction	[1] – [2]
Pleadings	[3] – [7]
WITNESSES	[8] – [22]
FACTS
The relationship between the Plaintiff and the Complainant’s mother, R	[23] – [32]
The complaint	[33] – [37]
Interview with CB	[38] – [39]
Plaintiff’s relationship with R following complaint	[40] – [41]
Background to the surveillance device warrant application	[42] – [51]
The application for a surveillance device warrant	[52] – [68]
Drafting surveillance device warrant	[69] – [74]
Interface	[75] – [78]
Detective Chaplin’s contact with R	[79] – [94]
Pre-arrest and preparation of the Facts Sheet	[95] – [97]
Arrest	[98] – [102]
Merrylands Police Station	[103] – [113]
Interview	[114] – [117]
Other questioning	[118] – [121]
Charges and ADVO	[122] – [126]
No bill and withdrawal of the ADVO	[127] – [128]
WRONGFUL ARREST AND FALSE IMPRISONMENT	[129] – [139]
MALICIOUS PROSECUTION
Ingredients	[140] – [141]
Setting for determining absence of reasonable and probable cause	[142]
Absence of reasonable and probable cause	[143] – [150]
What does the Plaintiff say?	[151] – [153]
What was Detective Chaplin’s knowledge?	[154] – [171]
The Plaintiff’s pubic hair	[172] – [174]
Consistency between the statements of the Complainant and CB	[175] – [184]
What were the circumstances leading to the commencement of proceedings?	[185] – [192]
Other factors not tested	[193] – [195]
Detective Chaplin’s assessment	[196] – [219]
Malice	[220] – [225]
Complainant’s statement as to circumcision not put to the Plaintiff in the ERISP	[226] – [230]
Complainant’s description as to circumcision not revealed to the Plaintiff in response to his request	[231] – [252]
Whether Detective Chaplin maintained the criminal proceedings after 7 June 2012 and the apprehended domestic violence order	[253] – [262]
DAMAGES	[263] – [302]
ORDERS	[303]

Introduction

1. On 6 June 2012, the Plaintiff was arrested and later charged with 16 sexual offences. An interim apprehended domestic violence order (“ADVO”) was sought and obtained against him. Bail was refused and he was imprisoned until 10 April 2013.

2. On 21 June 2013 all charges were no billed and on 17 September 2013, the interim ADVO was withdrawn. Arising out of those events, the Plaintiff brings these proceedings.

Pleadings

3. On 19 October 2015, leave was given to the Plaintiff to file an Amended Statement of Claim in Court. That pleading brings proceedings against the Defendant as the party responsible for the acts of Detective Troy Chaplin, an officer of the NSW Police. [1] The Defendant conceded that it was vicariously liable for any torts committed by Detective Chaplin. [2] The Amended Statement of Claim makes allegations as follows:-

1. Wrongful arrest and false imprisonment commencing on 6 June 2012, with the false imprisonment resulting in loss of liberty for 10 ½ months; [3]

2. Malicious prosecution in respect of the charges laid on 6 June 2012 and continued until 21 June 2013; [4] and

3. Malicious prosecution of an ADVO order obtained on 6 June 2012 which remained in place until 17 September 2013. [5]

   1. Amended Statement of Claim filed on 19 October 2015 at [2] – [3]

   2. Defence (to the Statement of Claim as first filed) at [3]

   3. Amended Statement of Claim at [6]

   4. Amended Statement of Claim at [9] – [24]

   5. Amended Statement of Claim at [25] – [39]

4. The Defendant asserted that at the time of arrest, Detective Chaplin suspected that the Plaintiff had committed an offence and further, that there were reasonable grounds for that suspicion, and it was reasonably necessary for one or more of the purposes identified [6] in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). [7] It was further asserted that from 7 June 2012, the Plaintiff’s imprisonment was a result of a judicial act. [8]

   6. Defence at [6](a) – (d)

   7. Hereinafter referred to as the “2002 Act”

   8. Defence at [6](e)

5. The Plaintiff submitted that no facts were pleaded or particularised to outline the basis of Detective Chaplin’s suspicions, the reasonable grounds for holding any suspicion or the need for arrest. [9] Whilst this is correct, no complaint was raised during the trial and in particular, no complaint was made as to a failure to comply with UCPR 15.1 or 15.4.

   9. Plaintiff’s Written Submissions dated 7 March 2016 at [19]

6. In respect of the malicious prosecution claim relating to the sexual offences, [10] the Defendant denies that it prosecuted the Plaintiff and says that from 7 June 2012, the Director of Public Prosecutions took over the prosecution. [11] Further, the Defendant denies an absence of reasonable and probable cause for the institution and maintenance of the charges against the Plaintiff. [12] It also denies malice in bringing the charges. [13]

   10. Hereinafter “ the first malicious prosecution claim”

   11. Defence at [19](a) – (b)

   12. Defence at [19](c)

   13. Defence at [20]

7. In relation to the claim of malicious prosecution arising from the ADVO, [14] the Defendant denied that it initiated and maintained the proceedings against the Plaintiff, denied that there was an absence of reasonable and probable cause for the institution and maintenance of the proceedings for an ADVO, and further, denied malice. [15]

   14. Hereinafter “the second malicious prosecution claim”

   15. Defence at [34] – [35]

WITNESSES

8. The matter proceeded with the Plaintiff, his brother and Dr Roberts giving oral evidence in the Plaintiff’s case. Understandably the Plaintiff has a grievance over what had occurred and saw these proceedings as a means of vindication. He deliberately decided not to pursue psychological treatment in order to allow him to remain focussed on bringing to account those who he considered had wronged him. [16]

   16. T 94.24 – .38

9. In the Defendant’s case evidence was given by Detective Troy Chaplin and Senior Constable Mark Scott-Mahjet. Cross-examination of Detective Chaplin commenced on 22 October 2015, continued on 23 October 2015 and was resumed on 18 February and 22 February 2016. The delay related to a contest over a disputed claim as to the privilege of documents produced by the Office of the Director of Public Prosecutions [17] on subpoena. This was determined by Maiden DCJ on 25 November 2015. When the matter resumed many of the lines of questioning that had been put to Detective Chaplin on the earlier occasion were canvassed again, although some of the responses were at variance with those he had earlier given. Ultimately, counsel for the Plaintiff submitted:-

“That takes me to the constable because at the end of the day your Honour is going to be called upon to have to make an evaluation of his evidence and it is our respectful submission that by the time he had concluded giving his evidence it had been clearly established that he was an unsatisfactory witness who had given internally inconsistent evidence on material matters. Indeed, where he was cornered in certain respects, falsified his evidence and had in certain respects falsified it for the purpose of trying to explain the unexplainable.

He was also a witness who prevaricated and who evaded and who tried to avoid answering questions on matters, with respect, clear questions that were put to him and he was a witness who when confronted with inconsistencies was disinclined to face up to the inconsistency but rather tried to talk his way out of the dilemma in which he found himself.  I will give your Honour some illustrations of this when I take your Honour to his evidence in a moment.

As I said at the outset the remarkable thing in the defendant's submission is knowing that there is a head on attack on that witness there's nothing at all said in their submissions about his credibility.  What we say the result of the matters that I have just put to your Honour is that your Honour would not accept what he says unless it is supported by other evidence that your Honour does accept …” [18]

17. Hereinafter the ”ODPP”

18. T 519.18 – .37

10. The proposition advanced by the Plaintiff in relation to Detective Chaplin’s evidence is contrary to the general views on witnesses’ credibility expressed in Sangha v Baxter. In that case, Basten JA stated:-

“There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44] (emphasis added).”[19]

19. (2009) 52 MVR 492, 526 (Basten JA with Handley AJA agreeing); see also: SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [115] (Ward JA with Macfarlan JA and Sackar J agreeing)

11. Detective Chaplin had many questions directed to his state of mind when doing things four years ago in a lengthy and at times, repetitive cross-examination. There was also an interval of over three months between the commencement and completion of cross-examination. I have borne this in mind. As these reasons will elaborate, there are areas where I have found Detective Chaplin’s evidence to be unreliable. In addition some of the records he prepared during his investigation were inconsistent. As these reasons demonstrate criticism can be directed to some of his actions. He himself conceded that with the benefit of hindsight he could have done some things better.

12. In the fact finding process I have considered Detective Chaplin’s evidence in the context of the principles usefully summarised by Hallen J in Pupo v Pupo. [20] I accept that alongside the prosecution of the charges and the advancement of the ADVO he had an understandable concern for the safety of the Complainant and her family. I also accept that he laboured under some difficulties in assembling evidence from the Complainant and her mother, R.

    20. [2015] NSWSC 1633 at [98] – [116] (Hallen J)

13. The Plaintiff also submitted that the way in which Detective Chaplin gave his evidence and the matters about which he gave his evidence left the state of the evidence in a situation which “mandated’ the calling of R. [21] The Plaintiff contended that the obligation to call R and her unexplained absence gives rise to the strongest of Jones v Dunkel [22] inferences that could reasonably be drawn. [23]

    21. T 518.14 – .18

    22. (1959) 101 CLR 298

    23. T 518.31 – .35

14. The submission was put:-

“The rule goes on to point out how the rule only applies where a party is required to explain or contradict something and in this case, your Honour, that's why I started how I did.  The state of Constable Chaplin's evidence and the tact that was made on it is such that where there was capacity, as it were, to affirm or corroborate what he was saying by this lady giving evidence then the failure for her to give that evidence unexplained gives rise to the Jones v Dunkel type inference that we seek.“ [24]

24. T 519.10 – .16

15. That submission does not identify with precision what it was asserted that the calling of R was required to explain or contradict. JD Heydon in Cross on Evidence [25] notes that “what a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case.”[26] In reply, counsel for the Plaintiff identified the issue as:-

“Assertions about what she said, assertions about her demeanour when a statement was to be sought, assertions that she executed her statement on a particular day, all of these were contentious issues. All of them were effectively documented and despite my friend saying, well there's no requirement to document, there is a reference where Detective Chaplin concedes the inadequacy of at least the statement taking process with [R].” [27]

25. JD Heydon AC, Cross on Evidence (LexisNexis, 10th ed, 2014) at [1215]

26. Nuhic v Rail and Road Excavations (1972) 1 NSWLR 204, 221; see also: Ermel v DuluxGroup (Aust) Pty Ltd (No 2) [2015] FCA 17 at [100] (Bromberg J)

27. T 616.33 – .41

16. In the context of the case I accept that the major challenge raised by the Plaintiff was as to Detective Chaplin’s assertion that prior to charge, he was aware of the Plaintiff’s penis being circumcised having been informed by R and further that he was unable to obtain a formal statement before charge from R because of her emotional state.

17. Counsel for the Defendant disputed the Plaintiff’s characterisation of the application stating:-

“Mr Campbell made a submission, at the outset of his oral submissions, that your Honour ought have regard to the principles in Jones v Dunkel and the related line of authorities; and that those authorities were applicable because of the absence from the defendant's case of the complainant's mother. It was put on the basis that Detective Chaplin's evidence could not be accepted unless it was otherwise corroborated and that the absence of the complainant's mother could properly be used as a basis for not accepting Detective Chaplin. That is simply wrong, as a matter of law. Jones v Dunkel cannot be used in the way that Mr Campbell, on behalf of the plaintiff, advances it.” [28]

28. T 570.12 – .21

18. In Manly Council v Byrne and Anor [2004] NSWCA 123, Campbell J (with Beazley JA and Pearlman AJA agreeing) stated:-

“[54] The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party (emphasis added).”

