Sonter v State of NSW

[2006] NSWDC 30

CITATION:	Sonter v State of NSW [2006] NSWDC 30
HEARING DATE(S):	7, 8, 9 and 10 August 2006 at Armidale
JUDGMENT DATE:	22 August 2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the defendant
CATCHWORDS:	MALICIOUS PROSECUTION - Elements required to be proved - 1. Reasonable and probable cause 2. Malice: spite, ill-will or impermissible motive
CASES CITED:	A v State of New South Wales [2005] NSWCA 292 Glinski v McIver [1962] AC 726 Hicks v Faulkner (1878) 8 QBD 167 Herniman v Smith [1938] 1 All ER 1 Lister v Perryman (1869-70) LR HL 521 Lye v State of New South Wales [2005] NSWCA 282 Mitchell v John Heine (1938) 38 SR (NSW) 466 Rapley v Rapley (1930) 30 SR 94 Sharp v Biggs (1932) 48 CLR 81 Trobridge v Hardy (1955) 94 CLR 147 Turner v Ambler (1847) 10 QB 252; 116 ER 98
PARTIES:	Brett Edward Sonter (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	23/2004 (Armidale)
COUNSEL:	Mr D F Rofe QC and Mr Shepherd (Plaintiff) Mr M J Nield QC and Mr Spartalis (Defendant)
SOLICITORS:	Abbott Pardy & Jenkins (Plaintiff) Crown Solicitor of NSW (Defendant)

JUDGMENT

HIS HONOUR

The proceedings

1. The plaintiff in these proceedings is Mr Brett Sonter. He was born in 1970 and now lives at Sawtell.

2. In the early hours of Saturday 30 December 2000 the plaintiff was injured in an episode that occurred at the Royal Hotel at Inverell (“the episode”). Arising out of that episode, the plaintiff was charged by the Inverell police under the Crimes Act 1900. The charges proffered were: assaulting Mr Michael Davis occasioning actual bodily harm and assaulting Mr Michael Davis (“the charges”).

3. The charges were laid by Sgt Cattell, a police officer in the employment of the defendant, then serving at Inverell as a Senior Constable. The charges were heard at the Inverell Local Court, where on 13 May 2002 the magistrate dismissed them.

4. The plaintiff commenced these proceedings in 2004, claiming damages against the defendant alleging malicious prosecution by Sgt Cattell, for which the defendant is vicariously liable.

5. As a result of the charges, the plaintiff says that he sustained injury to his reputation and feelings, incurred expense, and suffered great inconvenience, embarrassment and anxiety. He claimed special damages of $10,633.00 for legal costs of defending the charges, general damages, aggravated damages and punitive damages.

6. The defendant denied liability.

The evidence

7. At the hearing of these proceedings, in Armidale, the parties agreed that they would not ‘re-hash’, by way of oral evidence, the circumstances of the actual episode on 30 December 2000 at the Royal Hotel, Inverell. Rather, they agreed that the several statements before Senior Constable Cattell (as he then was) at the time he laid the charges against the plaintiff should be tendered together with relevant portions of the transcript from the trial of the plaintiff (“the Inverell trial”), which took place on 10 December 2001, 3 March 2002 and 13 May 2002.

8. The plaintiff’s case consisted of portions of the transcript from the trial, the witness statements, other documentary evidence and the oral evidence of the plaintiff.

9. The defendant’s case consisted of portions of the transcript from the trial, other documentary evidence and the oral evidence of Mr Michael Davis, Ms Anita McKay, Mr Timothy Lynn, Sgt Darren Murray, Detective Senior Constable Brett Hall and Sgt Laurence Cattell.

The episode on 30 December 2000

10. I observe at the outset that it is not part of my role to determine what actually occurred in the episode at the Royal Hotel at Inverell on 30 December 2000. It falls to me to consider only what evidence was gathered in connection with the episode, and how and when the evidence was gathered.

11. The episode started in the early morning hours of Saturday 30 December 2000, probably at about 2.10am, with an altercation between the plaintiff and Mr Davis. Following this initial altercation others in the vicinity became involved and the situation deteriorated into a general melee during which the plaintiff was assaulted by a number of other persons.

12. The evidence gathered consisted of statements from the following men:

12.1 Brett Edward Sonter 30 December 2000 (Exhibit F)

12.2 Michael Davis 31 December 2000 (Exhibit D)

12.3 Leighton Glenn Blair 10 January 2001 (Exhibit D)

12.4 Brett Reginald Barnard 11 January 2001 (Exhibit D)

12.5 Nathan Gary Cracknell 11 January 2001 (Exhibit D)

12.6 Dion Kenneth Cracknell 12 January 2001 (Exhibit D)

12.7 Laurence Edward Cattell 16 January 2001 (Exhibit D)

12.8 Timothy William Lynn 17 January 2001 (Exhibit D)

12.9 Michael Davis 17 January 2001 (Exhibit D)

13. These statements (“the statements”) constituted the evidence taken into account by Sgt Cattell in laying the charges. There is no suggestion that any other evidentiary material was taken into account.

14. Several of the facts surrounding the episode are uncontroversial.

15. The plaintiff went to the Royal Hotel on the evening of Friday 29 December 2000 with his brother, Craig, Nathan Cracknell and Dion Cracknell. Prior to their arrival they had been drinking at another hotel, and after arriving at the Royal Hotel at about 10.30pm they continued drinking in the nightclub section of the hotel, known as “Lazars”.

16. The plaintiff and the Cracknells sat at a table near the bar on the lower level, together with two women, identified only Kristy and Libby. During the night, Dion Cracknell also danced with a woman identified only as Jody. Craig Sonter left the hotel before the episode, but the plaintiff and the Cracknells remained.

17. Mr Davis had arrived at the hotel at about 11.30pm on the Friday in the company of a number of other people, including Peter Ellis, Nathan Blacklock, Owen Craigie and Leighton Blair, and the group went to the nightclub area, where they started drinking. Prior to their arrival, the group had been pig hunting. Owen Craigie and two other men from Newcastle subsequently joined them.

18. Some time after 1.45am on the Saturday morning the plaintiff and his group prepared to leave. The nightclub area was fairly full and quite crowded. The plaintiff walked towards the bar on the upper level, apparently heading for the side door leading out to the car park. The Cracknells were behind the plaintiff, but some distance back. Dion Cracknell was on the stairs, just behind his brother Nathan.

19. The plaintiff came up to Mr Davis, who was on the upper level, and an altercation between them ensued. Mr Barnard, a security operative, was standing behind the bar and noticed the altercation in progress. He and another security operative, Nobby Gleeson, went over to the scene. By this time Mr Davis had hold of the plaintiff in a ‘half Nelson’. Mr Barnard stepped in between them to break them up. Some words were exchanged. Meanwhile other people in the vicinity had come up. Punches were then thrown.

20. The plaintiff was punched. Mr Barnard wrapped himself around the plaintiff to protect him. The plaintiff, however, was knocked to the floor, where he was kicked by one of the assailants. The staff of the hotel then moved to break up the fighting. Mr Barnard and others then shielded the plaintiff from further attacks, and for his protection, locked him in the cool room.

21. The nightclub was cleared but a number of the guests remained and milled about in the car park, where further fighting erupted.

22. The police (Sgt Cattell and Probationary Constable Lynn) arrived in the car park at about 2.20am. Sgt Cattell first spoke to Mr Davis. He noted a laceration on Mr Davis’ head. He asked what happened and Mr Davis gave his version of the altercation with the plaintiff. Sgt Cattell spoke to a number of other persons, and Probationary Constable Lynn spoke to a man he knew as Owen Craigie. Cattell and Lynn then went into the nightclub, where Sgt Cattell commenced talking to Mr Barnard.

