State of New South Wales v Madden

[2024] NSWCA 40

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

State of New South Wales v Madden [2024] NSWCA 40

Hearing dates:

21-22 August 2023

Date of orders:

29 February 2024

Decision date:

29 February 2024

Before:

Bell CJ at [1];
Leeming JA at [209];
Stern JA at [239]

Decision:

Appeal dismissed with costs.

Catchwords:

APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial

TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion

TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag

TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury”

TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found

TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole

TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage

Legislation Cited:

Bail Act 2013 (NSW) ss 43, 74

Building and Construction Industry Security of Payment Act 1999 (NSW)

Civil Liability Act 2002 (NSW) ss 3B, 11, 18, 43A, Pts 1 and 2

Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW)

Civil Liability Legislation Amendment Act 2008 (NSW)

Crimes Act 1900 (NSW) ss 58, 527C

Crimes and Courts Legislation Amendment Act 2006 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 21, 99

Legal Profession Act 2004 (NSW)

Motor Accident Injuries Act 2017 (NSW)

Summary Offences Act 1988 (NSW) s 11C

Victims Rights and Support Act 2013 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 51.40

Cases Cited:

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

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

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

Cleary v Wilcocks (1946) 63 WN (NSW) 101

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

Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132

Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10

Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31

Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44

Director of Public Prosecutions v Brooks [1974] AC 862

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

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

Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99

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

Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311

Houda v The State of New South Wales [2005] NSWSC 1053; [2005] Aust Torts Reports 81-816

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

James v Hill [2004] NSWCA 301

New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445

New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57

Power v The Queen (1974) 131 CLR 623; [1974] HCA 26

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

R v English (1989) 44 A Crim R 273

R v Filippetti (1978) 13 A Crim R 335

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

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

State of New South Wales v Williamson [2011] NSWCA 183

Trobridge v Hardy (1954) 94 CLR 147; [1955] HCA 68

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

Van Haren v Van Ryn [2023] NSWSC 776

Whitbread v Rail Corporation NSW [2011] NSWCA 130

White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
Ebonie Madden (Respondent)

Representation:

Counsel:

M Hutchings with R Coffey (Appellant)
D R Toomey SC with A Canceri and S Boland (Respondent)

Solicitors:

Wotton & Kearney (Appellant)
Blair Criminal Lawyers (Respondent)

File Number(s):

2022/386040

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2022] NSWDC 647

Date of Decision:

16 December 2022

Before:

Fitzsimmons SC DCJ

File Number(s):

2021/219758

HEADNOTE

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

On 16 December 2022, the primary judge found the State of New South Wales vicariously liable in tort for the conduct of certain police officers amounting to battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647. The damages award encompassed both general and aggravated and exemplary damages.

The case arose out of events on 30 December 2019 when the Respondent, who had recently been released from prison on parole, was walking with Mr Dylan Turner on Evan Street, South Penrith.

Following a verbal exchange between one of the officers, the Respondent and Mr Turner on Evan Street, two other officers required the Respondent and Mr Turner to stop. The officers gave evidence that they believed the Respondent to be under the influence of a prohibited drug at this time. One said he was also aware of the Respondent’s criminal history as a result of his involvement in her earlier arrest on 3 September 2019.

During the course of the interaction between the Respondent, Mr Turner and the police, a bag was placed on the ground. It had been carried by Mr Turner and not the Respondent. A search of that bag later conducted by one of the officers, Senior Constable (SC) Darnton, revealed that it contained a knife and a collection of new male’s clothing.

Shortly after the discovery of the knife, the Respondent was arrested for the summary offence of custody of a knife in a public place pursuant to s 11C of the Summary Offences Act 1988 (NSW) (the custody of a knife charge). Following an interaction with a female officer during which the Respondent refused to remove her necklace during a strip search, the Respondent was transported to Mount Druitt Police Station where she was also charged with having custody of clothing reasonably suspected of being stolen contrary to s 527C of the Crimes Act 1900 (NSW) (Crimes Act) (the goods in custody charge) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act (the resist officer charge).

In a “roadside interview” with the Respondent conducted by SC Darnton on Evan Street, the Respondent denied having any knowledge of the knife in the bag, which she said she borrowed from her mother, but gave an unclear explanation as to the origin of the clothing. When one of the officers returned to the Penrith Police Station, he created a “Facts Sheet outlining the circumstances of the incident that could be used for the charging process” (Facts Sheet). A number of matters were omitted from the Facts Sheet, including that the Respondent had told the officer that she did not know the knife was in the bag and that Mr Turner, and not the Respondent, was in possession of the bag.

The Respondent was refused bail on 31 December 2019 and was remanded in custody. Her parole was subsequently also revoked with the consequence that she was held in custody until 9 June 2020 when the Respondent made a second application for bail in the Downing Centre Local Court. That application was granted on the basis that the “police case [was] weak” and that the brief did not match the Facts Sheet. On 16 June 2020, the earlier revocation of the Respondent’s parole was rescinded and the Respondent was released on 17 June 2020.

On 9 January 2020, the Respondent entered pleas of not guilty in relation to each of the charges and on 28 October 2020, following a hearing in the Penrith Local Court, all relevant evidence was excluded and the charges against the Respondent were dismissed.

The primary judge made strongly adverse credit findings as to the evidence of the police officers, and held that the initial stopping and detention of the Respondent on Evan Street was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) such that all physical contact with the Respondent in the context of that detention was a battery. His Honour also held that the Respondent’s arrest was unlawful pursuant to s 99 of LEPRA such that she was falsely imprisoned whilst remanded in custody. The primary judge found that s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not exclude any civil liability arising from the conduct of the police officers. His Honour also held that the Respondent had been maliciously prosecuted in respect of the “custody of a knife” and “resist officer” charges but not the “goods in custody” charge. This last finding was challenged by Ms Madden.

The principal issues on appeal were:

1. whether the conduct of the trial judge gave rise to an apprehension of bias;

2. whether the detention and arrest of the Respondent pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) was unlawful;

3. whether ss 3B and 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) applied;

4. whether the primary judge erred in finding that the charges against the Respondent were brought without reasonable and probable cause and with malice;

5. whether the loss for which the Respondent was awarded damages was caused by the conduct of the police officers; and

6. whether the primary judge’s award of exemplary damages was excessive.

The Court held (Bell CJ and Stern JA agreeing, Leeming JA dissenting as to the lawfulness of the detention but otherwise agreeing) dismissing the appeal:

1. No case of apprehended bias was established. Interventions by the primary judge were principally to explore and clarify the issues being ventilated in the case: [107] (Bell CJ), [210] (Leeming JA), [239] (Stern JA).

Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, considered.

2. The State was given an opportunity at first instance to raise an issue of apprehended bias or to make an application for disqualification but chose not to do so. This amounted to a waiver of any right to complain of bias: [110] (Bell CJ), [210]-[215] (Leeming JA), [240] (Stern JA).

Vakauta v Kelly (1989) 167 CLR 568 and Smits v Roach (2006) 227 CLR 423, referred to.

3. As to the lawfulness of the detention, the primary judge’s conclusion was founded on his rejection of police evidence and the State did not overcome the high hurdle that challenges to such credit-based findings require: [122] (Bell CJ), [241] (Stern JA).

Fox v Percy (2003) 214 CLR 118, applied.

4. SC Darnton reasonably suspected that the Respondent had in her possession or under her control something used or intended to be used in connection with an offence, or illicit drugs, thereby engaging the power in s 21(1)(b) or (d) of LEPRA. The circumstances supporting that reasonable suspicion include that SC Darnton was familiar with the Respondent and Mr Turner and their criminal histories and saw the Respondent behave erratically on the street: [216]-[221] (Leeming JA).

5. This was not a case where the advantage enjoyed by a trial judge, who was obliged to assess SC Darnton’s credibility and reliability, disentitled an appellate court from interference. The best evidence of SC Darnton’s subjective intention is what he said at the time as captured in the body worn camera footage and whether his suspicion was reasonably held emerges from the contemporaneous evidence as opposed to his testimonial evidence years after the event: [229] (Leeming JA).

6. As to the lawfulness of the arrest, it was common ground that Mr Turner was in possession of and carrying the bag at all material times such that neither the bag nor the knife was in the Respondent’s custody or possession. A charge under s 527C of the Crimes Act refers to a thing being in the person’s custody at the time of their apprehension by police. There is no material difference between the reference to “custody” in s 11C(1) of the Summary Offences Act and s 527C of the Crimes Act: [126]-[127] (Bell CJ), [239] (Stern JA).

R v English (1989) 44 A Crim R 273 and Cleary v Wilcocks (1946) 63 WN (NSW) 101, referred to.

7. The primary judge rejected SC Darnton’s evidence that he thought the Respondent was carrying the bag and thus in custody of the knife and the allegedly stolen male clothing. Fox v Percy considerations presented an insurmountable hurdle to the State in challenging the primary judge’s conclusions as to the unlawfulness of the Respondent’s arrest: [128] (Bell CJ), [239] Stern JA.

8. Although an officer could in good faith believe that the bag was in the possession of the Respondent rather than Mr Turner, the trial proceeded on the basis that an essential component of the definition of custody was the concept of immediacy and the primary judge found that SC Darnton did not have a genuine or honest suspicion that the Respondent, and not Mr Turner, was committing the “custody of a knife” offence. No basis was established to interfere with that credit-based finding: [234] (Leeming JA).

9. The deprivation of a person’s liberty effects an “injury” upon that person within the scope of s 3B(1)(a) of the Civil Liability Act. Such deprivation infringes a person’s common law right to enjoy freedom of movement in his or her community: [146] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).

Houda v State of New South Wales [2005] NSWSC 1053, New South ales v Ibbett (2005) 65 NSWLR 168, Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311, State of New South Wales v Williamson [2011] NSWCA 183, Trobridge v Hardy (1954) 94 CLR 147, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, considered.

10. SC Darnton’s subjective intention was to deprive the Respondent of her liberty. It did not need to be put to SC Darnton that this was his intention because it was self-evident: [151] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).