19. In Goodhue v Volunteer Marine Rescue Association Incorporated [29] Gotterson JA stated:-

“[28] The rule in Jones v Dunkel is not one that requires a party to call other witnesses in order to corroborate evidence of a witness that has been called by the party. It concerns the drawing of inferences. It enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party’s unexplained failure to call a witness whom that party would be expected to call in order to give evidence concerning the fact. However, as the New South Wales Court of Appeal in Morley v Australian Securities and Investments Commission recently reminded, if a party’s case is otherwise proved, the inference that the absent witness would not assist the party’s case does not detract from the proof (emphasis added).”

29. [2015] QCA 234 at [28] (Gotterson JA with Margaret McMurdo P and Ann Lyons J agreeing)

20. In JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd, [30] Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) said:-

“[24] When a finding of fact has been made in a party’s favour by a judge, the fact that an absent witness’ evidence, if it were given, would not support that finding, cannot disturb the finding actually made.”

30. [2003] NSWCA 66 at [24] (Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed)

21. Counsel for the Defendant submitted on the question of why the Defendant should not have called R:-

“What's put against us is that we should have called the complainant's mother. Sensibly there is no submission that we ought to have called the complainant because even Mr Campbell, one assumes, recognised that that would have been a bridge too far but there is no doubt that the plaintiff could not be criticised for failing to call the complainant's mother and, your Honour, nor can we be criticised for failing to issue a subpoena to compel a woman who has been through enough, I'm not suggesting the plaintiff hasn't but the complainant's mother has also been through enough with this process and had happened to her daughter ultimately what happened in terms of her breakdown in 2013 and, your Honour, firstly she's not someone that we would be expected to call and, secondly, her absence is otherwise explicable.” [31]

31. T 570.46 – 571.7

22. In Payne v Parker, Glass JA observed that the rule only applied when “the missing witness would be expected to be called by one party rather than the other.” Further, Glass JA stated:-

“The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid; Regina v. Burdett, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid (citations omitted).”[32]

It was argued that it was necessary for R to be called. There was no evidence as to the reason for R’s inability to give evidence before me. [33] The Plaintiff has submitted that R should be regarded as in the camp of the Defendant as she was heavily relied upon by Detective Chaplin. [34] That however is not the test. R was a witness to be called in the prosecution of the Plaintiff in respect of the charges and the ADVO. Ultimately those proceedings were terminated following Detective Chaplin’s intercessions. [35] In my view it has not been established that overall R stood higher in the confidence of the Defendant. [36] In the circumstances I would regard her as being in neither party’s camp. Even if I am wrong in this approach, I would not as a matter of discretion draw the inference sought particularly in the context of an action for malicious prosecution where the Plaintiff bore the onus of proof.

FACTS

32. (1976) 1 NSWLR 191 at 201 – 202 (Glass JA dissenting) endorsed in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [78] (McColl JA with Sackville AJA agreeing)

33. West v Government Insurance (NSW) (1981) 148 CLR 62 , 70 (Murphy J)

34. T 619.17 – .19

35. Exhibit 6

36. See Manly Council v Byrne and Anor [2004] NSWCA 123 at [70] – [71] (with Beazley JA and Pearlman AJA agreeing)

The relationship between the Plaintiff and R

23. The Plaintiff and R met in October 2004. [37] At the time, R had six children including the Complainant, then aged 10. The Plaintiff resided at his home in Seven Hills, and R was living at her residence at Lurnea. [38] A relationship commenced in 2005, although both the Plaintiff and R continued to reside at their respective homes until October or November 2005. [39] The Plaintiff met the Complainant and her siblings for the first time in June 2005. At that stage, the Plaintiff and R had been going out for a period of approximately 6 months. [40] Between October or November 2005 and August 2006, R and her children resided at a women’s refuge in Burwood. [41] In October 2006, R and her children moved to Sydney Joseph Drive, Seven Hills.

    37. Exhibit A at [10]

    38. Exhibit A at [11]

    39. Exhibit A at [14]

    40. Exhibit A at [15]

    41. Exhibit A at [19]

24. The relationship was interrupted on 21 March 2010, when the Plaintiff was charged with the offence of assault occasioning actual bodily harm arising from an incident with R. [42] NSW Police applied and obtained an apprehended violence order against the Plaintiff arising from the incident, and R’s mother, also obtained an apprehended violence order against the Plaintiff. [43] According to the chronology, the Plaintiff left the premises at Sydney Joseph Drive, Seven Hills at around the same time. [44]

    42. T 76.39 – .46

    43. Exhibit A at [30]

    44. Exhibit A at [31]

25. The apprehended violence order prevented the Plaintiff from going within 100 metres of R or from going to her home. Bail conditions were also imposed to the same effect. [45] Notwithstanding this, on 15 July 2010, the Plaintiff conceded that he was pulled over for a random breath test and R was in the motor vehicle, and he was charged with contravening the apprehended violence order that was granted on 21 March 2010. [46]

    45. T 76.44 – 77.22

    46. T 77.47 – .49

26. The Plaintiff readily conceded that the circumstances of him being in the vehicle was at a time when he was still subject to certain bail conditions and the apprehended violence order. [47] He conceded that there were other occasions between 21 March 2010 and 15 July 2010 when he and R were in contact and that this was in contravention of the apprehended violence order. [48]

    47. T 78.33 – .35

    48. T 79.36 – .38

27. Despite attesting that the hearing of the assault charge involving R took place in November 2010, the Plaintiff conceded in cross-examination that he was found guilty of the offence in May 2011. [49] Despite asserting in his chronology that he was placed on a six month good behaviour bond, he conceded in cross-examination when it was put to him that he received an 18 month good behaviour bond saying;-

“Yes something like that I think, yeah, I’m not too sure.” [50]

49. T 76.35 – .36 and Exhibit A at [33]

50. T 76.42 and Exhibit A at [33]

28. The Plaintiff accepted in his chronology that shortly after the hearing of the charge involving R, the apprehended violence order was varied so as to permit his relationship with R to continue. [51]

    51. Exhibit A at [33]

29. The Plaintiff admitted assaulting R’s mother at R’s house on 5 November 2010. [52] The Plaintiff conceded that at the time of the assault on R’s mother, he was still the subject of an apprehended violence order that prevented him from contacting R. [53] When asked whether that was the only time that he had been to R’s house between the period commencing from the granting of the apprehended violence order to the trial in May 2011 he stated that he thought that he had been “over there a couple of times.” [54] He stated that he understood that at that time, he was in breach of the existing apprehended violence order. [55] He conceded that on the occasion he was present in court in early 2011, he told R words to the effect: “We are still together and we will be together forever.” [56] He presumed correctly that in January 2011 he was still the subject of an order preventing him from speaking to R. [57]

    52. T 80.12-.16

    53. T 80.20

    54. T 80.25

    55. T 80.29

    56. T 80.35 – .45

    57. T 81.47

30. The Plaintiff conceded that after March 2010, he did not cohabitate with R. He conceded that the relationship he had from that time until at least January 2011 was conducted discreetly. [58] Nevertheless, he accepted that he remained in contact with R (including speaking on the phone). [59] He stated that he was still engaging in sexual relations with R after March 2010. [60] He also denied that R had ceased contact with him. [61]

    58. T 88.19 – .21

    59. T 82.17 and .20

    60. T 82.30 – .32

    61. T 88.27 – .50

31. In October 2010, the Plaintiff was charged with assault occasioning actual bodily harm on R’s mother. [62] In September 2011, he was convicted and sentenced to 6 months imprisonment. [63] A successful appeal was brought to the District Court of NSW following which the Plaintiff was released in late 2011. [64] There was some suggestion that on his release he was subject to parole orders. [65]

    62. Exhibit A at [32]

    63. Exhibit A at [34]

    64. T 52.21 – .42 and Exhibit A at [35]

    65. T 318.20 – .23; see also submissions T 535.1 – .24 and T 595.19 – .21

32. The Plaintiff’s relationship with R resumed following his release and continued up to around the middle of January 2012. This was two days before the Complainant informed R that the Plaintiff assaulted her. [66]

    66. T 83.46 – 84.11

The complaint

33. In late December 2011, the Complainant spoke to her best friend, CB and asserted to her that she had been sexually assaulted by the Plaintiff. [67] In January 2012 (believed to be on the 17 January 2012), the Complainant is said to have told R that “[the Plaintiff] raped me.” [68]

    67. Exhibit F, p 459A at [10]

    68. Exhibit F, p 329 at [22]

34. On 18 January 2012, the Complainant in the company R, attended upon the Blacktown Police Station and reported allegations against the Plaintiff to Detective Constable Chaplin. The process of taking a statement from the Complainant took approximately three months, involving three meetings held on 22 January 2012, 23 February 2012 and 17 April 2012. [69] On 22 January 2012, the Complainant was asked to return to continue her statement on 25 January 2012. [70] The Complainant did not return on 25 January 2012. Detective Chaplin records in his duty book on 21 February 2012 “[c]ontact [R]”. [71] Thereafter the Complainant returned to continue her statement on 23 February 2012. [72] She did so between 5:20pm and 8:00pm. [73] Further contact in relation to obtaining a statement was made on 12 March 2012 between Detective Chaplin and R. [74] The Complainant ultimately did so on 17 April 2012 at 1:00pm and completed it at 4:00pm that day. [75]

    69. Exhibit F, pp 304 – 323

    70. Exhibit F, p 314 and Exhibit K, p 14

    71. Exhibit L (entry on 21 February 2012), p 103

    72. Exhibit F, p 315

    73. Exhibit F, pp 315 and 318

    74. Exhibit L (entry on 12 March 2012), p 105

    75. Exhibit F, pp 318, 323 and Exhibit L (entry on 17 April 2012), p 113

35. According to Detective Chaplin, the dates were chosen around his and the Complainant’s availability. [76] He took the statement as opposed to using an ERISP [77] facility on the advice of the Sex Crimes Unit. [78] It was implicit that at the time of taking the Complainant’s statement and until other events had transpired, that there was no specific urgency from Detective Chaplin’s perspective. [79]

    76. T 243.19 – .41

    77. “Electronic Recording of Interviews with Suspected Persons”

    78. T 244.28 – .33

    79. T 287.33 – .38

36. In her statement, the Complainant described in some detail, the facts the subject the offences ultimately brought against the Plaintiff. In addition, the Complainant stated:-

“… [The Plaintiff] undid the zipper and pulled out his penis which was erect and held it in one of his hands. Now that I know the difference between a circumcised and un-circumcised penis, I remember [the Plaintiff’s] was circumcised.” [80]

80. Exhibit F, p 309 at [20]

37. The Complainant also described how the Plaintiff required her to engage in an incident of oral sex. In relation to the Plaintiff’s penis, the Complainant describes:-

“… I remember feeling so discussed (sic) because around his penis was so hairy and right in my face.” [81]

81. Exhibit F, p 317 at [39]

Interview with CB

38. Following Detective Chaplin having completed the Complainant’s statement Constable Michael Carl took a statement from CB. [82] CB sat in on all the interviews between Detective Chaplin and the Complainant before she made her statement but not when she recounted conversation with CB. [83]

    82. Exhibit F, pp 459 – 460 at [13] and T 312.12-.17

    83. T 312.11 – .41

39. In her statement, CB refers to the Complainant’s first disclosure to her of the assaults by the Plaintiff in the following terms:-

“About midnight my brother, Karl arrived home and had picked up [The complainant] walking along the road. [The complainant] came into my bedroom and was acting crazy. [The complainant] was ranting and raving and falling into the walls. I had seen [the complainant] drunk heaps of times but this was different. I asked [the complainant] if she had taken anything. The complainant attempted to avoid the question and we argued for a while. I was so concerned about [The complainant] that I tried to leave and get Karl but [the complainant] kept cutting me off. [The complainant] was obviously upset and was having a breakdown. That’s the best way that I can explain her behaviour.