23. During the course of this conversation the plaintiff emerged from the nightclub holding a towel to his face, and started talking to Sgt Cattell. The two policemen noted that the plaintiff was injured, including a swollen and bruised left eye and dried blood on various parts of his face. Sgt Cattell told the plaintiff he would get details from him later but suggested that in the meantime he get some treatment.

24. Sgt Cattell offered to take the plaintiff to the hospital, but an ambulance then arrived, in which the plaintiff was taken to hospital for treatment. After treatment, including stitches, he was allowed to go. He spent the rest of the night at his parents’ house but returned to the hospital at lunchtime later in the day for further treatment and a cardiograph, due to chest pains.

25. Mr Davis was the Aboriginal Community Liaison Officer (“ACLO”), a ministerial employee, in a position that was part of the police force, at Inverell. He is a big man, being 6 feet 4 inches tall and weighing some 130 kilograms.

26. The plaintiff was then aged 30, working for the Department of Urban Development and engaged with the Inverell Council on community programs for children. The plaintiff is of a somewhat smaller stature than Mr Davis, being 5 feet 10 inches tall and weighing between 70 and 72 kilograms.

27. The plaintiff was the first witness to make a statement, on the same day as the episode. Statements were taken from other witnesses over the course of the next few weeks. I do not propose to summarise the statements in detail. It is appropriate, however, that I refer to the relevant portions of those statements, particularly those parts that bear upon the absence or presence of reasonable and probable cause for the charges against the plaintiff. It should be noted that the statements contain a number of typographical and grammatical errors, which I have not attempted to correct in the quotes set out below.

The statements

28. The plaintiff’s statement (Exhibit F) was taken by Sgt Cattell at the Inverell police station at about 8.30pm in the evening of the day of the episode, 30 December 2000. Probationary Constable Lynn was present. The plaintiff was not cautioned. He initially said in his oral evidence that the interview took place at an earlier time, in the afternoon. However, to the extent that anything turns on this, I am satisfied that the interview took place at about 8.30pm, at the request of Sgt Cattell (Exhibit 1 at page 55, Statement of Timothy Lynn at paragraph 10).

29. At the time of the interview the plaintiff had a swollen left eye, lacerations around the eye, multiple scratches and bruises, pain in the chest and left temple area, a lacerated lip and pain in the teeth. It was not however suggested that he was not in a fit state to provide an accurate account of the episode. Indeed, in evidence he expressly adopted the statement he made as accurate. He read the statement and signed it. He was given a copy, which he took away with him.

30. The plaintiff’s statement records, as to critical events:

“ I’m not sure what time it was however I decided to leave. I was going to sit in one of the girls cars that

was parked in the carpark. I walked from the table towards the bar on the upper level. I then turned left to walk out. I saw Mick standing with a group of Aboriginal males including Nathan Blacklock. The others seemed to be from out of town as they were dressed in flash gear. As I approached the

group Mick turned his back to me. As there was no way around, I tapped Mick on the shoulder. He

turned around, I then tried to pushed past.

He said, ‘What the fuck are you doing.’ or something like that.

I said, ‘Just trying to get past.’

Mick has the grabbed hold of me by both hands around the top of my arms. I then tried to grab hold of Mick were ever I could. Mick has then hit with a closed fist with his right hand to my left eye. The rest is a bit of a blur as people have then come from every where in the crowd. I could feel being hit about the face and body. I was knocked down a couple of times. I had then moved from the bar area where the incident first occurred to the glass doors that lead into the front bar. I remember one of the bouncers Luke trying to protect me. The last time I was on the ground with Luke trying to protect me I received a kick to chin.

After this happened the staff opened the glass door and placed me in the cool room. I stayed there for a while. I was let out of the cool room and spoke to Police…”

31. It is to be noted, in particular, that nowhere in the plaintiff’s statement, made within 19 hours of the episode, did he allege that he was head butted by Mr Davis in the altercation between them.

32. The next statement to be taken was the first of the statements made by Mr Davis, on Sunday 31 December 2000 (Exhibit D), the day following the episode. This statement was taken at the Inverell police station during the day shift, by Detective Senior Constable Hall, the day shift supervisor. Sgt Cattell had told Hall that if Mr Davis came in to the station, to take a statement from him.

33. Mr Davis’ first statement records, as to critical events:

“ Towards the end of the night, I went to the toilet and started to walk back to where my friends were standing at the bar. Whilst walking back a person I know only as Jason started to call my last name in an aggressive type of manner. He did this about 4 to 5 times. He started to walk towards me and when he was in about a metre of me I lent over to see what he wanted me for as he is a lot shorter than me. As I lent over he headbutted me. His head collided with the top of my head, where I have an injury. I had not said a word to this person prior to this and he did this for no reason. After he headbutted me I grabbed him by the throat and threw him up against the bar where I was standing earlier with my friends. I let go of him after I threw him up against the bar and had no further physical contact with this person after that. After I threw him up against the bar a number of bouncers restrained this person. I then noticed that I was bleeding heavily from where I had been headbutted, because I could feel the blood running down my face. I then saw the bouncers removing this person from the nightclub. Whilst they were trying to get him out of the club a number of other persons who I couldn’t identify because it was dark, appeared to be having a go at this person both physically and

verbally…”

34. On 10 January 2001, Sgt Cattell obtained a statement from Mr Leighton Blair (Exhibit D). Mr Blair’s statement records, as to critical events:

“ …I was with Nathaniel Blacklock, Peter Ellis, Ray Craigie and Michael Davis. I then met Owen Craigie who was with two friends from New Castle, inside the hotel…

…during the night we were standing near the bar in the night club we were facing onto the dance floor. On a number of occasions during the night a male kept coming up to us and asking, ‘What was going on.’…

At some time during the night this male come up to Mick Davis and asked him what was going on.

Mick just brushed him with his hand to say go away. The male then left and went back to his table.

I noticed during the rest of the night that the male was staring at us.

Towards the end of the night I was standing near the end of the bar…Mick was over near the girls toilets talking to someone. About the same time as Mick started to walk back over to me the male

person has stopped Mick just in front of me. I did hear what was said as the music was load. I saw

Mick lean down towards the male. The male has then headbutted Mick. Mick has then grabbed hold

of the male around the throat, Mick has then headbutted the male. One of Owen Craigie’s friends

Nigel has attempted to separate Mick and the male. The male has then swung a punch at Nigel, which

hit him in the chest.

A number of other people have then come over and everyone was throwing punches. I tried to break up the fights. The male was knocked to the floor. I think one bouncers came over and moved him

away from the bar area. As he was being moved by the bouncer towards the front door the male was

spitting at people and trying to kick out. The male was yelling abuse at most of the persons present...

…a fight started again…there were a large number of people involved.

I noticed that Mick had blood coming from his head just after he was headbutted inside the nightclub when the fight first started…”

35. Sgt Cattell took a statement on 11 January 2001 from the security operative, Mr Brett Barnard, at the Inverell police station. Mr Barnard did not see who precipitated the altercation between the plaintiff and Mr Davis, and only saw the subsequent events. Mr Barnard’s statement records, as to critical events:

“ About 2.10am on Saturday 30th December I was working in the nite club section returning glasses to the bar. I noticed a male person known to me as Mick Davis grab hold of a male known to me as Brett. I have since found out his name is Brett Sonter. Mick had hold of Brett with his right forearm across his throat, his left arm was under Brett’s arm with Mick’s hand at the back of Brett’s head, like a half Nelson hold. The area that this occurred was in the corner area of the bar.

…I walked from behind the bar at the dance floor and headed towards Mick and Brett. I also took

Nobby Gleeson with me. Nobby also works at the hotel as a security operative. I stepped in between

Mick and Brett with me left leg. Brett was crouched towards the floor with Mick upright. I noticed

Mick had blood on his head. At this stage I did not notice any injuries on Brett.

Mick said, ‘Where do you want to take this?’

I said, ‘I’ll break this up, I’ll take Brett outside first and come back in and ask you to leave.’