11. In circumstances where the primary judge rejected SC Darnton’s evidence that he had not realised that the bag was at all material times in Mr Turner’s possession, a fact that would have been evident to him on review of the body worn camera footage, SC Darnton cannot have had reasonable or probable cause to suspect the Respondent committed the “custody of a knife” offence for which she was charged, nor the “goods in custody” charge. The two charges shared the common deficiency that the goods in question were contained in a bag that was not in the Respondent’s custody at the time of the Respondent’s detention and charging by police: [167], [177] (Bell CJ), [235]-[236] (Leeming JA), [239] (Stern JA).

State of New South Wales v Spedding [2023] NSWCA 180, referred to.

12. The decision to include the “resist officer” charge could not be divorced from the “custody of a knife” charge. If SC Darnton did not have reasonable and probable cause in relation to the “custody of a knife” charge, then he did not have reasonable and probable cause in respect of the “resist officer” charge as the search that was performed on the Respondent during which the resistance occurred was predicated on her having been lawfully arrested in the first place: [173] (Bell CJ), [237] (Leeming JA), [239] (Stern JA).

13. The State’s causation argument relied heavily on the primary judge’s finding that the “goods in custody charge” was not maliciously prosecuted. That finding could not be sustained and, together with the fact that once the discrepancy between the true facts and those on the Facts Sheet became plain bail was granted and the Parole Board reversed its cancellation of parole, this defeated that State’s causation argument: [186] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).

State of New South Wales v Spedding [2023] NSWCA 180, referred to.

14. The discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King constraints on appellate interference. The award of exemplary damages was within the limits of a “proper exercise” of the primary judge’s discretion and based upon his close analysis of the facts and assessments of the credibility of the key police witnesses: [191], [200] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).

Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, Gray v Motor Accident Commission (1998) 196 CLR 1, Whitbread v Rail Corporation NSW [2011] NSWCA 130, Gray v Motor Accident Commission (1998) 196 CLR 1, Hamilton v State of New South Wales [2020] NSWSC 700, considered.

15. It was not a relevant factor in determining the quantum of damages that the Respondent did not have an unrestrained right to liberty in the sense that she was on parole at the time of her arrest, and subject to ongoing bail conditions. There is a significant qualitative difference between being held in custody and being on parole: [203] (Bell CJ), [238] (Leeming JA), [239] (Stern JA).

Deakin v The Queen (1984) 58 ALJR 367, Bugmy v The Queen (1990) 169 CLR 525 and Power v The Queen (1974) 131 CLR 623, referred to.

JUDGMENT

1. BELL CJ: The State of New South Wales (the Appellant or the State) appeals from the decision of Fitzsimmons SC DCJ (the primary judge) in which his Honour found the State liable in tort for battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647 (the primary judgment or PJ). The damages award encompasses both general and aggravated and exemplary damages.

1. In relation to each of the torts, the State was held to be vicariously liable for the conduct of several New South Wales Police officers, principally Senior Constable (SC) Michael Darnton, SC Lee Kelly and SC Danielle Munt, who were all members of the Nepean Proactive Crime Group, as well as, SC Brett Burnell, SC Brett Nicholls and SC Mac Tamruksa.

2. As will be outlined more completely later in these reasons, the case arises out of events which occurred at about 4.30pm on 30 December 2019 when the Respondent, who had recently been released from prison on parole, was walking with Mr Dylan Turner (Mr Turner) on Evan Street, South Penrith (Evan Street) and was then stopped, searched and detained by New South Wales Police officers. A substantial part of the interaction between the Respondent and the police officers on 30 December 2019 was captured on body worn camera video recordings.

3. During the course of the interaction between the Respondent, Mr Turner and the police, a bag containing a knife and a collection of new male clothing was placed on the ground. It had been carried by Mr Turner and not the Respondent. Shortly thereafter, the Respondent was arrested for the summary offence of custody of a knife in a public place pursuant to (the subsequently repealed) s 11C of the Summary Offences Act 1988 (NSW) (Summary Offences Act) (the custody of a knife charge). Following an interaction with police during which the Respondent refused to remove her necklace during a strip search, the Respondent was transported to Mount Druitt Police Station where she was also charged with having custody of clothing reasonably suspected of being stolen contrary to s 527C of the Crimes Act 1900 (NSW) (Crimes Act) (the goods in custody charge) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act (the resist officer charge).

4. The Respondent was refused bail on 31 December 2019 and was remanded in custody. Her parole was subsequently also revoked with the consequence that she was held in custody.

5. On 9 January 2020, the Respondent entered pleas of not guilty in relation to each of the charges and on 28 October 2020, following a hearing in the Penrith Local Court before Magistrate Hiatt which commenced on 16 September 2020, all relevant evidence was excluded and the charges against the Respondent were dismissed.

6. On 2 August 2021, by way of a Statement of Claim filed in the District Court, the Respondent commenced proceedings against the State for trespass to the person, false imprisonment, assault, battery, malicious prosecution and misfeasance in public office. This last claim was not pressed.

7. By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, being the first day of the hearing of the appeal, the State appeals from the whole of the primary judgment.

8. However, as was noted by the Respondent in written submissions and as will be considered in greater detail later in these reasons, the success or otherwise of the appeal largely turns on the disturbance of the adverse credibility findings made by the primary judge in respect of the Police officers who gave oral evidence in the course of an 11 day trial, including as to what they asserted were their reasonable suspicions in relation to the Respondent.

9. On 27 July 2023, the Respondent also filed a Notice of Contention and sought leave on the first day of the hearing of the appeal to file a Further Amended Notice of Cross Appeal. Leave was granted.

The primary judgment

11. It is first necessary to provide a short summary of the primary judge’s reasons.

12. His Honour held that the initial detention and search of the Respondent on Evan Street was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): PJ [234]. Accordingly, all physical contact with the Respondent’s person in the context of that detention was held to constitute a battery: PJ [251]-[252]. Moreover, pursuant to s 99 of LEPRA, his Honour held that the Respondent’s arrest was also unlawful such that, from the time at which the Respondent was arrested on 30 December 2019 until the time at which she was remanded in custody on 31 December 2019, she was falsely imprisoned: PJ [244], [308].

13. His Honour found that s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not apply to exclude any civil liability arising from the conduct of the Police officers because, pursuant to s 3B(1)(a) of the Civil Liability Act, s 43A does not apply in relation to civil liability of a person in respect of an intentional act done with intent to cause injury. Even if the operation of s 43A was not excluded by s 3B(1)(a), the primary judge held that the circumstances in which the Respondent was detained and arrested were so unreasonable that no police office would properly consider the acts of the Police officers to be a reasonable exercise of their power: PJ [267]-[268].

14. The primary judge also held that SC Darnton had maliciously prosecuted the Respondent in respect of the “custody of a knife charge” and “resist officer charge” but not the “goods in custody charge”. His Honour found that the evidence in relation to the prosecution of the Respondent for the “custody of a knife” and “resist officer charge” was insufficient to support an honestly held belief that there was reasonable and probable cause for the prosecution of those charges to be brought: PJ [295]. Moreover, the primary judge held that there was sufficient malice in that SC Darnton had commenced and pursued the prosecution for a purpose other than the proper invocation of the criminal law, namely a personal animus he had against the Respondent: PJ [301].

15. The primary judge made the following awards of damages:

1. $8,000 for general damages for false imprisonment;

2. $15,000 for general damages for battery;

3. $10,000 aggravated damages for false imprisonment;

4. $10,000 aggravated damages for assault and battery;

5. $20,000 exemplary damages for false imprisonment;

6. $20,000 exemplary damages for battery;

7. $150,000 general damages for malicious prosecution; and

(viii) $75,000 exemplary damages for malicious prosecution.

(The reference to “assault and battery” in relation to the aggravated damages award of $10,000 was obviously a slip as there had been no general damages award for assault.)

Factual background

16. Before moving to consider the State’s grounds of appeal, it is also necessary to provide some substantial factual background to the events surrounding the arrest of the Respondent on 30 December 2019.

Events prior to the arrest on Evan Street

17. Prior to 30 December 2019, SC Darnton’s evidence was that the Respondent was well-known for serious offences and had an extensive criminal history of in excess of 50 charges, including for robbery, property offences and offences involving violence and weapons. In particular, SC Darnton had interacted with the Respondent on 3 September 2019 when she, alongside her former partner Mr Gaige Heckle, was charged with, and subsequently convicted of, several offences connected to the attempted theft of a car in police presence.

18. The Respondent was sentenced to three years imprisonment with a non-parole period of one year and three months in relation to the 3 September 2019 offences but was released on parole on 5 December 2019. The Respondent gave evidence that following her release from prison and contrary to the conditions of her parole, she had, over a period of days, relapsed into use of the drug “ice”. This evidence is supported by a Breach of Parole Report dated 2 January 2020, which will be referred to later in these reasons, in which it is noted that Community Corrections had been contacted by a significant other on 30 December 2019 to report the Respondent’s suspected drug use. The Report also recorded that the Respondent had admitted to a relapse into methamphetamine use over the Christmas period.

19. The Respondent’s evidence was that, as of 30 December 2019, she was suffering from borderline personality disorder, anxiety and depression. She also gave evidence that she experienced anxiety around police officers as a consequence of an incident which occurred at the Penrith Police Station when she was fourteen years old. Moreover, her Breach of Parole Report recorded that on 30 December 2019, the Respondent had disclosed a decline in her mental health over the Christmas period.

20. On the morning of 30 December 2019, Mr Turner and another man, Brett Plummer, had been stopped by SC Kelly and SC Darnton, who were on bicycle patrol in Penrith.

21. SC Kelly and SC Darnton’s evidence was that Messrs Turner and Plummer appeared to be attempting to avoid police so they wanted to “have a chat to them”. It was SC Darnton’s evidence that Messrs Turner and Plummer had not been effectively stopped but, rather, that it was not uncommon for police officers to have general conversations with lots of people when on patrol. SC Darnton denied that there was any conscious decision to stop and speak to Messrs Turner and Plummer, even though body camera footage captured the two officers riding together before separating to approach the men from different directions.