[The complainant] said – ‘[the Plaintiff] used to rape me.’

I was in total shock and hugged [the complainant]. [the complainant] started to cry and we just hugged each other. I was wondering how it could happen because [the complainant] had a busy household. I asked [the complainant] how and when it happened. I don’t know the exact words used by [the complainant] but she started to explain how and when it happened. [The complainant] said words like: ‘[the Plaintiff] used to make me dress up’. The complainant explained that it would happen when her mum took the kids out and she was left at home with [the Plaintiff]. We continued to talk and [The complainant] continued to explain that sometimes when everyone was home and her mum had a shower [the Plaintiff] would go into room [sic]. I remember asking [the complainant] how long it had been going on.

[The complainant] said – ‘Since I was about 9.’

We spoke further about what happened and [the complainant] kept saying that her mum could never find out and stated that she didn’t want to talk again about it after tonight. We spoke for about 20 minutes and I comforted her. [The complainant] fell asleep and. I don’t remember talking about it after that night.” [84]

84. Exhibit F, p 459A – 460 at [10] – [11]

Plaintiff’s relationship with R following complaint

40. According to his evidence, after mid-January, the Plaintiff did not have sexual relations with R, and did not see her again. [85] Specifically, the Plaintiff rejected a proposition that during that time the NSW Police were investigating the allegations made by the Complainant in January 2012, and his arrest on 6 June 2012, he maintained a discreet relationship with R. [86] According to the Plaintiff that contact suggested to him some infidelity on his part but not the specific subject of the Complainant’s allegations. [87] The Plaintiff stated:-

“She actually hadn't. From when [the complainant] first made the allegations in January 2012 [R] stopped seeing me physically, but I had hundreds of phone calls from [R] they would always be ringing me up saying things, like, "You know what you've done; why don't you admit to what you've done?" It was like I was being she never once told me what was going on for the six months. I just kept getting numerous phone calls all through the night everything. She wanted to meet up; chat with me; she'd cancel. She just always kept on bombarding me with, "You know what you did; you don't you admit to what you did?" And I had no idea what she was talking about.” [88]

85. T 84.13 – .15

86. T 84.17 – .21

87. T 88.26 – .44

88. T 88.28 – .36

41. Although the Plaintiff enquired as to what R was referring to, she did not give any details. Attempts to set up meetings or to go out to dinner did not materialise. [89] The Plaintiff’s evidence was that he thought R at the time was accusing him of “cheating on her.” [90]

    89. T 88.46 – .49

    90. T 89.30 – .34

Background to surveillance device warrant application

42. On 17 January 2012 when the Complainant and R had attended Blacktown Police Station, an entry was made in the COPS [91] which read as follows:-

“At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint. The VIC, NOK and OIC have no immediate concerns for the VIC’s safety due to no contact with the POI.

Application will be made immediately for protection orders once investigations methods complete or immediate concerns identified.”

91. “Computerised Operational Police System”; see Exhibit K, pp 14 – 15

43. In the same document on 17 April 2012 [92] , it was recorded as follows:-

“On 17 April 2012, the victim statement was completed and reviewed. FACTS completed and the affidavit for SD/LD underway …

VIC protection (ADVO) to be implemented at first available chance. Consultation with VIC and VIC’s mother confirms still no contact or identifiable threat currently exists against the VIC or her family.”

92. Exhibit K, pp 7 – 8

44. The entry indicates that the application for a surveillance device warrant was contemplated in circumstances where there was no contact or identifiable threat against the Complainant and her family, and Detective Chaplin determined to apply for warrant on completion of the Complainant’s statement.

45. Detective Chaplin conceded in evidence that this was his understanding and that he made the decision to apply for the interface no later than the date he had completed the Complainant’s statement. [93]

    93. T 349.5 – 37

46. He subsequently qualified this by saying that there was contact between R and the Plaintiff, but no contact between the Complainant and the Plaintiff. [94]

    94. T 350.15 – .16

47. Detective Chaplin stated:-

“That wasn't finalised before the break in relation to the differentiation between [R] having contact with [the Plaintiff] and [the complainant] or her siblings being at risk. So was I aware that [R] was in contact with [the Plaintiff], yes. Was I of the belief and understanding that there was no risk because The complainant or any of her siblings were in contact with [the Plaintiff], no, I wasn't because they weren't in contact with him.” [95]

95. T 355.10 – .15

48. Detective Chaplin expressed concern about safety in the following exchanges:-

“After speaking with [the complainant] and [R] I was of the belief there was a possibility of interference or intimidation of one of the witnesses and that is why I decided to arrest rather than issue any other court attendance notice.” [96]

And further:-

“An AVO will not protect a person in need of protection listed on any AVO, it's just a piece of paper that is often breached. Looking at [the Plaintiff’s] history he'd breached several AVOs in the past and obviously there were no guarantees that I could protect the victim with merely an AVO.” [97]

96. T 252.40 – .43

97. T 256.34 – .37

49. Detective Chaplin felt he couldn’t request the Plaintiff to come in and assist with his enquires without arresting, stating:

“Q. What's to stop you picking up the telephone and saying, "[Plaintiff] could you come in and assist us with our inquiries, we'd just like to have a chat with you about a matter"?

A. There's plenty to stop me in this case.

Q. What?

A. Well, the fact that at the time [the Plaintiff] was on parole for DV assault against one of the family members, and if he was made aware of a possible complaint in relation to this, then of course there's a real threat of intimidation or attempt to contact or harm the witness or victim in this matter.

Q. But you knew the terms of his parole meant that he couldn't approach didn't you?

A. Well, he had an AVO but he'd breached that on numerous occasions as well. Paper doesn't mean anything.

Q. Sir, you say do you

HIS HONOUR

Q. You're not suggesting parole [is] the same as an AVO are you?

A. No, sorry, your Honour. I am just getting to the point that once you know, once someone is made aware of the situation, I identified a history of violence with the family from [the Plaintiff]. I had concerns he may intimidate or harm someone who has made a complaint against him in relation to those matters. My first concern with any matter is the protection and safety of the victim. If that comes at the expense of how I may have to deal with an offender or alleged offender, I have to consider the victim first. If she turned around and I am by no means suggesting anything by this but if you turned around and he was to have killed her because she made the complaint well, then, you know, I am in Coroner Court explaining why. These are all the considerations I had to give as to what I would do and what course of action I would take. I had never met [the Plaintiff] before. Never met him, never met the family, never met the [the complainant’s family], never met any of them so I had no idea what any of them were like. All I can do is go on his criminal record, he breached all the AVOs and he's done time inside for assault. My first concern is the victim. That is the only place I can act. I need to consider that first.” [98]

98. T318.14 – .50

50. Outside of the antecedents prepared for the bail hearing, Detective Chaplin conceded that he did not have a record of either the Complainant or R expressing concerns for their safety as at 6 June 2012. Detective Chaplin’s evidence was:

"Q. What I'm suggesting to you is that whilst there may have been expressed, on your evidence, concerns by [R] and/or the complainant about the complainant none were expressed about [R]?

A. I don't recall but I had concerns. So whether they were expressed to me, I don't know.

Q. You are unable to tell us, as you sit in the witness box now, about whether either or both of those persons had genuine concerns for their own safety as at 6 June 2012?

A. I can't recall either one of them saying they had genuine concerns. Where that information came from would have been a combination of what they said as well as previous issues with [the Plaintiff].

Q. Specifically you have no recollection of them having said anything to you, that's either of those two ladies, having said anything to you about concerns for their safety should [the Plaintiff] be released on any form of bail?

A. [R] expressed concerns but I don't recall whether it was about herself as well or only [the complainant].

Q. Did you record this?

A. No.

Q. Again we're just going off what your distant memory tells us about his.” [99]

99. T 445.36 – 446.8

51. In the COPS entries it was noted before 6 June 2012:

“At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint … ” [100]

100. Exhibit K, p 6

The surveillance device warrant application

52. The timing and context for the application was described by Detective Chaplin as being that he was aware that the Plaintiff and R were still involved in a relationship of a sexual nature. Specifically, Detective Chaplin stated:-

“Q. Well, what else did you have?

A. At that point after the arrest

Q. No, I am talking about before the arrest.

A. Sorry, sorry, my apologies. My apologies. Prior to the arrest I was made aware that [R] was still involved in a casual relationship with [the Plaintiff] of a sexual nature.

Q. What does that have to do with the charges?

A. Because that completely changed the direction of what had to be done. There was no urgency prior to that so therefore my investigation had to speed up in a sense because she was still in contact with him. Therefore, leading up to that I was under the belief there was no contact and no association but that was not the case.

Q. Let me get this right because this is a very important matter going through your mind at the time.

A. Yes.

Q. Are you telling his Honour that you changed the way in which you decided to undertake the investigation that you were undertaking because you found out shortly before the arrest of this man, that he was then in some kind of sexual relationship with [R], is that what you are saying?

A. I'm saying that was the cause of why I then decided to do the telephone interface.” [101]

101. T 287.25 – .50

53. Detective Chaplin’s attention was then directed to the affidavit submitted in support of the warrant to Garling J dated 1 June 2012. In that document Detective Chaplin stated:-

“Although [the complainant] has not spoken with [the Plaintiff] before for about 2 years, [the Plaintiff] has been in regular contact with her mother in an attempt to rekindle their relationship. [The complainant’s] mother believes that [the Plaintiff] will engage in conversation with [the complainant] to try and prevent her from reporting the assaults.” [102]

102. Exhibit N, p 106 at [32]

54. Detective Chaplin was questioned about this statement, and his failure to identify that the Plaintiff was in a sexual relationship with R. He was asked to identify his information about the Plaintiff’s attempts to rekindle the relationship. He responded that he was “contacting her.” [103] When asked to reconcile the level of disclosure in the affidavit submitted to Garling J with the understanding that the Plaintiff was in a sexual relationship with R, Detective Chaplin stated:-

“My understanding and from what [R] told me, yes, they were in a sexual relationship. Does it say, "sexual" in the affidavit, no, it does not.” [104]

103. T 289.36

104. T 289.45 – .46

55. Detective Chaplin conceded that he did not record anywhere the terms of what R had told him in respect of any association between her and the Plaintiff between January and June 2012. [105] He stated that he did not feel the need to do so at the time. [106]

    105. T 291.3 – .6

    106. T 291.9

56. On 17 February 2016, Detective Chaplin’s attention was drawn again to of his affidavit of 1 June 2012. [107] It was put to him that the contents above quoted were inconsistent with the suggestion of ongoing sexual association between the Plaintiff and R. He denied that there was an inconsistency and stated:-

“In relation to the affidavit and the overall intention of the affidavit, she’s in regular contact. Whether that be sexual contact or non-sexual contact is irrelevant.” [108]

107. Exhibit N, p 106 at [32]

108. T 356.43 – .45

57. Detective Chaplin stated that the information he acquired as to the relationship was obtained before R’s original statement of 24 October 2012 and the follow up statement of 28 March 2013. As noted earlier, his evidence was that he was in regular contact with R as the Complainant did not have a phone. He stated that as he needed questions answered, he would speak to R in relation to them. [109] He conceded that the information was not in R’s statement. [110]

    109. T 357.20 – .24

    110. T 357.26 – .27

58. Detective Chaplin accepted that if he had the slightest hint that R was in a sexual association with the Plaintiff, it should have raised a concern. [111] Detective Chaplin then stated that he did not know what happened between January and June 2012, other than what he was told by R, which was that “it was not a sexual relationship.” [112]

    111. T 359.3 – .4

    112. T 359.14 – .15

59. Detective Chaplin was next taken to the evidence he gave on 22 October 2015 as to Plaintiff and R being involved in a casual relationship of a sexual nature. [113] It was put to him that the evidence given [114] was different to the answer he had given regarding any association between the Plaintiff and R. The transcript records:-

“Q. You've told us today that there was no sexual association to your knowledge between these two from January 2012 till charged?

