State of New South Wales v Spedding

[2023] NSWCA 180

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

13-14 June 2023

Date of orders:

9 August 2023

Decision date:

09 August 2023

Before:

Bell CJ; Ward P; Adamson JA

Decision:

Appeal dismissed with costs

Catchwords:

TORTS — Malicious prosecution — Institution of proceedings — identification of prosecutors — distinction between institution and maintenance of proceedings — whether police officers can be prosecutors for the purposes of the tort after the Director of Public Prosecutions has taken over carriage of the prosecution — whether police officers maintained the prosecution after the Director of Public Prosecutions took over the proceeding

TORTS — Malicious prosecution — Absence of reasonable and probable cause — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — where many basic investigative tasks not completed prior to arrest and charging — where police had exculpatory material available to them which had not been read when criminal proceedings were instituted — whether actual knowledge of exculpatory material is required to demonstrate an absence of reasonable and probable cause

TORTS — Malicious prosecution — Malice — What constitutes — where proceedings commenced for dominant purpose of advancing police investigation of unrelated criminal matter — whether sufficient to demonstrate malice — whether actual knowledge of exculpatory material is required to demonstrate malice — where improper purpose of Police was not disclosed to the Office of the Director of Public Prosecutions — whether malice can be found on part of the Office of Director of Public Prosecutions

TORTS — Collateral abuse of process — Who may commit — where one police officer was listed as the prosecutor on the Court Attendance Notice — whether the tort can be committed by a police officer who is not a party to the criminal proceeding — whether this is material where State is vicariously liable for all police officers involved

TORTS — Collateral abuse of process — What constitutes — where it is accepted that the institution of criminal proceedings to advance an unrelated investigation is not a proper purpose — whether functions of police are confined to arrest, investigation and commencement of criminal proceedings — whether police nonetheless liable due to commencement of proceedings to advance an unrelated police investigation

TORTS — Misfeasance in public office — What constitutes — whether maintenance of criminal proceeding can be an exercise in public power

TORTS — Malicious prosecution — Damage — Damage to plaintiff’s reputation — where the respondent was already known as a suspect in unrelated investigation — where charges laid in order to advance that unrelated investigation — whether damage to reputation was caused by leaking of the respondent’s name as a suspect as opposed to by malicious prosecution — whether distinction can be drawn between the two causes

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 16, 17

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3

Crimes Act 1900 (NSW), ss 61E(1A), 66A

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Procedure Act 1986 (NSW), ss 47, 48, 50

Director of Public Prosecutions Act 1986 (NSW), ss 9, 13, 15A

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

Cases Cited:

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

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46

Burton v Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245

Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171; [1964] NSWR 363

Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187

Cooley v The State of Western Australia (2005) 155 A Crim R 528; [2005] WASCA 160

Daniels v Telfer (1933) 34 SR (NSW) 99

Davis v Gell (1924) 35 CLR 275; [1924] HCA 56

Dunlop v Woollahra Municipal Council [1982] AC 158

Ea v Diaconu [2019] NSWSC 795

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

Edwards v New South Wales [2021] NSWSC 181

Edwards v New South Wales [2022] NSWCA 187

Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31

Emanuele v Hedley (1998) 179 FCR 290; [1998] FCA 709

Flowers v New South Wales (No 5) [2021] NSWSC 887

Gibbs v Rea [1998] AC 786

Gillett v State of New South Wales [2009] NSWSC 421

Goldsmith v Sperrings [1977] 1 WLR 478

Graingerv Hill (1838) 4 Bing (N.C.) 212; 132 ER 769

Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92

Hamilton v State of New South Wales [2020] NSWSC 700

Hanrahan v Ainsworth (1990) 22 NSWLR 73

HD v New South Wales [2016] NSWCA 85

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

Hrdavec v New South Wales [2021] NSWSC 560

Kearns v Kearns (Family Court of Australia, Gee J, 17 May 1989, unrep)

Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122

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

Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90

March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641

Martin v Watson [1996] AC 74

McKechnie v Campbell (1996) 17 WAR 62

Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466

Moran v McMahon (1985) 3 NSWLR 700

NAB v McFarlane [2005] VSC 438

New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419

New South Wales v Landini [2010] NSWCA 157

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

Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71

Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (2020) 102 NSWLR 921; [2020] NSWCA 205

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69

Potier v R [2015] NSWCCA 130

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

QIW v Felview [1989] 2 Qd R 245

RvBJW [2000] NSWCCA 60; (2000) 112 A Crim R 1

R v Hillsley [2005] NSWSC 652

R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247

Re Director of Public Prosecutions (DPP) Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9

Rookes v Barnard [1964] AC 1129

Sahade v Bischoff [2015] NSWCA 418

Spautz v Gibbs (1990) 21 NSWLR 230

Spedding v State of New South Wales [2023] NSWSC 34

State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82

The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15

Varawa v Howard Smith Co Ltd (1912) 13 CLR 35; [1911] HCA 46

Vatarescu v Commonwealth (2012) 263 FLR 301; [2012] ACTSC 96

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; [1998] FCA 806

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:

E Hynard and A Lerch, “The Tort of Collateral Abuse of Process” (2021) 44(2) UNSW Law Journal 714

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2015

New South Wales, Joint Select Committee on Sentencing of Child Sexual Assault Offenders, Every Sentence Tells a Story - Report on Sentencing of Child Sexual Assault Offenders, (October 2014)

Prosser and Keaton on the Law of Torts (5th ed., 1984, West Group)

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
William Harrie Spedding (Respondent)

Representation:

Counsel:

S Free SC with A Williams and B Searson (Appellant)
P Blacket SC with A Canceri and T O’Rourke (Respondent)

Solicitors:

Crown Solicitor’s Office (Appellant)
O’Brien Civil and Criminal Solicitors (Respondent)

File Number(s):

2022/368706

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of material that identifies or is likely to lead to the identification of RT, JT, LS, NK, TK or DK.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Spedding v State of New South Wales [2022] NSWSC 1627

Date of Decision:

01 December 2022

Before:

Harrison J

File Number(s):

2019/00289937

HEADNOTE

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

William Spedding (Mr Spedding) sued the State of New South Wales (the State) in tort for malicious prosecution, misfeasance in public office and collateral abuse of process. Before Justice Harrison (the primary judge), Mr Spedding was successful, obtaining judgment for $1,797,181 plus costs. In respect of each of the torts, the State was held to be vicariously liable for the conduct of Inspector Gary Jubelin (Jubelin), Detective Sergeant Moynihan (Moynihan) and Detective Senior Constable Brennan (Brennan) (collectively the Police Officers). The State was also held to be vicariously liable for the conduct of the Office of the Director of Public Prosecutions (ODPP) which the primary judge also held liable for the tort of malicious prosecution. The State appealed.

The case arose out of the disappearance of a 3 year old boy, William Tyrrell, from a house in Kendall, NSW, on 12 September 2014. Mr Spedding was, for a period of time, a person of interest and indeed a prime suspect in that disappearance. From February 2015, Jubelin was the Supervising Officer of the Tyrrell Investigation, referred to as Strike Force Rosann, and worked very closely with Moynihan and Brennan.

One strategy utilised as part of the Tyrrell Investigation was the arrest and charging of Mr Spedding in relation to various, serious and unrelated counts of alleged child sexual assault said to have occurred in April 1987 against his step-child, JT, and his child, LS, in the presence of Mr Spedding’s other step-child, RT, in order to increase pressure on Mr Spedding and enhance the Tyrrell Investigation. A further element of the written strategy was to ensure that Mr Spedding was refused bail in order that a covert listening device could be placed in his cell, for the purpose of which a surveillance device warrant had been obtained in the Supreme Court, in order to advance the Tyrrell Investigation.

The factual basis of these unrelated charges had been exhaustively explored in a judgment of Justice Gee of the Family Court of Australia, delivered on 17 May 1989. Justice Gee had held that the allegations were the product of “coaching” and “programming” of JT and LS by Mr Spedding’s former wife, Cathryn, in the context of bitter family law proceedings. In those proceedings, it was also alleged that Mr Spedding had abused NK, TK and DK, who were the children of Cathryn’s new partner, Daniel, and his former wife, Irene. These allegations were also rejected by Gee J. The Police were in possession of a copy of that judgment which had been seized from Mr Spedding during the execution of a search warrant on his home and business premises on 20 January 2015, although it was not read until after he was charged.

Mr Spedding was arrested and charged with the historical child sexual assault offences on 22 April 2015, which was effected in the presence of the media, who had been tipped off by Jubelin or someone operating on his instructions. Bail was refused by the Local Court on 23 April 2015. The ODPP took carriage of the prosecution from 30 April 2015. Strict conditional bail was granted by Bellew J on 19 June 2015.

Prior to Mr Spedding’s arrest, statements were taken only from JT and LS. LS’s statement did not disclose that she had been sexually assaulted by Mr Spedding in the manner or at the time alleged, a fact which was not made clear to the Local Court when bail was considered. The “Full Facts Sheet” in the bail application also did not refer to the fact that no statement had been taken from RT. It did refer to “victims not part of the accused’s family”, which was accepted to be a reference to NK, TK and DK, from whom statements had also not been taken.

When NK, TK and DK were interviewed shortly after Mr Spedding’s arrest, they denied ever having been abused by Mr Spedding. TK and DK suggested that Cathryn used Mr Spedding and made allegations about him to further her own perceived ends in the Family Court proceedings. Daniel, who was also interviewed, described her as “very manipulative”. The Investigator’s Notes of these interviews were not disclosed to the ODPP or Mr Spedding’s legal representatives for more than 11 months after they were made. During the period between arrest and trial, Brennan spoke to RT on several occasions. RT repeatedly volunteered that the charged conduct did not occur and that Cathryn had made “the whole thing up”. Contemporaneous notes of these communications were not disclosed to the ODPP or Mr Spedding’s legal representatives.

Mr Spedding was found not guilty of these offences on 5 March 2018 when they eventually came on for trial. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) in relation to his prosecution for those alleged offences.