22. Plummer was searched by SC Kelly and SC Darnton but Mr Turner was not. Nothing of note was uncovered during the search. When conducting the search of Plummer, SC Kelly and SC Darnton gave evidence that they became aware that Mr Turner was on parole for a robbery offence.

The “stop” and search on Evan Street

23. The Respondent’s evidence was that on 30 December 2019, she woke up at her father’s house and then attended her mother’s home to collect money and a handbag, which she shared with her mother. At around 2.30pm, she met Mr Turner in Penrith and they took a train to Mount Druitt. She then attended Mount Druitt Community Corrections at about 3pm where she met with her parole officer and returned a negative drug test result.

24. After the meeting with her parole officer, the Respondent returned to Mount Druitt train station with Mr Turner and together they travelled to Kingswood Station and then walked via Evan Street to the Jamison Hotel Pub or “Jammo”. The Respondent denied consuming ice between leaving the Mount Druitt Community Corrections facility and being stopped by police on the street.

25. As the Respondent and Mr Turner were walking down Evan Street, they observed a man sitting in the street who had been arrested by SC Munt and was awaiting the arrival of a caged vehicle.

26. SC Munt, Kelly and Darnton gave evidence that the house in front of which the man was being arrested was a well-known house believed to be involved in drug supply. The Respondent gave evidence that she was friends with Ms Hayley Reitano Taylor whose partner resided at that address, although the Respondent’s evidence was that Ms Taylor was living elsewhere. SC Kelly and SC Darnton gave evidence that they were aware of Ms Taylor’s links to the house on Evan Street as well as the association between the Respondent and Ms Taylor.

27. A verbal exchange took place between Mr Turner and SC Munt on the street in which Mr Turner said words to the effect of, “That’s pretty slack making him sit there in the heat,” at which point SC Munt replied, “Do you want to join him?” Munt gave evidence that the Respondent replied, “Nah miss you can sit down with him.” After the exchange, the Respondent and Mr Turner continued walking down Evan Street.

28. SC Darnton and SC Kelly then alighted from a police vehicle. As outlined above, SC Darnton was aware of the Respondent’s extensive criminal record and that she was on parole. Both officers gave evidence that they believed the Respondent to be under the influence of a prohibited drug at the time. SC Kelly’s statement recorded that this was because the Respondent was “laughing and behaving immaturely”.

29. The Respondent gave evidence that SC Darnton then asked the Respondent and Mr Turner to “stop”, and they complied. Her evidence was that they were not informed at this time that they would be searched.

30. Although SC Kelly had, at paragraph four of his statement in the criminal proceedings against the Respondent, indicated that the Respondent and Mr Turner were “stopped” by SC Darnton, under cross-examination he gave the following evidence:

“Q.   …Would you agree that the video footage commences with Ms Madden and Mr Turner being stationary on the footpath?

A.   Yes.

Q.   In other words, stopped.

A.   Yeah, as a figure of speech they were stopped.”

31. SC Darnton gave the following evidence as to the circumstances in which the Respondent and Mr Turner were ultimately stopped on Evan Street:

“Q.   As you saw Mr Turner and Ms Madden, could you describe what they were doing?

A.   They were just walking along the - the footpath towards where we were.

Q.   What happened then?

A.   Senior Constable Kelly and I engaged both of them in conversation. I don’t remember who started the conversation, whether it was Senior Constable Kelly or whether it was myself. Yeah, just had a general conversation. Which was common. We - we used to engage people in conversations throughout the - throughout our shift. Just general conversation.

Q.   What did you say to Ms Madden and Mr Turner?

A.   I - I don’t remember - like, I don’t remember exactly what was said, it was just exchange pleasantries, I guess. We were just talking backwards and forwards, just - just general conversation…

…

Q.   At the time [you were] approaching Mr Turner and Ms Madden on the footpath in the street, what was your intention?

A.   My intention at that point? Was just to have a conversation, engage them in conversation… I believe I was just there, just to have a - have a general discussion.”

32. Under cross-examination, SC Darnton added the following:

“Q.   Do you disagree with what Senior Constable Kelly has said in the first sentence of paragraph 4?

A.   I guess in the sense of stopping - in the sense of actually exercising a power or stopping and having a chat with someone, that’s maybe where we disagree.

…

Q.   You don’t disagree with what Senior Constable Kelly had said in paragraph 4 first sentence, do you?

A.   Only in the fact that what I explained that yes, I stopped and spoke with Ms Madden and Mr Turner, but at that point I didn’t think that I was exercising my power at that point. I might be - stand corrected, but that’s what I didn’t think - that’s what I thought at the time.

Q. Well, I suggest to you, you were exercising your power to stop under section 21 of LEPRA, would you agree?

A.   Well, now that it’s being put to me like that and using the other previous example, I would say then yes, I was exercising my power.”

33. Shortly after asking, the Respondent and Mr Turner stopped walking down Evan Street and engaged with the police officer, and SC Darnton and SC Kelly activated their body worn cameras. Those cameras captured 60 seconds of visual footage prior to the audio file commencing. In that footage, SC Darnton can be observed removing a black handbag from between Mr Turner’s legs. The Respondent can also be observed walking around the road and on the grass nature strip speaking with SC Darnton and SC Kelly in a jovial manner.

34. When the audio file commences, the following exchange is captured:

“SC Darnton: So I’m Senior Constable Darnton, I’m from Nepean Police, ok. I’m wearing a Body worn video camera, recording both audio and video.

SC Kelly: So am I.

SC Darnton: And this is Lee, Senior Constable Kelly, he’s wearing a body worn video camera too, okay. You’re going to be detained for a search okay?

…

Respondent: Oh no, I want a female …

SC Darnton: Hang on, relax.

SC Kelly: We’ve got a female down there.

SC Darnton: For an item in connection with an offence or a drug okay. Just because of your history obviously, very – what are you doing darling? …”

SC Darnton’s question, “what are you doing darling?”, was directed to the Respondent who was at that time adjusting and reaching down the front of her dress.

35. SC Darnton asked the Respondent about where she was living but the Respondent did not answer. SC Darnton then directed the Respondent to stand over on the grass nature strip and asked, “Are you high?” to which Mr Turner replied, “Yeah.”

36. The following exchange was then recorded as SC Darnton began to search through the bag placed on the ground which had been retrieved from between Mr Turner’s legs:

“SC Darnton: So you’ve ditched, you’ve ditched Gaige hey, dropped him like a hot potato?

Respondent: Yes.

Turner: Straight, Straight away … (indecipherable)

Respondent: Yeah (laughs).

SC Darnton: Wow.

Turner: We’re mates brah, that all it is.

SC Darnton: You and Gaige are mates and now you’ve hooked up with his missus?

Respondent: Yeah (laughs)

Turner: I haven’t hooked up with his missues?

SC Darnton: Oh, you’re not together?

Respondent: Youse are only making allegations.”

37. SC Darnton then announced, “Breach, breach” upon finding a knife in the bag. SC Kelly is recorded as asking, “Whose bag’s that?” to which SC Darnton replied, by way of assertion, “It’s Ebonie’s.” The transcript of this conversation which was in evidence then records that the Respondent (whose first name is Ebonie) replied, “Fuck off”, although the sound recording does not support the attribution of these words to her.

The arrest on Evan Street

38. After finding the knife, SC Darnton is recorded as saying the following to the Respondent:

“So, where are you living now Ebonie? Because you are under arrest. My name is Senior Constable Darnton, you are under arrest for custody of a knife in a public place.”

At this point Mr Turner responded by saying, “It’s mine chief”. SC Darnton gave evidence that he did not hear Mr Turner claim ownership of the knife and that because he did not know where the Respondent was living, he considered it necessary to arrest her at this time.

39. SC Kelly then handcuffed the Respondent which he gave evidence was because of the Respondent’s aggression. The following exchange was then captured:

“Turner: I’m on bail dickhead.

Respondent: I don’t even know how that [referring to the knife] got in there.”

40. SC Munt then approached the group again. She is captured on the footage saying, “See, that’s what happens when you’re mouthy, you get searched”, at which point SC Darnton reminded SC Munt that the body cameras were on.

41. SC Darnton conducted a further search of the bag at which point several items of new men’s clothing were located. During an interaction with SC Darnton and SC Kelly, Mr Turner stated that the underwear belonged to him and that he had purchased it that day at K-Mart in Mount Druitt.

42. SC Darnton requested that SC Munt search the Respondent while SC Kelly conducted a search of Mr Turner. SC Darnton then made the following comment:

“Who has the last laugh now, hey? … You’re an interesting one, Ebony, I’ll give you that. Stealing a car in front of a police officer, that’s a first for me”

This was evidently a reference to the earlier charges noted at [17] above.

The strip search

43. SC Munt decided after conducting a preliminary search of the Respondent that a more invasive strip search would be required. This was because the Respondent had earlier been reaching down the front of her dress which led to concern that she may be concealing a weapon. A verbal altercation between SC Munt and the Respondent ensued in which the Respondent became agitated. SC Munt attempted to restrain the Respondent by forcing her to sit on the ground but the Respondent resisted on account of her being in a skirt. During this exchange, SC Darnton made comments including, “relax darling”, “stop acting like an animal”, “behave like an adult please darling” and “you carried on like this last time”.

44. Thereafter, it was determined that the Respondent should be escorted to the caged vehicle, which had then arrived, for a strip search to be conducted. The Respondent co-operated with the strip-search by showing SC Munt the inside of her bra. A parole card from that morning was found in the Respondent’s bra during the search. At no point during the search did SC Munt activate her body camera.

43. SC Munt gave evidence that during the search, she requested that the Respondent remove a necklace she was wearing. SC Munt’s evidence was that the necklace was a “safety risk” because the Respondent might swallow it, although she accepted that the Respondent was handcuffed at the time so would not be able to unlatch the necklace. When the Respondent refused to remove the necklace, SC Munt told her to “stop being a tough bitch”. Subsequently, a physical altercation ensued in which the Respondent was removed from the vehicle and restrained by two male police officers, SC Burnell and SC Nicholls, so as to facilitate the removal of the necklace. She was then lifted back into the vehicle.