A. Where in that does it say the date; it just says, prior to the arrest, and it does not identify a date saying when that occurred.

Q. Firstly, are you trying to tell us that the casual relationship of a sexual nature that you were talking about was one which had ceased no later than January 2012?

A. Yeah, that's my understanding of what the evidence I've given you there is.” [115]

113. T 369.16 – .26

114. T 287.29 – .31

115. T 370.17 – .25

60. Detective Chaplin was again asked about the matter on 18 February 2016. [116]

    116. T 414.10 – 416.7

61. It was then put to Detective Chaplin that the contact issue did not lead to a sudden change in the direction of his investigation on or around 17 April 2012. The following is recorded:-

“Q. They related to the events as at 17 April 2012 when you made the final decision about seeking a listening device warrant because you then finished the statement of [the complainant]?

A. That's correct.

Q. You agreed that at page 349 that your understanding was then that there was no contact or identifiable threat that currently existed against the victim or her family?

A. That's correct.

Q. What I'm saying to you therefore is, that means there was nothing about any then contact which had a bearing on your making an application for the interface warrant; that's correct, isn't it?

A. So you're asking me if the warrant the application for the surveillance device warrant was submitted based on the contact, or non-contact, I was aware of that day, the day of submission; or are you asking me about when a decision was made to submit the surveillance device?

Q. There was no sudden change in the direction of your investigation about 17 April because of contact issues; was there?

A. No, there was not.

Q. How then do you reconcile your answer, which I'll give back to you so that you've got it, at 287.

A. Which line is that?

Q. Same one I took you to before; line 35 to 39.

A. Yes.

Q. You're putting this forward as a reason why this was something of relevance, that's your previous answer at line 29.

A. Yes.

Q. Because that completely changed direction of what had to be done?

A. That's correct.

Q. There was no urgency prior to that, so therefore my investigation had to speed up in a sense because she was still in contact with him?

A. That's correct.

Q. I take it you mean, there were no urgency before 17 April because you certainly hadn't been urgent in your taking of the statement of [the complainant], had you?

A. There was no urgency in the investigation prior to me becoming aware that [R]was still in a relationship with [the Plaintiff].

Q. Therefore leading up to that, I was under the belief there was no contact and no association, but that was not the case, you went on to say in your answer?

A. That's correct. The urgency in the investigation strategy commenced at the beginning when I was made aware the statement like, she's come in, she's made the complaint, and then I was made aware that they were still in a relationship of sorts.

Q. I'm sorry?

A. [R]

Q. You say, do you, that you were made aware that she was still in a relationship of sorts when she came in to make the complaint on 19 January?

A. No, that's not what I said.

Q. When do you say this awareness arose?

A. I can't there's no date as to when she told me, but it was obviously at the beginning that she was still in contact with [the Plaintiff], because the fact that there's still contact if there was no contact, if there was no association with him whatsoever, there's no urgency to move forward.

Q. But I'm having trouble with your answer, constable. You say to us now that in the early days, you can't tell us just which day, you became aware that she was still having contact with [the Plaintiff], and that concerned you?

A. Of course that concerned me. This is well before 17 October when the surveillance device warrant was

Q. 17 October, you mean April?

A. April, yeah.

Q. We've got 17 January, roughly, through to 17 February, 17 March, 17 April; there's three months there.

A. Yep.

Q. You can't tell us when in those three months you found this out?

A. No.

Q. But you say that then caused you to completely change the direction of what had to be done, and what, created an element of urgency about your investigation?

A. Yes.” [117]

117. T 405.3 – 406.38

62. However this was later qualified in the following exchange:-

“Q. You knew nothing about any contact on 17 April; did you?

A. I don't know when the contact was.

Q. Any suggestion of contact had absolutely nothing to do with you seeking the interface; did it?

A. Any contact?

Q. Yes.

A. Most definitely.

Q. What contact do you say caused you to seek the interface?

A. The interface is only going to be suitable if there's a reason or a contact number that you're able to obtain or proceed forward with so, of course, it's a consideration.

Q. You have said in answer at line 35 that, "There was no urgency prior to that so therefore my investigation had to speed up, in a sense, because she was still in contact with him."

A. That's correct.

Q. You are saying there, are you, I think you then went onto say, "Therefore leading up to that I was under the belief that there was no contact and no association but that was not the case", do you see that? Do you see that last sentence?

A. Sorry, 35?

Q. Yes.

A. There was no urgency prior to me being made aware that she was in contact with [the Plaintiff].

Q. The next sentence.

A. "Therefore leading up to that I was under the belief there was no contact and no association but that was not the case."

Q. That must mean, mustn't it, that there was a point where things changed?

A. Yes.

Q. You can't tell us where and when that was?

A. No, I don't know.

Q. Then, if you have a look at the next question, "Let me get this right because this is a very important matter going through your mind at the time", do you agree now that this information was a very important matter going through your mind?

A. Yes.

Q. That no matter what form of contact it was it was an important matter?

A. Yes.

Q. It was a matter that concerned, with respect, your investigation?

A. Yes.” [118]

118. T 412.43 – 413.44

63. Detective Chaplin acknowledged the significance of any contact in the following exchange:-

“Q. Just so that I've got this right, and you tell me if I've got it wrong, what you're now telling his Honour is that at some time before a charge that you

can't now remember, [R] told you something which led you to understand there was some form of contact still on foot; correct?

A. Yes.

Q. You didn't know whether it was face to face or by some other means only?

A. Yes.

Q. What she told you alarmed you so much that you had to change the course of the investigation you'd been conducting. You had to speed it up in a sense?

A. It made me change the direction of the investigation.

Q. Speed it up as you said?

A. Yes.

Q. Because you were concerned she might spill the beans?

A. No.

Q. Why would it be necessary to speed it up if she had just said to you, what might have been, "I'm in some kind of telephone contact with him"?

A. Because if the alleged victim and [the complainant], if there was any contact made possible through third party, if he'd go to the house, anything like that, that's going to be a concern.

Q. But the evidence that you had was that there hadn't been any kind of association between [the complainant] and [the Plaintiff] for over two years?

A. That's correct.

Q. Notwithstanding, as you've told us, that not only was there contact between this lady and [the Plaintiff] earlier before the complaint came forward, but sexual relationship; correct?

A. Yes.

Q. There still hadn't been any contact between them for all that time. Why would you suddenly have this urgent appreciation of some fear of contact?

A. Why would I have a fear of contact? She was in a relationship, or whatever the basis of their relationship was, prior to the complaint and after his release, that information was brought to my attention, it made me consider having to change the direction of pace of the investigation because I found out that there was still contact between the two families. If there was no contact and [the Plaintiff] had no contact with [R] whatsoever then there's not that urgency there.

Q. The contact of whatever form, was a matter of concern with respect to your investigation?

A. Yes.

Q. And was a matter, you say, that caused you to accelerate its progress?

A. Yes.” [119]

119. T 410.49 – 411.47

64. Referring to his earlier answers, he accepted that he changed the way in which he decided to undertake the investigation as he was responding with respect to a sexual relationship that he understood had finished sometime prior to January 2012 (when the complaint was made). [120]

    120. T 414.32 – 415.3

65. Detective Chaplin’s attention was then specifically drawn to his earlier evidence. [121] Detective Chaplin denied that he was telling the Court that as at May 2012, there was a casual relationship of a sexual nature involving the Plaintiff and R. [122] He was then asked to explain the answers he had earlier given [123] and stated:-

“That information is in relation to an application for the affidavit for the surveillance device warrant. It’s that simple” [124]

121. T 287.25 – 288.42

122. T 416.31

123. T 288.29 – .42

124. T 416.35 – .36

66. Detective Chaplin was then pressed by counsel for the Plaintiff and the following exchange appears:-

“Q. It's straightforward as his Honour says. You were telling the Court on 22 October 2015 that you belief in May 2012 was that [the Plaintiff] and [R] were then in a sexual relationship, that's what you were saying; isn't it?

A. I've never been of that belief.

Q. Is that what you said in the two pages of evidence that I've shown you?

A. That's what it reads in this transcript but I've never been under that, I'm not sure why I would have said that at that time but I've never been aware of them being in a sexual relationship.

Q. If you said that that may have been false; is that right?

A. It may have been incorrect. It may have been a mistake but I've never been of that belief.” [125]

125. T 417.1 – .15

67. Detective Chaplin’s attention was again taken to the contents of the transcript of 22 October 2015. [126] The following exchange appears:

“Q. There's no ambiguity there whatsoever, is there? You are telling us on 22 October 2015 that as at May 2012 your understanding and from what [R] has told you was that she and [the Plaintiff] were then in a sexual relationship?

A. Yes.

Q. That is totally different to what you have told us here this week about your understanding of what is going on; isn't it?