Brett said, ‘let’s take this outside.’

I then realised Mick was speaking to Brett and not me.

Brett has then stood up on my left side. A flurry of punches then started to come from all directions. I noticed a male person by the name of Shannon throw a number of punches, Nathan Blacklock’s brother, (I think) was also throwing punches. Both Owen and Ray Craigie and a couple of their friends also started to throw punches. A large number of punches came into contact with Brett. Mick still

had hold of Brett, however at this time he let go. I grabbed hold of Brett, I wrapped myself around

Brett to shield him from the punches. It calmed down for a moment…”

Mr Barnard goes on to describe the ensuing melee.

36. A statement was obtained from Nathan Cracknell on 11 January 2001. His statement records, as to critical events:

“ Between 1.45am and 2.30am…our group decided to leave…Brett walked in the direction of the exit…I turned to get the attention of my brother who was immediately behind me and after getting his attention I then turned back around. I saw a person wearing a yellow shirt with his back to me, involved in a fist fight with…Mick Davis…”

The balance of his statement describes the aftermath, and he concluded with the following:

“ I saw that Brett’s face had a lot of blood on it and it was puffed up. I had a conversation with Brett. As a result of this conversation I left and later returned with Brett’s brother Craig and the ambulance

attended the carpark and Brett was treated by the ambulance officers and Brett was taken to Inverell

Hospital.”

37. A statement was obtained from Dion Cracknell on 12 January 2001. His statement records, as to critical events:

“ As I started to leave and was walking up the stairs my attention was drawn to a fight that was occurring at the end of the rail that is just out from the female toilets. I saw a male person lying on the floor facing away from me with a yellow coloured shirt on. At first I thought it was a bouncer and then I was told it was Brett. There were a number of people standing around and I could see punches and kicks being directed at Brett. The bouncers were trying to separate the people…”

38. Sgt Cattell’s statement was taken on 16 January 2001. His statement records, as to critical events:

“ About 2.20am on Saturday the 30th December, 2000…Pro Con Lynn and myself attended the Royal after receiving a radio call re a possible brawl…Upon arrival… I noticed Mick Davis in the car park. I walked up to Mick,

I said, ‘what’s happening Mick.’

He said, ‘A few of the boys are a bit upset. I’m moving them on’

I then noticed that Mick had a laceration in the middle of his head just before his hairline. The laceration appeared to have bled, as there was what appeared to be dried blood on his face. I said, ‘What happened to you?’

He said, ‘I was headbutted by that half black looking fella that drives the black ute and works in the gardens over South Side.’

I said, ‘What is that over?’

He said, ‘I don’t know he just come up I thought he wanted to talk I lent down and he headbutted me.’

I said, ‘Do you want anything down about it?’

He said, ‘No, it’s right.’

I then spoke to a number of people in the area and after a short period of time the majority of people started to leave the area. I then walked in the front door entrance to Lazars Nite Club. I then started to have a conversation with Luke Barnard who was working as a Security Officer at the nite club. Luke then told me something. (Details about the fight that had occurred) As I was talking to Luke a male known to me as Brett Sonter has walked out of the main section of the nite club. He was holding a bar towel over his face.

He said, ‘What are you going to do about that cunt Mick Davis hitting me.’

I said, ‘What has happened?’

He said, ‘That cunt Mick Davis hit me. I went to go past and he grabbed hold of me then hit me in the face. He can’t get away with this. I don’t care if he is the Aclo.’

I then noticed the Brett had a badly swollen, bruised left eye. He had a number of lacerations, scratches and red marks over his face. He had what appeared to be dried blood around his left eye, around his mouth and over his face.

I said, ‘Brett I will get some details from you at a later time, as I think you had better get

some treatment for your injuries.’

He said, ‘Yeah O.K., but I want something done. He carn’t go round belting people’

I was about to place Brett in the Police vehicle when an Ambulance arrived. After the Ambulance

Officer started to treat Brett I walked back into the nite club and again spoke with Luke Barnard.

Together with Pro Con Lynn I followed the Ambulance to the Inverell Hospital and then returned to

Inverell Station.

At 8.30pm on Saturday the 30th day of December, 2000 Brett Sonter attended the Inverell Station. I then obtained a statement from Brett and photographed his injuries. Over the next few weeks obtained a number of statements in relation to this matter.”

39. Probationary Constable Lynn made his statement on 17 January 2001, which is largely corroborative of the statement made by Sgt Cattell. He did, however, have a conversation in the car park with Owen Craigie:

“ I then went and spoke with aa Aboriginal male person whom I know as Owen Craigie.

I said, ‘Can you tell me what happened?’

He said, ‘It’s a big shit fight, everybody is fighting everyone.’

I said, ‘Were you part of it?’

He said, ‘No.’

I said, ‘Its just that you’ve got some blood on your shirt.’

He said, ‘Don’t know where it came from’…”

40. On 17 January 2001, Mr Davis attended at the Inverell police station where he made a second, supplementary statement. He did not alter his first statement except to add some details. In particular he added details of a conversation with the plaintiff earlier in the evening of the episode, to do with Mr Davis taking business away from the plaintiff.

The plaintiff’s oral evidence

41. After giving evidence about the episode the plaintiff then dealt with the interview at the Inverell police station on 30 December 2000, when he gave his statement. He said it was his understanding that one of the purposes was to help identify the persons who had assaulted him. He agreed that Sgt Cattell was seeking names as to persons who were at the scene.

42. In cross-examination he first agreed that the only name he gave was that of Mick Davis. He was asked when he had first mentioned Nathan Blacklock’s name and the plaintiff said it was on the night at the hotel. He said, ‘Yes, he is a friend’. Asked when he next spoke to Blacklock he said it was about a week later.

43. In further cross-examination it emerged that in addition to the names in his statement, he also gave Sgt Cattell the name “Ray Ray” (Raymond Craigie). Asked why that name wasn’t mentioned in his statement he replied that he thought the police were taking a separate statement for the individual attackers, and that this statement related only to the first assault by Mr Davis. He said Sgt Cattell told him this. Sgt Cattell denied telling him any such thing. As to this issue, I believe Sgt Cattell. It was a fanciful explanation by the plaintiff, and I am satisfied the name “Ray Ray” was not mentioned by the plaintiff to Sgt Cattell on that occasion.

44. After making his statement the plaintiff said he subsequently rang Sgt Cattell regularly to enquire who had been identified and who had been charged. But, he said, Sgt Cattell was unable to help, and did not produce any new witnesses or statements over a three month period. I pause here to note that the plaintiff gave no evidence that he volunteered any further names, nor gave any further assistance to Sgt Cattell in the identification of potential witnesses or their whereabouts. It might be inferred, for example, that when the plaintiff spoke to Nathan Blacklock a week after the accident he might have ascertained whether Nathan Blacklock saw the altercation with Mr Davis. It might also be inferred that if Nathan Blacklock was a friend, the plaintiff would have known where to find him, and could have assisted the police in ascertaining who else was there on the night, including the person from Newcastle, Nigel and Shannon (the person Mr Barnard thought might be Nathan Blacklock’s brother).

45. The plaintiff then gave his evidence as to the critical meeting with Sgt Cattell at the Inverell police station, which the plaintiff said occurred in March 2001, but which the evidence clearly establishes occurred in the first half of May 2001.

46. In his evidence-in-chief, the plaintiff said that at that meeting he was informed that he would be charged. He questioned Sgt Cattell, and argued with him, asking how Sgt Cattell could do this and saying it was because Mick Davis worked for the police and the others involved were aboriginal or played NRL (rugby league). The plaintiff said things like, ‘I will fight this in court. I will go to the newspapers.’

