State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen

[2024] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308

Hearing dates:

29 April 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Before:

Gleeson JA at [1]
White JA at [307]
Stern JA at [308]

Decision:

JR (2023/271325)

(1)   Appeal allowed in part.

(2)   Set aside the orders made in the District Court on 3 August 2023.

(3)   In lieu thereof:

(a)   enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

(b)   the plaintiff to pay 90 per cent of the defendant’s costs in the District Court.

(4)   The respondent to pay 90 per cent of the appellant’s costs in this Court.

Jensen (2023/271359)

(1)   Appeal allowed in part.

(2)   Set aside the orders made in the District Court on 3 August 2023.

(3)   In lieu thereof:

(a)   enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

(b)   the defendant to pay the plaintiff’s costs in the District Court.

(4)   Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

Dickens (2023/271345)

(1)   Appeal allowed in part.

(2)   Set aside the orders made in the District Court on 3 August 2023.

(3)   In lieu thereof:

(a)   enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

(b)   the defendant to pay the plaintiff’s costs in the District Court.

(4)   Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

Catchwords:

APPEALS – apprehension of bias – procedural fairness – whether the trial judge’s interventions gave rise to apprehension of bias or procedural unfairness – whether excessive judicial questioning or comments – whether real danger that trial was unfair

TORTS – malicious prosecution – where criminal proceedings result in acquittal – where police officer instituted proceedings by charging the accused – where proceedings taken over by Director of Public Prosecutions – whether police officer maintained the proceedings – whether in charging the accused police officer acted without reasonable and probable cause – whether officer acted with malice

TORTS – misfeasance in public office – whether malice proved

TORTS – false imprisonment – where plaintiffs detained for purpose of investigation – whether unlawfully detained beyond the maximum investigation period – whether permitted timeouts extended the investigation period – whether trial judge erred in findings as to period of false imprisonment – whether false imprisonment ended when respondents charged and refused bail

APPEALS – damages for false imprisonment – whether trial judge failed to apply correct counterfactual scenario – whether error in awarding compensatory damages – whether nominal damages appropriate – whether error in awarding aggravated and exemplary damages

APPEALS – from finding of fact – credibility of witnesses – whether primary judge erred in credibility and reliability findings

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 100

Criminal Procedure Act 1986 (NSW), ss 48, 281

Crimes Act 1900 (NSW), ss 58, 61J(1), 61JA(1), 86(2)(a), 578A

Criminal Appeal Act 1912 (NSW), s 5F

Director of Public Prosecutions Act 1986 (NSW), ss 9, 15A

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 114, 115, 116, 117

Law Reform (Vicarious Liability) Act 1983 (NSW), Pt IV

Supreme Court Act 1970 (NSW), s 101(2)(r)

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 41.2

Cases Cited:

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

Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29

CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 40

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Dunlop v Woollahra Council [1982] AC 158

Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Galea v Galea (1990) 19 NSWLR 263

Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70

Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15

HD v State of New South Wales [2016] NSWCA 85

House v The King (1936) 55 CLR 499; [1936] HCA 40

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

James v Hill [2004] NSWCA 301

Klein v National Australia Bank Ltd [2016] VSCA 114

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47

Lee v Lee (2019) 226 CLR 129; [2019] HCA 28

Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26

Madden v State of New South Wales [2023] NSWDC 647

Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67

McLaughlin v State of New South Wales [2023] NSWDC 525

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65

Polsen v Harrison [2021] NSWCA 23

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

R v Rearden (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197

R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCA 321

R v T, WA [2014] SASCFC 3

Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64

Skrijel v Mengler [2003] VSC 270

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

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

State of New South Wales v Landini [2010] NSWCA 157

State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40

State of New South Wales v McLaughlin [2024] NSWCA 137

State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276

State of New South v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208

State of New South Wales v Spedding [2023] NSWCA 180

State of New South Wales v Zreika [2012] NSWCA 37

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

Superannuation Corporate Services Pty Ltd v Turner [2020] NSWCA 246

Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68

Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; [1966] HCA 40

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Yuill v Yuill [1945] P 15

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
JR (Respondent)
Christian Dickens (Respondent)
Aaron Jensen (Respondent)

Representation:

Counsel:
H Younan SC / A Williams / A Hammond (Appellant)
D Toomey SC / A C Canceri / T O’Rourke (Respondents)

Solicitors:
Crown Solicitor’s Office (Appellant)
Nyman Gibson Stewart (Respondents)

File Number(s):

2023/271325; 2023/271345; 2023/271359

Publication restriction:

The publication of the name of the complainant is prohibited pursuant to s 578A of the Crimes Act 1900 (NSW).

The publication of the name of the plaintiff in proceedings 2023/271325, referred to as “JR”, is prohibited pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

21 June 2023

Before:

Curtis ADCJ

File Number(s):

2021/166465, 2021/293147, 2021/293152

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 December 2015, police arrested the three respondents who were taken to Katoomba Police Station where they were detained for the purpose of investigation, subsequently charged later that day with various sexual assault offences and were each refused police bail. One of the respondents, JR, was refused bail in the Children’s Court on two subsequent occasions and also in the Supreme Court. He was held on remand until the conclusion of the respondents’ joint trial in July 2017 when a jury found each respondent not guilty of the alleged offences.

The respondents brought damages claims against the State of New South Wales (the State) for false imprisonment and JR also brought claims for malicious prosecution and misfeasance in public office. It was not in dispute that the State was vicariously liable for any tortious actions of officers of the NSW Police Force.

The claims of false imprisonment were successful. The primary judge found that each respondent was held at the Police Station for longer than the maximum investigation period at the relevant time: ss 115-117 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). The primary judge awarded each respondent damages of $30,000 plus interest, comprising $5,000 in general damages, $5,000 in aggravated damages, and $20,000 in exemplary damages.

JR’s claims of malicious prosecution and misfeasance in public office were also successful. The trial judge found that Detective Senior Constable (DSC) Clancy instituted the criminal proceedings against JR without reasonable and probable cause and acted with malice in doing so, causing JR harm, constituting malicious prosecution. The finding that DSC Clancy did not honestly believe in the case against JR relied on an inference that if he truly believed that the available material warranted charging JR, there was no reason for him to withhold certain exculpatory evidence from the DPP and the bail authorities. The trial judge further held that DSC Clancy’s charging of JR and his concealment of evidence from the bail authorities were unauthorised acts done maliciously by a public officer in the purported discharge of his public duties, which caused loss or harm to JR and thereby constituted misfeasance in public office. The judge awarded damages of $700,000 plus interest in respect of these torts, comprising $500,000 in general damages, $50,000 for loss of reputation, $50,000 in aggravated damages, and $100,000 in exemplary damages.

The appeals by the State raised the following issues:

1. Whether the trial judge’s interventions at trial specifically during the evidence-in-chief and cross-examination of some of the State’s witnesses gave rise to an apprehension of bias or whether the trial was affected by procedural unfairness;

2. Whether the malicious prosecution and misfeasance in public office claims were made out and, if so, whether the award of damages was excessive;

3. Whether false imprisonment was made out; and

4. In the alternative to issue (3), whether damages for false imprisonment should be restricted to nominal damages only.

The Court (Gleeson JA, White and Stern JJA agreeing) held, allowing the appeals in part:

As to issue (1):

1. The trial judge’s interventions during evidence-in-chief and cross-examination of several of the State’s witnesses did not give rise to an apprehension of bias. Rather, his Honour was seeking clarification during a judge-alone trial on issues which had been raised in the parties’ respective cases or in earlier evidence: [256]-[277].

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Polsen v Harrison [2021] NSWCA 23, considered.

2. Were it necessary to decide, the State had waived its right to object to the trial judge’s conduct during the trial on the ground of apprehended bias: [278]-[285].

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88, considered.

3. There was no procedural unfairness. The trial judge’s interventions during the trial did not create the danger of an unfair trial: [290]-[296].

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; Galea v Galea (1990) 19 NSWLR 263, considered.

As to issue (2):

4. Several of the trial judge’s factual findings which formed the basis of malicious prosecution and misfeasance in public office should be set aside because the findings were contrary to either uncontested evidence or compelling inferences: [79]-[96].

Superannuation Corporate Services Pty Ltd v Turner [2020] NSWCA 246; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; Robinson Helicopter Co Inc v McDermott [2016] HCA 22, considered.

5. The trial judge erred in finding that in initiating the criminal proceedings by charging JR, DSC Clancy acted without reasonable and probable cause and with malice. Malice requires that the tortfeasor acts with an illegitimate or oblique purpose. Here, the finding of malice relied on an inference from the finding of absence of an honest belief that there was a proper case for prosecution of JR, but that finding had been set aside: [123], [128]-[129], [136]-[139].

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10; HD v State of New South Wales [2016] NSWCA 85; State of New South Wales v Abed [2014] NSWCA 419; Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 64; State of New South Wales v Spedding [2023] NSWCA 180, considered.

6. Since the trial judge’s finding of misfeasance in public office relied on the finding of malice in relation to the malicious prosecution claim, the misfeasance in public office claim must fail: [144].

7. The component of the judgment for damages in favour of JR relating to these claims (being $700,000 plus interest) was set aside: [146].

As to issue (3):

8. Notwithstanding some errors in the trial judge’s factual findings as to the length of the respective periods of false imprisonment, the appeal against the findings of false imprisonment in respect of each respondent should be rejected. Each respondent was detained in the Katoomba Police Station for longer than the maximum investigation period which was permitted by LEPRA at the relevant time: [187]-[188], [193]-[194], [196]-[197].

9. The period of false imprisonment for each respondent began when the maximum investigation period of 4 hours provided by LEPRA, s 115, expired (taking into account permitted “timeouts” provided by s 117), and ended when each respondent was charged and bail was refused. JR was falsely imprisoned for a period of approximately 4 hours; Dickens, for approximately 2 hours and 20 minutes; and Jensen, for approximately 6 hours: [188], [194], [197].

As to issue (4):

10. The trial judge erred in failing to apply the correct counterfactual in assessing damages. An award of nominal damages of $100 is appropriate given that the correct counterfactual is, but for the false imprisonment, the respondents would have been lawfully detained because the police would have commenced the charging procedures for each respondent before the expiration of the investigation period: [218]-[224].

Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15; Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26; R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, considered.

11. Aggravated damages are not warranted, in circumstances where the degree of harm suffered by the respondents was not aggravated by the manner in which the wrongful act of detention was done: [231]-[234].

State of New South Wales v Zreika [2012] NSWCA 37; Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47; State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276, considered.

12. Exemplary damages should be awarded because the conduct by the police in detaining the respondents beyond the expiry of the permitted maximum investigation period must be strongly disapproved by the Court. However, considering the limited period of time for which each respondent was falsely imprisoned, the award of exemplary to each respondent should be reduced from $20,000 to $10,000: [244]-[245].

Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47; State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208; Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70; State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40, considered.

13. Judgment for damages of $10,100 is entered in favour of each respondent comprising nominal damages of $100 and $10,000 exemplary damages: [245].

Judgment

1. GLEESON JA: The State of New South Wales (the State) appeals from separate judgments for damages plus interest entered in the District Court on 3 August 2023 in favour of the respondents, JR, Christian Dickens (Dickens) and Aaron Jensen (Jensen), in respect of their claims for the tort of false imprisonment, and also JR’s claims for the torts of malicious prosecution and misfeasance in public office.

Nature of the case

2. On 23 December 2015, each respondent was arrested at home and taken to Katoomba Police Station where they were held until they were charged later that day with various sexual assault offences, refused bail and taken into custody. The offences were allegedly committed in October 2012 against a young girl who was then aged 15 years. The respondents and a fourth accused were committed for trial in the District Court. On 26 July 2017, the jury returned verdicts of not guilty in respect of all charges against the respondents and the fourth accused. JR had been held in custody on remand until the conclusion of the trial.

3. In 2021, each respondent commenced separate proceedings in the District Court against the State claiming damages for false imprisonment in circumstances where it was alleged that they had been detained after arrest on 23 December 2015 for more than the maximum “investigation period” of four hours permitted by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 114-117. JR also claimed damages for alleged malicious prosecution and misfeasance in public office and Jensen also claimed damages for alleged battery during his arrest. All of the respondents’ claims were advanced against the State on the basis that it was vicariously liable for the alleged wrongful conduct of the NSW Police Force, given Pt IV of the Law Reform (Vicarious Liability) Act 1983 (NSW).

4. In a judgment delivered on 21 June 2023, the trial judge (Curtis ADCJ) concluded that the respondents’ claims of false imprisonment had succeeded, JR’s claims of malicious prosecution and misfeasance in public office had succeeded, and Jensen’s claim of battery had failed. His Honour awarded damages totalling $730,000 plus interest to JR, and $30,000 plus interest to each of Dickens and Jensen.

5. On 3 August 2023 judgments for damages and interest were entered in favour of the respondents in the following amounts: JR ($821,605.61), Dickens ($31,940.94), and Jensen ($31,940.94). The State was ordered to pay JR’s costs on the ordinary basis. Special costs orders were made in favour of each of Dickens and Jensen. The judgments were stayed on 5 September 2023 by order of the District Court pending further order of that Court or this Court.

6. Leave to appeal: The appeals against the judgments in favour of Dickens and Jensen require leave, since the amount in issue is less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). Leave to appeal was not opposed. Leave was granted at the commencement of the hearing given the commonality of the issues in the appeals relating to the false imprisonment claims in circumstances where the State had an appeal, as of right, against the judgment in favour of JR.

Issues and conclusions on appeal

7. The appeals raise some common issues with respect to all respondents and some additional issues with respect to JR.

8. First, the State contends that each of the judgments should be set aside on the grounds of apprehended bias or procedural unfairness. The basis for the allegation of apprehended bias is the frequency and nature of the interventions by the trial judge during the evidence-in-chief and cross-examination of Detective Senior Constable (DSC) Mathew Clancy, who was the principal police witness, and the cross-examination of Sgt Trevor Phipps, another police witness. There is no allegation of actual bias. This conduct is also said to give rise to procedural unfairness with respect to the conduct of the trial. If either complaint is made out, there would not have been a trial in accordance with law, and a retrial will be necessary. I have concluded that the complaints of apprehended bias and procedural fairness have not been made out.

7. Second, the State challenges the findings of malicious prosecution and misfeasance in public office. I have concluded that the trial judge erred in upholding these claims by JR, specifically, in finding that in instituting the criminal proceedings by charging JR on 23 December 2015, DSC Clancy acted without reasonable and probable cause and maliciously. Accordingly, the component of the judgment for damages and interest in favour of JR relating to these claims (being $700,000 plus interest) should be set aside.

8. Third, the State challenges the findings of false imprisonment with respect to each respondent. Alternatively, the State contends that only nominal damages should have been awarded. I have concluded that notwithstanding some errors in the trial judge’s factual findings as to the period of false imprisonment, the appeal against the findings of false imprisonment should be rejected, however, the award of damages for false imprisonment is erroneous, as it proceeded on the incorrect counterfactual. The award of damages should be set aside, and in lieu, judgment for damages of $10,100 should be entered in favour of each respondent comprising nominal damages of $100 and exemplary damages of $10,000.

9. The costs orders on appeal and at trial, taking into account the outcome of the appeal, are addressed at [298]f below.

Factual circumstances

12. The arrest and charging of each respondent on 23 December 2015 with offences of alleged sexual assault arose from events occurring on 26 October 2012 at a house party at Hazelbrook in the Blue Mountains, where Dickens resided. Some 40 to 50 young people attended, including the respondents. At that time JR was aged 17 years, Dickens was aged 18 years and Jensen was aged 19 years. During the party the Fire Brigade and the police attended the house following complaints by a neighbour about an illegal bonfire in the backyard. A 15-year-old girl subsequently alleged that she was sexually assaulted at the party by each respondent and a fourth person referred to as “SK”. The girl cannot be identified, given her age, and she was referred to as the complainant in the proceedings below and in this Court. Nor can SK be named as he was aged 16 years at the time of the alleged offending, or JR as he was aged 17 years at the time of the alleged offending.

13. The complainant first reported her allegations of sexual assault on the day following the house party, and again shortly thereafter. Those contemporaneous reports are referred to below at [27]. In late January 2013, Dickens corresponded with the complainant via Facebook Messenger after she had complained that Dickens was saying that she “got gang banged”, which the complainant understood to be an assertion that she had consented to what had occurred. In a series of Facebook messages, Dickens said to the complainant:

… all i said i was there in the room. And [JR] was laughing about it all … you think im proud i have to live with the weight of this on my shoulders? Like i know how you must feel and im sorry … My own mum thinks im a rapist … scum of the earth. … Im one of the nice guys in bk … but im also the one that carries all the connections…

…

Look please [complainant’s name]. Your a really nice girl and you disnt deserve what happened to you…and you know im sorry…ive said it before a few times…and I know thay sorry doesn’t change anything…but i actually have remorse for whatvi done you know. I feel bad over what happened. Im probably the only one that did

…

When i was in there it was me you aaron and [JR]. And that didn’t seem to be a huge problem with you at that point in time. but i sensed something wasn’t right so i left the room. And from what i gathered other people came in after i left that you didnt approve of at all. And that’s when shit turned bad?

14. On the same day the complainant replied to Dickens in a Facebook message that she did not remember saying “yes” to JR having sex with her. She described what occurred with Jensen and said that she remembered that Dickens “… came in and i pulled away from u a few times then u left …”. She also described what occurred when SK came into the room and Jensen left and said that she was assaulted by SK and JR. Dickens replied:

… i never thought it through your perspective. I am so sorry, why i did nothing was not intentional. I was on ice, off in my own world thinking my party was going off…not that you were in my room woth all thoae boys. Im sorry again. …

15. In late January 2013 the complainant reported her allegations of sexual assault to a youth worker/counsellor, Ms Naomi Murray. An internal email dated 29 January 2013 from Mr Roger Kidd of the Mountains Youth Services Team to Ms Murray, among others, described the complainant reporting “that she had been in a ‘gang bang’ and that it wasn’t consensual”.

The Adams email

16. On 7 February 2013, the complainant attended Springwood Police Station accompanied by Ms Murray and spoke informally with Leading Senior Constable (LSC) Stephen Adams. There was no evidence of any notes taken by LSC Adams. The complainant declined to make a formal statement, indicating that she was scared of the “BK gang”. This was a reference to a local group who described themselves variously as the “Blaxland Kings”, “Blaxland Killers” and “Blaxland Kaos”. LSC Adams sent an email at 12:03 pm on 7 February 2013 to various police officers, including Detective Sergeant (DS) Benjamin Peat, which included the following report of his interview with the complainant (the Adams email):

The young person and youth worker attended the police station (at the time the media was here) and asked for me. I took both persons up to the interview room opposite the crime manages [sic] office and had an informal chat about the incident.

The young person who I only know as [the complainant’s first name] claimed that on the 26th October 2012 at hazelbrook [sic] her and another young girl was at a party the [young person] was intoxicated and was led off to a room to have consensual sex with a male she has had sex with before. 3 other males aged 17 entered the room and started to interferer [sic] with the young person after she requested they leave the room. It appears that one person left the room the remaining 3 penetrated her digitally to which she was yelling for them to stop. Apparently the Police attended the location (she heard them there and thinks is [sic] was to do with the noise) and one of the group put his hand up to her mouth and told her not to say anything.

The [young person] indicated that the Police visited the premises again and she was threatened not to say anything. The [young person] apparently suffered from bruising and soreness to her genital area and disclosed the incident to her mother the following day.

During the informal interview (to which she was reluctant to give to [sic] much information away) she disclosed that only the one person penetrated her (he wore protection) the others only penetrated her digitally. (Emphasis added.)

17. In a statement dated 23 May 2017, Mr Adams (who had recently retired from the Police Force) said:

[The complainant] nominated four offenders although I cannot recall those names. [The complainant] was matter of fact in her recollection of events and stated she was heavily intoxicated. [The complainant] stated she was happy to have sex with one person at the party and I believe she regarded that person as her ‘boyfriend’. She remembered specifically being assaulted by one of the offenders who wore a condom and sexually assaulted her and the others digitally penetrating her on a bed. She recalled with clarity the police arriving at the house on two occasions and that one of the offenders put his hand over her mouth whilst the police were at the location.

18. In the complainant’s statement dated 27 July 2015, she described first meeting Ash Gibbins who was her age (15 years) on 30 September 2012 and said that they became good friends talking via Facebook and met on most afternoons in Springwood. She said that the first time she had sex was with him. In closing submissions below, counsel for JR submitted that the terms of the Adams email were “crystal clear” as to what the complainant told LSC Adams. DSC Clancy gave unchallenged evidence that he first saw the Adams email not long before the criminal trial in June 2017.