A. Yes.

Q. How do you reconcile the difference, sir?

A. The difference is in relation to how I would produce the affidavit. The affidavit we put in there that she was in a sexual relationship with him and that's why I've made application for that affidavit, so there's obviously confusion between when you're asking me what I knew and what I was putting in a disclosure in the affidavit.” [127]

126. T 287.44 – .49 and T 289.23 – .36

127. T 418.31 – .47

68. I find this difficult to understand.

Drafting surveillance device warrant

69. The purpose of obtaining the surveillance warrant was outlined in the following parts of Detective Chaplin’s evidence:-

“Because the brief light (sic). There was very little material to gather. It was a historic matter. I went through and tried to cover off on as many things as I possibly could in order to prepare the brief.” [128]

“To secure any possible evidence that may be obtained through our conversation that was recorded lawfully.” [129]

“The fact that it was lacking any forensic evidence or any witnesses to it that's the standard practice in these situations where we will try and make contact to try and get any admission or further evidence from the accused person for the offence.” [130]

128. T 287.6 – .8

129. T 349.46 – .47

130. T 417.26

70. Detective Chaplin denied that the brief was “light” because he had been “light” on activities before arrest and charge. [131]

    131. T 287.13 – .15

71. He acknowledged that where there was a historic statement, it was important to investigate the topics that were able to be investigated contained within the statement. [132] When asked whether he did any of these things, he stated:-

“I'm trying to answer your question sir, the answer is yes, and the reason is I had many meetings with [R] during times where I asked her various questions about schools or home addresses, things like that.” [133]

132. T 291.29 – .45

133. T 291.49 – 292.1

72. On 25 April 2012, Detective Chaplin prepared a draft affidavit in support of an application to be made in the NSW Supreme Court on the issue of the surveillance device warrant. [134] Further contact was made by Detective Chaplin with R on 1 May 2012 [135] and 16 May 2012. [136] On 17 May 2012, Detective Chaplin completed a request for assistance to the Covert Applications Unit for a surveillance device warrant. [137] The draft notice for the issue of the surveillance device warrant was completed and forwarded to the Crime Manager on 17 May 2012. [138] On 18 May 2012, changes were made to the affidavit [139] but Detective Chaplin was not able to identify them. [140]

    134. Exhibit L (entry on 25 April 2012), p 116

    135. Exhibit L (entry on 1 May 2012), p 117

    136. Exhibit L (entry on 16 May 2012), p 120

    137. Exhibit N, pp 97 – 98

    138. Exhibit L (entry on 17 May 2012), p 120

    139. Exhibit L (entry on 18 May 2012), p 121

    140. T 347.42 – .47

73. The affidavit in support of the application was sworn on 1 June 2012 [141] and the surveillance device warrant was issued the same day. [142]

    141. Exhibit N, pp 99 – 108

    142. Exhibit F, pp 300C – D

74. Detective Chaplin’s evidence was that a ninety day warrant was sought for the surveillance device warrant to allow for the option of numerous calls over an extended period of time and to allow for any change in investigation strategies should any further information be obtained during the calls made. Detective Chaplin denied that the reference in his affidavit to the investigation being “protracted” was because he needed a lot more information that he already had. [143] Detective Chaplin denied that whatever he did on 6 June 2012 was done in the context where he decided the day before, including the arrest and charging of the Plaintiff. [144] He clarified this by adding:-

“I’m saying that on 6 June the only thing that changed was the fact that the interface was unsuccessful and therefore moved onto the arrest phase. If there had been a successful interface it would have progressed further forward for another call or it would have progressed further forward for another call or it would have been reassessed.” [145]

143. T 423.3 – .5

144. T 424.8 – .10

145. T 424.12 – .16

Interface

75. On 6 June 2012, Detective Chaplin attached a recording device to a telephone located at Blacktown Police Station and saw the Complainant make a number of calls to the Plaintiff on his mobile phone number. This was between 3:00pm and 4.30pm. [146] On one occasion he did hear a conversation take place which is recorded. [147] It is not in issue that the call did not produce any evidence corroborative of the Plaintiff’s allegations.

    146. Exhibit F, p 299 at [5]

    147. Exhibit F, pp 300A – 301A

76. When the Complainant rang the Plaintiff and made contact the following exchange took place:-

‘I can’t believe you never called to say sorry … [148]

I’m sorry I can’t do it anymore.

No, that’s fine, are you okay.” [149]

148. Exhibit F, p 300A

149. Exhibit F, p 301A

77. The call occurred between 3:00pm and 4:30pm on the Plaintiff’s mobile phone. According to Detective Chaplin:-

“[The complainant] terminated the call and began crying hysterically. [The complainant] was clearly traumatized (sic) from the conversation and it took several minutes to console her until she was able to stop crying.” [150]

150. Exhibit F, p 300 at [7]

78. After the interface, the Plaintiff contacted R, which Detective Chaplin regarded as elevating the matter. [151] The Plaintiff confirmed in the ERISP that contact had been made by the Complainant and he subsequently contacted R. [152]

    151. T 442.16 – .19

    152. Exhibit F, pp 360 – 363, ERISP Q128 – Q150

Detective Chaplin’s contact with R

79. Detective Chaplin’s evidence was that during the obtaining of the Complainant’s statement and prior to the Plaintiff’s arrest he was told by R that, contrary to information supplied by the Complainant, the Plaintiff’s penis was in fact not circumcised – that would have during the period between the 22 January 2012 and 6 June 2012. [153] Although the duty book does not contain details of conversations with R during that time, it does record:-

21 February 2012: “Return office and check workoff and memo’s actions outstanding. Contact [R].” [154]

12 March 2012: “Speak [R] re statement.” [155]

2 April 2012: “Contact [R] re [Complainant’s] statement.” [156]

22 April 2012: “Call [R]. Attend [ADDRESS REDACTED] re [Complainant]” [157]

153. T 244.48 – 245.30

154. Exhibit L (entry on 21 February 2012), p 103

155. Exhibit L (entry on 12 March 2012), p 105

156. Exhibit L (entry on 2 April 2012), p 110

157. Exhibit L (entry on 21 April 2012), p 114

80. Detective Chaplin stated that he trusted the information given to him by R as she had been in a sexual relationship with the Plaintiff. [158]

    158. T451.38 – .42

81. The evidence of Detective Chaplin is that he was told face to face by R about the state of the Plaintiff’s penis “in the first interview room as you come into Blacktown Police Station.” [159] Detective Chaplin said he did not record it at the time because he did not see it as being of great importance to record it right there and then. [160] On 24 October 2012, R is said to have commenced giving a statement to Detective Chaplin. [161] In that statement, R acknowledges that the Complainant supplied a statement to Detective Chaplin and states:-

“… I have never read her statement and neither Detective Chaplin nor [the complainant] have ever told me the contents of that statement.” [162]

159. T 282.5 – .13

160. T 282.20 – .21

161. Exhibit F, p 325

162. Exhibit F, p 325 at [3]

82. This is not necessarily inconsistent with Detective Chaplin’s evidence because it is unclear what questions were put to R relating to the state of the Plaintiff’s penis. However Detective Chaplin’s duty book reveals that 24 October 2012 was recorded as a rest day. [163] Contrary to this, the statement of R states:-

“On the 24th of October, 2012 I read this statement and signed my name at the bottom of each page and recorded the time and date. In February, 2013 Detective Chaplin advised me that he lost the signed copy of my statement and requested I sign another copy of this statement. On the 28th of March, 2013 I again read through this statement and have confirmed that the contents are the same as when I signed this statement on the 24th of October, 2012.” [164]

163. Exhibit L (entry on 23 October 2012), p 25 and T 297.3 – .16

164. Exhibit F, p 329 at [24]

83. The statement itself was signed on the 28 March 2013. Detective Chaplin conceded that the date at the top of the statement (24 October 2012) was generated from the computer [165] and had nothing to do with whether it was signed or not. [166] He conceded that R could not have come into the station that day, although the day on the statement can be changed. [167] Detective Chaplin conceded that it was more than likely that the only person who could have changed it was himself. He added:-

“… I can't tell you what happened with the date. I can tell you that I was on a rest day on 24 October. It doesn't mean that I have had any malice or tried to change it or change anything for any reason to suit myself.” [168]

165. T 298.25 – .27

166. T 298.33 – .34

167. T 298.43 – .46

168. T 299.27 – .30

84. Detective Chaplin was shown the COPS entries in relation to the allegations against the Plaintiff. He conceded that apart from two entries, the rest of the entries were his own. [169] Detective Chaplin’s attention was drawn to an entry of 31 August 2012 stating:-

“On the 31/8/2012, VIC’s mother [R] attended the Blacktown Police Station where he (sic) statement was commenced.” [170]

169. T 300.50 – 301.1

170. Exhibit K, p 4

85. Detective Chaplin conceded that R’s statement bearing the date 24 October 2012 is silent as to her commencing to provide a statement on 31 August 2012. [171] He stated that:-

“[I]t may have been the case that she’s come in and we actually started getting details from her in relation to it and the statement wasn’t actually commenced.” [172]

171. T 302.41 – .44

172. T 302.50 – 303.3

86. Detective Chaplin acknowledged that the statement of R was inconsistent with both the COPS entry and the duty book. [173] However, even on 31 August 2012, the duty book records it as a rest day [174] and no duties are recorded. [175] Detective Chaplin stated that that did not mean he was not the police station if he was on a rest day. [176] He acknowledged that he could not be certain but:-

“… I strongly suggest that I was, given the fact that I was going to be away for three weeks.” [177]

He questioned the advantage of “changing these dates or trying to.” [178]

173. T 303.19 – .24

174. Exhibit L (entry on 30 August 2012), p 16 and T 303.37 – .38

175. T 303.43 – .50

176. T 304.20 – .22

177. T 304.27 – .29

178. T 304.33 – .34

87. It was then put to him that the only entries about obtaining a statement from R were made on 28 March 2013, which was the date of her statement. [179] Detective Chaplin responded by saying:-

“If there is no other entry, there is no other entry.” [180]

179. Exhibit F p 329 at [24]; Exhibit L (entry on 28 March 2013), p 60; and T 304.36 – .40

180. T 304.46

88. Detective Chaplin’s attention was then drawn to the index to the brief to the ODPP which was noted to be current as of 12 March 2013. It noted in Item 7 that the statement of R was “Awaiting.” [181] Detective Chaplin stated that the fact that the index said “Awaiting” did not mean that he had not obtained the statement beforehand. [182] He conceded that any statement he had would have been on the computer, but said that it would not have been normal practice to supply the ODPP with an electronic copy that was unsigned. [183] Detective Chaplin’s attention was then drawn to a letter dated 21 March 2013 to Mr Peter Naughtin, barrister, which referenced an attachment to an unsigned statement of R. [184] He stated that he did not recall sending an unsigned statement to the ODPP as at that date. [185]

    181. Exhibit O; see also T 305.21 – .38

    182. T 306.27

    183. T 306.47

    184. T 307.35 – .39

    185. T 307.22

89. Detective Chaplin acknowledged that the circumstances of his obtaining a statement from R were unsatisfactory and that he could have kept better notes and cannot explain the inconsistencies in dates. [186] Detective Chaplin also acknowledged that obtaining a statement from R could have allowed the testing of factual matters put forward to see if they were confirmed or contradicted. [187] In particular, it was put that such things like the dates of school, changes of address, house layout, changes in patterns of behaviour, leaving the child alone, whether or not you could hear things in one part of the house as against another part of the house could have been confirmed. [188]

    186. T 308.13 – .16

    187. T 308.50 – 309.4

    188. T 309.6 – .26

90. In cross-examination Detective Chaplin stated that he did not obtain a statement prior to charge as R, because she was:-

“was emotionally unstable” [189] ”

And

“The [sic] spending any time with R during that time was extremely difficult. She was highly emotional the whole way throughout its and I think I believe I mentioned back in October that she was completely irrational right throughout that time so. [190]

189. T 294.36 – .37

190. T 364.21 – .24

91. Detective Chaplin’s stated:-

“The ideal world I wanted her statement beforehand (sic). When I was talking to her, when I was engaging her, she would breakdown continually. Information was limited as to what I could get from her. Her big concern was that [the complainant] never knew that she was still in a relationship with Mr [the Plaintiff].” [191]

191. T 309.44 – .47

92. The Plaintiff’s evidence provided some support as to her emotional state. [192]

    192. T 88.27 – .50

93. There were other difficulties in getting the statement signed. [193] Nevertheless Detective Chaplin acknowledged that the statement ultimately obtained from R did not contain the following:-

    193. Exhibit R, “Document 66”

1. R’s knowledge of the Plaintiff’s penis being uncircumcised;

2. The fact of the disclosure by R to Detective Chaplin;

3. The fact of any ongoing relationship between R and the Plaintiff, between January and June 2012; and

4. The fact that Detective Chaplin could not be provided with a statement between January and June 2012 because R was unwell or unstable. [194]

   194. T 308.13 – .38

94. Detective Chaplin explained the reasons for this as follows:-

“As I explained, at the time I did not feel the need. I can only act on the information I had at that time and what I believed to be important and relevant statistic (sic). I am not saying it was not relevant but at the time I did not feel the need to make excessive notes in relation to what she was telling me. I had full intentions of obtaining a statement from her at a later date which would have gone in to give clarifying questions in relation to things. The circumcision, as I explained before, he either is or isn't. The defence would have known that the minute the charges were laid and the statement was served.” [195]

195. T 308.41 – .48

Pre-arrest and preparation of Fact Sheet

95. Prior to arrest, Detective Chaplin had made inquiries of the records held by NSW Police in relation to the Plaintiff. [196] Detective Chaplin conceded that he had no formal statement prior to arrest other than those of the Complainant and CB.