44. While the search was ongoing, the following exchange was captured:

“SC Kelly: What are we doing with this stuff?

Turner: It’s all mine bro I had it with me

SC Darnton: It’s yours, where’d you get it from?

Turner: From Kmart, Mount Druitt bro. Promise ya.”

SC Darnton and SC Kelly expressed doubt about the items having been purchased from Mount Druitt given that they had stopped Mr Turner in Penrith earlier in the day.

47. A few minutes later, SC Kelly is captured answering his mobile phone and telling the caller that:

“We just had a run in with Ebonie Madden and her friend… She is kicking off… We were just standing here, and they walked past. She started mouthing off."

48. After a further exchange with Mr Turner, SC Darnton was captured as saying:

“I like you… yeah I like you, do you like me? … we’re going to be seeing more of each other sir”.

49. Later, the body camera footage captured some discussion between the Police Officers about whether a field Court Attendance Notice (CAN) should be issued and if so, in relation to what charge or charges. SC Kelly suggested that a CAN should be issued in relation to the Respondent having custody of a knife and resisting arrest. SC Munt then re-joined the other Police officers and is recorded as saying in respect of the proposed resist charge that “She wouldn’t take her necklace off … so we pulled her out of the truck”. SC Munt’s evidence was that she agreed she was smiling whilst recounting this altercation to the other Police officers and said this was because she thought the whole situation was “ridiculous”.

50. Subsequently, the audio on the body camera footage is paused. There was no evidence as to why SC Darnton elected to pause the audio at that time. Just prior to the audio being paused, SC Kelly can be heard saying in respect of the proposed field CAN, “Just give her the knife”.

The “roadside interview”

51. When the audio resumed on SC Darnton’s body camera footage, he conducted what the State referred to as a “roadside interview” during which the Respondent was sitting in the back of the caged vehicle.

52. During the roadside interview, the Respondent denied any knowledge of the knife in the bag but gave an unclear explanation as to the origin of the clothing:

“SC Darnton: Can you tell me why you were carrying around a knife in a public place Ebonie?

Respondent: I didn’t know that was in my bag.

SC Darnton: You didn’t know that was in your bag?

Respondent: No, I honestly didn’t.

SC Darnton: Is that your handbag?

Respondent: Well, I borrowed it yeah – I did… But the clothes in it were mine … I put the clothes and that in there …

SC Darnton: The underwear where was that from?

Respondent: I don’t know. I don’t know.

SC Darnton: Ok, when did you see – have you – did you see that knife in there before?

Respondent: No, I didn’t. No I didn’t.

SC Darnton: You never saw it?

Respondent: - Oh do you think I would walk past police with it?

SC Darnton: Did you see the underwear in there?

Respondent: The underwear, yeah, I did …

SC Kelly: The knife was on top of the underwear so I don’t know how you missed the knife?

Respondent: Neither do I.

SC Kelly: Where did you get the underwear from?

Respondent: Like I said they were already in the bag

…

SC Kelly: Well we got a version from your friend that was … where you went and picked up that stuff, so do you want to us just tell us where you got it from.

Respondent: I picked up the bag.

SC Kelly: From where?

Respondent: From mum’s house.

SC Kelly: Yeah, well your friend said that you guys went somewhere and you - you picked up the underwear from there.

Respondent: Yeah my mum’s house.

SC Kelly: No. Well that’s not the version he gave. He said that you guys went to a shop.

…

Respondent: We did go down to the shop down here but we got the bag from my mum’s house

SC Kelly: When you say the shops down here do you mean K-Mart or the Nepean Centro?

Respondent: Look …. I’ve got the ha - … Youse asking me where I got the handbag from. I got the bag from my mum’s

SC Kelly: Yep and where did you get the underwear from?

Respondent: shop

SC Kelly: Which shop?

Respondent: I don’t know. I don’t want to answer that.

…

SC Darnton: Listen it’s in your bag alright. We reasonably suspect that they’re stolen, alright? So tell us where you got ‘em from.

…

Respondent: I got the bags from my mum’s house.

SC Kelly: Yeah but your friend said that you got those clothes, you purchased those clothes from a shop.

…

Respondent: All clothes are purchased from the shops

SC Kelly: Yeah but where did you get those ones from? He said that you both went and you purchased them from a shop. We just want to know which one.

Respondent: I don’t fucking know I don’t remember. I’ve been …

SC Kelly: Well he said it happened today …

Respondent: Yeah, well fuck I don’t know ask him

SC Kelly: If we go to the Nepean Centro where K-Mart is at Penrith here are you guys going to be on footage there?

Respondent: No

SC Kelly: No? Why are you smiling then?

Respondent: Huh? Honestly, I don’t know. But I’m not going to be on footage down in the Nepean Centro.

…

SC Kelly: So where did you get the clothes then, so we know? …

Respondent: I didn’t get them from a shop. I don’t know why he’s saying “we got them from a shop”.

…

Respondent: Why should he lie? Maybe because he doesn’t – want you to know it came from my mum’s house. I don’t know …”

53. SC Darnton is then captured as saying:

“Hey if you can’t give me an address right now I’m going to be straight up. If I can’t confirm where you are living. If you are staying with your mum that’s all good but I’m going to take you back and charge you, bail refuse you.”

The Respondent provided her address but then indicated that she had seen her parole officer that day and had been advised that she had one week to change her address because she did not want to live with her dad anymore.

54. A field CAN was ultimately not issued. SC Darnton gave evidence that this was because the Respondent had a history of a number of failures to appear before a court, numerous breaches of bail conditions and because he was unaware of where she was living.

Creation of the CAN

55. At about 5.30pm on 30 December 2019, SC Darnton returned to the Penrith Police Station where he created a Computerised Operational Policing Sydney (COPS) event with the event reference number “E7 2810337” and a “Facts Sheet outlining the circumstances of the incident that could be used for the charging process” (Facts Sheet).

56. Due to the proximity of the events to New Year’s Eve, SC Darnton’s evidence was that he was “under the pump” when completing the Facts Sheet. He maintained that he spent two hours of overtime work on the Respondent’s case but nonetheless conceded that he was aware of matters that were missing from the Facts Sheet.

57. The primary judge made the following finding as to the matters which SC Darnton included and failed to include in those documents:

“[165]   Darnton conceded that he failed to include the following in the NSW Police Facts Sheet in relation to the knife charge:

(a)   The plaintiff had told him that she did not know that the knife was in the bag.

(b)   The plaintiff said that she had not seen the knife before.

(c)   The plaintiff was not in possession of the bag, and instead it was Turner who had custody of the bag.

(d)   Turner had admitted it was his knife.

[166]   Darnton conceded that he had failed to include the following in the NSW Police Facts Sheet in relation to the good [sic.] in custody charge, despite agreeing that the matters would have been in his mind at the time of drafting the facts:

(a)   Turner had claimed ownership of the men’s underwear and the t-shirt.

(b)   The underwear was men’s underwear.

(c)   Turner had said he had purchased the items from K-Mart in Mount Druitt.”

58. Although SC Darnton accepted that he was the relevant informant in the matter, he denied any involvement in the prosecution of the matter or in the Respondent’s bail determination following 30 December 2019. His evidence was that it had been SC Tamruksa at Mount Druitt Police Station who had prepared the CAN, agreed facts and charge, although he acknowledged that in doing so, SC Tamruksa would have “copied and pasted” his COPS entry into the agreed facts document. SC Darnton agreed that on the evening of 30 December 2019, he had been in contact with SC Tamruksa to direct him as to what charges to lay. On the CAN, SC Darnton was listed as the “Prosecutor”.

59. The Facts Sheet created by SC Darnton was provided to Sergeant Steven Moss who accepted the charges. Pursuant to s 43 of the Bail Act 2013 (NSW) (Bail Act), the Respondent was refused bail at Mount Druitt Police Station and then transferred into the custody of Corrective Services. The decision to refuse bail at this stage was made on the basis that the Respondent was charged with a “show cause” offence, namely the “resist officer charge”, and had not shown cause as to why her detention was unjustified.

60. At the time he completed the Facts Sheet, SC Darnton gave evidence that the charges were laid because he believed that they had a reasonable prospect of conviction and that there was sufficient evidence to have the matter put before the Court. He denied that the Respondent being on parole affected his decision and that any omissions from the Facts Sheet were done for the purpose of affecting the Respondent’s application for bail, ensuring that the Respondent’s parole would be revoked or masking the strength of the prosecution’s case.

61. At the time SC Darnton completed the Facts Sheet, he had not yet reviewed the body worn camera footage. His evidence was that he reviewed that footage “in January at some point” and that, even after doing so, he “still thought there was a chance of conviction, or a reasonable prospect” and that he would “put it before the magistrate and let – let them decide”.

62. Mr Turner was later also issued with a CAN in relation to the offence of goods in custody.

Refusal of bail

63. On 31 December 2019, the Respondent made a bail application at Parramatta Local Court before Magistrate Price.

64. During the bail application, the Respondent’s counsel submitted the following:

“In relation to the facts, the facts are a bit ambiguous in relation to the circumstances of the search and there may be some defence to that as to the reasons aren’t outlined in relation to the reasonableness of the search….”

65. Magistrate Price ultimately refused bail. His Honour’s reasons given during the bail hearing were as follows:

“Ms Madden you would be well aware the prosecution are opposing your release on bail more particularly since you are on parole, or I think it’s more accurate to say you are on parole for 6 different or discrete offences one … unfortunately being very very similar to the type of offending that’s being alleged as recently as yesterday or the one in relation to the Police officer … It’s a troubling situation … for someone so young … to have realised that A: that you are on parole for six different offences. There’s been at least seven instances in the more recent past where you haven’t attended Court and it’s been necessary to issue process or more accurately warrants. There’s been any number of breaches of conditional liberty and or bail. Against that background this court could not be comfortable with any regime that would overcome those concerns…”

Revocation of parole

66. On 2 January 2020, a Breach of Parole Report was filed which stated:

“It is of concern to Community Corrections that Ms Madden has re-offended in the short period she has been subject to parole supervision. Due to Ms Madden being bail refused for her new offences and her history of significant violence, revocation is recommended.”