Mr Spedding thereafter commenced these proceedings. His case before the primary judge was essentially that his arrest and the charges of historical sexual offending which were laid against him with some urgency during the investigation into William Tyrrell’s disappearance were motivated by a predominantly improper purpose, namely to further the investigation into the disappearance of William Tyrrell. The primary judge accepted this. His Honour held that the proceedings were both instituted and maintained without reasonable and probable cause, and that the institution of proceedings was for the predominant purpose of procuring an advantage or benefit outside that afforded by the legal process invoked, namely to advance the investigation into the disappearance of William Tyrell.

The primary judge also held that the institution of proceedings was malicious and an invalid or unauthorised act, done for a predominantly improper purpose, and that the Police Officers were ‘prosecutors’ for the purposes of the tort of malicious prosecution until Mr Spedding was acquitted. His Honour did not hold that the Director of Public Prosecutions was ever aware of the improper and collateral purpose found to have been held by the Police Officers.

In respect of damages, his Honour awarded damages for non-economic loss of $550,000 across the three torts, including a sum for the period in which Mr Spedding was detained in custody. The primary judge also awarded $300,000 for reputational damage, which both parties accepted was a separate head of damage in malicious prosecution; $200,000 for aggravated damages; $300,000 for exemplary damages; $109,292 for the difference between the costs incurred by Mr Spedding in defending the criminal proceedings and the amount recovered under the certificate given to him under s 2 of the Costs in Criminal Cases Act 1967; $25,000 for future treatment expenses; interest; and costs.

By Further Amended Notice of Appeal dated 13 June 2023 and containing fourteen grounds, the State appealed from the whole of the primary judgment, attacking both the findings on liability and the assessment of damages. Mr Spedding filed a Notice of Contention. The main issues on appeal were as follows:

1. Whether, at the initiation of the proceedings, the Police Officers acted without reasonable and probable cause (the reasonable and probable cause issue) (Ground 1A);

2. Whether the Police Officers ‘maintained’ the prosecution after the ODPP took carriage of the prosecution on 30 April 2015 (the maintenance issue) (Ground 1);

3. Whether the Police Officers were malicious in instituting or maintaining the prosecution (the malice issue) (Grounds 2, 3, and 8)

4. Whether the ODPP was liable for malicious prosecution (the ODPP issue) (Grounds 4 and 5);

5. Whether the maintenance of the proceedings was an exercise in public power for the purposes of the tort of misfeasance in public office (the public power issue) (Grounds 6 and 7);

6. Whether there was a collateral abuse of process (the abuse of process issue) (Grounds 9, 10 and 11); and

7. Whether the damages were manifestly excessive, including because the primary judge erred in treating the loss and damage associated with Mr Spedding being a suspect in the disappearance of William Tyrrell as being relevantly attributable to his criminal prosecution (the damages issue) (Grounds 12 and 13).

The Court (Bell CJ, Ward P and Adamson JA) held, dismissing the appeal with costs:

As to the reasonable and probable cause issue

1. The question of whether a relevant prosecutor lacked reasonable and probable cause does not depend upon the actual knowledge of the prosecutor. Rather, it depends on what material was available to a prosecutor, and what the prosecutor “made” or “should have made” of that available material: [227]-[228] (the Court).

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

2. The Police Officers lacked a reasonable and probable basis for arresting and charging Mr Spedding. The Police Officers had, in their possession, the Gee judgment, a statement of LS which did not support the charged allegations, further contemporaneous evidence that cast doubt on the veracity of the allegations and Mr Spedding’s denials. The Police Officers lacked a statement from RT and had not personally spoken to LS or JT. Key steps had not been taken: [236]-[238] (the Court).

As to the maintenance issue

1. The Police Officers as a matter of substance controlled the proceedings and maintained them even after the ODPP had formally taken carriage of the proceeding by controlling and withholding material that was relevant to the maintenance of bail until mid-2015 and the ongoing prosecution of proceedings for a number of years thereafter. The Police Officers failed to disclose the Investigator’s Notes of interviews with NK, TK, DK and Daniel for more than 10 months after they were made. The FACS file and Gee Judgment were not disclosed until Mr Spedding had ceased to be a suspect in the Tyrrell Investigation: [247]-[248], [250]-[251] (the Court).

   Davis v Gell (1924) 35 CLR 275; [1924] HCA 56; New South Wales v Landini [2010] NSWCA 157; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187, applied.

   Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171; [1964] NSWR 363; Daniels v Telfer (1933) 34 SR (NSW) 99; Martin v Watson [1996] AC 74, cited.

As to the malice issue

1. It was accepted that the arrest of Mr Spedding in order to advance an unrelated criminal investigation was an improper purpose. Malice can be inferred from the improper purpose that underpinned the commencement of proceedings. That improper purpose necessarily existed at the time of the commencement of proceedings: [254]-[255], [267] (the Court).

As to the ODPP issue

1. The improper or unauthorised purpose of the Police Officers in arresting and charging Mr Spedding with unrelated offences in order to advance their investigation into the disappearance of William Tyrrell, from which the primary judge inferred malice on their part, was never disclosed to the ODPP: [257] (the Court).

2. There was no evidence before the Court to support the allegation that the ODPP maintained the prosecution for the dominant purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, as had been alleged. Further, the inference of malice from the absence of reasonable and probable cause was not pleaded or particularised, meaning it was not properly open to advance such an inference on appeal: [258] (the Court).

As to the public power issue

1. While there is some force in the submission that the maintenance of proceedings for the purpose of the tort of malicious prosecution does not obviously or necessarily involve the exercise of public power or authority by the police for the purposes of the separate tort of misfeasance in public office which requires an unauthorised act of public power, the institution of the proceedings was an unauthorised act for the purpose of the tort. The State at the very least implicitly accepted that the arrest and charging of Mr Spedding could and would be an unauthorised exercise of public power if undertaken for an improper purpose, which it was. As such, no challenge to the finding of liability for this tort could succeed: [264]-[266] (the Court).

   Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65; Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127; Dunlop v Woollahra Municipal Council [1982] AC 158, applied

As to the abuse of process issue

1. Brennan and Moynihan were parties to the charging and thereby the criminal proceedings commenced against Mr Spedding. Jubelin was not such a party: [271], [276] (the Court).

2. Nothing turns on this, as the State was vicariously liable for Moynihan and Brennan, and it was open to the Court to infer that, as Jubelin’s direct reports, they shared his collateral and improper purpose in the commencement of the proceedings, and that this was the dominant reason for the commencement of the criminal proceedings: [274]-[276] (the Court).

3. Central to the establishment of this tort was the finding that the proceedings had been commenced for a dominant purpose which was outside the scope of the criminal process invoked. The ‘maintenance’ of the proceedings was not relevant in this respect: [277]-[278] (the Court).

   Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34; Graingerv Hill (1838) 4 Bing (N.C.) 212; 132 ER 769; Burton v Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245, applied.

   Goldsmith v Sperrings [1977] 1 WLR 478, cited.

As to the damages issue

1. Although the naming of Mr Spedding as a suspect in the disappearance was not tortious and preceded his arrest for unrelated crimes, his having been named as a suspect was the reason he was charged with historical child sex offences. The effect of the tortious conduct was to give the (false) impression that it was more likely that Mr Spedding was responsible for the disappearance because he was a paedophile who had previously committed child sex offences. But for the charges, he would not have remained as a figure of public opprobrium: [293]-[294], [296] (the Court).

   The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12; Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (2020) 102 NSWLR 921; [2020] NSWCA 205, cited.

2. As the assessment of non-economic loss involves the exercise of discretion, it is necessary to demonstrate House v The King error: [299] (the Court).

   House v The King (1936) 55 CLR 499; [1936] HCA 40; Moran v McMahon (1985) 3 NSWLR 700, applied.

3. Mr Spedding suffered significant consequences as a result of the tortious conduct for which the State is vicariously liable. The components of the damages which are intended to have a compensatory effect (including aggravated damages) were not excessive nor is lesser award warranted: [311]-[312] (the Court).

4. Exemplary damages are particularly significant where public officials have been involved in the commission of the tort or torts. The award of exemplary damages was to indicate the Court’s disapproval of the conduct, to uphold and vindicate the rule of law and to encourage the State to take steps to ensure that such reprehensible conduct does not recur: [315], [318] (the Court).

   State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57; Rookes v Barnard [1964] AC 1129; Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122, applied.

JUDGMENT

THE COURT:

Introduction

1. The State of New South Wales (the Appellant or the State) appeals from a judgment (the primary judgment or PJ) of Justice Harrison (the primary judge) in which William Harrie Spedding (the Respondent or Mr Spedding) successfully sued in tort for malicious prosecution, misfeasance in public office and collateral abuse of process and was awarded damages of $1,484,292 plus interest and costs (PJ at [323]). The judgment sum plus interest was later quantified at $1,797,181 (Spedding v State of New South Wales [2023] NSWSC 34). The damages awarded comprised components of general damages for non-economic loss, for reputational damage, aggravated and exemplary damages, legal costs, future treatment expenses and interest.

2. In respect of each of the torts, the State was held to be vicariously liable for the conduct of Inspector Gary Jubelin (Jubelin), Detective Sergeant Moynihan (Moynihan) and Detective Senior Constable Brennan (Brennan) (collectively the Police Officers). The State was also held to be vicariously liable for the conduct of the Office of the Director of Public Prosecutions (ODPP) who the primary judge also held liable for the tort of malicious prosecution.

3. Mr Spedding did not, however contend that the Director of Public Prosecutions (the DPP) committed the torts of misfeasance in public office or collateral abuse of process.

4. By Further Amended Notice of Appeal dated 13 June 2023, the State appeals from the whole of the primary judgment, attacking both the findings on liability and the assessment of damages. Mr Spedding filed a Notice of Contention.

5. The case arises out of the disappearance of a 3 year old boy, William Tyrrell, from a house in Kendall, NSW, on 12 September 2014. Kendall is a relatively small town approximately 35 kilometres from Port Macquarie. Mr Spedding was, for a period of time, a person of interest and indeed a prime suspect in that disappearance.