    196. T 247.7 – .15

96. On 30 May 2012, Detective Chaplin started the Statement of Facts which would be used on the question of bail. [197] In evidence he stated that the majority of the facts were completed before interviewing the Plaintiff. [198] Detective Chaplin could not say whether the Antecedents were prepared when doing the Statement of Facts or before interview of the Plaintiff. He acknowledged that the sequence of the document [199] commences with Antecedents and there was nothing under the heading not known before 6 June 2012 when he saw the Plaintiff. [200]

    197. Exhibit L (entry on 30 May 2012), p 122 ; see also T 436.7 – .45

    198. T 465.30 – .34

    199. Exhibit F, p 293

    200. T 465.26 – .50

97. The preparation of the Statement of Facts was despite the fact that Detective Chaplin was preparing and seeking a surveillance device warrant for ninety days because the investigation was expected to be protracted. Detective Chaplin stated that he was prepared because there was a possibility of moving to arrest. [201] Detective Chaplin stated:-

“The plan was to send a car in the vicinity of [the Plaintiff]'s home address should the interface have gone badly, they could've intercepted [the Plaintiff] and effected an arrest. Whether that occurred or not, I don't recall.” [202]

201. T 436.9 – .13

202. T 440.45 – .47

Arrest

98. Senior Constable Scott-Mahjet was sent out by Detective Chaplin to arrest the Plaintiff with another officer in the early afternoon of 6 June 2012. [203] As it turns out, Detective Scott-Mahjet was interrupted by the need to attend to a Commonwealth Bank in Seven Hills regarding an armed robbery. [204] Senior Constable Scott-Mahjet stated that he did so at around 2:45 – 3:00pm. [205] The Plaintiff was arrested later that day at 6:35pm. [206]

    203. Exhibit M

    204. Exhibit M

    205. T 202.14 – .20

    206. Exhibit H, p 471

99. Detective Chaplin’s original plan may explain why Senior Constable Scott-Mahjet had been sent to the Plaintiff’s house earlier without Detective Chaplin although the interface was not to take place until later that afternoon. However the true circumstances of that call out are not able to be established on the evidence. In any event they do not assume any significance as no arrest was effected until later when both Senior Constable Scott-Mahjet and Detective Chaplin attended the Plaintiff’s home.

100. Detective Chaplin denied that whatever he did on 6 June 2012, he had already decided to charge the Plaintiff at the time of arrest. The transcript records the following exchange:-

“Q. See, I will come back to precisely what words you used tomorrow but this morning you said that you went and arrested him as you had identified offences committed on [the complainant] by [the Plaintiff].

A. Yes.

Q. You arrested him for the purpose of charging him, not for the purpose of questioning him, didn't you?

A. Yes.

Q. Therefore you had made a decision to charge him, hadn't you?

A. No.

Q. As to what you were going to charge him with you may not have made a decision, but you had made a decision to charge him, hadn't you?

A. No. [the Plaintiff] could have told me anything during that interview, anything to negate what happened. If there was something there that I felt that was a reasonable excuse not to charge, he wouldn't have been charged.” [207]

207. T 319.27 – .43

In further in cross-examination, the following exchange is recorded:-

“Q. What function, does this man's denials providing whatever factual information he was able in response to your questions, have in the overall process if you say you, at the end of that interview, think it's appropriate to invoke the criminal process?

A. On that day, at the conclusion of that interview, I was of the belief that I should proceed with it based on the information I had at hand.

Q. That means you had that belief before the visit to his home?

A. No.

Q. Nothing happened after you visited his home, took him back to the police station and spoke to him, that would have solidified your belief surely?

A. Nothing happened, no.

Q. A lot happened that would have brought into the question of your belief, surely?

A. No.

Q. You didn't have any regard to his denials; is that what you're saying?

A. Of course, all were considered.

Q. That's a circumstance you didn't have before you spoke to him at his home; isn't it?

A. I didn't consider that he was definitely going to be charged with the matters prior to the interview, so of course, all the information provided in his ERISP was considered, all of it.” [208]

208. T 472.50 – 473.25

101. Detective Chaplin’s evidence that he did not intend to charge the Plaintiff at the time of arrest was consistent with the information that Senior Constable Scott-Mahjet appears to have received.

Detective Scott-Mahjet’s evidence was as follows:-

“Q. When did Detective Chaplin speak to you for the first time about charging?

A. After the interview.

Q. So you were not spoken to by him at all about the question of laying charges until after the interview; is that right?

A. I can't be certain of that, but I know after the interview we spoke

Q. I don't want to know what was said at the moment. I just want to know when was the first time you had any discussion with Detective Chaplin about the topic of laying criminal process against this man?

A. I'd be guessing. I'd be guessing, sir. It's the same as before, I don't recall I don't recall exactly.

Q. He didn't say to you before you went out with him to arrest this man that he'd decided to charge him?

A. No.

Q. Mm?

A. No. Not that

Q. Did he tell you why he was arresting him then?

A. Because of the alleged sexual assault.

Q. Isn't that the charges?

A. I'm confused.

Q. He didn't say, "I'm arresting him so I can find out what he's got to say about what happened."?

A. That would be improper.

Q. Correct?

A. That would be improper to arrest for an interview

Q. Did he tell you then why he was arresting?

A. Because he's got a credible a victim of an alleged sexual assault who has, he believes to be, a credible - credible, therefore, there's sufficient grounds to arrest. That's - I don't know - I'm only guessing to say that he it's only a natural course of conversation. What's involved in the allegation and he would have explained that this occurred, that this occurred. I can't remember the exact what he said to me about that, but it is just a natural flow of conversation, what's in the sexual assault, what's alleged to have happened, but - -“ [209]

A. No, I still would have charged him.

Q. Why?

A. Because I believed I had sufficient evidence to proceed with the charge. I had reasonable grounds to arrest him and I proceeded.

Q. But you told us the reason you charged was your concern about her safety.

A. The reason why I wouldn't issue an apprehended violence order and say please stay away from her is because that was something I should have considered, the AVO.” [396]

396. T 474.31 – 475.38

246. I do not accept the Defendant’s contention that in this exchange Detective Chaplin was directing his attention to the decision to arrest and charge rather than issue a field court attendance notice with the protection of an ADVO. The evidence goes to the very question of whether to commence a prosecution.

247. In its initial written submissions the Defendant did not raise objection to the Plaintiff advancing the case of malice based on the aforementioned premise. [397] In oral submissions, the Defendant asserted that the Plaintiff could not rely on its alternative case [398] for three reasons:-

1. It is not an available argument a matter of law;

2. It was not pleaded nor particularised; and

3. It was not a matter properly put to Detective Chaplin in cross-examination.

   397. See Defendant’s Written Submissions, dated 23 March 2016 at [82]

   398. As advanced in the Plaintiffs Written Submissions, dated 7 March 2016 at [115]

248. In the latter respect, it was asserted that the matter ought to have been put to Detective Chaplin on the following basis:-

"And your concern for the victim was the only reason you charged. You didn't charge because you believed there was a proper case to be put before a jury or before committal proceedings or a proper case to proceed through the criminal justice process." [399]

399. T 569.34 – .37

249. On a fair reading of this evidence, I am not satisfied that concern for the victim was the sole or dominant purpose motivating the decision to charge. Detective Chaplin believed that he had sufficient evidence to precede with the charge and so stated. [400] Nor was such an alternative case directly put to Detective Chaplin in cross-examination.

     400. T 475.31 – .33

250. If I am wrong on this view, I would in any event, not have allowed the Plaintiff to advance the case based on this ground. Whilst it is true that this material came from Detective Chaplin’s own evidence and no objection was taken, I accept that it was evidence potentially relevant to other issues in the case such as a suggestion that Detective Chaplin did not have the relevant state of mind to arrest and charge.

251. The Plaintiff did not seek leave to amend, to particularise the claim it now seeks to make.

252. In my view, this is not an appropriate case where the Plaintiff should be able to rely on the assertion made in its written submissions without having properly pleaded and put the matter to Detective Chaplin. [401]

Whether Detective Chaplin maintained the criminal proceedings after 7 June 2012 and the apprehended domestic violence order

401. Kuhl v Zurich Financial Services Limited (2011) 243 CLR 361 at [69] – [75]

253. In view of the fact that I have held that the Plaintiff has failed to establish his case as to malicious prosecution it is unnecessary to consider whether Detective Chaplin maintained the proceedings after 7 June 2012. I do so in the event I am wrong in that regard.

254. The relevant principles relating to maintenance of a prosecution were set out by Macfarlan JA (Tobias JA and Sackville AJA agreeing) in State of New South Wales v Landini. [402]

     402. [2010] NSWCA 157

255. In Sahade v Bischoff, Gleeson JA referred to Landini and stated:-

“[121] … The common feature in the authorities is the requirement that the defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false.”[403]

403. Sahade v Bischoff [2015] NSWCA 418 at [121] (Gleeson JA)

256. Although a precise time when the ODPP took over the matter has not been identified, I accept that it was after 7 June 2012.

257. The Plaintiff asserts that the Defendant called evidence in relation to further inquiries undertaken, in particular, the obtaining of the statement from R, Detective Senior Constable Crystal James, the Complainant’s father, Ms Laura Hanley, Ms Fran Bonanno, Mr Rick Daley, Mr Ben Krone, Mr William Conway and Ms Catherine Pugh. [404] The Plaintiff asserted that as the State led evidence that Detective Chaplin read the various statements and was then asked whether those statements caused him to conclude that the charges against the Plaintiff should be withdrawn were not proceeded with, Detective Chaplin remained relevantly a prosecutor. The Plaintiff further asserted that this position was enhanced by the fact that Detective Chaplin’s opinion was sought as to whether the charges should be maintained after The Complainant’s lies about a further sexual assault were revealed. [405]

     404. T 258.7 – 259.50

     405. Exhibit K, pp 2 – 3

258. Detective Chaplin also gave evidence after arrest and charge he was seeking expert evidence as to the question of circumcision.

259. The Defendant asserts that there was no evidence that would constitute maintenance and the only evidence as to what Detective Chaplin did was to respond to requisitions and continue the investigation aspects in his role in consultation with the ODPP. This is not correct.