67. On 20 January 2020, the Respondent’s parole order was revoked. The reason for the revocation was noted as:

“… breach of Condition 1 - you must be of good behaviour (outstanding charge/s).”

Grant of bail and revocation of parole

68. On 9 June 2020, the Respondent made a second application for bail at the Downing Centre Local Court. Magistrate Milledge was pointed to the discrepancy between the Facts Sheet, which did not disclose that the handbag was being carried by Mr Turner, and [6] of SC Munt’s statement which disclosed that Mr Turner was holding the handbag. Her Honour held that these circumstances were sufficient to clear the “change of circumstances” threshold set by s 74 of the Bail Act and reasoned that:

“Very clearly, the statement of the [sic.] main police witness certainly isn’t as strong as the police facts read. There are a number of inconsistencies in that statement and also, it’s not really clear who the bag belongs to and who the items belong to. So, I do accept there is a significant shift since the last bail application was made and I will allow it to go ahead.”

69. Ultimately, Magistrate Milledge granted the Respondent’s bail application. Her Honour is recorded as saying:

“… I think given that the Police case is very different, as I said, to the one earlier, I’m not satisfied that it’s a matter that warrants her being detained and for that reason I propose to allow the bail application to go ahead.”

By way of notation on the Court Papers, her Honour indicated that the “police case [was] weak” and that the “brief … does not match Police Facts”.

70. On 16 June 2020, the State Parole Authority rescinded its earlier revocation of the Respondent’s parole and ordered that the Respondent be released by no later than 4pm on 17 June 2020. The stated reasons for her release were:

“1.   The offender has been granted bail on the outstanding charges.

2.   The young age of offender.” (Emphasis added).

71. The Respondent was thus in custody between 30 December 2019 and 17 June 2020, a period approaching 6 months.

The Local Court proceedings

72. On 9 January 2020, the Respondent entered pleas of “not guilty” in relation to each of the charges. The Crown was ordered to serve its brief of evidence by 6 February 2020.

73. SC Munt’s statement was completed on 10 January 2020. On 9 March 2020, SC Kelly completed his statement but it was not served upon solicitors acting for the Respondent until 9 June 2020, which was the second day of her bail application.

74. SC Kelly acknowledged in evidence that he did not refer in his statement to the fact that the bag in which the knife and clothing was found was at all times observed by police to be in Mr Turner’s possession. Nor did he include in his statement the fact that Mr Turner had claimed ownership of the knife. While SC Kelly acknowledged that those were relevant matters which ought to have been included, his evidence was that their exclusion was justified given the existence of the body worn camera footage.

75. By way of an email sent to SC Darnton on 8 May 2020, the Respondent’s solicitor in the Local Court proceedings confirmed that the only statement she had been served with was that of SC Munt.

76. A request was made by the Respondent’s new solicitor on 22 May 2020 for a “copy of any brief that has been served to date”. SC Darnton responded to this email by enquiring whether “we can possibly negotiate and resolve the matter” and stating that the Respondent’s former solicitor had a copy of the brief previously served. At this time, SC Darnton had not served or completed his own statement, nor had he served the statement of SC Kelly which was completed on 9 March 2020.

77. On 9 June 2020, SC Darnton sent an email to the Respondent’s solicitor purporting to attach a statement of SC Kelly, dated 9 March 2020, and a statement of SC Nicholls, dated 4 June 2020. However, the statement of SC Kelly was not attached to the email.

78. Later on 9 June 2020, SC Darnton sent an email to the Respondent’s solicitor attaching the statement of SC Kelly and asked, “Can you please kindly advise what the sticking point is with this matter? I am sure that this could be resolved in some way I would think.”

79. SC Darnton’s evidence as to his communication with the Respondent’s solicitors was that:

“A.   I - it’s common for me to liaise with defence solicitors in all of my - not all, but a lot of my matters in the earlier stages. Trying to work out if there’s any way that the matters can be resolved without having to proceed to a defended hearing.

Q.   When did you start that practice?

A.   Years and years and years, I would say. I couldn’t tell you exactly when. But it’s - I think it’s just being efficient. It’s trying to save time for police. It’s saving time for the Court. It’s just something that I do with a lot of my - or some of my - matters.”

80. SC Darnton commenced drafting his statement on 25 June 2020 and completed his statement on 29 June 2020. His evidence was that his delay in preparing the statement was a consequence of a heavy workload rather than a belief that the Respondent would plead guilty to the offences. The statement, like the Facts Sheet, did not outline the grounds upon which the search of the Respondent was conducted, in particular SC Darnton’s opinion that, due to her connection with Ms Taylor and the house on Evan Street, the Respondent might be taking Mr Turner to the house.

81. The hearing of the charges commenced on 16 September 2020 at the Penrith Local Court. On 28 October 2020, Magistrate Hiatt excluded all relevant evidence and all three charges with which the Respondent had been charged on 30 December 2019 were dismissed.

Grounds of Appeal

82. By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, the State relies upon six grounds of appeal (with what had originally been ground number 4 not being pressed):

“1   The conduct of the trial judge was such that a fair-minded observer might reasonably have apprehended bias.

2   The trial judge erred in determining the application of the Law Enforcement (Powers and Responsibilities) Act 2002, specifically that:

a. the stopping, searching and detaining of the respondent was not authorised by section 21 (the appellant challenges the factual findings concerning the initial interaction); …

c. that the arrest of the respondent pursuant to section 99 was unlawful. The appellant challenges the trial judge’s findings that SC Darnton did not honestly suspect that the respondent had committed the offence for which she was arrested (custody of a knife in a public place) and that alternatives to arrest did not need to be considered due to the nature and seriousness of the offence, nor was the issue of a Field CAN required.

3   The trial judge erred in determining the application of the Civil Liability Act 2002, specifically that:

a. section 3B applied (the appellant challenges the factual findings concerning SC Darnton’s intention); and

b. section 43A had no application to the exercise by police of a power contained in the Law Enforcement (Powers and Responsibilities) Act 2002.

…

5   The trial judge erred in finding that the charges against the respondent were brought without reasonable and probable cause and with malice and that there was a malicious prosecution.

6   The trial judge’s award of damages for malicious prosecution included compensation for a custody that was not a “natural and probable consequence” of the prosecution (the appellant challenges the trial judge’s factual finding as to the cause of the custody).

7   The trial judge’s award of exemplary damages was excessive.”

83. The Respondent also filed a Notice of Contention in these terms:

“The primary judge ought to have found, if he did not implicitly do so … that the liability in the false imprisonment and battery claims, associated with the stopping, arresting and searching of the plaintiff, was “based” not on the putative “special statutory powers” conferred by ss 21, 31 or 99 of the Law Enforcement (Powers and Responsibilities) Act, but rather on the non-consensual detention, and physical interference with the person, of the plaintiff, both of which, without more, established liability in the defendant unless it could establish a lawful justification.”

84. The Respondent also sought leave to file the following Notice of Cross-Appeal:

“That the primary judge erred in failing to find that the respondent was maliciously prosecuted in relation [to] the charge pursuant to section 527C(1)(a) of the Crimes Act 1900 (NSW).”

The significance of this aspect of the cross-appeal was to answer an argument on behalf of the State that the prosecution of the “goods in custody charge” was not malicious, and some or all of any damage sustained by the Respondent in relation to the “resist officer charge” and “custody of a knife charge” would have been occasioned in any event.

Credit findings

85. As referred to at [9] above, the primary judge made several adverse findings in relation to the evidence given by the Police officers. In no small part, the Grounds of Appeal seek to disrupt those findings.

86. Some of the adverse credibility findings made by the primary judge were premised on the primary judge’s review of the body worn camera footage. In respect of that evidence, the primary judge enjoyed no greater advantage than this Court on appeal.

87. However, several of the primary judge’s credibility findings were based upon the primary judge’s assessment of oral evidence given by the Police officers over nine days, much of which was the subject of intense cross-examination. In relation to this evidence, the primary judge must be taken to have enjoyed a considerable advantage over this Court. As such, this Court will be required to exercise restraint with respect to interference with those of his Honour’s findings which are based on those impressions of the witnesses garnered from their oral evidence and should not overturn those findings unless it considers that they were “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29].

88. The primary judge made especially adverse findings in relation to the credibility of SC Darnton, who gave oral evidence over a period of three days. His Honour rejected several aspects of SC Darnton’s evidence and concluded that his credit was “overwhelmingly impugned”: PJ [192].

89. First, based on His Honour’s review of the body camera footage, the primary judge rejected SC Darnton’s evidence that his interaction with Mr Turner and Plummer earlier on the morning of 30 December 2019 was merely a “chat” or “conversation”: PJ [192]-[193]. The primary judge went on to find that SC Darnton’s evidence that he had not effectively stopped the Respondent and Mr Turner on Evan Street and was just having a chat “lacked credibility”: PJ [194]. Similar findings were made in respect of SC Kelly’s evidence as to the interaction with Messrs Turner and Plummer: at PJ [188].

90. Second, the primary judge rejected SC Darnton’s evidence that, at the time he stopped and subsequently searched the Respondent on Evan Street, he had in mind the connection between the Respondent’s associate Ms Taylor and the house on Evan Street known to be involved in drug supply: PJ [205]. His Honour found that this was not a matter which SC Darnton mentioned in his evidence during the Penrith Local Court proceedings in September 2020. Moreover, when it was later raised over two years later in his evidence before the primary judge, SC Darnton expressed doubt about whether he knew the occupants of that house at the time of the search or whether that was information he found out later: PJ [195]-[196].

91. Third, the primary judge rejected SC Darnton’s evidence as to the reasons for his failure to include several matters in the COPS narrative and the Facts Sheet as well as his reasons for including other matters which were said to misrepresent the events of 30 December 2019. His Honour held that:

“[197]   … It is incredulous for Darnton to suggest that evidence as to custody of a knife and items of clothing, critical to two of the offences with which he was charging the plaintiff, could be merely “forgotten” in such a short period.