The COPS reports

19. On 8 February 2013, DS Peat sent a copy of the Adams email to Plain Clothes Constable (PCC) Nick Campbell and instructed him in the absence that day of LSC Adams, to create a COPS report. PCC Campbell did so and created an entry at 9:29 am in the computerised operational policing system database known as COPS. In his third statement dated 23 May 2017, PCC Campbell said that he created this report based mainly on the information contained in the Adams email, and that it was likely he placed a phone call to “Naomi” (Murray) to clarify this email but he could not be “100%” certain. The trial judge observed (at [6(2)]) that this COPS report, E50923677, was consistent with the information contained in the Adams email. It is sufficient to reproduce the following parts of the COPS report, which was referred to in the proceedings below as “narrative 1”:

…

On 26.10.12 the VIC has attended a party at Hazelbrook with another young girl, (WIT 2). Here the VIC was intoxicated and was “led off” to have consensual sex with a male she has had sex with before. It is unclear at this time which “POI” this male is. This occurred inside the bedroom of one of the POI’s (assumedly he lives there).

The VIC and this male POI have had consensual sex and, whereupon the three other POI’s have entered the room and “started to interfere” with her. At this point one POI has left the room (it is unclear at this time who). The three remaining POI’ss [sic] have then proceeded [to] sexually assault the VIC by penetrating her digitally. The VIC was yelling at the POI’s to stop during this.

…

During discussion with Police on 07.02.13 the VIC was allegedly (author was not privy to this conversation) reluctant to reveal much, but disclosed that during this incident there was penile penetration by one POI and he wore protection (assumedly the first POI with whom she had “consensual sex”), and the three others penetrated her digitally (the “non-consensual” acts).

… (Emphasis added.)

20. Later that day at 4:00 pm, the complainant together with her mother attended Springwood Police Station and spoke with PCC Campbell. At 5:59 pm, PCC Campbell created a further COPS report, which was referred to in the proceedings below as “narrative 2”. The trial judge referred to the following parts of this COPS report (at [6(2)]):

About 10.30pm the VIC recalls being led into the bedroom of DICKENS (POI 3) by [JR] (POI 1). The pair lay on the bed in the room and had full sexual intercourse. [JR] used a condom for this. The VIC states that she was so intoxicated at the time she cannot remember if she consented to this sex or not. During this incident GIBBINS (WIT 1) opened the window of the room and dumped water over the pair. The VIC states that at this time, she and GIBBINS were in a ‘sort of’ relationship and his reason for wetting them was that he was angry at her for sleeping with [JR].

After this JENSEN (POI 2) and DICKENS entered the room. [JR] [sic] and the VIC ceased having sex. DICKENS revealed his penis. By grabbing the VIC’s hand and putting it to his penis, he made several attempts to make the VIC hold it and give him “handies”. The VIC told DICKENS to go away and he left the room.

At this point it was only [JR], JENSEN and the VIC in the room. [JR] started to kiss the VIC and feel her breasts. JENSEN started to “finger” the VIC, penetrating the VIC digitally. This incident lasted for possibly fifteen (15) minutes. During this she told JENSEN to stop. She also told [JR] to stop JENSEN. However both continued. During this time, [redacted] (WIT 2) entered the room however there are no details on his actions or how long he was in there (to be clarified). During this time other party-goers (unidentified) were coming in and out of the room and the VIC was shouting out, saying, “Can you please get them away from me.” Another person, [redacted] (WIT 3) and sat on a “couch” and chatted to the [sic] [JR] and JENSEN whilst the VIC was assaulted. (Emphasis added.)

21. This COPS report also included reference to the complainant’s allegation that after JR had left the room, Jensen digitally penetrated her vagina again, and during this time police arrived at the front door in relation to the party’s noise. The complainant said that, at this point, Jensen left the room and JR returned with another person, SK, who tried to put his penis in her mouth, and she had to pull her head back to stop this from happening. After SK tried to do this a second time, the complainant again pulled away and told him to go away, and before SK left the room, Jensen re-entered the room and laid down with her and again started to penetrate her vagina with his fingers. The COPS report noted that it was unclear what JR was doing at this time and included the notation in brackets “to be clarified”. The complainant also referred to other people entering the room who told Jensen and JR to get out and they left the room before they re-entered the room. The complainant recalled “coming to shortly after this and swearing at them to ‘get out’ and ‘fuck off’”. She remembered the room door being open and another person re-entering to ask her if she was alright. She made her way out of the room sometime after this.

22. At the criminal trial, the first COPS report based on the Adams email was relied upon by JR as exculpatory, insofar as it recorded that the complainant had reported having “consensual” sex “with a male she has had sex with before” prior to the other assaults occurring. The complainant disputed this, and other statements attributed to her in the COPS report, in her statement made shortly prior to the criminal trial: see [47]-[48] below.

23. On 4 March 2013 Jensen corresponded with the complainant via Facebook Messenger. In one of his messages, he said:

You must be delusional cause [JR] was the only one fucking you…,

to which the complainant replied,

I know he was but you still dis [sic] things I didnt [sic] want you to and I told u to stop and u didnt thats [sic] rape dickface.

24. JR’s case below was that the complainant’s response to Jensen implied that the sexual intercourse with JR was consensual, and she did not thereafter consent to sexual activity with Jensen.

25. On 11 March 2013 the complainant attended Springwood Police Station and completed a sexual assault questionnaire. She informed police that she did not want to take the matter any further. In the questionnaire, the complainant said that four people had assaulted her in a bedroom for about two hours and none of them would stop when asked multiple times throughout the night. This was a reference to each of the respondents and SK. After describing the conduct as “all unconsensual” (emphasis added), she continued:

“[T]here were lots of bystanders that didn’t help either, they removed some clothing and sexually assaulted me, they took turns of doing things and they wouldn’t listen to me, they took advantage of how intoxicated I was and I’m pretty sure they spiked my drink. They were trying to make me feel like I wanted it when I didn’t and they were all over age when I was under-age at the time”.

26. In July 2015 the complainant attended Katoomba Police Station. She made her first formal statement on 27 July 2015. The investigating officer was DSC Clancy. Police commenced an investigation and obtained other statements, including from the complainant dated 30 July 2015, 26 October 2015, 3 December 2015, and 14 December 2015.

27. The statements from persons describing the events on the night of the party confirming something adverse happened to the complainant at the party, included:

1. Mr Scott Irwin saw the complainant “laying on the bed and she looked petrified” with JR and at least one other person in the bedroom. Mr Irwin said he “got a really bad feeling about what was going on”;

2. Ms Portia Day observed the complainant “so upset” in the bedroom and said that the complainant disclosed some non-consensual sexual activity;

3. Mr Fisher Gregson observed the complainant “sitting on the bed and crying hysterically” and thought “she had possibly been raped”;

4. Mr Jared Tindall observed the complainant to be “extremely upset”; and

5. Ms Julianne Williams observed the complainant to be “clearly very upset and distraught about something”.

28. The statements from persons who corroborated the complainant’s contemporaneous report of the sexual assault, or made observations as to the complainant’s emotional state following the party, included:

1. Ms Olivia Shepherd said that the complainant told her the next day that she had been raped by Jensen, Dickens and the “skinny guy with the mullet”, which counsel for JR accepted at trial that JR said was him;

2. Ms Cherylee Crich said that the complainant told her the next day that she had been raped by Jensen, Dickens and JR at the party;

3. Mr Ian Watkins, a cousin of the complainant, said that the complainant told him, the next day that she had been assaulted by Dickens and JR at the party;

4. the complainant’s sister and mother observed her to be upset and “not herself” in the hours, days and weeks following the party. The complainant also disclosed her allegations to them some months later;

5. Ms Jemma van Deinsen said that the complainant told her several weeks after the party that she was raped by Jensen, Dickens and JR; and

6. Ms Naomi Sanders-Sullivan said that the complainant told her in November 2012 that she had been assaulted by Jensen, Dickens and JR.

29. Police also obtained statements from persons who observed interactions between the complainant and JR at the party. Mr Gibbins said:

… I remember [JR] trying to kiss [the complainant] and I saw it and it pissed me off because I liked [the complainant] and I couldn’t believe that [JR] would cut in on me like that. I was getting a bit angry and upset by it. ….

Later in the night I’m not sure what time exactly I think it was about 9.30 I was walking past Christian’s room on the front verandah and I could see into this room. I saw [JR] on top of [the complainant] and it looked like they were having sex. [JR] was definitely on top of [the complainant] but now that I think back to it she was not moving or making any sound. [JR] was moving in such a way that I knew he was fucking [the complainant]. I got really angry at both of them and I went off and got a bucket and half filled it with cold water. I was with Aaron BELL at this stage and I went back and while standing on the veranda I tipped it in on both of them. As I did it [JR] cracked the shits big time and [the complainant] didn’t and that’s really unusual. She looked startled but didn’t lose her shit and that’s not like [the complainant] at all.

…

When Detective CLANCY came and saw me yesterday and spoke with me explaining the allegation [the complainant] had made it kind of made sense to me. I knew after that night [the complainant] got really angry really easy and never had anything to do with any of BK again and she would lose her shit all the time and drink heaps of alcohol. …

I honestly had no idea that it had been without her consent if I had known what had been going on I would have tried to stop it. I don’t have a lot to do with BK now, I hang around with some guys that are still BK but I’ve been trying to stay away from the parties they have because of other dramas that are going on.

30. Mr Chez Griffin said that he observed the complainant kissing and cuddling JR, that the complainant and JR were both talking and giggling, and it seemed to Mr Griffin to be a positive interaction between them.

31. After JR was charged, Mr Aaron Bell told investigating police on 21 January 2016 that he was at the party when he saw the complainant and JR “hooking up” and that he saw the complainant and JR in a bedroom where the complainant was on top of JR, and they were having sex.

The events of 23 December 2015

32. On 23 December 2015 Jensen was arrested at home at 5:15 am, Dickens was arrested at home at 5:20 am and JR was arrested at home at 6:01 am. Following their arrest, each was taken to and held at Katoomba Police Station where they participated in a recorded interview, referred to as an ERISP. DSC Clancy interviewed JR between 8:00 am and 8:13 am and Jensen between 8:36 am and 9:54 am. DSC Michael Gale and DSC Brett Smith interviewed Dickens between 10:44 am and 11:36 am. In advance of the arrest of each respondent, the police had obtained a warrant for listening devices for any dock area and holding area occupied by the respondents at the Katoomba Police Station.

33. Later that day, JR, Dickens and Jensen were each charged with offences of aggravated sexual assault contrary to the Crimes Act 1900 (NSW), ss 61J(1) and 61JA(1), and other offences. The court attendance notices were issued by DSC Clancy under the Criminal Procedure Act 1986 (NSW), s 48. The charging process involved DSC Clancy using the COPS system to fill in certain fields of information to create a charge, referred to as a court attendance notice. DSC Clancy commenced this process sometime after the recorded interviews with each respondent had been held.