6. From February 2015, Jubelin had been the Supervising Officer of the William Tyrrell Investigation, referred to as Strike Force Rosann, and worked very closely with Moynihan and Brennan including speaking with them on a daily basis. Moynihan was referred to in various documents as the Officer in Charge but it is plain from the evidence of both Jubelin and Brennan that Brennan also had this status, from early April 2015. There were regular briefings. Brennan and Moynihan had carriage of the investigation under Jubelin’s direct supervision. Brennan and Jubelin attended Mr Spedding’s bail application in June 2015 and his ultimate trial. Brennan remained in contact with the DPP or delegates of the DPP right up until the trial in his capacity as detective in charge of the investigation.

7. Notwithstanding Jubelin’s early identification of Mr Spedding as the prime suspect in William Tyrrell’s disappearance, by 15 June 2015, Jubelin, in a Strike Force Investigation Progress Report, noted that “[h]aving assessed all the evidence gathered as of this point in time [10 June 2015] investigators are of the view there is a likelihood Spedding is not responsible for the abduction of William Tyrell. The strategies implemented have been complex and aggressive and have not resulted in any additional inculpating evidence” (emphasis added).

8. One of the aggressive strategies that had been implemented by that time and, critically, as part of the William Tyrell investigation process, was the arrest and charging of Mr Spedding in relation to various and serious counts of alleged child sexual assault dating back to 1987. In the course of the hearing before the primary judge, documents were produced by the State that disclosed that Mr Spedding’s arrest and the laying of charges in relation to the historical child sexual assault allegations formed an important part of a written strategy authored by Jubelin and implemented by each of Jubelin, Moynihan and Brennan to further the investigation into the disappearance of William Tyrell in various ways that will be explained in detail later in these reasons.

9. On 22 April 2015, in the full glare of a media pack which the primary judge held, in a finding not challenged by the State, had been tipped off by Jubelin or someone operating on his instructions, Mr Spedding was arrested and charged in relation to the alleged historical sexual assaults from 1987. Mr Spedding had not been charged in relation to those alleged sexual assaults at the time they were alleged to have occurred or when the allegations had first been made. Further, as shall be seen, in a judgment delivered on 17 May 1987 which was available to the Police Officers at the time of Mr Spedding’s arrest in 2015, Justice Gee of the Family Court of Australia had found that the allegations against Mr Spedding were the product of coaching from his former wife, Cathryn, and her sister, Christine.

10. It should be noted at the outset that Mr Spedding was found not guilty of these offences on 5 March 2018 when they eventually came on for trial. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (PJ at [20]) in relation to his prosecution for those alleged offences. It was the prosecution in respect of those charges that Mr Spedding alleged was malicious, and also amounted to misfeasance in public office by the Police Officers and the tort of collateral abuse of process.

11. In essence, Mr Spedding’s case before the primary judge was that his arrest and the charges of historical sexual offending which were laid against him with some urgency during the investigation into William Tyrrell’s disappearance were done so for an improper purpose, namely to further the investigation into the disappearance of William Tyrrell and involved his malicious prosecution, misfeasance in public office and the commission of the tort of collateral abuse of process by the Police Officers.

The causes of action

12. To understand the attacks on the primary judge’s reasons, it is first desirable to identify the elements of the three torts which the primary judge held had been committed and to identify the authorities relating to some of the particular legal issues that arose on appeal.

Malicious prosecution

13. The elements of the tort of malicious prosecution were summarised by the High Court of Australia in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) as follows:

1. proceedings of a kind to which the tort applies (generally, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;

2. the proceedings were terminated in the plaintiff’s favour;

3. the defendant in initiating or maintaining the prosecution acted with malice; and

4. the proceedings lacked reasonable and probable cause.

14. Although the first element of the tort appears relatively straightforward, one key aspect of any claim for malicious prosecution is the identification of the “prosecutor” or “prosecutors” at any given time.

15. The person who initiates a prosecution may differ from the person who maintains it. Moreover, identification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the “prosecutor” on Court process and, as Mr Free SC, who appeared in the appeal for the State, accepted, there may be multiple prosecutors.

16. These propositions all flow from the fact that, in Davis v Gell (1924) 35 CLR 275 at 282-283; [1924] HCA 56 (Davis), Isaacs ACJ said, in an important passage, that for the purposes of this tort (with emphasis added):

“the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.”

17. In the present case, the primary judge’s conclusion that each of the Police Officers was a prosecutor for the purposes of the tort of malicious prosecution at the commencement of the criminal proceedings on 22 April 2015 was not challenged although whether each (or indeed any) of the Police Officers continued to hold that status so as to have maintained the prosecution after the ODPP formally took over the carriage of the prosecution which, in the current case, occurred by the end of April 2015, was a point vigorously contested on appeal. In this context, pursuant to s 9(4)(a) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), the Director of Public Prosecutions is deemed to be the prosecutor in connection with the prosecution of proceeding concerned once the ODPP takes over the carriage of the proceedings. That formal statutory position does not, however, mean that those responsible for initiating proceedings as prosecutor may not continue to hold that status for the purposes of the tort.

18. A number of other sections of the DPP Act should be noted at this stage, and their relevance will become apparent in the course of these reasons.

19. Section 15A of the DPP Act provides:

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

(1A) The duty of disclosure arises only if the Director exercises any function under this Act or Part 2 of Chapter 3 of the Criminal Procedure Act 1986 with respect to the prosecution of the offence (including in connection with a law enforcement or investigating officer seeking advice from the Director under section 14A of the Criminal Procedure Act 1986 about the commencement of proceedings for an offence).

(2)   The duty of disclosure continues until one of the following happens—

(a)   the Director decides that the accused person will not be prosecuted for the alleged offence,

(b)   the prosecution is terminated,

(c)   the accused person is convicted or acquitted.”

20. In Gillett v State of New South Wales [2009] NSWSC 421 at [29], Schmidt J pointed out that the purpose of s 15A was to ensure a fair trial with the statutory obligation cast upon the police designed to facilitate prosecutorial disclosure obligations. Schmidt J went on to observe:

“30 The section does not only concern itself with a trial, but also with the question of whether there will be a prosecution. It follows that the real consequences of the ongoing duty may include not only ensuring a fair trial if charges are pursued, but also that prosecutions are not pursued in the face of information which shows that offences charged were not committed, and also conversely, that they are pursued, when there is information which shows that they were committed. That accords with the explanation of the amendment given in the Second Reading Speech, where it was observed by The Hon. E. M. Obeid (Minister for Mineral Resources, and Minister for Fisheries), that:

In addition to providing for case-managed pre-trial disclosure, the bill provides other amendments designed to further enhance the efficiency and fairness of the criminal justice system. New section 63A prevents a prosecutor from amending an indictment that has been presented at trial without the accused's consent or the court's leave. This will improve the practices of the DPP and the Crown in ensuring cases getting on to trial are ready to go. Schedule 2 amends the Director of Public Prosecutions Act 1986 to formalise the general duty placed on police officers to disclose to prosecuting authorities all relevant information and material obtained during the investigation of an indictable offence. Schedule 3 amends the Crimes (Sentencing Procedure) Act 1999 to enable courts to take into account compliance with pre-trial disclosure requirements when sentencing an offender.

Pre-trial disclosure carries significant benefits for the parties involved in a case, the courts and the criminal justice system generally. It enables the parties to focus on issues that are in contention, rather than having to prepare evidence in relation to issues that are not in dispute. This will result in the more efficient use of court time, the time of counsel and less inconvenience to witnesses whose evidence would not in any event be challenged. Adjournments in response to unexpected developments in the course of a trial would be minimised. The defendant is in a better position to make an informed decision about whether or not to plead guilty, based on the strength of the disclosed prosecution case. If defendants are pleading not guilty, they are assisted in preparing for the trial by being made aware of the prosecution case in advance.”

21. A prosecutor’s disclosure obligation leading to trial is continuous: Potier v R [2015] NSWCCA 130 at [552]; Cooley v The State of Western Australia (2005) 155 A Crim R 528; [2005] WASCA 160 at [57]. In the former case, Ward JA (as the President then was) observed that:

“The prosecution’s duty to disclose is a continuing one (R v Glover (1987) 46 SASR 310; Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 at [57]) and extends to disclosing material relevant to sentence proceedings (R v Lipton (2011) 82 NSWLR 123 at [82]).”

22. Once the relevant material has been disclosed by the police to the Director of Public Prosecutions (as required by s 15A(1) of the DPP Act), the relevant prosecutor is obliged to disclose it to the defence. Those obligations are contained in the guidelines furnished by the Director of Public Prosecutions to Crown Prosecutors pursuant to s 13(1) of the DPP Act. Section 15(2) of the DPP Act provides that persons to whom the guidelines are furnished are “subject to the guidelines.” Between the charging of Mr Spedding and his acquittal, the relevant guideline, concerning disclosure, provided (in part):

“Guideline 18

Prosecutors are under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution:

●   to be relevant or possibly relevant to an issue in the case;

●   to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or

●   to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations.

The prosecution duty of disclosure does not extend to disclosing material:

●   relevant only to the credibility of defence (as distinct from prosecution) witnesses;

●   relevant only to the credibility of the accused person;

●   relevant only because it might deter an accused person from giving    false evidence or raising an issue of fact which might be shown to be    false; or

of which it is aware concerning the accused’s own conduct to prevent an accused from creating a trap for himself or herself, if at the time the prosecution became aware of that material it was not seen as relevant to an issue in the case or otherwise disclosable pursuant to the criteria above.”.

In all matters prosecuted by the Director, police, in addition to providing the brief of evidence, must notify the Director of the existence of, and where requested disclose, all other documentation, material and other information, including that concerning any proposed witness, which documentation, material or other information might be of relevance to either the prosecution or the defence in relation to the matter and must certify that the Director has been notified of all such documentation, material and other information. (Procedures are in place for such certification to occur.)