[198]   Darnton's explanation for omitting critical evidence in the Facts Sheet as being an oversight because he was “under the pump” is inconsistent with his later concessions, when cross-examined, that he in fact had “plenty of time” to draft an accurate document. Indeed, the evidence established that Darnton had returned to the police station by about 5:30 pm (the COPS entry created at 5:36 pm) and did not leave until 7pm. Darnton conceded that during this period he was only working on the plaintiff's case and, it was in this context, that he conceded he had “plenty of time”.

…

[201]   Darnton ultimately acknowledged that the disclosure of exculpatory information on the Facts Sheet was of utmost importance in circumstances where a person's liberty depended upon it. I do not accept Darnton's evidence that the critical exculpatory information was simply forgotten at the time of completing the COPS entry, or that it was otherwise a mere oversight.”

92. On the basis of his rejection of SC Darnton’s explanation for the omission of the exculpatory evidence from the Facts Sheet, the primary judge held that the omissions were “deliberate and done with the purpose of withholding material information from those who would determine whether the [Respondent] should be granted bail”: PJ [202].

93. Fourth, the primary judge made adverse credit findings in respect of SC Darnton’s evidence in relation to his failure to comply with court orders and appropriately provide documents to the Respondent’s solicitors for the purposes of the Local Court proceedings. His Honour reasoned that:

“[206] Darnton’s disregard for court processes, disclosed in his evidence, reflected poorly on his credit. In accordance with orders of the Local Court the prosecution brief of evidence was to be served by 6 February 2020. This was the responsibility of Darnton, as the informant. He failed to comply with the order, and indeed his own statement as the officer in charge of the prosecution, was not prepared until 29 June 2020. In the interim, Darnton had attempted to engage with the then solicitor for the plaintiff seeking to negotiate a resolution of the various charges. Whilst conceding “from the benefit of hindsight” that it was “wrong” not to serve the brief in accordance with the Local Court order, he later attempted to justify his conduct by claiming that he was unaware that the brief of evidence required to be served needed to include witness statements. This evidence is not credible in circumstances where Darnton was a police officer of some years of experience who would have been aware that a brief of evidence would include all relevant statements in respect to the prosecution. I reject the submission of counsel for the defendant that Darnton might have intended to merely serve a “short brief" in accordance with Reg 25 of the Criminal Procedure Regulation 2017. This submission is inconsistent with the evidence of Darnton. This was not his explanation, and I reject the attempt by counsel for the defendant to seek to justify Darnton's conduct by reference to this Regulation.

[207] Even more concerning was the conduct of Darnton when producing documents in response to a subpoena issued by the plaintiff's defence solicitors. The subpoena required New South Wales Police to produce relevant intelligence reports, no doubt to test the credibility [of] Darnton’s claims that he was lawfully exercising the power under s 21 when dealing with the plaintiff. Darnton took it upon himself to produce heavily redacted documents. In cross-examination, he admitted being aware of the process for making a claim of public interest immunity involving such documents. He was aware that this involved engaging the Crown Solicitor's Office who would then attend court and assume conduct of any public interest immunity issue. Darnton admitted that he was not authorised to produce heavily redacted documents. He accepted that he undertook the process of redaction and production, thereby depriving the plaintiff’s solicitors of relevant material in defence of the criminal charges, without referring the matter to the Crown Solicitor's Office.”

94. At PJ [189], the primary judge made the following findings in relation to the credibility of SC Kelly:

“…Kelly’s explanation for the absence of exculpatory evidence in his statement prepared for the court proceedings lacked creditability [sic.]. His attempt to justify its exclusion in part by suggesting it was contained in the body worn footage was inconsistent with detail otherwise provided in his statement of less significance. Further, his subsequent enquiries with Kmart, in an attempt to inculpate Turner, absent any exculpatory enquiries, was also suggestive of Kelly taking an approach which was less than objective. His justification for the immediate use of handcuffs on the plaintiff, including concerns as to possible injury or escape, was difficult to reconcile with the plaintiff’s demeanour in the period leading to their use.”

Similarly, at PJ [93], the primary judge held that SC Kelly’s failure to include exculpatory evidence in his statement did “not reflect well on his credit”.

95. His Honour also held at PJ [84] that SC Kelly’s answers with respect to his evidence that at no stage were the Respondent or Mr Turner physically stopped by himself and SC Darnton were, given SC Kelly’s experience as a police officer, “evasive and unconvincing”.

96. In relation to SC Munt, the primary judge held that her denial that her comments towards the Respondent, namely the “mouthy” and “tough bitch” comments referred to at [40] and [45] above, were out of frustration was “unconvincing”. His Honour also rejected as credible SC Munt’s explanation for her failure to activate her body warn camera whilst interacting with the Respondent, holding at PJ [110] that:

“Munt’s evidence in respect to her failure to activate the camera lacked creditability [sic.]. She claimed, during evidence, that she was unsure as to whether the camera was activated, and it was for this reason that she made such an enquiry of her fellow police officer. However, this was inconsistent with the actual video which showed that a colleague specifically asked Munt whether her body video was on at the time the search was conducted. Munt's insistence that she believed the camera was on is inconsistent with the fact that she did not hear the two beeps at any time, and had not warned the plaintiff that the camera was activated. Further, Munt was particularly defensive when cross-examined on her comment in relation to the search being conducted in circumstances where the plaintiff was “mouthy”.”

97. In contrast to the adverse credibility findings made by the primary judge in respect of the Police officers, his Honour found that the Respondent gave evidence in a “straightforward and honest manner”. His Honour held at PJ [184] that:

“The plaintiff readily conceded that following her release from prison she relapsed into drug use, having been denied the opportunity to have contact with her son before Christmas. The plaintiff readily conceded as much to her parole officer in the hours before the incident (Ex p22), although an oral drug wipe performed at the time provided a negative test result for all substances. The negative result was consistent with the plaintiff’s denials, when remanded in custody, that she had not consumed prohibited drugs in the period prior to her arrest (Ex p14). The plaintiff, in a candid, forthright and unhesitating manner, admitted that she had lied to the admitting nurse at the correctional facility that she had consumed drugs in order to be admitted to the prison’s ‘butte’ program.”

98. The primary judge also held that the Respondent’s reaction when she was told she would be searched by police was entirely consistent with her evidence that she felt anxiety around male police officers as a consequence of a strip search incident when she was 14: PJ [185]. While his Honour acknowledged that the Respondent was unable to recall some matters, he found that “her evidence of the events surrounding her arrest was given in a clear and concise manner”: PJ [186].

Ground 1

99. By Ground 1 of the appeal, the State asserted that the primary judge manifested apprehended bias by reason of his interventions during the examination of witnesses and allegedly belittling comments made in relation to the State’s submissions. In particular, the State relied on a number of occasions during the hearing in which the primary judge was said to have limited the nature and scope of the cross-examination of the Respondent. It was submitted orally that even if individual exchanges relied upon did not found a case of apprehended bias, the cumulative effect of these passages gave rise to an apprehension that the primary judge was biased.

100. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]):

“…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”

101. The first occasion referred to by the State was the following exchange:

“Q.  Ms Madden, have you discussed giving your evidence with anyone today?

A.   No.

Q.   You haven’t discussed the evidence that you’re giving today in Court with your lawyers?

CANCERI: I object to that, your Honour.

COFFEY: I’m not asking about what the discussion is.

HIS HONOUR: Mr Coffey, we all know the answer to that, don’t we? Surely she would have discussed it with her lawyers. Mr Canceri’s asked evidence-in-chief.

COFFEY: Yes, I understand that, your Honour. Could I ask the witness go out, please?

WITNESS: I didn’t discuss--

HIS HONOUR: Just a minute. Why? I’m not going to keep sending her out unless I need to.

COFFEY: Thank you, your Honour. I withdraw the question.”

This was an unremarkable exchange, with the primary judge seeking to avoid unnecessarily disrupting the hearing, as he was entitled to do. Pushing on the trial process does not evince a want of partiality: see Demarco Almeida v Opportunity Equity Partners Ltd [2006] UKPC 44 at [103].

102. The second occasion relied upon involved the following exchange with reference to the State’s trial counsel’s cross-examination of the Respondent in relation to an arrest of the Respondent which had occurred whilst she was living at Penrith Youth Refuge in August 2012:

“Q.  Do you recall that the police turned up?

A.   Yes.

Q.   Do you recall that you had put mascara all over your hands, and you threatened the female police officer that you would put it on her?

WITNESS: I don’t remember.

OBJECTION. RELEVANCE. LEGAL ARGUMENT. QUESTION ALLOWED

HIS HONOUR: But there is a limit to what extent you cross-examine, in any real detail, about events that happened seven years before.

COFFEY: I might see if I can shortcut it in a different way. And if that’s not, I might need to return. But I certainly - could I indicate, I’m very conscious about what your Honour’s said in terms of Ms Madden. And I’m not - want to exacerbate the situation for her--

HIS HONOUR: Yes.”

Again, this is an entirely unremarkable exchange which could not possibly found or contribute to a complaint of apprehended bias.

103. A short time later, the following exchange took place between the primary judge and the State’s trial counsel:

“Q.   I’ll come to strip searching in a moment. Like what happened on this particular occasion. And I’m glad you raised it. But I want to be fair to you about the question I’m asking. It’s a pat-down search I’m talking about.

HIS HONOUR: Mr Coffey, I will assume you are being entirely fair. And every question you ask is fair. So, there’s no need to preface questions with “in fairness”, or “being fair”.

COFFEY: I’m sorry, your Honour. I actually didn’t realise I was doing it. I’m sorry.

HIS HONOUR: That’s all right.”

Again, this is an unremarkable exchange, and it was not inappropriate for the primary judge to make the intervention he did.

104. The next day, the following exchange took place which was relied upon by the State in its written submissions on appeal as one of the several passages which it was asserted “changed the course of the hearing”:

“Q.  Would you accept the description of the conversation that Senior Constable was having with you as “banter”?