47. The plaintiff, in giving his evidence in chief, initially gave no evidence to support the allegation set out in paragraph 8 and particular of malice (v) of his Amended Statement of Claim (see below). His counsel then proceeded to attempt to lead that evidence from the plaintiff by questions that in my view amounted to cross-examination. It was only after I allowed the plaintiff to refresh his recollection from the pleadings that he gave any evidence of this allegation.

48. The plaintiff, having refreshed his recollection, adopted those allegations saying things like, ‘This is ridiculous. What can I do about this? How can I fix this?’ He said that Sgt Cattell then told him to walk away and not press charges and to leave it alone, ‘Drop your charges and let life go on.’

49. Sgt Cattell gave a quite different version of the conversation, to which I will come. Sgt Cattell also said he had no opportunity to give the plaintiff any further detail of the evidence against him, as the plaintiff walked out of the station before that could occur.

50. The next topic in cross-examination related to the offer by Sgt Cattell to take the plaintiff to hospital. The evidence of the plaintiff on this topic was curious. He said that although the police offered to take him to the hospital, he refused because ‘You only get in a police car if you’ve done something wrong’. He then went on to say that in his view Sgt Cattell had tried to obtain some advantage over him, and was only pretending to help him with a view to misleading him. This was because Sgt Cattell had failed to take anyone else into custody, and because Sgt Cattell knew that Mr Davis’ wife was then on duty. He even gave evidence that his brother had identified Mr Davis’ wife to him at the hospital, whereupon the plaintiff protested in strong terms to her presence.

51. The plaintiff then said that even on that night Sgt Cattell had a ‘prior agenda’, to protect his colleague, Mr Davis. Asked if Sgt Cattell was polite, the plaintiff said, ‘Cavalier’. Asked if Sgt Cattell was helpful, the plaintiff said, ‘Carrying out his duties, just’. Later in cross-examination the plaintiff even accused Sgt Cattell of being a liar.

52. Mr Davis’ wife, Anita McKay, gave evidence that she has never worked at the Inverell hospital. She was not even cross-examined. The plaintiff’s brother was not called to give evidence.

53. It was evident to me from his evidence, particularly this evidence, that the plaintiff had formed a deep resentment and animosity towards Sgt Cattell, which has clouded his objectivity. It also, in my assessment, reflected on the plaintiff’s credit as regards the evidence of his interaction and conversations with Sgt Cattell.

54. The balance of the plaintiff’s evidence related to the issue of damages, including the effect on him of the laying of charges and the prosecution of them, and evidence of the plaintiff’s previous convictions.

The oral evidence of Mr Davis

55. Having confirmed his two statements, the evidence-in-chief given by Mr Davis was largely directed at his prior ‘business’ dealings with the plaintiff.

56. He was then cross-examined.

57. Part of the cross-examination was directed at the laceration to the head received by Mr Davis in the altercation with the plaintiff, its position and how it was incurred. It was put to Mr Davis that the position of the laceration was inconsistent with him having been head butted by the plaintiff. Mr Davis, however, was firm that the plaintiff head butted him when he bent down to hear what the plaintiff was saying to him, and this caused the laceration to his head.

58. Other cross-examination went to the identity and location of witnesses, Mr Davis’ relationship with the Inverell police and the circumstances surrounding his second statement given on 17 January 2001. It was put to him, for example, that he had seen the statement made by Mr Blair. There was no evidence before me to have justified that suggestion.

The oral evidence of Probationary Constable Lynn

59. P C Lynn confirmed his statement made on 17 January 2000. He confirmed his conversation with Mr Owen Craigie. He corroborated the statement of Sgt Cattell, in particular the discussion with the plaintiff about being taken to the hospital in the police vehicle. The relevant extracts from his notebook were tendered (Exhibit 3). The notes support the statement later made by P C Lynn, except as to the conversation as between Sgt Cattell and the plaintiff. P C Lynn was unable to explain this, but this omission was not the subject of any cross-examination and I conclude that nothing turns on it.

The oral evidence of Sgt Cattell

60. Sgt Cattell confirmed his statement made on 16 January 2000. He recapped the events of the early morning of 30 December 2000, including the offer of assistance to the plaintiff to take him to hospital, which was only spurned due to the arrival of the ambulance. Asked why he and P C Lynn followed the ambulance to the hospital, Sgt Cattell recalled that it was to give the plaintiff’s brother, Craig, a lift to the hospital.

61. A large part of the evidence of Sgt Cattell related to the identity of possible witnesses, their whereabouts, and his attempts to locate them and obtain their statements. He asked Mr Davis who else might be able to make a statement. Mr Blair was nominated, and he was contacted and made a statement. The Cracknells were identified by the plaintiff, who provided their addresses. They were interviewed. The two girls with the plaintiff’s group did not wish to become involved. Sgt Cattell was unable to find out who “Nigel” was. Nigel was apparently from around Newcastle, but no one could provide his family name or details of his whereabouts. He asked Mr Davis to get in touch with Mr Nathan Blacklock, but Mr Blacklock did not come forward. Sgt Cattell was unable to locate Mr Peter Ellis, despite asking both Mr Davis and Mr Blair for an address. No attempt was made to contact Mr Owen Craigie at that time, as he had told PC Lynn he didn’t want to be involved. Attempts were made at that time to find Mr Ray Craigie through local enquiries, but Mr Ray Craigie also failed to come forward. Subsequent attempts to obtain statements from the Craigies proved futile (Exhibit 4). The person “Shannon”, suggested by Mr Barnard to have been Mr Nathan Blacklock’s brother, but in fact wasn’t, was never identified.

62. I come then to Sgt Cattell’s evidence about the critical conversation with the plaintiff at the Inverell police station in May 2000.

63. Having obtained independent advice on whether the evidence gathered was sufficient to charge the plaintiff (Exhibit C), to which I shall come, Sgt Cattell arranged an interview with the plaintiff. This meeting took place in the first half of May 2001.

64. Sgt Cattell told the plaintiff he had had an advising from Sydney, that he had enough evidence to charge the Craigies with assault of the plaintiff, but that he also had enough evidence to charge the plaintiff with the assault of Mr Davis. He then told the plaintiff if he wished to proceed with a charge against the Craigies, he would also charge the plaintiff with the assault of Mr Davis.

65. The plaintiff responded, ‘This is fucked’, and walked out. Sgt Cattell said he had been considering outlining to the plaintiff the detail of the evidence against him, but the plaintiff walked out of the station before he could do so.

66. Sgt Cattell denied that the plaintiff said anything at the May meeting about going to the newspapers or seeing a solicitor, and that this occurred in a subsequent conversation.

67. In examination-in-chief, Sgt Cattell was asked why he had decided to charge the plaintiff. He said that he believed the plaintiff had assaulted Mr Davis, and that there was a strong case that he could bring to a successful prosecution. He had no spite or ill will towards the plaintiff.

68. Asked why he offered not to lay charges against the plaintiff if he declined to proceed with charges against the Craigies, Sgt Cattell said it would not have been fair to proceed with the charge of assault on Mr Davis if the plaintiff did not want to proceed with charges against the Craigies. This was because it is very difficult to proceed with a case of assault without the victim there to give evidence.

69. Sgt Cattell was cross-examined about this conversation and his motives for it. It was put to him that it was his duty to proceed regardless. He said that was not his duty.

70. It was also put to Sgt Cattell that he was trying to protect Mr Davis from an assault charge because there is a large group of indigenous people in Inverell and, therefore, a concern to maintain good relations between this group and the white community, and that a liaison officer was an important person in that regard. Sgt Cattell denied any such motive.

71. Subsequent to the meeting with the plaintiff, summonses were sworn out and issued on 24 May 2000.

72. Cross-examination of Sgt Cattell then proceeded to the advisings (Exhibit C) to which I will come as a separate topic.