260. Pursuant to s 9(1) of the Director of Public Prosecutions Act 1986 (NSW), the decision as to whether to proceed or not proceed, or discontinue the prosecution is a matter for the Director of Public Prosecutions. The presence of this power does not define whether Detective Chaplin maintained the proceedings.

261. So far as the various inquiries were concerned there is evidence that some of these were directed to Detective Chaplin by the ODPP and responded to by him. [406] Amongst fulfilling other requisitions there is evidence that the ODPP requested Detective Senior Constable Crystal James take photographs of the Seven Hill home, and for her to make a statement as well as asking her to obtain a statement from the Complainant’s father and R. However a number of the statements obtained by Detective Chaplin referred to earlier in these reasons were not mentioned in the ODPP correspondence. Detective Chaplin gave evidence that he took the statements from Ms Laura Hanley, Ms Fran Bonanno, Mr Rick Daley, Mr Ben Krone, Mr William Conway and Ms Catherine Pugh. [407] Detective Chaplin’s evidence was that he was trying to cover all bases and to this end made enquiries post charge in relation to obtaining expert in relation to circumcision. There was no evidence that this was sought by anyone bar Detective Chaplin. Further the fact that Detective Chaplin was asked to liaise with the Complainant’s family and provide an opinion as to whether proceedings should be maintained after further revelations came to light indicates that he had a positive role as the maintenance of the charges. In all those circumstances I would have found that Detective Chaplin did maintain the proceedings after 7 June 2012 notwithstanding the ODPP involvement.

     406. Exhibit R

     407. T 258.35 – 259.50

262. Insofar as the apprehended violence order was concerned, I accept that pursuant to s 49(1)(c) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), Detective Chaplin was obliged to make an application for an apprehended violence order in circumstances where he in fact suspected or believed that a domestic violence offence was likely to be committed by the Plaintiff. However his role did not stop there. The withdrawal policy indicated that he was required to have an ongoing role in determining whether the application should be withdrawn. [408] Upon the issue arising as to the fate of the apprehended domestic violence order proceedings following termination of the criminal proceedings, Detective Chaplin undertook the administrative exercise which led to the termination of the apprehended domestic violence order proceedings by preparing a memorandum dated 11 August 2013. [409] I am satisfied that Detective Chaplin did maintain the proceedings after 7 June 2012.

     408. Exhibit 1, p 13

     409. Exhibit J, pp 495 – 497

DAMAGES

263. Accepting that Detective Chaplin did not have lawful authority to arrest and detain the Plaintiff, the Plaintiff is entitled to damages for trespass to the person constituted by battery, and for the damages for false imprisonment up to the point where the imprisonment was authorised by a refusal of bail. The Plaintiff asserts that he is entitled to the sum of $25,000. In oral submissions, attention was drawn to the case of State of New South Wales v Abed [410] where an award of $20,000 was upheld in somewhat analogous circumstances (being $10,000 for trespass and $10,000 for false imprisonment).

     410. [2014] NSWCA 419

264. The period of imprisonment in the present case on the Defendant’s own account, was longer than that in Abed. The Plaintiff was arrested at 6:35pm, charged at 11:33pm, and applied for bail before the Local Court on the following day. It was not asserted by the Defendant that the time in the interview was not part of the period of the imprisonment, and the Defendant in any event, accepts the period of false imprisonment as one day.

265. Whilst the Plaintiff has drawn attention to the sum of $20,000 involved in Zaravinos v State of New South Wales, [411] that award included a component for aggravated and exemplary damages. [412]

     411. (2005) 214 ALR 234

     412. Ibid 248 (Bryson JA with Santow JA and Adams J agreeing)

266. The Plaintiff in this case was patted down, handcuffed and put in a vehicle to be taken to Merrylands Police Station where he advised of his rights, interviewed, photographed, charged and refused bail. I do not accept that he was strip-searched. He was placed in cells, first at Merrylands and subsequently at Fairfield. In my view, in light of the Defendant’s concession, an amount of $10,000 should be awarded for the trespass, and $10,000 for the false imprisonment, making a total of $20,000.

267. I would award interest at 2% to date being $1,662.

268. The Plaintiff also claims aggravated and exemplary damages. The aggravated damages claim was submitted as follows:-

“[The Plaintiff]’s arrest, detention and imprisonment was aggravated by its length and the circumstances in which it arose which was a consequence of, at least, Detective Chaplin’s lack of proper attention to investigating [the complainant’s] complaints but much more likely, as a result of his determination to arrest and lay charges notwithstanding the inadequate material which, upon even the most basic enquiries, was revealed to be unreliable. That lack of reliability does not seem to have been disclosed to anyone and instead, when disclosure was required to a bail sergeant and the court, was concealed and in fact converted from a weakness to an assertion of strength in the case (see the antecedents). That [the Plaintiff] should languish in gaol for 10 months as a consequence of the actions of Detective Chaplin warrants an award of aggravated damages. The sum of $50,000 is appropriate.” [413]

413. Plaintiff’s Written Submissions, dated 7 March 2016 at [141]

269. These submissions focus on the circumstances of Detective Chaplin performing functions in the light of inadequate and unreliable material. I have found against the Plaintiff on the claim for malicious prosecution but in his favour on the claim for trespass and false imprisonment. Insofar as the Plaintiff has succeeded there is no evidence of any apology nor any acknowledgement of the error made.

270. On the evidence I am satisfied that the failure to effect a lawful arrest and the false imprisonment which ensued, arose in circumstances of a failure to fully understand the circumstances in which those powers could be activated. Notwithstanding this there is no suggestion that the Plaintiff was treated in otherwise than a polite and courteous manner. [414] This is particularly clear from the ERISP [415] and custody records. [416] Constable Scott-Mahjet also gave evidence that this was part of his training to facilitate cooperation from the offender. [417] Much of the Plaintiff’s hurt feelings were in my view directed to the Complainant and R. In the circumstances this is not a case where it is appropriate for aggravated damages.

     414. See New South Wales v Delly (2007) Aust Tort Reports 81 – 920 and Zaravinos v State of New South Wales (2005) 214 ALR 234

     415. Exhibit F, pp 347 - 456

     416. Exhibit H, see especially, pp 473 – 474

     417. T 228.31 – .38

271. So far as exemplary damages are concerned, the submission made was that an award is appropriate to express the Court’s disapproval of Detective Chaplin’s conduct. [418] In my view there is no evidence that the actions of Detective Chaplin as found by me involved conscious wrongdoing, high handed, outrageous or contemptuous conduct such as need to be marked with the Courts disapproval by an award of exemplary damages. [419]

     418. Plaintiff’s Written Submissions, dated 7 March 2016 at [142]

     419. State of New South Wales v Riley (2003) 57 NSWLR 496, 530 (Hodgson JA with Nicholas J agreeing)

272. If I am wrong on my findings on malicious prosecution the Plaintiff would be entitled to damages beyond the amount referred to.

273. In relation to loss of earnings, the Plaintiff was arrested on 6 June 2012. He has not worked since being released from prison in Parklea in April 2013. [420] He had previously worked as a landscaper with Universal Landscape. His evidence was that after his release he was not successful in getting back to work with that employer. He had apparently been promised that he would have a job, but eventually he went to the Fair Work Ombudsman who found in his favour. Universal had not terminated him but kept, to use his words, “stringing him along” and he decided to set up his own business before the beginning of the financial year, which I assume was 1 July 2012. [421] The Defendant did not challenge this evidence.

     420. T 73.24 – .28; see also Exhibit A, Item 55

     421. T 53.26 – .28

274. The Plaintiff’s tax returns for the year ending 30 June 2010 show him earning a gross income of approximately $50,000 and for the year ending 30 June 2011 a gross income was $56,170. [422]

     422. Exhibit P

275. For the year ending 30 June 2012, the Plaintiff’s earnings were $17,600. However, three months in the middle of that year reflects the period of his incarceration on assault charges, and one month was incarceration was on the sexual charges subject to these proceedings.

276. The Defendant submits that the limited income is a reflection of the difficulties imposed on the Plaintiff’s employment by his prior criminal history. No basis in the evidence was established for this contention. On my calculations, the Plaintiff’s earnings for the year ending 30 June 2011, would have been approximately $870 per week. He was incarcerated from 7 June 2012 – 10 April 2013, being a total of 44 weeks, which in my view, would entitle him to the net sum of $38,280.

277. In relation to the balance of the period to date, the Defendant asserts that the Plaintiff’s employment prospects and employability were already significantly impaired as a result of his prior criminal history and ongoing history of breaching ADVOs. It is asserted that the extent to which the Plaintiff’s ongoing employability was affected by psychological sequelae is limited. However, the Defendant presents no evidence that such an impairment has occurred. Bearing in mind the kind of work the Plaintiff performed prior to his incarceration this cannot be inferred. In cross-examination, the Plaintiff stated that Universal’s decision not to give him work was because they did not have work to give. [423] The Plaintiff also asserted that he did not look for other work because Universal had undertaken to put him on. [424]

     423. T 111.33 – .35

     424. T 111.37 – .38

278. The Defendant asserted that the Plaintiff’s psychological response is fuelled by anger towards the Complainant, her mother, and the desire for vindication through these civil proceedings. Consequently, a vindication would occur if damages were awarded and any income for the period subsequent to incarceration should be limited to a period of approximately 3 years.

279. The Defendant has not alleged a failure to mitigate. [425]

     425. T 97.38 – .40

280. Following release from custody, the Plaintiff went to see his general practitioner of 20 years, Dr Poulos, who referred him to see a psychologist, Ms Helen Fotiadis. [426] He stated that he could recall seeing Ms Fotiadis for up to 8 to 9 months, [427] and further saw Dr Roberts, [428] and Dr Brown. [429]

     426. T 72.35 – .42

     427. T 72.44 – .46

     428. T 73.30 – .35

     429. T 73.37 – .39

281. In his evidence, the Plaintiff maintained that he could not go back to work, stating:-

“Q. As of now why can't you go to work?

A. Still I feel - I just get flustered over everything. Being in certain

environments - a few months ago I met up with a mate in the city; I was waiting in, like, an alleyway for him - not an alleyway in a street - I saw some girl that was jogging - she was, like, walked up towards me; she saw me; she turned around - I just spun out. I just really started getting all paranoid, and all of a sudden I though, you know, that this girl would make assumptions I was going to do something; that she was going to call the police. So I'm just, you know, wary being in certain situations - around certain people.” [430]

430. T 73.44 – 74.2

282. Ms Fotiadis, psychologist, saw the Plaintiff on referral by his general practitioner, by Dr Poulos, on 7 August 2013. In her report, Ms Fotiadis states:-

“[The Plaintiff] has also presented with anxiety symptomology such as increased heart rate from past thoughts, anger from wrongly being imprisoned where he walks for hours or talks to friends to cope, anger and grief from his breakup with ex-partner, hurt from his ex-partner never asking him but assumed he was guilty, paranoid that the police are watching him since released [sic] with a strong dislike to them since, early morning waking and sleep disruptions, flashbacks of his arrest and prison time, decrease in concentration and memory, increase in nervous tension where he needs to distract himself by doing something, headaches, isolation and withdrawal from activities, decrease in self esteem and confidence, feeling irritable with minimal trigger especially with authority, cautious, rumination on thoughts and obsessing on situations and an inability to relax as is consumed by thoughts [sic] …

[The Plaintiff] has not progressed, therefore requires assistance to improve his coping mechanisms for his overall mental health but is not willing to use to techniques [sic] suggested as feels he needs to stay angry to drive him to complete all the pending legal proceedings in the future … ” [431]

431. Exhibit E at p 184

283. The Plaintiff saw Ms Fotiadis on seven occasions between 9 February 2013 and 28 February 2014. [432] On 22 March 2014, the Plaintiff was re-referred by Dr Poulos by Ms Fotiadis, and was attended upon by her on 4 April 2014 and 16 May 2014.