A.   I’m not sure.

Q.   I ask this question respectfully: do you understand what I mean by the word “banter”?

A.   No.

Q.   Maybe he was having in [sic.] attempt having some fun with you in relation to the conversation with you?

A.   He’s trying to.

Q.   He was trying to have fun with you?

A.   I guess, yeah.

Q.   Do you agree that he wasn’t trying to be rude to you?

A.   No, I think he was being--

CANCERI: I object. It’s delving into the mind of the officer. Calling for evidence from this witness about what someone else was thinking at the time. What their objective was.

COFFEY: The question may need to be re-prefaced, your Honour. The angle that I was attempting to lead was about how this witness felt about the conversation in terms of the overall conduct of the police officers. And whether or not it goes towards aggravated damages and exemplary damages.

That’s something that’s claimed. It’s claimed in the pleadings that the conduct of Senior Constable Darnton was taunting this particular plaintiff. And that it was inappropriate conduct.

CANCERI: She said she was embarrassed, your Honour.

HIS HONOUR: I’m sorry to do this, Ms Madden, can you just wait outside for a minute.

IN THE ABSENCE OF THE WITNESS

HIS HONOUR: Mr Coffey, the witness has given evidence-in-chief which I gather was led for a specific reason. And that is that at the age of, I think, 14 she was the subject effectively of a strip search by two male officers.

COFFEY: Yes, your Honour.

HIS HONOUR: In a police station. And she’s given evidence about – as I recall – as to how that affected her. She also has given evidence this morning about the fact, when you ask her during this video, as to whether she was intimidated or not, she made the comment that she does get intimidated. Especially by male police officers.

COFFEY: Yes.

HIS HONOUR: My own observation at this stage would seem not unreasonable in light of her evidence she gave yesterday about what occurred to her at the age of 14.

COFFEY: Yes.

HIS HONOUR: Mr Coffey, you’d understand your obligations as cross-examiner. If you’re going to pursue this line of enquiry, that you do so in fairness. In light of what this witness said earlier about the fact that she’s intimidated. Or she does or can get intimidated by male police officers. Of course, her conduct or her manner could be seen a number of ways.

It could be seen as her not being intimidated or not being worried or otherwise. But it also may be a demonstration of her perhaps being nervous or apprehensive. And this is her way of dealing with it. So, all that I’d say to you is you’re entitled to conduct the cross-examination as you see fit in terms of this witness, given her appearance in the video.

But I would simply ask that you be conscious of the evidence she’s already given in terms of yesterday. And her experiences with police. And her volunteering this morning that she said in fairness she wasn’t really intimidated. Although she does get intimidated by male officers.

200. It is by no means clear that the primary judge did award interest on the amount of exemplary damages. In the table at PJ [338], his Honour set out the various amounts he awarded in respect of each of the torts he held had been committed. This table is effectively reproduced at [15] above, and totalled $308,000. Of this amount, $115,000 was in respect of exemplary damages. His Honour then said:

“[339]  I attribute $200,000 of this sum [of $308,000] to the past, and in accordance with MBP (SA) Pty Limited v Gogic (1991) 171 CLR [6]57, I calculate interest at 2% per annum for three years from 30 December 2019 (rounding up).

[340]   The total assessed amount, including interest, is $320,000.”

207. While the arithmetic is not precise, it would appear that the amount excluded from the award of interest almost entirely subsumed that awarded in respect of exemplary damages.

Conclusion

208. For the above reasons, I would dismiss the appeal with costs.

209. LEEMING JA: I have had the very considerable advantage of reading the reasons for judgment of the Chief Justice in draft. I agree with the large majority of his Honour’s reasons. Those reasons enable me to explain the points of difference concisely. I shall not except to the extent necessary repeat the factual and procedural background.

Ground 1

210. On ground 1, I agree with the Chief Justice that the State’s claim of apprehended bias is not established. I would add that even if that were not so, I would have dismissed the ground because any entitlement to have the primary judge disqualify himself was waived.

211. The Chief Justice has reproduced the passage from near the end of the trial, when, upon inquiry from the primary judge, junior counsel unequivocally rejected the suggestion that he was making any such application. It was not suggested in this Court that anything happened after that exchange that contributed to the conclusion of apprehended bias. It was recognised in Vakauta v Kelly (1989) 167 CLR 568 at 573, 588; [1989] HCA 44 that there can be no question of waiver where the basis of the claim is in the judgment itself, as opposed to the conduct of the hearing. However, as articulated on behalf of the State in this Court, no aspect of this ground turned upon the reasons of the primary judge, as opposed to his Honour’s interventions during the hearing.

212. In those circumstances, there is no answer to Ms Madden’s primary submission, namely, that any basis for complaint had been waived.

213. Neither the State’s written submissions in reply, nor its oral submissions in chief, addressed waiver. Ms Madden confirmed at the hearing that “Our principal position is that the right has been waived by counsel taking no issue”. Nothing was said in reply on the point.

214. Accordingly, it is clear that the ground must be rejected. The principles are familiar and uncontroversial. They emerge from the following passage from the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly at 572, which in turn was reproduced and endorsed in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 in the joint judgment of Gleeson CJ, Heydon and Crennan JJ at [43], with which Gummow and Hayne JJ agreed at [61]:

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

215. It is with respect difficult to see why in circumstances where there was no answer, nor could there be an answer, to Ms Madden’s submission that any entitlement on the part of the State had been waived, the ground was not abandoned.

Ground 2(a)

216. Ground 2(a) as drafted conflated “the stopping, searching and detaining” of Ms Madden. It is necessary to be considerably more precise. As the Chief Justice explains, there was an initial stopping of Ms Madden and Mr Turner, followed by a formal exercise of a power to detain and search, followed by a purported arrest. Although together they occupied less than three minutes, each was distinct. The second and third were undoubtedly formal exercises of power, while there was a debate as to the nature of the first. But at least two and perhaps all three required separate consideration as to whether the State had satisfied the preconditions on which the exercise of power by the police officers was based. In what follows I shall give time references by reference to the elapsed time on Senior Constable Darnton’s body-worn video.

217. Despite the exchange of submissions on the first 70 seconds of the encounter, I shall pass over this because I cannot see that anything turns on whether, as the primary judge found, there was an exercise of coercive power by the police officers to stop Ms Madden and Mr Turner prior to the explicit exercise of power to detain and search them, or whether as the State maintained this was entirely informal. I did not understand any point to be made that somehow an invalid exercise of coercive power infected the explicitly formal exercise of power 70 seconds later (“You’re going to be detained for a search okay?”). If some submission along those lines were to have been advanced, I would have rejected it. The exercise of power to detain and search was different from any exercise of power to stop, and required a separate analysis of whether the preconditions had been satisfied.

218. The power to detain and search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was explicitly invoked at around 1:10. By that time, Senior Constable Darnton had seen Ms Madden and Mr Turner behave erratically on the streets, and was aware of their criminal history and parole status. No challenge was made to Senior Constable Darnton’s evidence that he believed or at least suspected that both were affected by licit or illicit drugs. Ms Madden’s elevated mood is apparent from the body-worn video. As it happens, when she was assessed by a health practitioner the following day, Ms Madden reported that she had a daily consumption of 3 grams of “methamphetamine (eg ice)”, either smoked or injected intravenously, with her last use being the day of her arrest.

219. Senior Constable Darnton was also personally familiar with Ms Madden’s behaviour in his presence some 13 weeks earlier. There is no doubt that this was at the forefront of his mind, when he said “Stealing a car in front of a police officer, that’s a first for me” (3:15). His evidence about this was summarised at [122]-[123] by the primary judge:

Darnton gave detailed evidence of the earlier interaction with the plaintiff on 3 September 2019. As part of an ongoing investigation relating to Heckle, he had detected a stolen vehicle in Cranbrook. The owners of the vehicle were contacted and attended the scene. Whilst interacting with the owners, Heckle, in the company of the plaintiff, attempted to steal the motor vehicle.

Darnton gave detailed evidence of a subsequent altercation with Heckle and the plaintiff whilst they were both occupants of the vehicle they were attempting to steal. This included the plaintiff seeking to obstruct police who were attempting to enter the vehicle and remove Heckle from the driver’s seat. Eventually both were arrested and charged with various offences. A search of the stolen vehicle detected items including an imitation firearm, baseball bat, drug paraphernalia, identity documents, sledgehammer, ski mask balaclava, tools, and clothes. Subsequent enquiries in relation to the identification documents revealed that those documents were linked to previous break and enters and robberies. In cross examination, Darnton conceded that the plaintiff had not been charged with possession of these items, and instead, Heckle had made admissions that these items were his.

220. Senior Constable Darnton also knew, from his encounter with him earlier that day, that Mr Turner was on parole for the offence of robbery in company.

221. In those circumstances, I would conclude that Senior Constable Darnton reasonably suspected that Ms Madden had in her possession or under her control something used or intended to be used in connection with an offence or illicit drugs, thereby engaging paragraphs (b) or (d) of the power in s 21(1) of the Law Enforcement (Powers and Responsibilities) Act.

222. The primary judge reached the opposite conclusion, for reasons given at length. At [229] his Honour put to one side Ms Madden’s participation in attempting to steal a motor vehicle in September 2019, on the basis that it had not been suggested that she knew the items in the vehicle were known to her, and in any event, three months had elapsed. I respectfully agree that that fact alone would not suffice.

223. The Chief Justice has reproduced the balance of his Honour’s reasoning, which is at [230]-[234] of the primary judgment. The main point made in [230] is that a known drug user was walking towards, rather than away from, a house associated with the supply of illicit drugs. This reasoning proceeds on a false premise. His Honour had earlier found (at [195]-[196]) that Senior Constable Darnton did not at the time link the exercise of power to detain and search Ms Madden with her proximity to a nearby house associated with drugs, thereby rejecting one aspect of the case advanced by the State. That finding was based on his oral evidence, but I note that it is corroborated by the absence of any mention of that fact in the contemporaneous documents, including the COPS entry and Fact Sheet. Accordingly, the analysis for the purposes of determining a reasonably held suspicion does not turn on the proximity of the incident with a house associated with illicit drugs.