…

The duty of disclosure extends to any record of a statement by a witness that is inconsistent with the witness' previously intended evidence or adds to it significantly, including any statement made in conference (recorded in writing or otherwise) and any victim impact statement. Subject to public interest immunity considerations, the Director will not claim legal professional privilege (including client legal privilege) in respect of such statements recorded in writing or on tape, provided the disclosure of such records serves a legitimate forensic purpose.”

See the discussion of this guideline in R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 (Lipton). See also Lipton at [103]-[120] regarding the actions the Police are required to take pursuant to s 15A(1) and Hamilton v State of New South Wales [2020] NSWSC 700 at [969]-[1000] regarding the timeframe in which the Police are required to make the mandated disclosures.

23. The decision of this Court in New South Wales v Landini [2010] NSWCA 157 (Landini) illustrates the important point made by Isaacs ACJ in Davis and the fact that the prosecutor for the purposes of the tort need not be the formal prosecutor of the criminal proceedings or the deemed prosecutor.

24. Landini arose out of the Royal Commission into the New South Wales Police Service (often called the Wood Royal Commission after the Royal Commissioner) (the Royal Commission) and involved allegedly tortious acts by police officers. It must also be understood in the context of legislative reform that had occurred between the laying of criminal charges and the claim in malicious prosecution.

25. Mr Landini had been arrested in January 1980 and charged with supplying a prohibited drug and, after pleading guilty, had been sentenced to 15 years’ imprisonment in June 1984. One of the Police officers involved subsequently gave evidence to the Royal Commission that the evidence in support of the charge had been fabricated. The Court of Criminal Appeal set aside Mr Landini’s conviction, and he thereafter commenced an action in malicious prosecution.

26. In order to render the State vicariously liable for the actions of the Police Officers involved, it was necessary to identify tortious acts that had occurred after 28 October 1983, the date on which the Law Reform (Vicarious Liability) Act 1983, which had the effect of making the Crown vicariously liable for the tortious acts of Police officers, commenced. In practical terms, because his prosecution had been instituted prior to 28 October 1983, Mr Landini needed to identify aspects of the maintenance, as opposed to the institution, of the criminal proceedings against him that could be said to be tortious.

27. Macfarlan JA, with whom Tobias JA and Sackville AJA agreed, identified various acts of “maintenance” of the criminal proceedings that were sufficient to engage this element of the tort. They included:

1. the preparation of a document by the police officer detailing the “Facts and Antecedents” of the charge (at [62]), and the submission of that document to the Court (at [64]);

2. the attendance at Court of two police officers (including a Mr Knox) for the (inferred) purpose of giving evidence if the “Facts and Antecedents” document was challenged (at [66]-[67]); and

3. attendance at the sentencing hearing (at [72]).

28. With respect to the second act of maintenance, in holding that such an act constituted “maintenance” of the proceeding, Macfarlan JA observed at [68]:

“Mr Knox was present at the District Court when the document that he had prepared and that he knew contained false information was tendered to the Court as material, and probably essential, support for the conviction and sentencing of the respondent. Mr Knox was not present in court simply as a spectator but was there to support the prosecution of the respondent by giving evidence to the effect of what was contained in the “Facts and Antecedents” document in the event that its veracity was challenged. The Crown Prosecutor who tendered the document was in the same position as the police officer in Martin v Watson [1996] AC 74 (described in A v New South Wales; see [59] above). As in that case, the facts relating to the alleged offence were not here within the Crown Prosecutor’s knowledge and in progressing the prosecution of the respondent on 19 March 1984 he “could not have exercised any independent discretion” (see A v New South Wales at [35] quoted in [59] above). By making the document available for use by the Crown Prosecutor, Mr Knox put the Crown in possession of information which “virtually compel[led]” the Crown Prosecutor to press the charge (see ibid at [35]).” (emphasis added).

29. Macfarlan JA also noted that suppression of evidence is a relevant consideration (at [69]):

“A document prepared by Mr Knox for the purpose of evidence was, in his presence, tendered to the District Court as evidence. This occurred in circumstances where it must have been clear to those involved in the proceedings that, by his presence, Mr Knox was indicating that he was prepared, if required, to go into the witness box to swear to the facts contained in the document. His presence, without demur to the tender of the document, thus implicitly confirmed its veracity. It also involved (but went beyond) a suppression of the evidence that Mr Knox could have given as to the true circumstances of the arrest of the respondent.”

And further, in a sentencing context, at [72]:

“Permitting the sentencing of the respondent to proceed in his presence and in reliance upon the “Facts and Antecedents” document that he had prepared and that he knew to be false, amounted in my view to suppression by him of the evidence he could have given as to the true facts relating to the 1980 Charge.”

In making these findings as to suppression of evidence, Macfarlan JA was of the view that in continuing to provide support for the “Facts and Antecedents” document that the Police officers knew to be false, the Police officers were “maintaining” the prosecution in a manner sufficient to justify tortious liability.

30. It should be noted, however, that these findings were not unqualified. Macfarlan JA held that a plaintiff had to show “active steps” taken by a putative prosecutor, and that it was “too broad” (at [76]) to suggest that a “failure to disclose” was a sufficient basis to find maintenance of the prosecution. In Landini, where a failure to disclose was combined with support (including tacit support) for a knowingly false version of events, however, Macfarlan JA considered that Mr Knox could be liable as a prosecutor.

31. In reaching this conclusion, Macfarlan JA made extensive reference to Daniels v Telfer (1933) 34 SR (NSW) 99 (Daniels). In that case, the plaintiff alleged that shortly after the defendants procured the issue of a warrant for the arrest of the plaintiff on a charge of larceny, the defendants became aware that the plaintiff was innocent of that charge, and thereby committed malicious prosecution. The plaintiff’s Declaration filed in those proceedings alleged that the defendants “falsely and maliciously and without reasonable and probable cause refrained from taking any steps to prevent the execution of the said warrant and to prevent the plaintiff from being arrested thereunder” (Daniels at 99); no malicious act was alleged, merely omissions. On demurrer, the Court held that the Declaration was defective for that reason.

32. Harvey ACJ pointed out that malicious prosecution requires “an active step actuated by malice” (at 102) but noted that such an “active step” could take many forms (at 102):

“Had they taken any steps such as by way of giving evidence in support of the prosecution, had they actively prevented the giving of evidence by persons who were qualified to give evidence, had they suppressed evidence … I think the Court [would be] justified in saying that they took an active step actuated by malice without reasonable and probable cause sufficient to establish malicious prosecution”.

33. To that, Halse Rogers J added that procuring an adjournment of the proceedings was a sufficient “active step” in that it “suppressed from the magistrate [the defendants’] knowledge of the innocence of the plaintiff” (at 103).

34. Macfarlan JA in Landini also relied on Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171; [1964] NSWR 363 (Coleman) which itself followed Daniels. In that case, Herron CJ and Walsh J (writing jointly) considered what constituted an “active step” in the proceeding. At 178, their Honours noted:

“Then it is alleged that subsequently certain steps were taken maliciously and without reasonable and probable cause, namely, the procuring of an order for leave to proceed, and the procuring of a judgment. As to each of those steps it is alleged that the procuring was done falsely and maliciously representing to the court by a false affidavit certain facts. One question which then arises is whether an action of this kind lies when it is not alleged that the earlier action was instituted maliciously, but it is alleged that it was afterwards prosecuted or pursued maliciously and without reasonable and probable cause. We think that this question should be answered as a matter of principle by saying that an action of this kind will lie if active steps are taken in furtherance of the proceedings by a defendant who is, at the time when he takes them, acting maliciously and without reasonable and probable cause within the meaning of these expressions as understood in this form of action.”

Their Honours further noted:

“…we are of opinion that it is not defective because of the failure to allege malice and the absence of reasonable and probable cause in the commencing of the action since, as already stated, the subsequent active steps taken maliciously and without reasonable and probable cause are sufficient to support this action.”

35. Reference should also be made to the decision of the House of Lords in Martin v Watson [1996] AC 74, in which Lord Keith of Kinkel (with whom the other Law Lords agreed) allowed a complainant in a criminal matter to be sued in malicious prosecution, on the basis that the complainant had “in substance procured the prosecution” (at 89) by making a knowingly false complaint. In so doing, his Lordship adopted the views of McMullin J in Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 (Lamont) at 207-208, in which his Honour said:

“A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute.”

McMullin J cited Davis in reaching that conclusion.

36. In relation to the third element of the tort, namely that the defendant must have acted maliciously in initiating or maintaining the prosecution, the High Court observed in A v NSW at [55] that “it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word ‘malice’.” Later in the judgment, the plurality observed that malice may be inferred including where the dominant purpose underpinning the bringing of proceedings was one “other than the proper invocation of the criminal law”: at [93]. This will include where the proceedings are actuated by “an illegitimate or oblique motive”: at [91], citing Gibbs v Rea [1998] AC 786 at 804.

37. Landini has been relevantly applied in Edwards v New South Wales [2021] NSWSC 181 at [11] and [62]-[64]; Hrdavec v New South Wales [2021] NSWSC 560 at [39]; Edwards v New South Wales [2022] NSWCA 187 at [98]; Flowers v New South Wales (No 5) [2021] NSWSC 887 at [205]; Ea v Diaconu [2019] NSWSC 795 at [57]; HD v New South Wales [2016] NSWCA 85 at [75]; Sahade v Bischoff [2015] NSWCA 418 at [121]; New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [191]; and Vatarescu v Commonwealth (2012) 263 FLR 301; [2012] ACTSC 96 at [132]-[133].

38. It was properly accepted in the course of argument on appeal that the institution of proceedings to advance an unrelated investigation was not a proper purpose and Jubelin accepted as much in cross-examination: see [184] below.

39. The existence or satisfaction of the element of malice, however, is insufficient. It must also be demonstrated that the prosecutor, in instituting or maintaining the proceedings, acted “without reasonable and probable cause”. In A v NSW at [58], it was observed that:

“the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.”

40. Earlier, the Court had also referred to the “available material” and what the prosecutor "made" or "should have made" of it: at [55]. The absence of reasonable and probable cause entails both subjective and objective elements: A v NSW at [61].