73. Finally, Sgt Cattell was cross-examined as to the physical discrepancy between the plaintiff and Mr Davis.

74. It was put to Sgt Cattell that it was likely that the laceration to the head of Mr Davis was a result of an ‘imperfectly executed head butt’ by Mr Davis on the plaintiff. Sgt Cattell regarded the laceration as having been too far up the head for it to be the result of an attempted but miscued head butt by Mr Davis.

75. Sgt Cattell also discounted the evidence in Mr Blair’s statement that Mr Davis had head butted the plaintiff in response to the head butt from the plaintiff to Mr Davis, due to the position of the laceration, and because there was no other evidence that Mr Davis had head butted the plaintiff, not even from the plaintiff himself.

76. It was not put to Sgt Cattell, as it was to Sgt Murray, that it is “ridiculous to suggest” that a man of the plaintiff’s stature would head butt a man of the height and size of Mr Davis.

The “advisings”

77. It was a critical part of the plaintiff’s case, as pleaded (see below) that Sgt Cattell charged the plaintiff without having taken independent objective advice (Particulars of Malice i, ii and iii).

78. Having gathered the evidence, consisting of the statements, Sgt Cattell prepared a typewritten report dated 18 January 2001 (Exhibit C1). This contains what in my view is a very fair and succinct summary of the issues and background, with the following “Comment”:

“ There are conflicting statements between Davis and Sonter, although a witness has confirmed that

Davis was headbutted by Sonter. A copy of all statements obtained are attached to this report.”

79. Sgt Cattell finished his report with a recommendation “that this file be forwarded to the Police Prosecutor at Inverell for his determination”.

80. The report and attached file of statements was first considered by the Duty Officer at Inverell, Inspector Harrington, who on 20 January 2001 made the following handwritten note on Sgt Cattell’s report:

“ I have read the attached papers and it would appear that the victim Sonter has assaulted Davis, and has then been assaulted by Owen Craigee, Ray Craigee and others. Bearing in mind the sensitive nature of this incident, (Davis – ACLO), I would seek the advice of the Police Prosecutor in determining the

appropriate course of action.”

81. Accordingly, the file was sent to the police prosecutor, Sgt Murray, for his consideration. Sgt Murray, having considered the evidence, prepared a handwritten advice (Exhibit C2) which reads:

“ I have read the attached brief of evidence as it stands and no-one co-oberates (sic) Brett Sonter’s

version that Davis started the fight. On the contrary, evidence establishes that Brett Sonter should

be charged with this initial assault. Any actions of Davis after this are in self defence. Injury to

Davis is further evidence to co-oberate (sic) Davis’s version of events.

However, clear evidence exists to charge

1. Ray Craigie assault on Brett Sonter

2. Owen Craigie assault on Brett Sonter

3. Shannon (Nathan Blacklock’s brother) with assault on Brett Sonter

All that is missing is s 114 evidence problems with visual identification evidence with no line up.

How does Brett Barnard know these persons and would it be unfair because they are well known to

Barnard to conduct a line up.

No charges to be laid against Davis but should be counselled in relation to the company he is keeping noting his position.”

82. The advice of Sgt Murray went back to Inspector Harrington who prepared a typewritten report (Exhibit C3) in which he says:

“ …It is clear in my mind what action should be taken based on the evidence gathered by Senior Constable Cattell. My thoughts are supported by Local Police Prosecutor Sgt D. Murray. Bearing in mind that Michael Davis is an employee of the New South Wales Police Service, and in accordance with the recommendation of the Region 1A Consultant, I now require a decision as to the action to be taken from Northern Region Legal Services.”

83. Inspector Harrington finished his report with a recommendation that the file be “forwarded to Northern Region Legal Services for a decision as to the correct action to be taken”.

84. The file of evidence was therefore sent to the police Crime Manager at Armidale, Mr Peter Torning. He in turn sent the file to Sydney for consideration by the Court and Legal Services Operational Advice Section of the NSW Police Service. A/Sgt Wayne Pernice, on behalf of the Manager of that section, sent a letter dated 28 February 2001 (Exhibit C4) to the Local Area Commander, New England, which reads:

“Direction sought as to action to be taken in relation to an incident at the Royal Hotel Inverell from 30.12.00 involving Michael Davis and a number of other persons.

This Office does not give directions to Police as to what action to take. The decision to prosecute is one that rests with investigating police in consultation with their supervisors. That decision should be based on the available evidence and their determination as to the veracity of the witnesses.

The Police Prosecutor has provided advice which on face value appears to be accurate. The Duty Officer has agreed with the comments of the Police Prosecutor. In the absence of any compelling

reasons to the contrary, the informant should consider following the advice already given.

These papers are now forwarded for information and any action deemed appropriate.”

85. The file went back to the Crime Manager, Mr Torning, at Armidale. He discussed the letter from A/Sgt Pernice with someone, probably Inspector Harrington, on 6 March 2001 and made the following handwritten notation on the letter:

“ As per our conversation this morning, there is sufficient evidence to charge Sonter with assaulting Mick Davis. However, further enquiries need to be made regarding the assaults upon Sonter by other persons. First, does Sonter want to proceed? If so, re-interview Barnard as to how he is able to identify the offenders. Mick Davis is a Ministerial employee & needs to be dealt with under these

provisions if you desire to counsel him.”

86. I pause here to note that not one of these senior officers suggested any need to obtain further statements before charging the plaintiff. The only need for further enquiries related to identification evidence in respect of any charges to be laid against others for the assaults on the plaintiff. There was consistent, objective and uniform opinion from them all that the evidence clearly established that the plaintiff assaulted Mr Davis, and not vice versa, and that it supported the laying of charges against the plaintiff.

87. These “advisings” then went back to Inspector Harrington and in turn to Sgt Cattell at Inverell.

88. Sgt Cattell went on holidays during this period (see transcript from the trial at Inverell), and it was not until May 2001 that he met with the plaintiff.

The evidence of Sgt Murray

89. Sgt Murray is, and was in 2000, the police prosecutor for Inverell. It was part of his role to give advice to police on cases they might or might not bring. He had had considerable experience in that role prior to giving his advice (Exhibit C2) in this matter.

90. He was extensively cross-examined about his advice, but unshaken. It was suggested to him that he was friendly with both Mr Davis and Sgt Cattell, but said they were professional colleagues only, with whom he did not socialise.

91. Much was made of the physical discrepancy in size between the plaintiff and Mr Davis, and the damage that might or might not result to the head of the giver and receiver of head butts. However, Sgt Murray was satisfied, based on his experience, that the laceration to the head of Mr Davis was consistent with him having received a head butt, rather than as a result of attempting to deliver a head butt.

92. It was suggested to Sgt Murray that it was ridiculous to suggest that a small man like the plaintiff would head butt a big man like Mr Davis. Sgt Murray’s reply was telling: “Are you asking if I have seen that sort of ridiculous behaviour. Yes. I see it all the time. People do stupid things, particularly with alcohol. And smaller persons do take on bigger persons.”

93. Cross-examined as to the factors he took into account and the weight given to various parts of the statements, Sgt Murray pointed to the absence of any evidence that Mr Davis initiated the altercation. The only evidence of Mr Davis having head butted the plaintiff came from Br Blair, and even on his version it came after the plaintiff had head butted Mr Davis. Not even the plaintiff said he was head butted by Mr Davis in his contemporaneous statement, a copy of which he was given on the day and took away with him. Never in all his phone calls to Sgt Cattell did the plaintiff seek to correct his version of the altercation.

94. Sgt Murray also pointed to the absence of any evidence that the plaintiff was injured in the initial altercation. This was confirmed by Mr Barnard’s statement (at paragraph 6).