34. The creation of the court attendance notices by DSC Clancy “started” at the time referred to as “Created by” shown on the court attendance notice. This “start” time and also the time the charging process “ended” were also recorded in the custody management records. Part of the charging process included preparing a statement of facts in support of the charges against each respondent referred to as the Facts Sheet. These were typed up by DSC Clancy based on the witness statements which had been obtained, which at the time comprised about 22 statements. DSC Clancy undertook a similar process with respect to each respondent. Each Facts Sheet comprised 10 pages.

35. The custody management indicate when the charging process “started” and “ended” and bail was refused for each respondent as follows:

1. JR: The creation of a court attendance notice by DSC Clancy started at 11:34 am (although the time recorded on the court attendance notice was 11:33 am) and ended at 3:30 pm when the court attendance notice was filed and issued. JR was refused bail and transferred to Cobham Juvenile Justice Centre at 3:40 pm;

2. Jensen: The creation of a court attendance notice by DSC Clancy started at 12:26 pm and ended at 4:35 pm when the court attendance notice was filed and issued. Jensen was refused bail and transferred to Amber Laurel Corrections Centre at Emu Plains at 5:21 pm;

3. Dickens: The creation of a court attendance notice by DSC Clancy started at 3:49 pm and ended at 4:35 pm when the court attendance notice was filed and issued. Dickens was refused bail and transferred to Amber Laurel Corrections Centre at Emu Plains at 5:21 pm.

36. In the underlying proceedings each respondent claimed that after being lawfully arrested in the morning of 23 December 2015, and before being lawfully charged and refused bail later that day, there was a period in which he was falsely imprisoned at Katoomba Police Station because he was held for longer than the maximum “investigation period” of four hours permitted under LEPRA, ss 114-117.

The criminal proceedings against JR

37. The offences charged against JR in the court attendance notice issued on 23 December 2015 and the relevant provisions of the Crimes Act 1900 (NSW), were (i) aggravated sexual assault, the circumstances of aggravation being that JR was in the company of others, contrary to s 61J(1); (ii) take / detain with intent to obtain an advantage, namely sexual assault while in the company of others, contrary to s 86(2)(a); (iii) aggravated sexual assault in company, the circumstances of aggravation being that JR in the company of others deprived the complainant of her liberty, contrary to s 61JA(1); and (iv) resisting an officer in the execution of his or her duty, contrary to s 58.

38. On 24 December 2015 JR’s application for bail in the Children’s Court at Parramatta was opposed by the police prosecutor and bail was refused on the basis of as unacceptable risk. JR requested reconsideration of bail by the Children’s Court on 5 January 2016. That application was also opposed by the police prosecutor and bail was refused on 8 January 2016 again on the basis of an unacceptable risk.

39. It was and is common ground that the Director of Public Prosecutions (NSW) (the Director) took over the criminal prosecution on 13 January 2016, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). Thereafter, the police including DSC Clancy, continued to undertake investigatory and administrative tasks including obtaining further witness statements and serving a copy of the prosecution brief of evidence on JR’s legal representative on 8 February 2016. The initial prosecution brief included the statements of Mr Griffin dated 25 November 2015 and Mr Bell dated 21 January 2016, which the trial judge considered were exculpatory: at [6]. Further witness statements were obtained by police, including DSC Clancy, throughout 2016 and the first half of 2017, including a further statement by the complainant shortly before the trial dated 25 May 2017: see [47]f below.

February 2016 bail application

40. On 23 February 2016 JR made a bail application in the Supreme Court, which was opposed by the Crown and refused by Fullerton J on 24 February 2016. In the underlying proceedings, JR claimed that DSC Clancy withheld exculpatory material from the Court on the bail application, and that had such information been provided, the application would have been successful, and he would not have been held on remand pending his criminal trial.

41. The material tendered by the Crown on that application included: (a) a “narrative of facts”, (b) the statement of the complainant dated 27 July 2015, (c) a letter to the Court from DSC Gale dated 23 February 2016, (d) a letter to the Court from DSC Clancy dated 23 February 2016, and (e) the record of interview of Mr Bell. It did not include the COPS entries of 8 February 2013.

42. The “narrative of facts” tendered on the bail application was the Facts Sheet prepared by DSC Clancy on 23 December 2015, which had been tendered by the police prosecutor in opposition to the bail applications by JR in the Children’s Court on 24 December 2015 and 8 January 2016, and had been amended by DSC Clancy in certain respects in February 2016. Although lengthy, it is of assistance to set out the following parts of the Facts Sheet:

Both [the complainant] and [person A] continued drinking in the backyard, [the complainant] was starting to feel the effects of the wine but felt fine. [JR] followed both [the complainant] and [person A] outside and was being rude and sexually suggestive, [JR] grabbed [the complainant] and started to kiss her on the mouth pinning her against a fence. [The complainant] froze in shock, [JR] stopped and walked away. [The complainant] left the bottle of wine and lemonade with [person A] and walked off.

[The complainant] returned inside the house and helped [person B] cook pancakes in the kitchen, at this point [the complainant] started to feel disoriented, she became unsteady on her feet and it was a different sensation to feeling drunk. [The complainant] felt mentally alert but her outer extremities lost feeling and felt heavy and hard to coordinate.

[JR] followed [the complainant] back into the house and tried to kiss her again; [the complainant] still felt unsteady and pushed [JR] away. [JR] kept grabbing and trying to kiss [the complainant], [JR] managed to kiss [the complainant] a number of times, [the complainant] kept pushing [JR] away becoming increasingly frightened and concerned of what was happening and that her body was not responding to the way she was thinking.

At the front of the house [the complainant] heard JENSEN yelling from inside a bathroom that belonged to DICKENS. JENSEN appeared to be angry as he was going to miss out on a ‘birthday root’ [sic] from a female associate who had failed to attend the party. [The complainant] saw [person A] and stayed with her as she was not feeling safe at the premises. [The complainant] was still feeling weird and unsteady on her feet, she went to retrieve her phone in order to call her mother.

As [the complainant] was texting her mother, [JR] approached [the complainant] and tried to kiss her, [the complainant] pushed [JR] away and said, “I do not want you, I like him.” Pointing at Ash GIBBINS.

[The complainant] walked out of the room, feeling upset and weird, [the complainant] felt like she had been drugged, DICKENS approached [the complainant] and slapped her on the bottom. At this time [the complainant] was having extreme difficulty in walking and was assisted by another female [person C]. [JR] followed [person C] and [the complainant] outside and [the complainant] noticed that her friend [person A] was passed out and she went to her aid she lost consciousness.

[The complainant] awoke some time later drenched in water and prone on her back. She looked around and realised she was in DICKENS bedroom, [the complainant] could not move, she realised [JR] was on top of her and between her legs; [JR’s] penis was inserted in her vagina. The bedroom light was off but there was enough ambient light that she could make out [JR] and her surroundings. [The complainant] could see clearly but could not move at all.

[The complainant] saw a male person by the name of [person D] enter the room and grab a jacket and walk out again. [The complainant] attempted to push [JR] off her, [the complainant] attention was drawn to the plaster cast on [JRs] (sic) arm, [the complainant] tried to yell but was not able to.

[The complainant] tried to break free but could not move her arms and legs, [the complainant] became frightened, [JR] got off [the complainant] and observed that [JR] was naked from the waist down but still had his t shirt on, a sliver [sic] chain and still wearing a Nike brand fit hat. [The complainant] also realised she was naked from the waist down.

JENSEN entered the room and got on the bed, JENSEN started to kiss [the complainant] whilst at the same time digitally penetrating her vagina and anus. [JR] returned and lay on the opposite side to JENSEN also kissing and digitally penetrating [the complainant], [the complainant] managed to speak telling both [JR] and JENSEN to stop. [JR] said, “don’t worry you will be fine” he got off the bed, dressed and left the room.

JENSEN continued to digitally penetrate her vagina and anus. [The complainant] pleaded with JENSEN to stop. [The complainant] was upset and asked for Ash GIBBINS, JENSEN refused.

[JR] returned to the room, got straight on the bed and started to kiss her whilst touching her vagina. JENSEN continued to digitally penetrate her anus. [The complainant] pleaded for both JENSEN and [JR] to stop; on several occasions she called them ‘pedos’ referencing the fact that she was 15 years old several times.

DICKENS entered the room and pulled his penis out taking [the complainant’s] right hand and placing it on his penis. DICKENS wrapped her fingers around his penis. [The complainant’s] only way to resist was to not be responsive so DICKENS kept hold of her hand however her arm kept failing, DICKENS attempted this approximately three times before stopping. Whilst this occurred [JR] and JENSEN continued with the digital penetration of [the complainant] who in turn kept pleading for them to stop; DICKENS appeared to become frustrated and left the room.

…

The current brief of evidence that is on hand is compelling with in excess of twenty statements supporting the version supplied by the complainant.

43. The letter from DSC Gale to the presiding judge stated:

1. at the time of the offence, JR was known to be a member of a local gang known as the “Blaxland Killers” (“BK”) and the case against the accused is “strong in my submission”;

2. the accused was identified by 22 witnesses, including the victim, as being present and participating in the offence, and the accused was also named by both the co-accused, Dickens and Jensen, as being present in the room, and Jensen stated in his interview that JR was having sex with the victim;

3. police had received information that members of BK acting on the accused and co-accuseds’ behalf were approaching possible police witnesses to obtain versions of events, which may cause possible witnesses to provide conflicting versions or become reluctant prosecution witnesses for possible fear of reprisal; and

4. DSC Clancy would be attending court, and if required, would provide evidence.

44. The letter from DSC Clancy to the presiding judge stated:

1. that page 85 of the attached transcript of the listening device recording on 23 December 2015 contained a conversation between JR and a female believed to be his sister, included threatening statements which JR made with respect to the complainant, including “Well she’s not gunna live long at all mate”;

2. at the time of the offence, JR was a member of the “BK” criminal gang, and there were numerous statements contained in the brief of evidence indicating this. Further, although not a member at the time of arrest, it was the belief of DSC Clancy that JR would again align himself with members of the “BK” gang for the purpose of intimidating witnesses and the complainant; and

3. the complainant had recently been contacted by a friend from Bathurst Correctional Centre and warned that she had to be careful of “BK” as “they are planning retribution against her for making a statement to police regarding this matter”.

Committal for trial and indictment against JR

45. On 26 September 2016 JR among others was committed for trial in the District Court.

46. On 6 February 2017 an indictment was presented against JR by a delegate of the Director. The offences then charged against JR and the relevant provisions of the Crimes Act were: (i) aggravated sexual assault, the circumstances of aggravation being that the complainant was under the age of 16 years, contrary to s 61J(1), (ii) aggravated sexual assault, the circumstances of aggravation being that JR and Jensen were in company of each other, contrary to s 61J(1) (2 counts), (iii) aggravated sexual assault in company, the circumstances of aggravation being at the time of or immediately before or after the commission of the offence JR did recklessly inflict actual bodily harm on the complainant, contrary to s 61JA(1) (4 counts), and (iv) aggravated sexual assault, the circumstances of aggravation being that JR was in the company of Jensen and another person, contrary to s 61J(1).