     432. Exhibit A at [59] – [65]

284. The Plaintiff conceded that he did not undertake any techniques which had been recommended to him for desensitisation by Ms Fotiadis, as he wished to focus on bringing to account those who he had considered had wronged him. [433] He stated that this changed when he entered into a relationship approximately 18 months before the hearing, down to April 2014. [434] He conceded that his condition was slightly improved, [435] he hopes to continue to improve [436] and his experience was that he was improving. [437]

     433. T 94.16 – 95.25

     434. T 95.30 – .34; T 96.16 – .21

     435. T 118.13 – .19

     436. T 118.21 – .22

     437. T 118.24 – .25

285. Dr Roberts in his report of 6 June 2014, stated:-

“ … Because of his impaired concentration he has been unable to return to work. He explained that he did not feel right. He ruminates on the above circumstances all the time. Although he described satisfactory sleep, he reported feeling tired, lacking in energy and lacking in motivation. He continues to ride a pushbike and attend the gym, thereby trying to manage his frustration and irritability. He has maintained his circle of friends. He is more cautious than he used to be. He is more vigilant. He has taken steps to ensure that no one knows where he lives. He spoke of being wary of the police.” [438]

438. Exhibit B, p 234

286. In conclusion, Dr Roberts stated:-

“The account presented by [the Plaintiff] reflects a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. The nature and severity of the symptomatology described by him indicate that the condition is verging on a Major Depressive Disorder in accordance with the criteria stipulated in DSM-V.

Although [the Plaintiff] has been in receipt of regular psychological therapy, it is apparent that he continued to experience symptomatology of a debilitating nature at the time of his attendance. In the context of his psychiatric condition, he has been unable to pursue his plans to establish a business. He spoke of diminished energy, diminished motivation and impairment of cognition. He described the impact of his psychiatric condition on his interpersonal functioning, which has evidently altered in a way that would be expected to undermine his ability to establish and maintain business relationships.

Having regard for the account presented by [the Plaintiff], he has no history of a pre-existing tendency to psychiatric illness. He has never previously been considered to exhibit features of psychiatric illness. Based on the information available, it is apparent that his psychiatric condition arose consequent upon the circumstances outlined above.” [439]

439. Exhibit B, p 237

287. In a subsequent report of 6 July 2015, Dr Roberts stated:-

“The pervasive nature and extent of [the Plaintiff]’s anger is such that I am less optimistic than Dr Brown with respect to his prognosis. His intense sense of injustice is such that it is, in my expectation, unlikely that any legal outcome would prove sufficient to produce a resolution of [the Plaintiff]’s condition. Furthermore, having regard for the protected nature of [the Plaintiff]’s legal circumstances and the associated stagnation with respect to work and other matters, his psychiatric state would in fact deteriorate on completion of the legal process.” [440]

440. Exhibit B, p 243

288. Dr Phillip Brown examined the Plaintiff at the request of the Defendant’s solicitors. In his report, tendered in the Plaintiff’s case, he agreed as to the diagnosis “current inability to work and causation issues” in Dr Sampson’s report of 6 June 2014. However, he did not consider that the prognosis was “poor.” He stated:-

“[The Plaintiff] developed an Adjustment Disorder as the result of his being arrested, charged, denied bail and imprisoned for what he believes was without just reason. It is being sustained by his considerable unresolved anger, which he is seeking to resolve by obtaining justice through his legal case.

His anger and Adjustment Disorder should resolve if he considers justice has been done by a favourable determination of his case. If he does not, then provision should be made for treatment of his ongoing anger and any Adjustment Disorder.” [441]

441. Exhibit C, p 264

289. In cross-examination, Dr Roberts considered that if a person was unwilling or unable to pursue a recommended course of treatment, then one was left with the impression that the prognosis is even worse. [442] He considered that whilst the Plaintiff had anger at others, the theory expressed was overwhelmingly with the police. He stated:-

“The manner in which he described it to me was this: he was of the view - he expressed the view, that the police were responsible for adequately assessing the information that had been presented to them, and utilising the information appropriately, and investigating the information in such a way that would normally be expected - that was the way that he described it to me. And that if not for, what he perceived to be failures on the part of the police the circumstances would not have unfolded as they did. Whilst he was angry at [the complainant], and he was angry at other people, the fury that he expressed was overwhelming directed at the police.” [443]

442. T 135.5 – .7

443. T 136.49 – 137.7

290. In my view it is reasonable to allow 176 weeks at $870 per week to date, being a figure of $153,120 and an additional sum of $38,280 in relation to the period of his incarceration. This would make the total past damages $191,400.

291. In relation to the future, the Plaintiff claims an amount of $50,000 whilst the Defendant makes no allowance. In my view, it is appropriate to make some allowance for the future by way of buffer, and I do so in the amount of $25,000.

292. The Plaintiff claims Mr Naughtin’s fees of $11,800 and I would have allowed this sum, being the cost of legal representation that Mr Naughtin provided in relation to the sexual offences and ADVO proceedings.

293. In relation to future out of pocket expenses, a claim is made for $10,000.

294. Dr Sampson suggests that psychiatric treatment may be required for total of one year, psychological treatment for not less than six months and medication for approximately 12 – 18 months. Psychological treatment would be a course of cognitive behavioural therapy. Dr Brown agrees that the main treatment would be cognitive behavioural therapy, however in his opinion, he did not see the need for referral to a psychiatrist if the Plaintiff was prepared to accept that this would be to ascertain whether the use of the psychotropic medication for symptom relief would facilitate the cognitive behavioural therapy and then monitor his response to it. I have some doubts that the Plaintiff would undertake any therapy, in particular, the psychiatric therapy. Nevertheless, I consider it reasonable on Dr Roberts’ analysis to make some provision by way of buffer in the sum of $6000 for all treatment and medication expenses.

295. In respect of general damages, the Plaintiff claims an amount of $300,000 in relation to 10 months of wrongful detention, based on an equivalent of $1000 a day. I accept the Defendant’s contention that it is an erroneous approach to apply a daily tariff to the assessment of damages. [444] Nevertheless the Defendant concedes that the Plaintiff’s conditions in incarceration were not pleasant, by reason of the nature of the offence by which he was accused. The Plaintiff was apparently placed under protection and only allowed out for one hour a day. [445] The Plaintiff stated that he was placed on remand in Darcy 2 at Silverwater, where he had to associate with other people with similar charges. Whilst he was there, he shared a cell with another prisoner. [446] He stated that he was moved around, and he was concerned because on one occasion, a person was murdered when he was placed with the wrong prisoner. [447] He stated that he observed people committing self-harm [448] and he could hear a person screaming at night. [449] He stated that he was in H block for 6 months and had applied for bail in about August 2012, but this was refused. [450]

     444. Ruddock v Taylor (2003) 58 NSWLR 269

     445. T 64.20 – .24

     446. T 64.28 – .29

     447. T 64.31 – .34

     448. T 64.47 – .48

     449. T 64.37 – .40

     450. T 65.28 – .32

296. After Silverwater, the Plaintiff was transferred to Nowra, where he was placed in a limited association placement. [451] He was subsequently returned to Silverwater for two weeks in H block, but could not remember the period of his incarceration involving the transfer to Silverwater. He was told that this occurred because of a lack of beds. [452] After a couple of weeks in Silverwater, he returned to Parklea, where he was placed in a step-up from limited association- he described this as the “next level” where he mixed with everybody. [453] He was allowed out 6 hours a day in this placement, and this included persons who were there for murder and rape, but there was an understanding that everybody would behave themselves. [454] He stated that when he was bail refused at Merrylands Police Station that he was “gutted” and that he did not make a bail application initially upon receiving advice. He also did not have the paperwork whilst he was at Darcy, and he was attempting to re-live in his head, the interview that he gave with Detective Chaplin. He described himself as struggling to understand why he was there and as he did not have any persons’ statement, he could not try to prepare for the case in front of him, and was accordingly, extremely traumatised. [455]

     451. T 66.15 – .28

     452. T 67.15 – .17

     453. T 67.28 – .30

     454. T 67.33 – .38

     455. T 68.5 – .13

297. He described himself as not feeling safe in prison, in particular, after a prisoner was murdered. [456] Whilst at Silverwater, he stated that he was too busy worrying about himself, but was also worried about the main population, because every now and then, he would be taken into the main park where he was able to walk around, and other people, knowing that he was from HN16 were yelling at him comments such as “Rock spider” and “paedophile.” [457]

     456. T 68.35 – .37

     457. T 68.25 – .30

298. The Defendant submits that based on the award of damages in Abed v State of New South Wales, and bearing in mind the differences in terms of a longer period of incarceration, an appropriate award would be the sum of $150,000 to $175,000.

299. Following his release from custody, The Plaintiff was not prescribed any psychotropic medication. When he saw Dr Roberts, he described his psychiatric history in the following terms:

“When asked regarding the impact of the circumstances outlined above, [the Plaintiff] explained that he had been emotionally affected. He described being always angry and pre-occupied. He spoke of feeling alright when in the company of his friends but spoke of significant irritability explaining that he had become intolerant of authority and intolerant of people telling him what to do. He ascribed this to his experience in custody. He spoke of the adverse impact of his tendency to preoccupation with the above matters on his concentration and his propensity to frustration.” [458]

458. Exhibit B, p 234

300. In all of the circumstances, I would have allowed a figure of $220,000 for general damages. Bearing in mind the findings and conclusions I have drawn I am unable to express a view as to circumstances in which aggravated and exemplary damages may be awarded in respect of the malicious prosecution claim.

301. The Plaintiff has not demonstrated any actual damage arising from loss of liberty or dignity from the fact that the ADVO proceedings were brought separately from those which resulted from him being charged.

302. Accordingly the damages I would have awarded had the Plaintiff’s claims succeeded, would have been:

Wrongful arrest and false imprisonment (general damages)	$20,000
Malicious prosecution (general damages)	$220,000
Past economic loss	$191,400
Future economic loss (buffer)	$25,000
Out of pocket expenses (past)	$11,800
Out of pocket expenses (future)	$10,000
TOTAL	$458,200

ORDERS

303. For the reasons given:

1. There will be a verdict and judgment for the Plaintiff in the sum of $21,662;

2. I will hear from the parties as to costs; and

3. Exhibits to be retained for 28 days.

Endnotes

Amendments

09 September 2016 - Name removed from paragraph [284]

08 September 2016 - Minor typographical error at [267]

08 September 2016 - Minor typographical errors corrected in paragraphs: [1], [12] - [13], [34] - [36], [42], [45], [58] - [59], [78], [133], [155], [162], [204], [209], [216], [241], [270] - [271], and [292].

Decision last updated: 09 September 2016