95. It was also suggested that the recommendation by Sgt Murray that Mr Davis be counselled as to the company he was keeping was indicative of some bias on the part of Sgt Murray, due to Mr Davis’ position as ACLO. Sgt Murray denied any sensitivity in this regard and said that in his view there simply wasn’t any evidence to justify a charge against Mr Davis.`

The pleadings

96. The pleadings assumed some importance in the conduct of the trial.

97. Paragraph 8 of the original Statement of Claim alleged:

“ In or about March 2001 Senior Constable Laurence Edward Cattell invited the Plaintiff to attend the Inverell Police Station and when the Plaintiff attended Senior Constable Laurence Edward Cattell

informed the Plaintiff that if the Plaintiff pursued police to charge Michael Davis over the incident,

the Plaintiff himself would be charged with assaulting Michael Davis; or alternatively if the Plaintiff

did not pursue police to charge Michael Davis the plaintiff himself would not be charged.”

98. The plaintiff, in giving his evidence in chief, initially gave no evidence to support this allegation. His counsel then proceeded to attempt to lead the evidence from the plaintiff, by questions that in my view amounted to cross-examination. It was only after I allowed the plaintiff to refresh his recollection from the pleadings that he gave any evidence of this allegation.

99. The original Statement of Claim provided the following “Particulars of Malice”:

i Senior Constable Laurence Edward Cattell was malicious in proffering the charges

against the Plaintiff given that in the purported investigation of the incident Senior

Constable Laurence Edward Cattell had the opportunity to review the State’s legal

position, take independent objective advice and clarify the lawful position.

ii Senior Constable Laurence Edward Cattell obtained advice regarding whether to

proceed with the charges against the Plaintiff from a fellow Police Officer at Inverell

Police Station, who also worked with Michael Davis, thereby failing to attempt to

obtain objective advice and in turn did not obtain objective advice otherwise available

to him.

iii Senior Constable Laurence Edward Cattell had an ulterior purpose in proffering the charge against the Plaintiff.

iv Senior Constable Laurence Edward Cattell lacked reasonable and probable cause in

proffering the charges against the Plaintiff to the extent that Senior Constable Laurence

Edward Cattell without explanation failed to either obtain or attempt to obtain statements

from persons known by Senior Constable Laurence Edward Cattell to be eye witnesses to

the incident.

100. The Amended Statement of Claim provided the following additional particular under the heading “Particulars of Malice”:

v In a conversation with the Plaintiff in or about March 2001, Senior Constable Laurence Edward Cattell told the Plaintiff that he was to be charged and that Davis & Craigie were not to be charged but added that if the Plaintiff did not proceed to commence assault charges

against Davis & Craigie, the Plaintiff would not himself be charged with assault.

101. The difference between the allegation in paragraph 8 of the Statement of Claim and the allegation in Particular of Malice (v) is of significance.

102. Paragraph 5 of the Defence alleged:

“ As to paragraph 8 the defendant admits that Cattell invited the plaintiff to attend

Inverell station and that Cattell informed the plaintiff that on advice he had sufficient evidence

to charge the plaintiff with the assault of Mick Davis and there was sufficient evidence to prefer

charges against Owen and Ray Craigie for the assault of the plaintiff and that if the plaintiff

wished to proceed with the charges against Owen and Ray Craigie that he would be charged with

the assault of Davis but otherwise the defendant denies the allegations contained therein.”

The applicable legal principles

103. The parties were largely in agreement as to the relevant legal principles applicable to the circumstances of this dispute.

104. I was referred to various cases, to which I will refer only insofar as they bear upon the particular circumstances of the present proceedings.

105. The starting point is the judgment of Chief Justice Jordan in Mitchell v John Hein(1938) 38 SR (NSW) 466, in which His Honour made statements of principle that until 2005 were regarded as authoritative in New South Wales (at 469). These statements of principle were considered by the NSW Court of Appeal in A v State of New South Wales [2005] NSWCA 292. The leading judgment is that of Beazley JA with whom Mason P and Pearlman A-JA agreed. The Court considered that it should not follow Jordan CJ’s formulation but rather should apply the test articulated by Dixon J in Sharp v Biggs (1932) 48 CLR 81: A v State of New South Wales [2005] NSWCA 292 at [107]. I was told by counsel that an application has been made in the High Court for leave to appeal against this decision.

106. I was also referred to the decisions in Trobridge v Hardy (1955) 94 CLR 147, Lye v State of New South Wales [2005] NSWCA 282, Turner v Ambler (1847) 10 QB 252; 116 ER 98, Rapley v Rapley (1930) 30 SR 94, Glinski v McIver [1962] AC 726, Herniman v Smith [1938] 1 All ER 1, Lister v Perryman (1869-70) LR HL 521 and Hicks v Faulkner (1878) 8 QBD 167.

107. I do not propose to review these cases here in detail but having read them I conclude that the following principles are applicable to the facts in the present case:

107.1 There are two elements in the tort of malicious prosecution that a plaintiff must prove:

first, that the prosecution acted without reasonable or probable cause; and secondly, that

the prosecution acted maliciously: Mitchell v John Heine (1938) 38 SR (NSW) 466 at

469.

107.2 These are separate elements and both must be satisfied to ground the action: Mitchell v

John Heine

(1938) 38 SR (NSW) 466 at 474.

107.3 In order to establish reasonable and probable cause it is necessary that the following

conditions should exist:

1. The material available to the prosecutor is such as to at least lead to ‘a belief that the probability of the accused’s guilt is such that upon general grounds of justice a charge
against him is warranted . The prosecutor does not have to believe in the guilt of the
accused’: A v State of New South Wales [2005] NSWCA 292 at [107].
2. In a case where the prosecution is based on the prosecutor’s own evidence, an absence of
honest belief in the case being advanced would be evidence of absence of reasonable and
probable cause; A v State of New South Wales [2005] NSWCA 292 at [107]; Glinski v
McIver [1962] AC 726 at 761.
3. The prosecutor must be seised of sufficient information to warrant the laying of
the charge: A v State of New South Wales [2005] NSWCA 292 at [108].
4. It is not sufficient, even if the relevant belief exists, if the material of which the
prosecutor is aware is not calculated to arouse it in the mind of a person of
ordinary prudence and judgment: Sharp v Biggs (1932) 48 CLR 81 at 106.

107.4 Sufficiency of the evidence might in some circumstances be determined by considering

what, if any, further steps a reasonable person would have taken to inform themself upon
the subject before laying the charge: Sharp v Biggs (1932) 48 CLR 81 at 106. The prosecutor is not, however, required to have tested every possible relevant fact. The
duty is not to ascertain whether there is a defence, but to ascertain whether there is
reasonable and probable cause for a prosecution: Herniman v Smith [1938] 1 All ER 1
at 10; Lister v Perryman (1869-70) LR HL 521.

107.5 In order to establish malice it is necessary to show that the defendant was actuated either

by spite or ill will towards the plaintiff, or by indirect or improper motives, even if
unconnected with any uncharitable feeling for anybody: Rapley v Rapley (1930) 30 SR 94
at 98. A plaintiff must prove either actual malice, in the sense of personal spleen or ill will against the plaintiff, or an impermissible motive: Lye v State of New South Wales [2005]
NSWCA 282.

107.6 Even if a plaintiff cannot point to a particular motive, the existence of malice may be inferred if the plaintiff proves the defendant’s conduct is not be explained by the existence of a right motive: Trobridge v Hardy (1955) 94 CLR 147 at 163.

107.7 Proof of a particular fact may supply evidence both of malice and of absence of reasonable and probable cause: Mitchell v John Heine (1938) 38 SR (NSW) 466 at 474 and Glinski v McIver [1962] AC 726 at 744.

107.8 Evidence of malice will, however, never establish the absence of reasonable and probable cause: Mitchell v John Heine (1938) 38 SR (NSW) 466 at 474, even if that malice is express: Glinski v McIver [1962] AC 726 at 744.