47. Shortly before the trial, JR’s solicitors issued a subpoena to produce dated 1 May 2017 to the NSW Commissioner of Police. On 22 May 2017 in answer to the subpoena, the Crown produced copies of the Adams email and the COPS reports of 8 February 2013. The Crown also served an additional statement from the complainant dated 25 May 2017 in which she disputed the accuracy of certain matters attributed to her in the COPS entries of 8 February 2013. Relevantly, the complainant denied saying that she had “consensual” sex with JR. She said that some statements attributed to her in the COPS entry referred to as “narrative 1” were completely wrong, including:

• she did not say that she had had sex with JR before and did not say that she had “consensual” sex with JR on 26 October 2012;

• she did not say that she was intoxicated; she said that she felt her drink had been spiked and she did not believe she said she was led off to a room to have consensual sex as she did not remember how she got there;

• she repeated that she did not say that she had consensual sex with JR and did not say that three other people entered the room at once, rather, they came in at different times; and

• she did not say she was yelling; that was because she could not, her voice was mumbled and weak.

48. The complainant also said that several statements attributed to her in the COPS entry referred to narrative 2 were wrong, including:

• she did not say that she recalled being led into the bedroom because she did not remember how she got into the room;

• she just remembered waking up in the bed and again repeated that she did not say that she was “so intoxicated”, rather she believed her drink was spiked as she did not drink that much;

• she would not describe Mr Gibbins being angry with her “for sleeping with JR, but would have worded it like ‘he saw [JR] having sex with me’”; and

• Dickens did not come into the room with Jensen, he came in later.

49. The joint trial commenced in the District Court before Flannery SC DCJ with pre-trial applications on 29 May 2017. On 31 May 2017, following representations made to the Director, the Crown discontinued the four counts against JR under s 61JA of the Crimes Act and replaced those counts with four counts of aggravated sexual assault under s 61J(1) of the Crimes Act. DSC Clancy gave unchallenged evidence in the underlying proceedings that he was not aware at the time that amendments were made to the charges, nor was his permission sought with respect to those amendments.

50. The jury was empanelled on 1 June 2017. On 7 June 2017 Judge Flannery gave her evidentiary ruling on an objection by the respondents to the admissibility of those parts of the dock and holding cell recordings on 23 December 2015 that the Crown sought to rely upon. Her Honour ruled that the dock and holding cell recordings were inadmissible because that evidence was improperly obtained outside the maximum investigation period permitted by ss 115-117 of LEPRA and should be excluded. The Crown did not seek leave to appeal to challenge that interlocutory judgment pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

51. On 26 July 2017, after the jury had deliberated for at least one week and had been given a majority verdict direction, the jury returned verdicts of not guilty in respect of all counts on the amended indictment relating to JR and he was released from custody.

Issues on appeal

52. The following issues are raised on the appeals:

• first, the State’s complaints of apprehended bias and procedural unfairness;

• second, the State’s challenge to the findings of malicious prosecution and misfeasance in public office and the related award of damages, including challenges to several factual findings;

• third, the State’s challenge to the findings of false imprisonment; and

• fourth, the State’s alternative challenge to the award of damages for false imprisonment.

53. The respondents did not rely on their notice of contention.

54. It is well established that the issue of bias (and by extension procedural unfairness) should be addressed first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA). However, in this case, the nature and significance of the judge’s interventions during the course of the trial are not readily assessed absent a detailed understanding of the issues. It is preferable to defer addressing these grounds until after dealing with the substantive grounds of appeal.

55. It is convenient first to address the State’s appeal against the findings of malicious prosecution and misfeasance in public office.

The trial judge’s reasons: malicious prosecution and misfeasance in public office

56. After referring to the circumstances of JR’s arrest and detention on 23 December 2015, the sexual assault offences charged against him, the Adams email, the COPS reports, the Facts Sheet and JR’s unsuccessful applications for bail (at [1]-[24]), the trial judge described the conduct of DSC Clancy as “wrongful”, noted that JR had suffered harm as a consequence, and observed that the question was whether the law provides a remedy (at [25]).

56. Addressing the claim for malicious prosecution, the trial judge made an adverse credit finding that DSC Clancy was a “most unpersuasive witness”: at [29]. Reference was made to three matters:

1. when it was put to DSC Clancy in cross-examination that the two persons who witnessed the sexual act between JR and the complainant said that it was consensual, he replied: “How would they know?”: at [30];

2. DSC Clancy would not accept that by not including the “exculpatory information” in the Facts Sheet he denied an opportunity for JR to obtain bail: at [31]; and

3. the evidence of DSC Clancy revealed his “evasion and bad faith” because he did not accept that he had breached his duty to disclose exculpatory evidence, notwithstanding that counsel for the State conceded that DSC Clancy was in breach of his duty to disclose to the Director pursuant to s 15A (1) of the Director of Public Prosecutions Act all relevant information, documents or other things obtained during the investigation: at [32]-[33].

58. The trial judge had earlier noted at [24] that, at the relevant time, s 15A(1) provided:

15A   Disclosures by law enforcement or investigating officers

Law enforcement or investigating officers for alleged offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

but did not expressly refer to the temporal requirement in s 15A(1A) which provided:

The duty of disclosure arises if the Director exercises any function under this Act with respect to the prosecution of the offence.

59. The duty in s 15A(1) is imposed on a law enforcement officer who is responsible for an investigation into a matter that involves the suspected commission of an indictable offence: s 15A(9). The State acknowledged at trial that this duty creates an obligation on police officers to disclose matters to the Director far more broadly than what is required to be included in a brief of evidence.

60. Malicious prosecution: The trial judge found that “in charging” JR, DSC Clancy acted without reasonable and probable cause: at [36]. Two reasons were given. First, that DSC Clancy withheld exculpatory evidence “proves that he did not honestly believe in the case against [JR]”: at [34]. Second, there was little doubt that the prosecution would fail to prove beyond reasonable doubt that the sexual act was without the complainant’s consent in circumstances where the four witnesses to the sexual act of penetration – JR, Mr Gibbins, Jensen and Mr Bell – described it as consensual, and the complainant twice stated that it was consensual: at [35].

61. Addressing the absence of reasonable and probable cause, the trial judge said that whether DSC Clancy acted for a purpose other than a desire to bring JR to justice may be inferred: at [37]. Reference was made to the remarks of Kitto J in Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68 at 163. The trial judge found that the conduct of DSC Clancy was “so egregious that it can only be explained by improper motives”: at [39]. On this basis, the judge concluded that the State was liable for the malicious prosecution of JR: at [40].

62. Misfeasance in public office: Addressing this claim, the trial judge found that the act of DSC Clancy in charging JR with offences on 23 December 2015 was malicious, and “[i]t follows that it was unauthorised”: at [43]. The judge also found that DSC Clancy’s concealment of the COPS reports from the bail authorities were unauthorised acts by a public officer in the purported discharge of public duties: at [44]. The judge concluded that the State was liable for misfeasance in public office: at [46].

63. The trial judge awarded damages to JR for malicious prosecution and misfeasance in public office totalling $700,000 comprising: $500,000 for general damages, $50,000 for loss of reputation, $50,000 in aggravated damages and $100,000 as exemplary damages: at [48].

The trial judge’s factual findings in more detail

64. Reference should be made at this point to the trial judge’s factual findings with respect to the Facts Sheet and the February 2016 bail application, given that the State challenges some of these findings.

65. Facts Sheet: The trial judge found that whilst the statements in the Facts Sheet were consistent with the statement taken by DSC Clancy from the complainant on 27 July 2015, at the time of preparing the Facts Sheet DSC Clancy was aware of eight matters to which he did not refer in his letter addressed to the Court in February 2016 in connection with JR’s bail application: at [5].

66. The eight matters identified by the trial judge were: (1) the Adams email, (2) the COPS narrative created by PCC Campbell dated 8 February 2013, (3) the Facebook message by Jensen to the complainant on 4 March 2013, (4) the statement by Mr Gibbins dated 23 November 2015, (5) the statement by Mr Bell dated 21 January 2016, (6) the statement by Mr Griffin dated 25 November 2015, (7) the statements by Jensen recorded by a listening device when he was in custody on 23 December 2015, and (8) the statement by Ms Kairembora, a friend of the complainant, made to DSC Clancy on 15 December 2015: at [6].

67. The content of (1), (2) and (3) above has been referred to at [16], [19]-[21] and [23] above. The content of the other five matters were summarised by the trial judge (at [6(4)-(8)]).

68. As to (4), the trial judge noted that Mr Gibbins described observing consensual activity between JR and the complainant, beginning with kissing in the backyard and ending with sexual intercourse in the bedroom. The trial judge found, with reference to Mr Gibbins’ statement, that before DSC Clancy explained the allegations the complainant had made he “honestly had no idea that it had been without her consent” (at [6(4)]). The trial judge found:

I believe that DSC Clancy consciously poisoned the mind of Mr Gibbins. He did not tell him of statements by Mr Aaron Bell and Aaron Jensen that they observed the complainant on top of [JR]. (Emphasis added.)

69. As to (5), the trial judge noted that Mr Bell said he observed JR asking the complainant for a kiss and they started “hooking up” when they walked off; that Mr Gibbins was pretty close with the complainant at the time and was heartbroken; that he suggested to Mr Gibbins that they get a bucket of water and tip it on them; and that Mr Bell said that he observed through an open window (at [6(5)]):

[The complainant] and [JR] were in the room on the bed, I saw [the complainant] on top of [JR] and they were having sex. Ash and I were holding the bucket and threw the water over them both. About five minutes later, [the complainant] and [JR] came out of the room and out the back and they both punched me and Ash in the arm for throwing water over them.

70. The trial judge also noted that that Mr Bell said that (i) the kissing in the backyard seemed consensual to him, and (ii) his observation of JR and the complainant having sex in Dickens’ room also seemed consensual to him, remarking “Well yeah, especially if they both punched me in the arm for tipping water over them”: (at [6(5)]).

71. As to (6), the trial judge noted that Mr Griffin said that the complainant was kissing and cuddling [JR], they were both talking and giggling, and it seemed to be a positive interaction between the two of them: (at [6(6)]).

72. As to (7), the trial judge noted that a listening device recorded statements by Jensen, when he was in custody on 23 December 2015 (at [6(7)]):

“but [JR] can’t really get into trouble, he was actually there … like consentingly fucking her”; and

“all I seen is some girl on top of a guy like going moving up and down a bit ** (inaudible) **”.