224. The other point made by the primary judge at [230] was that a suspicion that a person had taken drugs is “not necessarily consistent with [her] having such a prohibited drug in her possession” and, if anything, “is consistent with [her] having previously used a prohibited drug”. Both propositions may be accepted, but they do not contradict the proposition that a person who is obviously affected by drugs may reasonably be suspected of having drugs in her possession. It is not unknown for people to acquire more drugs than they need for immediate use.

225. The primary judge proceeded to fortify his conclusion by three considerations stated at [233].

226. The first was that Senior Constable Darnton used the same words as had been used earlier in the day (when he encountered Mr Turner) where the circumstances were different. I do not see how that materially bears upon the matter. There are only so many ways in which the statute may be complied with, and well-trained officers might be expected to use similar language when exercising the power conferred upon them.

227. The second was that the only reason for the search stated at the time was Ms Madden’s “history”. That statement needs to be assessed in context. As recorded on the body-worn camera, Senior Constable Darnton said, “You’re going to be detained for a search okay?”. Ms Madden immediately said “Oh no, I want a female” (1:14), and was told a female officer was available. The explanation continued, “For an item in connection with an offence or a drug okay. Just because of your history obviously, very”. Senior Constable Darnton then interrupted himself to say “what are you doing darling?” The tone is mostly professional although also, regrettably, condescending. The interruption reflects the officer’s reaction to the fact that Ms Madden’s erratic behaviour changed, and she reached into the inside of the top of her dress and appeared to be moving an item. With the benefit of hindsight, it seems likely that this was her parole card, which she was carrying (at least when Senior Constable Munt conducted a search a few minutes later) inside the top of her dress. True it is that Senior Constable Darnton did not return to giving an explanation for the exercise of the power. But the issue for present purposes is whether there was a reasonable suspicion entitling him to exercise a coercive power. In those circumstances, not much can be drawn from the fact that he merely said “history” and then interrupted himself by reason of Ms Madden’s unexpected conduct.

228. The third point rested upon a statement by Senior Constable Munt saying, after Ms Madden was arrested, “that’s what happens when you’re mouthy” (2:51), and Senior Constable Darnton then saying “We’ve got our cameras on, Sarg” (2:56). It is not clear whether Senior Constable Munt was addressing Ms Madden or Mr Turner or both of them, although it is clear that Mr Turner’s profanities towards the police officers were stronger than those of Ms Madden, and seconds beforehand, he had said “I’m on bail dickhead” and “I’m just saying, fuck” in response to Senior Constable Munt asking “Put your hands out please”. I would accept, as did the primary judge, that Senior Constable Darnton’s reminder that the cameras were on was intended to remind her that it was necessary to act professionally. But I do not see how any of those statements bear greatly upon whether or not Senior Constable Darnton genuinely believed he was entitled to search the woman’s bag being carried by Mr Turner. Nor do I see how his later statements “Who has the last laugh now, hey?” (3:21) and his description to a superior officer that they had had a “run in with Ebonie Madden” who had “started mouthing off” undermines the genuineness of his belief. The former comment was unnecessarily gratuitous, the latter was not inaccurate, but neither greatly bears upon whether there was a reasonably held suspicion, which fell to be addressed at the commencement of their encounter, rather than after the discovery of the knife and apparently stolen clothes and the profanities offered by Ms Madden. I accept that statements and conduct after the event can be employed to impute an earlier state of mind. But it seems that this aspect of the reasoning of the primary judge turned upon the proposition that the purpose of the search was in retaliation for the rudeness of Ms Madden and Mr Turner. That reasoning is unpersuasive. The decision to conduct a search was formed in the first minute of the interaction. The nature of body-worn cameras is that the first 30 or 40 seconds of sound is not recorded, but there is nothing in the critical period – the period before the power was exercised – to suggest an improper purpose of pay-back for rude language. More generally, the fact that Ms Madden was known to Senior Constable Darnton, and even if it be the case that he disliked her, does not prevent his forming a reasonably held suspicion that she might be carrying illicit drugs or items connected with crime.

229. The trial judge saw Senior Constable Darnton cross-examined over two full days, and was very critical of his credibility. As the Chief Justice observes, there are limitations upon this Court’s power to intervene with findings of fact that are likely to have been influenced by the oral evidence of a witness. However, the best evidence of whether there was a reasonably held suspicion is found in the video and audio captured at the time, and the documents prepared by Senior Constable Darnton later in the immediate aftermath of that afternoon. By that I mean that the best evidence of his subjective intentions is what he said at the time, and the best evidence of whether his suspicion was reasonably held likewise emerges from the contemporaneous evidence, as opposed to his testimonial evidence years after the event. In short, I do not think that this is a case where the advantage enjoyed by a trial judge, who was obliged to assess Senior Constable Darnton’s credibility and reliability and who formed a poor view, disentitles an appellate court from interfering with the findings of fact.

230. I did not understand the primary judge to have found that Senior Constable Darnton, when he said that the search was being conduct “for an item in connection with an offence or a drug”, did not subjectively hold the requisite suspicion. It is true that his Honour found at [232] that “Darnton’s motivation was other than a legitimate exercise of police powers under s 21”, but that finding falls short of a rejection that the officer in fact suspected that Ms Madden was carrying drugs or an item connected with an offence. On whether there was an objective basis for a reasonable suspicion, the appearance of Ms Madden and Mr Turner coupled with their criminal history and parole status is not in dispute, and on the facts of this case sufficed.

231. I would conclude that this ground is made out, insofar as it relates to the validity of the detaining and search which led to the discovery of the knife in Ms Madden’s mother’s bag which had been carried by Mr Turner.

Ground 2(c)

232. This ground was added without (ultimate) objection during the hearing, presumably in the belated appreciation that success in establishing the lawfulness of the actions of the police officers in the first two and a half minutes of their interaction with Ms Madden and Mr Turner on 30 December 2019 goes nowhere if nonetheless the arrest purportedly effected by Senior Constable Darnton at 2:31 was unlawful.

233. This ground challenges both preconditions to the exercise of the power to arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act. That power was exercised immediately after discovery of the knife in the bag which had been held by Mr Turner but which Ms Madden had borrowed from her mother and in which were some of her clothes.

234. It is plain from the body-worn video that the bag is a woman’s bag, but it is also plain that it was being carried by Mr Turner, and remained with him for the first two minutes of the interaction, when (at 2:12) the knife was located. It emerged a few minutes later that Ms Madden had borrowed the bag from her mother. To my mind, it is not overly difficult to see how an officer could in good faith believe that the bag was in the possession of Ms Madden, rather than the man with whom she was walking. However, the trial proceeded on the basis that an essential component of the definition of custody was the concept of immediacy, and the primary judge found that Senior Constable Darnton did not in fact have a genuine or honest suspicion that Ms Madden, as opposed to Mr Turner, was committing the offence of custody of a knife in a public place. No basis has been established to interfere with that credit-based finding. It follows that ground 2(c) is not made out.

Ground 5

235. I agree that, for the reasons given by the Chief Justice, the challenge to the finding of malicious prosecution for the custody of a knife charge fails, and the submissions in support of the “cross appeal” concerning goods in custody should be allowed. The so-called “cross appeal” challenged no order made by the District Court, but sought different findings concerning this charge, and accordingly should be treated as a notice of contention, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 51.40.

235. More generally, insofar as this ground necessarily challenged the findings of malice which his Honour imputed to Senior Constable Darnton, I agree with the Chief Justice that no sufficient basis has been established such as to permit this Court to interfere.

236. Although I have concluded that the initial detaining and search of Ms Madden was lawful, the arrest which followed shortly thereafter was not. Had the arrest been lawful, then I would have concluded that there was reasonable and probable cause for charging Ms Madden with resisting Senior Constable Munt when she was searched and her necklace removed. However, I agree with the Chief Justice that in circumstances where the arrest was not lawful, the resistance offered by Ms Madden in its immediate aftermath is not to be regarded as resistance to an officer in the lawful execution of her duties, and thus this element of the tort is made out. Accordingly I agree with the dismissal of the entirety of this ground.

Remaining grounds and orders

238. I agree with, and have nothing to add to, what the Chief Justice has said in relation to grounds 3, 6 and 7. The State’s success in relation to ground 2(a) does not flow through to damages, and I see no reason in those circumstances to treat it as materially affecting the discretion as to costs. I accordingly agree with the orders proposed by the Chief Justice.

239. STERN JA: I agree with the Chief Justice.

240. As regards ground 1, I also agree with Leeming JA that any entitlement of the State to complain of apprehended bias was waived having regard to the interchange between the primary judge and counsel for the State on the last day of trial.

241. Given that the Chief Justice and Leeming JA have reached different conclusions as regards ground 2(a) it is appropriate that I briefly indicate the basis for my concurrence with Chief Justice’s rejection of this ground. In this regard, the adverse findings of the primary judge as to the credibility of SC Darnton were of particular significance, given that the burden of proving that the detention was lawful rests on the State. SC Darnton claimed in evidence that his knowledge of the connection between the respondent, Taylor and the drug house was a factor of relevance to his decision to search the respondent: PJ [195]. The primary judge found that SC Darnton’s evidence was not credible in this regard: PJ [205]. That entails a rejection of a material factor that SC Darnton said had informed his decision to search the respondent. That finding was neither glaringly improbable nor contrary to compelling inferences. None of the other matters relied upon by SC Darnton, as set out at PJ [227], either alone or cumulatively, nor the behaviour of the respondent, as is apparent from the body worn video camera, suffice in that context to satisfy the burden on the State to establish reasonable grounds for the requisite suspicion under s 21 the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

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Amendments

26 July 2024 - insert "the" before "hearing" in [211] so that it reads "the conduct of the hearing"

-replace "judgement" with "judgment" in [223]

-insert "a" before "known drug user" in [223] so that it reads "that a known drug user"

-delete surplus "very" in [227] so that it reads "'history obviously, very'."

-replace "That's" with "that's" in [228] so that it reads "that's what happens"

-delete surplus "that" in [234] so that it reads "found that Senior Constable Darnton"

Decision last updated: 26 July 2024