107.9 On the other hand, the absence of reasonable and probable cause may, but will not of itself necessarily support a finding of malice: Rapley v Rapley (1930) 30 SR 94 at 98. But such an inference of malice might only rarely be drawn from the absence of reasonable and probable cause, where for example the defendant knew the plaintiff to be innocent: Mitchell v John Heine (1938) 38 SR (NSW) 466 at 474; or the evidence was so lacking that the inference of malice was inescapable: Glinski v McIver [1962] AC 726 at 743.

The submissions made on behalf of the defendant

108. The following is a summary of the relevant submissions made on behalf of the defendant, on liability.

109. I should accept the evidence of Sgt Cattell and the defendant’s witnesses in preference to the evidence of the plaintiff.

110. There was an overwhelming case against the plaintiff. It was not essential that the file of evidence be sent to Sydney, but and this was done as a matter of prudence and fairness.

111. It was reasonable to regard the matter as sensitive because of the position held by Mr Davis and his connection with the local police, to ensure an appearance of independence and transparency.

112. None of the independent advisers suggested that any additional witnesses were required to be interviewed to support a charge against the plaintiff.

113. Police officers have duties, but they also have discretions, in exercising their powers to charge persons. These discretions cannot be exercised capriciously, but they nevertheless exist: A v State of New South Wales [2005] NSWCA 292.

114. It was relevant for Sgt Cattell to consider the possibility that the plaintiff might decline to give evidence against the Craigies, the reality being that if a victim fails to give evidence in a prosecution for assault in the Local Court, the prosecution is unlikely to succeed. This issue was raised by the Crime Manager for Sgt Cattell’s consideration (Exhibit C4).

115. It was appropriate for Sgt Cattell to raise with the plaintiff the issues he did at the May 2001 meeting. This was a pub brawl in respect of which the available evidence was that the plaintiff started it by head butting Mr Davis. It was a fair approach to say to the plaintiff that if the claims against the Craigies were to proceed, then the case against the plaintiff should also proceed. It was neither unreasonable nor improper for Sgt Cattell to put it to the plaintiff that both sets of proceedings be dropped.

116. The meeting with the plaintiff became difficult because the plaintiff had an issue with Mr Davis, and became angry and stormed out before Sgt Cattell could put to the plaintiff the basis for the charge against him.

117. Even if the suggestion put to the plaintiff were by Sgt Cattell were to be regarded as improper, it does not mean that the charges were laid for an improper motive.

118. The only improper motive put forward was the protection of Mr Davis. This was simply not borne out by the evidence. It was not even a case of a trade-off as regards Mr Davis, because he was not going to be charged in any event.

119. Sgt Cattell was left, in effect, with no alternative but to proceed with the cases he considered the evidence supported, and which the independent advisings supported.

120. “An attempted fairness should not be turned into an improper motive”.

121. Any failure to search for further potential evidence cannot amount either to absence of reasonable cause or malice. It was for the plaintiff to show there was material available to exonerate him or to corroborate his version of events rather than that of Mr Davis. It was not enough to suggest there might have been such evidence.

122. It was equally available to the plaintiff to have identified and located any witnesses, before he was charged or by calling them to give evidence at the hearing. In that regard the defendant relied on a “Jones v Dunkel inference”

123. None of the allegations in the Amended Statement of Claim were made out and the plaintiff’s case must fail.

The submissions made on behalf of the plaintiff

124. The following is a summary of the relevant submissions made on behalf of the plaintiff, on liability.

125. There were five other potential eyewitnesses each of whom was in the vicinity of the initial altercation: Nathan Blacklock, Peter Ellis, Ray Craigie, Nigel and Shannon (Nathan Blacklock’s brother). Not only were they not interviewed, but all Sgt Cattell did was to ask Mr Davis whether they could be contacted.

126. The advice in the letter dated 28 February 2001 (Exhibit C4) from A/Sgt Wayne Pernice of the Operational Advice Section of the NSW Police Service was to determine the veracity of the witnesses. In those circumstances a reasonable man would have made attempts to interview the other potential witnesses.

127. It is the key to the plaintiff’s case that these witnesses were not adequately pursued for their evidence before the plaintiff was charged. Assumptions could not be made as to whether they saw anything, or if they did whether they were prepared to make a statement, or if they were, whether the evidence would support the prosecution case or not. The situation has to be viewed as at the time of the laying of the charges.

128. The plaintiff does not allege personal spleen or ill will on the part of Sgt Cattell. It is alleged, however, that there was an improper motive, namely the protection of Mr Davis. The arrangement offered to the plaintiff, as set out in paragraph 5 of the Defence, is evidence of that motive. What Sgt Cattell said to the plaintiff at the May 2001 meeting was a threat, was intimidation. It could not be viewed as part of the proper exercise of any discretion.

129. If Sgt Cattell truly and honestly believed there was a case against the plaintiff then he should not have offered him the arrangement he did.

130. The improper motive, of protecting Mr Davis, was to preserve good relations between the indigenous people in the community, there being a large aboriginal population, and others in the community. In this regard, Mr Davis was clearly a man of influence, who had “clout”, and if he were to be charged, there may be troubles. This is evident, in particular, from the advisings (Exhibit C). Having read the comments from superior officers, such as Sgt Murray’s recommendation that Mr Davis be counselled as to the company he was keeping, this formed part of the formulation for not laying charges against Mr Davis.

131. The probability is that the improper arrangement put to the plaintiff was an indication that Sgt Cattell’s true motive was to protect Mr Davis.

Reasonable and probable cause

132. In my view the evidence gathered by Sgt Sonter led to the inescapable conclusion that the altercation between the plaintiff and Mr Sonter at the Royal Hotel, Inverell, in the early hours of Saturday 30 December 2000, was started by the plaintiff head butting Mr Davis.

133. The plaintiff’s version of that altercation is simply not credible.

134. The only evidence that Mr Davis started the altercation, by punching the plaintiff, came from the plaintiff. That version was not corroborated by anyone, either in the statements, at the Inverell trial or at the hearing of this claim, at Armidale.

135. Mr Davis’ version of the initial altercation was corroborated by Mr Blair and was consistent with the presence and position of the laceration to his head sustained in that initial altercation.

136. On the other hand, the plaintiff suffered no visible injury to the head in the initial altercation. This was confirmed by the security operative, Mr Barnard. The evidence clearly established that the plaintiff’s injuries were sustained in the events subsequent to the initial altercation with Mr Davis.

137. Mr Barnard did not see the plaintiff head butt Mr Davis, although it might be inferred that he only looked over after the initial head butt, in time to see Mr Davis grab the plaintiff. But even then Mr Barnard, said to be a friend of the plaintiff, does not corroborate the plaintiff’s allegation that Mr Davis punched him after Mr Davis had grabbed him.

138. The only other evidence of Mr Davis having done anything to the plaintiff, other than grab him and push him up against the bar, came from the statement of Mr Blair. He does not say that Mr Davis punched the plaintiff, although he does say Mr Davis head butted the plaintiff. This was not corroborated by anyone else, and even on Mr Blair’s version, it occurred after the initial head butt by the plaintiff. Even the plaintiff did not say anything about Mr Davis having head butted him, either to Sgt Cattell at the scene of the episode, or in his statement made that same day. He had ample opportunity in the succeeding weeks to correct his statement in this regard, but never did.

139. The evidence as to an assault by Mr Davis on the plaintiff, other than by way of self-defence following the plaintiff having head butted him, was unreliable.

140. The suggestion to some witnesses that it was improbable that the laceration to Mr Davis’ head was caused by him having been head butted by the plaintiff was uniformly rejected. In any event, Sgt Cattell believed it was caused by the receipt of a head butt rather than from having delivered a head butt, and in my view he was entitled to have formed that belief.

141. Likewise, the suggestion that it was ridiculous to contemplate that a man the size of this plaintiff would head butt a man the size of Mr Davis was also discredited. Sgt Murray, the experienced police prosecutor, said he has seen such stupid behaviour on many occasions, especially when alcohol is involved. It was not suggested that Sgt Cattell did not hold a similar view, as the suggestion was not even put to him.