41. The plurality endorsed as a valuable means of assessing the absence of a reasonable and probable cause what had been said by Jordan CJ in Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469. The Chief Justice said that one or more of the following five conditions must be shown not to have existed:

"(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty."

This could be done by the plaintiff proving that the prosecutor did not believe the plaintiff to be guilty, or that the belief in his guilt was based on insufficient grounds: at 469.

42. The following passage from A v NSW (at [59]) is also important for the State’s appeal. It was there said that:

“the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.”

43. Finally, as was observed in A v NSW at [96]:

“It is well established that where an indictment contains several assignments of perjury or theft, proof that some of them lacked reasonable cause, and were laid maliciously, warrants a verdict for the plaintiff. That rule is not confined to cases where the charge was theft or perjury.”

Misfeasance in public office

44. Although it has been observed that “[n]otoriously, the elements of the tort of misfeasance in public office were, and are, unsettled” (Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]), controversy centres around the ambit of the requirement that the impugned act requires an exercise of public power: see, for example, Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 (Ea). No issue in relation to that element of the tort arose in the present case as the acts said to involve the misfeasance in public office were the arrest and charging of Mr Spedding on 22 April 2015.

45. The power to arrest (without a warrant) was conferred by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the power to charge was conferred by s 48 of the Criminal Procedure Act 1986 (NSW).

46. Section 99 of the Law Enforcement (Powers and Responsibilities) Act relevantly provides:

“(1)   A police officer may, without a warrant, arrest a person if--

(a)   the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b)   the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons--

(i)   to stop the person committing or repeating the offence or committing another offence,

(ii)   to stop the person fleeing from a police officer or from the location of the offence,

(iii)   to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv)   to ensure that the person appears before a court in relation to the offence,

(v)   to obtain property in the possession of the person that is connected with the offence,

(vi)   to preserve evidence of the offence or prevent the fabrication of evidence,

(vii)   to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii)   to protect the safety or welfare of any person (including the person arrested),

(ix)   because of the nature and seriousness of the offence.

(2)   A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3)   The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.”

47. Section 48 of the Criminal Procedure Act 1986 relevantly provides:

“Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division.”

48. Putting aside controversy relating to the requirement for the exercise of a public power, the elements of the tort of misfeasance in public office may be stated as follows per Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65, citing Lord Diplock in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172:

1. an invalid or unauthorised act;

2. done maliciously;

3. by a public officer;

4. in the purported discharge of his or her public duties; and

5. which causes loss or harm to the plaintiff.

This is an intentional tort although the element of intention to do harm may be satisfied where it is established that the defendant was recklessly indifferent to the harm caused.

Collateral Abuse of Process

49. This tort was described by Lord Denning in Goldsmith v Sperrings [1977] 1 WLR 478 at 489 as follows:

“In a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men’s rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law.”

50. In McKechnie v Campbell (1996) 17 WAR 62 at 74, Owen J observed that:

“A court will not sit idly by and allow its processes to be abused by litigation that is not brought for a purpose which falls within the range of purposes for which the processes exist. It is a doctrine that has its roots in public policy considerations. The proper functioning of the justice system and the administration of its processes is very much a matter of public interest.”

51. It is not to the point that the impugned proceedings involve a valid cause of action if their predominant purpose is collateral to the vindication of rights or the enforcement of just claims: Williams v Spautz (1992) 174 CLR 509 at 522–3; [1992] HCA 34 (Spautz); Graingerv Hill (1838) 4 Bing (N.C.) 212; 132 ER 769 at 773-774 (Grainger).

52. The elements of the tort of collateral abuse of process were identified in Burton v Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 (Burton) at [42], namely:

1. the alleged tortfeasor must have instituted a legal process for an improper purpose which was the sole or predominant purpose;

2. the legal process in question must have been misused in order to obtain some advantage or benefit “entirely outside” that afforded by the legal process invoked – hence, a collateral advantage;

3. the process in question must have been deployed in furtherance of the alleged tortfeasor’s improper purpose by way of an overt act or threat, distinct from pursuit of the proceeding itself according to its ordinary course – though in certain circumstances, the commencement of proceedings can be a sufficient act where there has been some prior improper conduct on the part of the alleged tortfeasor; and

4. in New South Wales at least, authority currently requires that the claimant have suffered special damage.

53. For an account of the history of the tort and an extended discussion of its elements, see E Hynard and A Lerch, “The Tort of Collateral Abuse of Process” (2021) 44(2) UNSW Law Journal 714. The authors give as examples of improper purposes for the purposes of the tort an intention to use a legal process to affect negotiations to take control of a company (QIW v Felview [1989] 2 Qd R 245 at 258–9); to put pressure on an opposing party to settle a different dispute (Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 at 94); to prevent a bank taking possession of property (NAB v McFarlane [2005] VSC 438 at [61]); to interfere with, embarrass and hinder a police officer from carrying out his duties to investigate corruption in the poker machine industry (Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 96–7); to induce a university to secure the defendant’s reinstatement (Spautz at 516); to delay or defer the time for payment of an obligation (White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 239–40; [1998] FCA 806); to vex a criminal defendant (Burton at 736); and to prevent a former employee from obtaining a certificate from the Fair Work Commission which he required to litigate his claims in the Federal Court of Australia (Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641 at [376]–[403]).

54. Unlike the tort of misfeasance in public office, it is no part of the tort of collateral abuse of process that there be demonstrated an intention to cause harm. So much was accepted in argument on the appeal (tp 49).

55. In Emanuele v Hedley (1998) 179 FCR 290; [1998] FCA 709 at [41] (Emanuele), the Full Court of the Federal Court adopted the explanation of the tort given in Prosser and Keaton on the Law of Torts (5^th ed., 1984, West Group), which was also adopted by Priestley JA in this Court in Spautz v Gibbs (1990) 21 NSWLR 230:

“Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favour, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.”

The Court went on to observe at [44]:

“…it seems clear that, whatever be the position of informants in malicious prosecution cases, an action for abuse of process is available only against the party who actually instituted the proceedings: see Williams v Spautz in the passage quoted above and at 524 and 526. This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of abuse of process must fail irrespective of the motives and conduct of people who influenced the decision to institute the proceeding. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose.” (emphasis added)

56. This Court, in Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 (Leerdam), confirmed that the tort of collateral abuse of process may only be committed by a party to proceedings although it did not call into question the qualification in the final sentence in Emanuele quoted in the previous paragraph: see at [30]-[38]; see also at [46], [66], [126]. Indeed, Spigelman CJ referred to “the true moving party in litigation”: at [43].

57. This raises the question as to who is or are the parties to criminal proceedings commenced by a Court Attendance Notice (CAN) and in the period before the presentment of an indictment on behalf of the Crown.

58. The relevant sections of the Criminal Procedure Act 1986 (NSW) are as follows:

“47.   Commencement of committal proceedings by court attendance notice

(1)   Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.

(2)   A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.

(3)   A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

(4)   Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.

(5)   If an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act.

48   Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division.

…

50   Form of court attendance notice

(1)   A court attendance notice must be in writing and be in the form prescribed by the rules.

(2)   The rules may prescribe one or more forms of court attendance notice.

(3)   A court attendance notice must do the following—

(a)   describe the offence,

(b)   briefly state the particulars of the alleged offence,

(c)   contain the name of the prosecutor,

(d)   require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,

(e)   state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.

(4)   The rules may prescribe additional matters to be included in court attendance notices.

(5)   A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.”

59. In the plurality judgment in Spautz at 523, it was said that “central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers”. An example of this is supplied by the foundation case of Grainger where the plaintiff used the threat of arrest of the defendants in proceedings for recovery of a debt to achieve the ulterior purpose of obtaining possession of a certain ship’s register. Tindal CJ said that the process of the law had been abused “to effect an object not within the scope of the process” (at 221; 132 ER at 773). So, too, in Varawa v Howard Smith Co Ltd (1912) 13 CLR 35; [1911] HCA 46 at 91, Isaacs J said that the term “abuse of process” in the context of the claim in tort connoted that the process is employed for some purpose other than the attainment of the claim in the action. He continued:

“If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose".

60. As noted above, in the context of the discussion of the tort of malicious prosecution, it was properly accepted in the course of argument on appeal that the institution of proceedings to advance an unrelated investigation was not a proper purpose.

61. Before turning to the primary judgment and the grounds of appeal, it is necessary to set out the extensive factual material which was before the primary judge and upon which his decision was based.

Factual Context

62. The key facts divide into three broad periods: those in relation to the alleged historical sexual assaults and the family law proceedings between Mr and Mrs Kearns in which allegations against Mr Spedding were made; those relating to the investigation into the disappearance of William Tyrrell leading up until and involving Mr Spedding’s arrest and his being charged with the 1987 alleged sexual assaults; and finally those relating to the maintenance of the criminal proceedings against Mr Spedding subsequent to his arrest and the ultimate dismissal of those charges in 2018.

63. Without intending any disrespect, it is convenient to refer to various persons below by their first names so as to more easily distinguish between them. It is also necessary to anonymise the names of various persons who were minors at the time of the events in question.

Events of the 1980s

64. The relevant events commence in 1981. By that time, Mr Spedding’s first marriage had broken down. There were three children of that marriage (PJ at [22]).

65. In November 1981, Mr Spedding began living with Ms Cathryn Hillsley (Cathryn), who herself had two children from a previous marriage: RT and JT (PJ at [22]). Mr Spedding and Cathryn married in 1982 and they had one daughter, LS, in 1983. In 1984, Mr Spedding adopted RT and JT (PJ at [22]). At this time, Mr Spedding, Cathryn, RT, JT and LS resided in Victoria (PJ at [23]).

66. It should also be noted that Cathryn’s brother is Jeffrey Hillsley (Jeffrey), who had been convicted of murder and has an extensive criminal record involving the sexual assault of children, as set out in R v Hillsley [2005] NSWSC 652. It will be necessary to refer later in these reasons to evidence that he had sexually assaulted JT and LS whilst on parole in early 1987.

67. While residing in Victoria, Mr Spedding and Cathryn socialised with another couple, Daniel Kearns (Daniel) and Irene Kearns (Irene), and their children, NK, TK and DK (together, the Kearns children) (PJ at [24]).