73. As to (8), the trial judge noted that Ms Kairembora told DSC Clancy on 15 December 2015 that (i) she was happy to provide a statement to the effect that she heard of a rape allegation and did not believe it to be true, (ii) she was told that it was the complainant’s first party that she had attended and that she had drunk too much and had consensual sex with a number of persons that she regards as friends, (iii) she had spoken to Dickens, Jensen and two other persons to get “their version” and was told that several of them had sex with the complainant and the door was open so “the boys” could watch, and (iv) after having sex with the boys the complainant felt sorry for herself and played the “rape card”: (at [6(8)]).

74. February 2016 bail application: Turning to the February 2016 bail application, the trial judge found that DSC Clancy was aware of a witness statement made by Ms Kairembora on 27 January 2016 (at [7]) which DSC Clancy did not disclose to Fullerton J (at [8]), that included:

[The Complainant] said that she was hanging out at the party and was all good then she said she wanted to make Ash jealous so she started kissing someone. She then told me it got out of hand when he took her into a room and they started fucking, then someone else came into the room and was talking to the guy who she was with, then a third guy came in.

75. The trial judge made the following findings in relation to the February 2016 bail application (at [9]-[22]):

9   Before the hearing of the bail application Detective Senior Constable Clancy wrote to “The Presiding Judge of the New South Wales Supreme Court” asserting that at the time of the offence, although not at the time of his arrest [JR] was a member of the “BK” criminal gang. He stated his belief that [JR] would again align himself with members of the gang for the purpose of intimidating witnesses.

10   Detective Senior Constable Gale, to the knowledge of the Detective Senior Constable Clancy, also wrote to The Presiding Judge. He said, without proof, that [JR] was known to be a member of the BK gang.

11   Detective Senior Constable Gale also wrote that the accused Jensen stated in his interview that [JR] was having sex with the victim. Detective Senior Constable Clancy knew that this was highly misleading because Jensen had also stated “All I see is some girl on top of a guy like moving up and down a bit”.

12   Detective Senior Constable Gale also stated in his letter that: “The accused is identified by 22 witnesses, including the victim, as being present and participating in the offence”. This again, to knowledge of the Detective Senior Constable Clancy was false.

13   Detective Senior Constable Clancy did not before Justice Fullerton correct the misstatements by Detective Senior Constable Gale.

14   I do not accept that Detective Senior Constable Clancy honestly held the belief that [JR] was likely to realign himself with the BK gang.

15   There is no evidence that [JR] was ever a member of the BK gang. On 13 August 2015 Detective Senior Constable Clancy charged two members the gang with, respectively, inciting to assault, and assaulting [JR] thereby occasioning actual bodily harm on 12 March 2015.

16   The Facts Sheet in that matter records that: “The victim in this matter is fearful of the accused and members of a street gang called “BK”. The accused is a senior member of the gang and in a position of influence.”

17   In February 2015 Detective Senior Constable Clancy asked Ms Jacqueline Cabban, an intelligence analyst in the police force, to search social media material in order to identify members of the BK gang. Ms Cabban found no evidence that [JR] was ever a member of the gang.

18   Detective Senior Constable Clancy prepared the brief for the Director of Public Prosecutions. He intentionally excluded the COPS reports. He did include a statement of Constable Nicholas Campbell which read:

“On 8 February 2013 I received a call from “Naomi” at the “Youth Services Team” and McManus Springwood and we had a conversation. In response I created police event E 50923677. Later that day [the complainant] attended Springwood Police Station with her mother and I had a conversation with [her]. In response I updated the police event E 50923677. [The complainant] did not wish to complete a signed statement on this day or have any action taken at this point.”

19   This statement of partial truth, which Detective Senior Constable Clancy conceded in cross-examination he “organised”, makes no reference to the exculpatory nature of the conversations. I believe it to be consciously misleading.

20   The Facts Sheet included the statement “[t]he current brief of evidence is compelling with in excess of 20 statements supporting the complainant.” In context this was not a fair description of the evidence, as most of the statements were hearsay, and merely supported the complainant’s assertion that she was subject to digital abuse by others. They were silent as to the central allegation of penile penetration by [JR] without consent.

21   The only three eyewitnesses to the sexual act of penetration supported [JR’s] claim of consensual sex.

22   In denying bail, both the Magistrate and Justice Fullerton relied upon the submission that the Crown case was “very strong”.

Challenges to factual findings

76. The State challenged the following factual findings which are relevant to the findings of absence of reasonable and probable cause, and malice:

1. that DSC Clancy “consciously poisoned” the mind of Mr Gibbins (at [6(4)]);

2. that there was “no evidence” that [JR] was ever a member of the BK Gang, and DSC Clancy did not honestly believe that he was likely to realign himself with them (at [15]-[17]);

3. that DSC Gale’s letter to the presiding judge contained mis-statements (at [10]-[13]);

4. that in preparing the brief to the Director, DSC Clancy intentionally excluded the COPS reports and was “consciously misleading” (at [18]-[19]);

5. the Facts Sheet prepared by DSC Clancy did not provide a fair description of the evidence (at [20]-[21]); and

6. that DSC Clancy withheld or concealed exculpatory evidence, including from bail authorities (at [34], [44]).

77. The correct approach to appellate review of findings of primary facts is summarised in Superannuation Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [64]-[65] (Gleeson JA, Basten and Leeming JJA agreeing). Appellate review of findings of primary facts takes place in accordance with the principles applicable to an appeal by way of rehearing. Where the findings involve an assessment of the credibility or reliability of witnesses, the review is conducted in conformity with the principles stated or affirmed in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]. That includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

78. Thus, in order to succeed in setting aside factual findings affected by impressions of the trial judge about credibility and reliability of witnesses, the State must establish that “incontrovertible facts or uncontested testimony” demonstrate that the trial judge’s conclusions are erroneous, or that the decision is “glaringly improbable” or “contrary to compelling inferences” in the case: Fox v Percy at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee at [55].

79. As to (1) above (Mr Gibbins’ statement), there was no impropriety in DSC Clancy informing Mr Gibbins of the context in which his statement was sought in 2015, namely, the events of the party in October 2012, because the complainant had made an allegation of sexual assault. That context was expressly disclosed in Mr Gibbins’ statement. Further and contrary to the trial judge’s view at [6(4)], it was entirely appropriate that DSC Clancy did not taint Mr Gibbins’ recollection by informing him what others, such as Mr Bell and Jensen, had said they had observed. The finding that DSC Clancy “consciously poisoned” the mind of Mr Gibbins is contrary to compelling inferences and should be set aside.

80. As to (2) above (JR’s past association with the BK gang), multiple witnesses had identified JR as a former member of the BK gang. Those witnesses included: Mr Gibbins, Mr Jared Trindall, Ms Brodie Trudgett, Ms Annabel Wulff, and Mr Peter Tedinnick. There was also evidence that JR was previously associated with the BK gang given by Mr Scott Irwin, the complainant’s sister and Ms Gemma van Deinsen.

81. The trial judge’s finding that there was no evidence that JR was ever a member of the BK gang, relied on the fact that DSC Clancy had charged two members of the BK gang in August 2015 with assaulting JR in March 2015. But that did not undermine the evidence of witnesses that JR was former member of the BK gang. As the State correctly submitted, violence between members of gangs or former members is neither fanciful nor unusual. Nor was the alleged assault of JR in 2015 inconsistent with DSC Clancy holding a genuine belief that JR would seek to reassociate himself with his former gang, especially in the circumstances where the complainant had made serious allegations that implicated gang members, specifically, Jensen and Dickens, in addition to JR.

82. The trial judge’s finding that there was no evidence at the time of the February 2016 bail application that JR had been a member of the BK gang is contrary to uncontested evidence. The finding that DSC Clancy did not honestly believe that JR was likely to realign himself with members of the BK gang, is contrary to compelling inferences. Both findings should be set aside.

83. As to (3) above (DSC Gale’s letter), DSC Clancy did not have cause to correct DSC Gale’s letter. Contrary to the finding at [10] that DSC Clancy said, without proof, that JR was known to be a member of the BK gang, for the reasons given above the letter accurately stated that JR was known to be a member of the BK gang at the time of the alleged offending in October 2012. The finding that this statement was made “without proof” is contrary to uncontested evidence and should be set aside.

84. Contrary to the finding at [11] that DSC Clancy knew the letter was highly misleading in saying that Jensen had stated in his ERISP that JR was having sex with the complainant, that statement was accurate. During his ERISP, when shown Facebook messages with the complainant dated 4 March 2013 and asked if he saw JR having sex with the complainant, Jensen responded, “Well, I must have if I’ve said that at the time. I’d have a better memory closer to that date wouldn’t I?”. When asked whether he was certain about saying that the complainant was “on top”, Jensen responded, “I’m pretty certain”, and when further asked whether it could have been JR on top of the complainant, he answered, “I think it was a bit of both”. The finding that the letter was highly misleading was contrary to compelling inferences from Jensen’s ERISP and should be set aside.

85. As to (4) above (excluding the COPS reports from the prosecution brief), it is not in dispute that DSC Clancy omitted the COPS reports from the prosecution brief sent to the Director. The challenge is to the credibility-based finding that this was “consciously misleading”. That finding involved a rejection of DSC Clancy’s explanation that it was never his practice to include COPS reports in briefs of evidence, as they were merely business records of the NSW Police, by contrast to witness statements, which he did include. There was no evidence corroborating DSC Clancy’s evidence that it was “standard operating procedures in the police” not to produce such material.

86. The trial judge’s finding was based on his assessment of the credibility of DSC Clancy’s explanation for this omission from the prosecution brief. When asked by the trial judge about disclosure of the COPS reports given that DSC Clancy knew that the complainant did not have sex with Mr Gibbins on that night, DSC Clancy gave the following evidence:

Q. It was with [JR]?

A. Well, according to her, she woke up with [JR] sexually assaulting her. That isn’t consent.

Q. Say again?

A. That isn’t consent.

259. Fifth, during cross-examination of DSC Clancy suggesting that at the time of obtaining a statement from Mr Gibbins, he explained the complainant’s allegation as relayed to him, the following exchange occurred with counsel for JR, after several questions had been put by the cross-examiner to DSC Clancy on this topic:

HIS HONOUR: But isn’t your proposition that the Detective poisoned the mind of Mr Gibbins?

CANCERI: Yes, your Honour.

HIS HONOUR: Well goodness sake, it’s a short question and we’ve had ten questions. Can you see my point? At this stage of the trial, if you want to put something in related to submissions, really put it to the witness in a direct way.