142. The evidence gathered by Sgt Cattell was of itself sufficient to warrant the laying of charges against the plaintiff, and there was in my view no need for him to further inform himself by seeking to test that evidence by obtaining further statements or otherwise, before laying charges.

143. None of the reviewing police officers suggested, in the advisings, that he should do so.

144. To the extent that he did make attempts to identify other witnesses with a view to obtaining further statements, I am satisfied that he acted reasonably.

145. None of these so-called potential witnesses came forward, despite enquiries. “Nigel” was never identified, notwithstanding attempts to do so, and it was never established who “Shannon” really was, despite the suggestion he was Nathan Blacklock’s brother. One wonders, if the plaintiff was a friend of Nathan Blacklock’s, why this suggestion was never verified. The plaintiff’s explanation as to why there was no mention of “Ray Ray” in his statement was simply not credible, and I did not believe him.

146. The letter of A/Sgt Wayne Pernice dated 28 February 2001 (Exhibit C4) to the Local Area Commander, New England, did suggest that any decision to lay charges should only be made after determining “the veracity of the witnesses” but that is precisely what Sgt Cattell did. It is to be noted that this letter also said that the “decision should be based on the available evidence “ and that “in the absence of any compelling reasons to the contrary, the informant should consider following the advice already given” by the police prosecutor.

147. I am further satisfied that it was extremely unlikely that any of the so-called potential witnesses, even if they saw the initial altercation between the plaintiff and Mr Davis, would have willingly made a statement.

148. It follows that the material available to Sgt Cattell was such as justified a person of ordinary prudence and caution to believe that the plaintiff was probably guilty. I am satisfied that Sgt Cattell believed that the plaintiff was probably guilty of the offences with which he was charged. That was an honest belief, based on reasonable grounds, and not upon mere imagination or surmise, and founded on material that Sgt Cattell believed to be true and which pointed to the plaintiff’s guilt. Accordingly, the material was such as to at least lead to an honest belief that the probability of the plaintiff’s guilt was such that upon general grounds of justice the charges against him were warranted.

149. I therefore find that Sgt Cattell did not act without reasonable or probable cause when laying the charges against the plaintiff.

150. I also find that there was no satisfactory evidence of reasonable and probable cause for any charge to be laid against Mr Davis.

Malice

151. I am satisfied that the conversation between Sgt Cattell and the plaintiff at the Inverell police station in May 2001 was in the terms asserted by Sgt Cattell in evidence, and that the plaintiff’s version of that conversation is not to be believed. However, in my view it doesn’t matter as on either version I consider it was entirely appropriate and within the discretion of Sgt Cattell to put to the plaintiff the options he did.

152. I am not satisfied that there existed any spite (or spleen) or ill will on the part of Sgt Cattell towards the plaintiff. He did suggest in oral evidence that Sgt Cattell had only pretended to help the plaintiff following the episode, and was cavalier. He also called Sgt Cattell a liar. None of this was supported by any evidence and in my view it was indicative of ill will on the plaintiff’s part rather than on the part of Sgt Cattell. The evidence of the plaintiff about not wanting to go to the hospital in a police car, and about Mr Davis’ wife working at the hospital is illustrative of the plaintiff’s mind-set.

153. In my view the evidence supports a finding that Sgt Cattell conducted himself professionally, and with objectivity and candour, in all his dealings with the plaintiff.

154. I note that in his address, counsel for the plaintiff did not rely on any allegation of spleen or ill will on the part of Sgt Cattell, and in my view that was the only proper course he could take.

155. I accept the evidence of Sgt Cattell that he was concerned about laying charges against the Craigie brothers if the plaintiff might not be prepared to give evidence, as the victim. I note in this regard that when those prosecutions did go to trial, the plaintiff declined to make himself available to give evidence against the Craigies.

156. I accept the evidence of Sgt Cattell that he was contemplating giving the plaintiff a more detailed explanation as to the evidence against him but that the plaintiff foreclosed that by storming out.

157. I accept the evidence from each of the police officers who gave evidence that their relationship with Mr Davis was that of a work colleague, and that he was not a friend of any of them.

158. In my view the evidence does not support an inference of any improper motive on the part of Sgt Cattell in laying charges against the plaintiff. The only such motive suggested was a desire to protect Mr Davis, to avoid problems between the local indigenous community and the rest of the community. This suggestion amounted to nothing more than mere imagination or surmise.

159. The only proper inference to be drawn from the evidence is that Sgt Cattell was concerned to ensure that the process was transparent and accountable. Hence the advisings. I agree with counsel for the defendant that it would be entirely wrong for “an attempted fairness to be turned into an improper motive”. In my view, if Sgt Cattell was acting maliciously he would simply have charged the plaintiff without giving him the opportunity to drop the whole matter and walk away.

160. I therefore find that Sgt Cattell did not act maliciously when laying the charges against the plaintiff.

Liability

161. I have found that neither of the required elements to ground the tort of malicious prosecution existed.

162. The plaintiff has not, therefore, satisfied me that he was maliciously prosecuted and I find that the charges brought against him and prosecuted by the police were appropriate and justified, and otherwise lawful.

163. Accordingly, the plaintiff’s claim must fail and there should be a verdict for the defendant.

Damages

164. I turn to consider the damages to which the plaintiff would be entitled had he succeeded on liability.

165. The Statement of Claim alleges that the plaintiff “has been injured in his reputation and feelings and was brought to considerable expense and suffered great inconvenience, embarrassment and anxiety. A claim is made for special damages in respect of legal costs incurred in defending the charges in the Local court, and for general compensatory damages, as to which there are no particulars. Then there are claims for aggravated damages and exemplary damages, as to which there are short particulars provided.

166. The plaintiff gave evidence that he incurred legal costs of defending the charges in an amount of $6,500.00. That figure was not disputed and I am, therefore satisfied that the plaintiff would be entitled to special damages of $6,500.00.

167. No other pecuniary loss was pleaded.

168. Compensatory damages to which the plaintiff might be entitled fall into three broad categories. The first relates to the injury to his personal feelings, including any embarrassment, anxiety or other emotional consequences. The second relates to the inconvenience suffered. The third relates to any loss of reputation.

169. The evidence on these matters was very limited and very general. The plaintiff simply gave evidence that as a result of being charged he now feels scared and attacked, is agoraphobic and can no longer socialise. He also said the experience had interfered in his work choices and his family relationships. He suffered “huge embarrassment” given that Inverell is a small town. He is fearful of contact with persons he doesn’t know, of large groups, and of police and the authorities generally. Overall he is unable to “function easily any more”.

170. It was not suggested that the plaintiff suffered any psychological or psychiatric damage, and no medical evidence was tendered.

171. There was evidence that the plaintiff was no stranger to court proceedings, having a history of two prior convictions, one for assault and another for cultivating a prohibited plant. Nor was there any evidence as to any loss of reputation of a particular nature.

172. That embarrassment, general anxiety and inconvenience associated with being charged for assault and defending the proceedings is self evident, and the plaintiff would be entitled to compensatory damages for those matters. There is also some evidence of minor emotional consequences. The plaintiff does not strike me, however, as a person lacking in confidence, or unable to socialise.

173. As to any loss of reputation, given the evidence, this can only have been minimal and temporary.

174. I am not satisfied that the plaintiff suffered any great loss as a result of these charges beyond what might be regarded as a normal general level of upset, inconvenience, anxiety and embarrassment.

175. In my assessment an award of compensatory general damages of $5,000.00 would be appropriate to reflect these matters.

176. I am not satisfied that there is any basis for an award of aggravated damages or exemplary damages.

177. I therefore assess the total damages at $11,500.00.

Disposition

178. For these reasons enter a verdict in favour of the defendant.

179. I therefore enter judgment for the defendant.

180. I reserve costs pending argument.