68. In mid-December 1986, Cathryn informed Mr Spedding that their marriage was over and took RT, JT and LS to her parents’ house in Dundas, New South Wales. Very shortly thereafter, Daniel informed Irene that their marriage was also over, and took his children to Cathryn’s parents’ house in Dundas in order to reside with Cathryn (PJ at [23]-[24]).

69. At this point, Irene commenced custody proceedings in the Ballarat Magistrates’ Court which, on 29 January 1987, were resolved in her favour. Consent orders were made in the Family Court in Melbourne which granted her sole custody of the Kearns children with some access afforded to Daniel.

70. After this occurred, on 24 February 1987, the Community Services Child Protection Department in Victoria received a notification about the Kearns children being allegedly sexually abused by Irene and began an investigation. In March 1987, that investigation was terminated on the basis that the allegations of abuse were unsubstantiated (PJ at [25]).

71. Separately, Mr Spedding and Cathryn were engaged in custody proceedings in relation to their own children. On 4 March 1987, the Family Court at Parramatta ordered that Mr Spedding have access to RT, JT and LS every second weekend, commencing on 11 April 1987 (PJ at [25]). Mr Spedding was at the time living in a caravan on a property owned by a friend of his in Campbelltown, NSW.

72. On 11-12 April 1987, RT, JT and LS stayed with Mr Spedding in the caravan. The four of them slept together in the caravan. It was in respect of this visit that the allegations of sexual misconduct against Mr Spedding arose and to which the criminal proceedings in which Mr Spedding was charged some 28 years later on 22 April 2015 related.

73. Around 22 April 1987, Cathryn rang Mr Spedding and accused him of molesting “the kids”. On 29 April, Cathryn took LS and JT to Westmead Children’s Hospital where they spoke with a social worker, Julienne Scott (Ms Scott). LS, then aged 3, said she had been sexually assaulted by Mr Spedding. At this point, JT denied she had been sexually assaulted, and did so, in the language of Ms Scott’s contemporaneous note, “vehemently” (PJ at [28], [69]).

74. On 1 May 1987, LS returned to Westmead where she was examined by Dr Tanya Dus (Dr Dus). LS is recorded as having described how “Bill” “put his body” in her “back” and “front”, and used dolls to demonstrate vaginal and penile penetration. Dr Dus found some evidence of sexual assault (bruising of the labia minor and a widened vaginal opening). Ms Scott was present during this examination. Ms Scott later spoke to JT who again did not disclose any sexual assault of either herself of her younger sister.

75. Of some significance, between 1 May and 5 May, JT allegedly disclosed a sexual assault by Mr Spedding to Christine Guthrie (Christine), her aunt (the sister of Cathryn) (see PJ [29]). The circumstances of this disclosure were canvassed by the primary judge, who indicated that it was likely that Christine had “coaxed” this allegation from JT: PJ at [70]. So much was indicated by an affidavit in the Family Court proceedings between Mr Spedding and Cathryn which was sworn on 26 May 1987. Christine’s affidavit purported to recall a conversation with JT, which the primary judge described as “contain[ing] evidence that that allegation [of sexual abuse] by Mr Spedding had been “coaxed” by her [Christine]” (at [70]). In essence, Christine deposed that she had a conversation with JT that if Bill had “touched [JT] with his diddle” then it was possible JT would have AIDS and would therefore die, and that this conversation caused JT to disclose sexual abuse by Bill.

76. On 5 May 1987, JT was interviewed by Ms Scott and examined by a Dr Newton. On this occasion, despite her earlier vehement denials, JT alleged she was sexually assaulted by “Bill” and indicated she had been vaginally and anally assaulted, both digitally and penilely. Dr Newton recorded some evidence of hymenal damage consistent with penetration.

77. Also on 5 May 1987, Ms Wilson, a District Officer of the Merrylands Community Welfare Centre rang Ballarat Police. A transcript of her file note is as follows:

“4.00pm: T/c to Ballarat Police; asked to speak to Sgt. Grahame Hodder (Tel: [053] 377 230), however he was not available and I spoke to Senior Constable Jervis: I explained why I was telephoning – about concern of [redacted] that Bill Spedding may have harmed his children and that I understood the Dept. of Community Welfare Services at Ballarat had requested police involvement as a result of [redacted] call to them about his concerns.

Constable Jervis advised me:

1) That he did not believe that Bill Spedding had had anything to do with Mrs Kearns;

2) That he had never had access to the Kearns’ children

3) That Bill Spedding was not living at the Kearns’ house and never had been there

4) That you could not believe anything Mrs Cathy Spedding tells you; that she is doing everything in her power to cause trouble; that she is influencing Danny Kearns; she was a terrible woman; that Mrs Kearns is making complaints against Mrs Spedding;

5) He asked me did I know about the Spedding’s brother; was I aware of what he had done; was I aware of the Mrs Spedding’s terrible background.

I asked Const. Jervis whether Mrs Spedding had a criminal record – he said “no, nothing like that.”

I asked him what was so terrible about her and he wouldn’t tell me. He was a very aggressive person speaking in a very loud and bullying tone; his statements about Mrs Spedding were quite malicious but he could not back his statements with anything other than remarks about Mrs Kearns’ complaints about Cathy. It was very difficult to talk to him as he continued to interrupt me all the time and he was quite disinterested in the information that there were allegations of sexual abuse against Bill by his 3 ½ and 6 yr old daughters and there was medical evidence to support their allegations of penile penetration of them by Bill Spedding.

He kept insisting that Bill Spedding has never lived with Mrs Kearns and has never had access to the Kearns children; and that he had no knowledge of Bill Spedding’s whereabouts.

I advised SNR. Constable Jervis that I would be talking to the Dept. Community Welfare Services and providing them with information related to Cathy Spedding and Danny Kearns’ belief that Bill Spedding has had access to the children.”

78. Later on 5 May 1987, Ms Wilson made a note that she had told Cathryn that she would like to talk to RT “as to whether he had observed anything at all regarding the allegations – particularly when the children were in the caravan.” To recapitulate, RT is the brother of JT and LS who also stayed in the caravan with his sisters and Mr Spedding on the weekend of 11-12 April 1987. The notes continued that “Cathy said that Julienne Scott had spoken to [RT] and he hadn’t revealed any knowledge of the events”.

79. On 20 May 1987, Mr Spedding was interviewed by Detective Roderick Dayment (Detective Dayment). In that interview, Mr Spedding freely admitted to having slept in the caravan with RT, JT and LS, on the weekend of 11 April 1987 (it was the only accommodation he had at the time) but denied having any sexual contact with them. By 1 June 1987, Detective Dayment had completed a Police Incident Report in which he noted that, due to the age of the children, Cathryn had been spoken to and had declined to allow the children to give evidence. The Police thus declined to take further action (PJ at [31]).

80. Of some importance for the events that were to follow was that, on 26 May 1987, Cathryn and Christine both swore affidavits to be filed in the Spedding v Spedding Family Court proceedings. Christine’s affidavit has already been referred to: see [75] above. Cathryn’s affidavit contained allegations that when the children returned from their visit to Mr Spedding on 11-12 April, they had looked unwell (PJ at [180]-[181]). The affidavit recalled that LS had been vomiting, and began to slightly wet her pants, and complained of pain in her genital region when urinating. It also recounted that Cathryn and her mother had then looked at LS’s vagina, a week after the alleged sexual assault, and saw bruising “inside her labias (sic)”, the area around which was “very red and sore”. The Spedding Family Court proceedings were later resolved by consent.

81. The next time these allegations came to prominence was in the Kearns v Kearns Family Court proceedings, which were heard in October 1988 and April-May 1989 before Justice Gee of the Family Court of Australia. In those proceedings, Daniel Kearns (supported by Cathryn, with whom he was in a relationship and was to marry) alleged that his former wife, Irene, and Mr Spedding were in a relationship, and that whenever Irene had access to NK, DK and TK, she and Mr Spedding sexually assaulted them (PJ at [32]). Allegations were also made in these proceedings that Mr Spedding had separately sexually assaulted JT and LS. All of these allegations, including that Mr Spedding was in a relationship with Irene and that they had jointly and separately assaulted the various children, were rejected by Gee J.

270. In reply, Mr Free submitted that, whereas Jubelin, as the author of Exhibit E which included Mr Spedding’s arrest and charging as a central part of the William Tyrell investigation strategy, may have been actuated by a collateral purpose, as he was not a party to the proceedings, he could not be liable for the tort of collateral abuse of process. He also submitted that, even if Jubelin had been actuated by this improper purpose, it did not follow that that purpose was necessarily shared by Brennan and Moynihan. Extensive reference was made in this context to aspects of Brennan’s evidence in the proceedings and upon which he was extensively cross examined. No equivalent submission was able to be made by reference to Moynihan who was not available to give evidence.

271. Mr Free frankly accepted that it was open to the Court to infer that, as officers in charge of Strike Force Rosann (which was established to investigate William Tyrell’s disappearance) and, as direct reports to Jubelin, Brennan and Moynihan shared his collateral and improper purpose in the commencement of the proceedings, and this was the dominant reason for the commencement of the criminal proceedings. In our view, not only was this the inference that the primary judge must have drawn, but he was correct to do so.

272. While Jubelin was the supervising officer of the taskforce, Moynihan and Brennan were the officers in charge of the strike force. The evidence demonstrated that all three of the Police Officers were working to the strategy contained in Exhibit E and were assigned particular steps by way of implementation of that strategy.

273. The State’s point that Jubelin (as opposed to Moynihan and Brennan) was not a party to the criminal proceedings commenced against Mr Spedding may be accepted as a valid point. Nothing, however, turns on it, as the State was vicariously liable for Moynihan and Brennan’s tortious conduct. A conclusion that Jubelin did not commit the tort of collateral abuse of process because he was not party to the criminal proceedings does not alter the State’s liability for the other Police Officers’ tortious conduct nor operate to reduce the damages for which the State was liable.