CANCERI:

Q. Yes. I will, your Honour. Thank you. You poisoned the mind of Mr Gibbins before he provided his statement, would you agree?

A. No.

Q. You gave him information before he provided his statement, would you agree?

A. Yes. I spoke to him about the allegation.

Q. And then he provided his statement in that context, would you agree?

A. He provided me a statement, read it, said it was true and correct and

signed it.

Q. In that way you poisoned his mind.

A. I did not poison his mind.

265. It is said that this is a “critical” passage in which the proposition put to the witness originated with the judge and was not a clarification. It can be accepted that the word “poisoned” originated with the judge, but that was in circumstances where this was the plain thrust of the cross-examiner’s preceding questions, being another matter on which counsel for JR had opened. The judge, no doubt aware of the opening, and possibly with some frustration at the pace of cross-examination, suggested to the cross-examiner to put the question to the witness in plain terms.

266. Sixth, during cross-examination of DSC Clancy concerning the custody management records, the trial judge asked him the following questions:

HIS HONOUR

Q. But there was no reason why he could not have been made aware of his rights immediately upon arriving at the station.

A. Hypothetically, yes, your Honour. But again, these are questions that the custody manager is best equipped answer.

HIS HONOUR: That’s why I’m surprised you’re so defensive.

WITNESS: Sorry, your Honour?

HIS HONOUR: That’s why I’m surprised that you’re so defensive. It’s not your problem.

267. It is said that the trial judge spoke in a disparaging tone or expressed critical commentary of the witness’s evidence. I do not agree that this is a fair reading of the transcript.

268. Seventh, the State complained of the manner of the trial judge’s interventions which were said to be argumentative. Two examples were given in oral argument. The transcript records:

Q. What you’re telling the Court is that you made a conscious decision to withhold that evidence in the COPS narrative.

A. I simply did not see the relevance of--

HIS HONOUR

Q. I find that answer strange. You say that you didn’t think it necessary to comply with your duty to provide all possible evidence?

A. Yes, it is my duty to supply all available evidence.

…

269. The State’s characterisation of this intervention as argumentative is misplaced. Plainly, the judge was seeking clarification of DSC Clancy’s answer that the narrative in the COPS report was not relevant, being a matter squarely raised in JR’s opening.

270. The other example given occurred during cross-examination of DSC Clancy as to whether evidence given by Mr Griffin was exculpatory of JR. The transcript records:

CANCERI

Q. Ultimately the issue of consent was for the tribunal of fact, would you agree?

A. Well, my understand is at--

HIS HONOUR

Q. No, that’s a simple question. Is it the tribunal of fact who would decide the

issue of consent?

A. Whether a 15-year-old can consent to have sex, is that the question?

Q. Whether she in words, affirmed her consent, in effect.

A. That she affirmed her consent to have sex?

Q. Yes.

A. No. I completely disagree.

Q. You say that without considering the actual law, you’re confused, whether she said okay or not, is it?

A. Sorry, I’m very - it’s not saying that she consented to have sex. It’s saying she was kissing and cuddling [JR].

HIS HONOUR: I think you’ve gone far enough.

271. It is said that the trial judge stopped the witness from attempting to answer the questions. I do not agree. The judge was seeking clarification in circumstances where there seems have been an earlier elision in cross-examination between two topics – one being the issue of consent, and the other being an inconsistency between the complainant’s statement, in effect, that JR forced her to kiss him, and the statement of Mr Gibbins that he observed the complainant kiss JR. The concluding comment by the trial judge did not stop the witness giving evidence; it was an indication by the judge to the cross-examiner that this line of cross-examination had exhausted itself.

Sgt Phipps

272. Eighth, during cross-examination of Sgt Phipps the trial judge asked questions of him concerning his recording of instructions from the detectives with respect to “timeouts”:

HIS HONOUR

Q.   As I understand it, in every case, when you made an entry that something started or finished, you were told this by detectives?

A.   Some of the things. Not all of the things. Like, inspections are what I put in because I’m inspecting the prisoners. Or if they want a drink.

Q.   If someone said remove him from cell A to cell B and it took eight minutes, you’d write that down?

A.   Of course.

Q.   Uncritically.

A.   Critically--

Q.   Uncritically, meaning, you wouldn’t cross-examine the policeman?

A.   No, of course not. No.

Q.   So, if would take 30 seconds to move a man from a cell to a different cell--

A.   Yeah.

Q.   --and the other policeman told you it was seven minutes, you wouldn’t question that?

A.   No, but I’m - I’m observing it, so I know it wouldn’t take seven minutes from one cell to the next.

Q.   But if you entered seven minutes, what would that tell you?

A.   I don’t know.

273. It is said that the trial judge offered the suggestion to Sgt Phipps that he was “misled” by the detectives. But that complaint ignored that the cross-examiner had (i) earlier put to DSC Clancy that entries in the custody management records were objectively untrue, and (ii) cross-examined DSC Clancy on evidence he had given on the voir dire at the criminal trial of his conversations with Sgt Phipps concerning some of the entries was said to be, including that he told Sgt Phipps that no ERISP room was available for a forensic procedure.

274. Ninth, during cross-examination of Sgt Phipps concerning a timeout recorded in the custody management records for JR of 1 hour and 27 minutes for a forensic procedure that was not needed, the trial judge asked him questions as to who told him that there was a timeout. The cross-examination continued and the trial judge asked further questions as to whether Sgt Phipps might have been misled:

HIS HONOUR

Q.   Don’t you think, perhaps, you might have been misled?

A.   I don’t know, your Honour. I don’t know. I’m just trying my job, that’s all.

Q.   So, someone tells you something and you believe it?

A.   No. Not at all. I’ve done custody for a long time, and I’ve - I’ve never been criticised about my custody before.

Q.   Well, if you knew that moving to an ERISP room would take much less than 11 minutes—

A.   Yes.

Q.   --why did you write down 11 minutes?

A.   I was doing - probably doing something else and I finished the action at the time I looked back. When I put the time in finish. I didn’t backdate the time.

Q.   That’s absurd, is it not?

A.   Well it’s the system that they’ve got. If I had other officers to assist with a custody officer, that could do things as well, I’m trying to three things plus run a police a station, it makes it difficult to do everything to exact minute.

Q.   When you wrote 11 minutes, did you do it by typing?

A.   So, you put the start time and then you put an end time.

Q.   Yes, and you type it in?

A.   Yes.

Q.   And when you type it in you knew it could not have been accurate?

A.   I don’t look at how much time there is there for that. It doesn’t say 11 minutes on there. It just got the time.

Q.   Where did the 11 minutes come from?

A.   That’s how it is. It’s hard to explain the system.

Q.   Well, explain, then, why you wrote 11?

A.   I put 7.49 and I put 8, and I put the action in the end of the action. So, that’s 11 minutes. Obviously it doesn’t take 11 minutes, I understand that.

275. It is said that the trial judge intervened to redirect the course of cross-examination to ask Sgt Phipps who told him that there was a timeout. But again, this complaint ignores that, given the concessions made by DSC Clancy that the entries for movement within the police station were excessive, and that his understanding was that no forensic procedure was required, the trial judge’s questions were directed to clarification of the evidence.

276. Tenth, during cross-examination of Sgt Phipps as to the purpose of some of the timeouts recorded in the custody management records, the trial judge asked the following questions:

HIS HONOUR

Q.   Is there any explanation as to why it was recorded as 14 minutes?

A.   As I said, I create the action to move and then I might have forgotten to put in the end time, and then when I’ve gone back, I put the end time, and that’s why it’s created 14 minutes.

Q.   So that if your mind hadn’t returned to it for an hour, you’d put in an hour?

A.   Well, I would put the end time in, yes.

Q.   Say again?

A.   I would have put an end time in, but I wouldn’t have put an hour because I realise it’s an hour. So, I would have put a backdated time, but it could be an hour if I forget to complete the action.

Q.   I understand then that you knew that 40 minutes was too long?

A.   Well, it would be, because I know where the charge room and--

Q.   Nevertheless, you put it in?

A.   Well, I don’t look at that when I’m doing custody. I don’t look at the specific times of what taken for each person for each thing

Q.   This is a responsible job, is it not?

A.   Of course it is.

Q.   It depends on the four hour limit whether people are free or not?

A.   Yes.

Q.   So, did you not think it important to be accurate?

A.   I’ve been told they’re being charged so their timeout finishes, investigation period finishes. I can’t just let someone go because 5 the four hours is up if the charge hasn’t been submitted.

277. It is said that the trial judge spoke in a disparaging tone or expressed critical commentary of the witness’s evidence. I do not agree that this is a fair reading of the transcript. Again, the judge was seeking clarification of how certain entries came to be made in the custody management records, given that both DSC Clancy and Sgt Phipps had agreed in cross-examination that the times recorded were excessive.

Waiver

278. The first to fourth interventions and the first of the seventh intervention during the evidence of DSC Clancy occurred before counsel for the State objected to the trial judge’s interventions, but expressly declined to make a recusal application. The transcript records the exchange between the judge and counsel for the State:

WILLIAMS: Can I raise a matter with you in the absence of the witness, please?

HIS HONOUR: Yes, of course.

IN THE ABSENCE OF THE WITNESS

I’ve been interfering too much, I agree.

WILLIAMS: Yes, your Honour. I’m concerned that, and I’ve been concerned since this morning, but I hesitate because your Honour’s entitled to seek what understanding you think fit as the decision maker. But I’m concerned that it may appear that you’ve descended into the arena in cross-examining this witness. And I’d ask only that you note those remarks. I make no application.

HIS HONOUR: I think that’s quite clear.

WILLIAMS: Yes, thank you, your Honour.

HIS HONOUR: And it’s abundant from the transcript, and I apologise to you.

WILLIAMS: Thank you.

HIS HONOUR: I’ll keep my counsel. Yes, ask the witness back. (Emphasis added.)

279. The State said that although the judge’s interventions reduced for a period after this exchange, they later returned with considerable force. The State referred to the remarks of Basten JA in Royal Guardian at [31] that it is neither appropriate nor expected that counsel “maintain a running commentary on how the judge is handling a trial, nor should such conduct be encouraged”. That can be accepted but is not germane to the present case.

280. The passage of the transcript extracted above makes plain that counsel for the State made a forensic decision not to make a recusal application, having raised an objection to the trial judge’s interventions. The State is bound by the conduct of its counsel, who was an experienced junior counsel. The State cannot now assert that the interventions by the trial judge prior to this exchange were not the subject of waiver.

281. As to the interventions by the trial judge after this exchange, I reject the State’s characterisation of these further interventions as being of “considerable force”. The State should be taken to have waived its right to object to the trial judge’s further interventions on the ground of apprehended bias, given that it did not subsequently make a recusal application before the end of the trial, having earlier disavowed making such an application.