274. The State’s written submissions on appeal in relation to the finding of collateral abuse of process were brief and ran all three grounds of appeal together. Further, by reference to aspects of the primary judge’s discussion of damages, it was submitted that his Honour regarded the “maintenance of the criminal proceedings to be an aspect of the tortious conduct”. From this observation, the State sought to attribute to the primary judge a conclusion that the “maintenance of the criminal prosecution involved some exercise by the police of the machinery of the criminal law” which, in turn, was submitted to be in error, on the basis that the functions of the police were confined to arresting Mr Spedding, investigating and questioning him whilst in custody and commencing criminal proceedings against him.

275. This submission should be rejected. It conflates the three torts that were in play in the proceedings at first instance. Of these, the tort of collateral abuse of process was the most straightforward in terms of its elements. Central to the establishment of this tort was the finding that the proceedings had been commenced for a dominant purpose which was outside the scope of the criminal process invoked. As has earlier been noted, it was properly accepted by Mr Free that the institution of criminal proceedings to advance an unrelated investigation was not a proper purpose. In this context we would wholeheartedly endorse the primary judge’s observation at [315] that it is:

“difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated. In a paraphrase of Inspector Jubelin’s published recollections, it was inevitable that Mr Spedding would be damaged but such was the price of his search for a killer. I reject that sentiment as illegitimate, wholly unacceptable and inappropriate. Its repetition should be disavowed and deterred in the strongest possible terms.”

279. It was submitted on behalf of Mr Spedding that Exhibit E was powerful evidence of the alleged collateral purpose, and strongly supported the characterisation of that purpose as predominant. We agree.

280. That conclusion is strengthened by the haste with which Mr Spedding was arrested relative to the investigations being undertaken by Brennan. Mr Spedding was arrested on 22 April (as specified by Jubelin in Exhibit E which was prepared on 11 April) and well prior to Brennan completing important investigative tasks which he had listed on 16 April 2015. The arrest and charging, coupled with the planned opposition to bail, were designed to enhance the Strike Force’s investigation in a number of ways that were both spelt out in Exhibit E and were somewhat brazenly confirmed in Jubelin’s subsequently published book.

281. The grounds of appeal in relation to collateral abuse of process must also be rejected.

Consideration – Damages

282. The State appeals against the primary judge’s award of damages on the following grounds:

“12.   The awards of damages in respect of non-economic loss, aggravated and exemplary damages were manifestly excessive.

13.    In determining damages for non-economic loss, the trial judge erred in treating the loss and damage associated with the respondent being a suspect in the disappearance of William Tyrrell as being relevantly attributable to the criminal prosecution of the respondent.”

283. As noted earlier in these reasons, on 20 February 2023, the primary judge ordered judgment in favour of Mr Spedding in the sum of $1,797,181 (which comprised $1,484,292 plus interest of $312,889). The principal sum comprised:

1. general damages, for all three torts combined, of $550,000 (which included $75,400, being $1,300 per day for each of the 58 days Mr Spedding spent in custody);

2. “reputational” damage caused by the malicious prosecution of $300,000;

3. aggravated damages arising from the malicious prosecution of $200,000;

4. exemplary damages of $300,000;

5. legal costs of $109,292 (incurred in defending himself from the malicious prosecution); and

6. future treatment costs of $25,000.

284. Although ground 13 is a separate ground, it would appear that it is also relied upon as an explanation for the manifest excess alleged in ground 12. It is appropriate that it be addressed before ground 12 since the question of manifest excess is affected by the determination of ground 13. As there is no cross-appeal on damages, it is not necessary for this Court to assess damages for itself unless it is satisfied that a lesser award of damages is warranted.

285. For the reasons given above, Mr Spedding is entitled to damages from the State on the basis of its vicarious liability with respect to the following torts:

1. malicious prosecution by Jubelin, Brennan and Moynihan constituted by malicious institution of criminal proceedings against him in the Local Court, which were maintained until the presenting of the indictment by the Office of the Director of Public Prosecutions and thereafter until the conclusion of the trial of Mr Spedding and the entry of verdicts of acquittal;

2. misfeasance in public office by Jubelin, Brennan and Moynihan constituted by the wrongful arrest of Mr Spedding on 22 April 2015 and his subsequent charging; and

3. the tort of collateral abuse of process by Brennan and Moynihan.

Ground 13: whether the primary judge erred in treating the loss and damage associated with Mr Spedding being a suspect in the disappearance of William Tyrrell as being relevantly attributable to the criminal prosecution of the respondent

286. In the Court below, the State argued that damage caused to Mr Spedding by reason of his being identified as a person of interest in the disappearance of William Tyrrell (the disappearance) was not compensable. The primary judge rejected that argument, finding at PJ [310] that on the facts the prosecution of the alleged historical child sex offences was “inextricably woven into the police strategy to investigate [the disappearance]” and Mr Spedding became associated with the disappearance “as the direct and inevitable result of his arrest and prosecution on unrelated matters”. Thus, the primary judge did not differentiate between the damage suffered by Mr Spedding as a result of the failed prosecution, and the damage he suffered by reason of being publicly identified as a suspect in the disappearance. The State submitted that the primary judge was in error in incorporating into the award the fact that Mr Spedding was publicly identified as a suspect in the disappearance and the consequences of that identification.

287. This issue was important because, as was accepted by the State, the reputational damage and associated stressors on Mr Spedding were significantly greater because of the alleged association with a high profile investigation into the disappearance than had he simply been charged with historic child sex offences.

288. The State submitted that the primary judge’s approach was founded on the following two matters, of which only the second was challenged:

1. the prosecution of the historic child sex offences was woven into the police strategy to investigate the disappearance (which the appellant accepted was an available inference); and

2. Mr Spedding became associated with the disappearance as the direct and inevitable result of his arrest and prosecution on unrelated charges.

289. The State submitted that (2) was inconsistent with the primary judge’s findings that before the police became aware that Mr Spedding had been accused of historical child sexual assault, he was a person of interest (from late 2014), experienced a distressing police search and confronting interviews in January 2015, was the subject of significant media attention in that regard and had the children who resided in his home removed by the Department of Family and Community Services (FACS). The State contended that the “long and painful ordeal” to which the primary judge referred at PJ [306] was “primarily” about his public identification as a suspect in the disappearance, which was not compensable.

290. The State further submitted that “[i]n the unusual circumstances of this case, a substantial allowance needed to be made for the fact that much of the damage caused to Mr Spedding, including the damage caused to his reputation, was attributable to the public identification and not the malicious prosecution”.

291. In order to prove that the harm from an intentional tort ought sound in damages, the injured party is required to prove, first, causation, namely, that the tortious act caused the harm and, second, that the tortfeasor had an actual or presumed intention to cause the harm. The tortfeasor’s intention to cause the harm will be presumed if the harm is the natural and probable consequence of the tort. Thus foreseeability of harm has no role to play in limiting the injured party’s damages. These propositions were confirmed with respect to the tort of injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [13]-[14] (Gleeson CJ), [73]-[79] (Gummow J), [114] (Kirby J). This Court has treated these principles as being of general application for the recovery of loss for intentional torts: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing).

292. Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts:

1. a tortious act need not be the sole or principal cause of harm to be compensable; it is sufficient if it is a material or contributing cause of harm;

2. the wrongdoer must take the injured party as he or she finds him or her. Thus a wrongdoer who causes a pre-existing medical condition in the injured party to become symptomatic is liable for such harm as the wrongdoer (who bears the onus) cannot establish would have eventuated but for the tortious harm: Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; and

3. a wrongdoer is not relieved of the consequences of the wrongdoing because the injured party would not have suffered as he or she did unless other contributing factors had existed: Purkess v Crittenden (1965) 114 CLR 164 at 168 (Barwick CJ, Kitto and Taylor JJ) and 170-171 (Windeyer J); [1965] HCA 34.

293. In the present case, although the naming of Mr Spedding as a suspect in the disappearance was not tortious and preceded his arrest for unrelated crimes, his having been named as a suspect was the reason (as the primary judge has found and this Court has accepted) he was charged with historical child sex offences: see the analysis of causation in The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591-592 (Windeyer J); [1961] HCA 15, which remains good law; see also, for example, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 at [6] (Deane J) and Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (2020) 102 NSWLR 921; [2020] NSWCA 205 at [5] (Leeming JA).

294. The effect of the malicious prosecution (and associated torts which have been addressed above) was to give the (false) impression that it was more likely that Mr Spedding was responsible for the disappearance because he was a paedophile who had previously committed child sex offences. Although it might have been careless for the police to name Mr Spedding as a suspect, that act was not compensable. However, the act of charging him for an ulterior purpose significantly magnified the (non-compensable) damage he would have suffered anyway as a consequence of being named as a suspect in the disappearance. The harm he suffered by being associated with the disappearance was explained as the natural and probable consequence of his then being charged with historic child sex offences, and it was the very harm that Jubelin intended when devising his strategy (addressed in more detail above in the reasons concerning liability).

295. Jubelin’s adoption of an ends-justify-the-means rationale appears explicitly from the passage in his book, I Catch Killers, where he admitted that, before charging Mr Spedding:

“I also asked the advice of friends, without naming Bill but saying, ‘I’m about to pull the trigger on a guy’s life.’ I knew that Bill’s name had already been linked publicly to the investigation into William’s disappearance. Charge him with these crimes and there was no way to hide it. Get it wrong and I destroy him. At the least, there would be public hearings in which he would be accused of being a paedophile.

I told my friends we had the evidence of the alleged victims. ‘What other options have you got?’ they asked me.

…

[after the arrest] Anyone would find this frightening. If he is hiding something, maybe this will be enough to crack him open. Maybe it will be enough to make Margaret think about him differently.

[After the police interview] He must be feeling that the ground beneath his feet is now much more uncertain.

… Bill must know his life has changed forever.

…

I know Bill’s reputation and his business have been ruined, the three kids who lived with him and Margaret have been taken away, and Margaret herself has suffered greatly. I must have made her doubt her husband. But this is a murder investigation. Justice is what matters here, not injury.”