282. Insofar as the State submitted that the reasons of the trial judge “revived” the earlier appearance of bias/unfairness, referring to the remarks of Leeming JA in Madden at [211], and that the “full extent to which the risks associated with the judge’s interventions were to materialise was not apparent until the judgment was delivered”, citing Royal Guardian at [33] (Basten JA), the suggested analogy with Madden and Royal Guardian is misplaced. That the trial judge ultimately rejected the State’s defence for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 at [43] Bell CJ (Payne JA agreeing) said:

Further, the fact that the primary judge ultimately rejected the appellant’s case for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15], this court said that:

“[15]   … Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias.”.

283. Further, this is not a case where the full extent to which the (asserted) risks associated with the judge’s interventions were to materialise was not apparent until the judgment was delivered. Rather, by the end of the trial, the State was well aware of the full extent of the judge’s interventions.

284. Nor is this a case where failure to make a recusal application can be excused on the basis of the inappropriateness of counsel maintaining a running commentary on the handling of the trial. That is a straw man argument. Having made a forensic decision not to make a recusal application in respect of the judge’s interventions during cross-examination of DSC Clancy, the State was well aware of the subsequent conduct of the trial judge to which it now objects as giving rise to an apprehension of bias, but still did not make a recusal application before the end of the trial.

285. In my view, the conduct of the trial judge during the trial to which objection is now taken does not meet the undemanding test in Ebner. If I am wrong in this assessment, then the State should be taken to have waived its right to object. Ground 1A is not made out.

Procedural fairness

286. The relevant principles are sufficiently stated in both Galea v Galea (1990) 19 NSWLR 263 and Royal Guardian. To the extent that the State’s written submissions invoked the gladiatorial language derived from Yuill v Yuill [1945] P 15 at 20 that the trial judge “descend[ed] into the arena” in which the judge’s vision is “clouded by the dust of the conflict”, it has been said that this language is unhelpful and should be abandoned: Royal Guardian at [16] (Basten JA); see also Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [117] (Leeming JA).

287. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: Galea at 281. Different considerations apply to a judge-alone trial, in contrast to a trial with a jury, and again, different considerations will apply to judicial intervention in the course of opening or final submissions, as compared to intervention in the questioning of witnesses: Galea at 281B, Royal Guardian at [14] (Basten JA), [164] (Ward JA, Emmett AJA agreeing).

288. As Leeming JA observed in Wehbe at [121]:

Even so, there is an important difference between judicial interventions during submissions, and judicial interventions when evidence is being adduced. This was emphasised in the recent review of authority in Serafin v Malkiewicz [2020] UKSC 23; [2020] 4 All ER 711 at [40]-[43]. Lord Wilson writing for the Court endorsed Denning LJ’s statement in Jones v National Coal Board [1957] 2 QB 55 at 65 that “interventions should be as infrequent as possible when the witness is under cross-examination”, Jonathan Parker LJ’s statement in Southwark London BC v Kofi-Adu [2006] EWCA Civ 281 at [145]-[146] that interventions during oral evidence continued to give rise to the risk of rendering the trial unfair, and Lord Brown’s observation in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [31] (also endorsed by Basten JA in Nguyen), that:

“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.”

289. It is common ground that the ultimate question is whether the intervention by the trial judge was unjustifiable and resulted in a miscarriage of justice. In this regard, the State accepts that, the “concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].

Application of principles

290. It is said that the interventions by the trial judge, which were characterised as excessive in number and quality, gave rise to procedural unfairness by undermining the proper presentation of the State’s case, including preventing its principal witnesses from doing themselves justice in giving their evidence. It is also said that this compromised the capacity of the trial judge to objectively evaluate the evidence such that the State was denied the opportunity of a hearing “above the fray”.

291. Complaint is made of the possibility that pressure from the trial judge, even if not consciously applied, may have resulted in the State’s witnesses making concessions which would otherwise not have been made. Reference was made to the trial judge asking DSC Clancy at least eight times about the relevance of the COPS reports which DSC Clancy ultimately conceded. It is sufficient to refer to the following extract of the transcript, bearing in mind the context was DSC Clancy’s evidence that he did not include the COPS report in the prosecution brief of evidence because to his mind it was not relevant to his investigation:

HIS HONOUR

Q. It’s a plain question. Do you currently regard the words that she is reported as saying to be relevant?

A. That she is reported to have said, is relevant, yes.

Q. And did you regard that at the time you laid charges?

A. No.

Q. What changed?

A. I took a statement from her.

292. I reject the State’s submission that DSC Clancy made a concession in answering the trial judge’s questions which he would not otherwise have made. Whilst DSC Clancy ultimately accepted the relevance of what the complainant was reported to have said when first speaking to police on 7 February 2013, he also gave an explanation for why he did not regard that as relevant at the time charges were laid in December 2015, namely, he had obtained a statement from the complainant in July 2015.

293. The second example referred to by the State was that the trial judge asked questions of DSC Clancy in relation to what should have been included in the Facts Sheet in circumstances where the Facts Sheet did not refer to the witness statement obtained from Mr Bell that referred to his observations of the complainant and JR kissing, cuddling and giggling. The concession by DSC Clancy that he made a conscious decision not to include that matter in the Facts Sheet followed his acceptance in cross-examination that one person’s interpretation of that interaction, being Mr Bell’s interpretation, would be a very relevant issue. I reject the State’s submission that DSC Clancy made a concession that he would not otherwise have made in response to the trial judge’s questions.

292. The third matter referred to by the State concerned questions of DSC Clancy about the timeouts recorded by the custody manager during the detention of the respondents. The trial judge asked a question of DSC Clancy concerning his knowledge of the layout of Katoomba Police Station and how long it would take to walk from the cell to the ERISP room. DSC Clancy answered, “a 30-second walk”. The State does not assert that answer was inaccurate or incorrect. Again, I reject the State’s submission that DSC Clancy made a concession that he would not otherwise have made in cross-examination.

293. Finally, the State referred to evidence given by DSC Clancy in answer to the trial judge’s question as to whether he agreed that the investigation period had expired or not with respect to JR, given that DSC Clancy had accepted the cross-examiner’s proposition that the timeout recorded for “wait for ERISP room for forensic procedure” between 10:21 am and 11:55 am was not a permitted timeout. There was no unfairness in this questioning.

294. The State’s complaint that the trial judge’s questions created an unfair trial cannot be accepted. Ground 1B is not made out.

Ground 2

297. Ground 2 contends that the trial judge erred in finding (at [29]) that DSC Clancy was “a most unpersuasive witness”, and that his evidence demonstrated “evasion and bad faith” (at [32]). This ground relied upon acceptance of ground 1A or ground 1B. No additional submissions were advanced in support of ground 2. In these circumstances, this ground has not been made out.

Costs in this Court

298. JR: The appeal by the State against the judgment in favour of JR has substantially succeeded, with a significant reduction in the award of damages. Rather than make separate costs orders reflective of each parties’ relative success on appeal, it is preferable to make a single costs order taking a broad-brush approach to an assessment of the time taken on the issues on which each party succeeded or partly succeeded.

299. In my assessment, a significant proportion of JR’s written and oral submissions were devoted to appeal against the finding of malicious prosecution (whilst less so to the finding of misfeasance in public office), and the related award of damages, in respect of which the State has had complete success (19 pages of written submissions; 22 pages of appeal transcript) compared to the submissions devoted to the issue of false imprisonment and the award of damages on which the State has had partial success in obtaining a reduction in the award of damages (3 pages of written submissions; 8 pages of transcript). In my view, the appropriate order is that JR should pay 90 per cent of the State’s costs in this Court.

300. Jensen and Dickens: In each appeal, each side has achieved some success. Jensen and Dickens have successfully defended the findings of false imprisonment, whilst the State has achieved a significant reduction in the award of damages for that tort. The relative success of each party has offset the other parties’ success. Taking a broad-brush approach, there should be no order as to costs as between the State on the one hand and Jensen and Dickens on the other, to the intent that each party should pay their own costs in this Court.

Costs at trial

301. Given the result on appeal, it is necessary to reassess the costs at trial taking into account the outcome on appeal.

302. At trial, the State was ordered to pay JR’s costs on the ordinary basis. Special costs orders were made in favour of Dickens and Jensen, relevantly, (i) that the State pay Dicken’s costs up to 18 September 2022 on the ordinary basis and from 19 September 2022 on an indemnity basis, and (ii) that the State pay Jensen’s costs up to 19 September 2022 on the ordinary basis and from 20 September 2022 on an indemnity basis.

303. JR: Taking into account the State’s substantial success on appeal, and that it appears from the transcript of the trial and the parties’ written submissions below that a significant proportion of the time at trial was devoted to the issues on which JR has now lost, JR should pay a substantial proportion of the State’s costs of the trial. I propose that JR should pay 90 per cent of the State’s costs at trial.

304. Jensen and Dickens: I do not consider that the reduction in the award of damages on appeal is a sufficient reason why costs should not follow the event at trial taking into account the outcome of the appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 41.2. As the successful parties, albeit for reduced damages, the State should pay Jensen’s and Dickens’ costs of the trial.

305. Insofar as Jensen and Dickens each obtained a special costs order at trial, the materials in this court do not permit an assessment of whether the reduced judgments on appeal in favour of Jensen and Dickens exceed the amount of any offer of compromise made by them at trial. In the event that either Jensen or Dickens seeks a special costs order, they can make application by notice of motion within 14 days under UCPR, r 36.16 to vary the costs order which I have proposed.

Orders

306. I propose the following orders:

JR (2023/271325)

1. Appeal allowed in part.

2. Set aside the orders made in the District Court on 3 August 2023.

3. In lieu thereof:

1. enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

2. the plaintiff to pay 90 per cent of the defendant’s costs in the District Court.

4. The respondent to pay 90 per cent of the appellant’s costs in this Court.

Jensen (2023/271359)

1. Appeal allowed in part.

2. Set aside the orders made in the District Court on 3 August 2023.

3. In lieu thereof:

1. enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

2. the defendant to pay the plaintiff’s costs in the District Court.

4. Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

Dickens (2023/271345)

1. Appeal allowed in part.

2. Set aside the orders made in the District Court on 3 August 2023.

3. In lieu thereof:

1. enter judgment for the plaintiff in the sum of $10,100.00. This judgment is to take effect on 3 August 2023;

2. the defendant to pay the plaintiff’s costs in the District Court.

4. Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

307. WHITE JA: I agree with Gleeson JA.

308. STERN JA: I agree with Gleeson JA.

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Decision last updated: 20 December 2024