296. We are not persuaded that the primary judge was in error in making the finding in (2) above. Although Mr Spedding was named as a suspect in the disappearance before he was charged with the historic child sex abuse offences in 1987, but for the charges he would not have remained as a figure of public opprobrium, since Mr Spedding ceased to be a suspect shortly after he was named as one (his exoneration in the disappearance having resulted from checking dates and alibis which established his whereabouts elsewhere on the day of the disappearance). However, because of the relationship between the crimes of which the respondent was charged (child sex abuse) and a hypothesis that naturally arose from the fact of the disappearance of a child (that the missing child had been taken, sexually assaulted and killed by a paedophile), the maintenance of the charges, coupled with the lack of public statement that the respondent was no longer a suspect, meant that Mr Spedding continued to be, as the primary judge found, closely associated with the disappearance.

297. It was also significant that the prosecution of Mr Spedding remained within Strike Force Rosann, which was set up to investigate the disappearance. This was necessarily part of Jubelin’s strategy (which was carried out by Monyihan and Brennan) since, had the matter been passed to the Child Sex Offence Department (the usual area in the NSW Police for such prosecutions), Jubelin and Brennan would have lost control of the process. In the role they continued to perform up to and including Mr Spedding’s trial, they were responsible for determining which witnesses to interview, when and whether to obtain statements and when and whether to disclose documents to the defence pursuant to the prosecutor’s duty of disclosure and to the ODPP pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW).

298. For these reasons, we are not persuaded that ground 13 has been made out.

Ground 12: alleged manifest excess

299. Manifest excess is a conclusion which does not require the proof of patent error since it is sufficient if the determination made is that it was not open to the primary judge to award damages for non-economic loss (which will be used compendiously to describe general damages for pain and suffering, aggravated damages and exemplary damages) in the amount that his Honour did. The assessment of non-economic loss involves the exercise of discretion: Moran v McMahon (1985) 3 NSWLR 700. Accordingly, it is necessary for the State to show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. This requires the Court to be satisfied that the judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, failed to take into account a material consideration, or where upon the facts the outcome is unreasonable or plainly unjust.

300. Even if the Court considered that House v The King error existed, there is no need for such intervention if no lesser damages are warranted on this Court’s analysis of the respective torts.

301. In substance, the State argued that the damages awarded for non-economic loss were manifestly excessive because they were outside the range established by previous decisions.

302. While comparables are a guide, they cannot be used to fetter a discretion to assess damages by reference to the circumstances of the particular case. Further, whereas sentences of imprisonment can be compared without regard to the date of their imposition, monetary damages cannot be separated from the time of their award because of the effect of inflation. The indexation of the maximum amount relating to damages for non-economic loss in ss 16 and 17 of the Civil Liability Act 2002 (NSW) is a statutory recognition of this effect. Although by reason of s 3B(1)(a) of the Civil Liability Act these provisions do not apply to intentional torts, it is necessary that the diminishing value over time of a nominated sum be taken into account. The Court has considered all of the awards of damages which are alleged to be comparative and taken them into account in the assessment of whether the present award is manifestly excessive. As each case turns on its own facts, there is no utility in reciting the facts and awards referable to each case to which the Court was referred.

299. The State submitted that child sex abuse is a lesser offence than murder and that, accordingly, the general damages in the present case ought be substantially less than awarded in cases involving malicious prosecution for murder. This is, at best, a questionable proposition and on further analysis cannot be accepted for the reasons which follow.

300. The charges on the indictment as presented at Mr Spedding’s trial (each of which are said to have been committed between 1 March 1987 and 30 April 1987) are set out in the following table:

Count	Offence under the Crimes Act	Alleged victim/ age at time of offence	Applicable maximum penalty
1	Sexual intercourse with child under 10 years/ s 66A	Step-daughter/6 years	20 years’ imprisonment
2	Act of indecency on a child under 10 years/ s 61E(1A)	Step-daughter/6 years	2 years’ imprisonment
3	Assault/ s 61	Step-daughter/6 years	2 years’ imprisonment
4	Sexual intercourse with child under 10 years/ s 66A	Daughter/3 years	20 years’ imprisonment
5	Sexual intercourse with child under 10 years/ s 66A	Daughter/3 years	20 years’ imprisonment
6	Sexual intercourse with child under 10 years/ s 66A	Daughter/3 years	20 years’ imprisonment
7	Assault	Daughter/3 years	2 years’ imprisonment

305. The maximum penalty is regarded as representing the legislature’s assessment of seriousness of the offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. The maximum penalty for murder is life and has been since the death penalty was abolished for that offence in 1955. At the time of the alleged offending, 1987, the maximum penalty for an offence under s 66A of the Crimes Act (sexual intercourse with a child under 10 years) was 20 years’ imprisonment (as set out in the table above).

306. However, since that time the maximum penalty for the conduct alleged against Mr Spedding has increased from 20 years’ imprisonment to life imprisonment. In 2003, the maximum penalty was increased to 25 years’ imprisonment. In 2009, the maximum penalty for a non-aggravated form of sexual intercourse with a child under 10 remained at 25 years’ imprisonment but for the aggravated form (which was introduced by the amendment), which applied in particular circumstances, including when the victim was under the offender’s authority, the maximum penalty was life imprisonment. In 2015, the maximum penalty for the non-aggravated form of the offence was increased from 25 years’ imprisonment to life, following a recommendation of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders (New South Wales, Joint Select Committee on Sentencing of Child Sexual Assault Offenders, Every Sentence Tells a Story - Report on Sentencing of Child Sexual Assault Offenders, (October 2014) at 35 (Report 1/55, n 2, recommendation 5)). In the Second Reading Speech for the Crimes Legislation Amendment (Child Sex Offences) Bill 2015, child sexual assault was described as a “depraved, cruel and truly awful crime” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2015 at 407).

307. Thus, by the time of the laying of the charges on 22 April 2015, the legislature can be taken to have regarded the offences in counts 1, 4, 5 and 6 as being as serious as murder (though a lower maximum was applicable because of the timing of the alleged offending and the date of the trial).

308. However, the view of the legislature, while relevant, is not necessarily the most relevant one in the present context since the view of the public at large also plays a considerable part. Child sexual offenders are commonly regarded as sick, dangerous recidivists who are incapable of self-restraint or rehabilitation. Such is the disgust with which child sex abuse is regarded, it is well known that, while incarcerated, suspected or convicted offenders are required to be housed separately from the general prison population because of the violence against them which could be expected otherwise to ensue. Vigilante conduct by members of the public against such offenders can be extreme: see, for example, AB (A Pseudonym) v R(No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46. In R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1, Sheller JA said, at [20]:

“The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim …”

309. Further, following the expiry of their sentences, child sex offenders may be subject to extended detention or supervision orders under the Crimes (High Risk Offenders) Act 2006 (NSW). The vast majority of orders made under that Act are made against those who have been convicted of child sex offences.

310. For the reasons given above, the charging of Mr Spedding with historic child sex offences following his identification as a suspect in the disappearance was also capable of implying that he was a murderer of William Tyrell (if one assumed he was already dead, more than six months after his disappearance) as well as a child sex offender. A charge of child sexual abuse carries with it a taint which is difficult, if not impossible, to remove. It invariably results in ostracism and vilification of the alleged offender. Child sex offenders are typically presumed to be repeated offenders because of an inherent perversion. These are natural and probable consequences of the laying of the charges which ensued in the present case.

311. The consequences for Mr Spedding of the torts for which the State is vicariously liable include (as his unchallenged evidence established) the following: he was physically assaulted in the street; when he went to a pathology laboratory, he was refused service because of who he was; and he was forced to move house because people were tooting their horns in the street and calling out to him. When he did move, a police officer and his wife told him how unhappy they were about him moving into the neighbourhood. He was hounded until he was acquitted in 2018. Until his acquittal, he was prohibited by the conditions of his bail from having any contact with persons under the age of 18 years. As a consequence, from the grant of bail on 19 June 2015 until his acquittals on all charges on 5 March 2018, he was unable to attend weddings, funerals, birthday parties, Christmases, and other significant events in his social life. He was deprived of the four children who had formerly shared his house. The foster family, of which he and his wife were fond, was broken up and the children split and not reunited. He lost his employment and his business. The metaphor which Jubelin used of “pulling a trigger” on his life was apt.

312. In these circumstances, we are not persuaded that the components of the damages which are intended to have a compensatory effect (including aggravated damages) are excessive or that any lesser award is warranted. There was no challenge to the primary judge’s finding that Mr Spedding’s reputation was comprehensively destroyed as a result of his arrest and prosecution. The aggravated damages are not excessive in the light of what Mr Spedding has had to endure.

313. The State has separately challenged the award of exemplary damages and has contended that it is not only excessive, but that it also involves “double-counting”.

314. The purpose of an award of exemplary damages is to punish and deter the wrongdoer: Lamb v Cotongo (1987) 164 CLR 1 at 8-9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. It has a separate function to that of aggravated or general damages because it is directed at the wrongdoer. The primary judge was plainly correct to find at [351]:

“[It is] difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated.”

315. Exemplary damages are particularly significant where public officials have been involved in the commission of the tort or torts. In State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ), at [39], approved the statements of Devlin LJ in Rookes v Barnard [1964] AC 1129 at 1223 and 1226 that:

“… an award of exemplary damages may serve ‘a valuable purpose in restraining the arbitrary and outrageous use of executive power’ and ‘oppressive, arbitrary or unconstitutional action by the servants of the government’ …

… ‘the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.’”

316. The High Court, at [40], approved Lord Hutton’s statement in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149:

“In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future …”

317. The use of public power must be reserved for proper purposes. The use of public power for improper purposes may have significant consequences for the administration of justice and other public institutions, which extend far beyond the original improper purpose. The narrative set out above contains several instances of this. A salient example is the police conduct in summoning the media to film the arrest of Mr Spedding (a finding of the primary judge which was not challenged). This act was apt to turn the investigation into the disappearance of a child into a gladiatorial circus which apparently elevated Jubelin to heroic status with corresponding demonisation of Mr Spedding. It set the tone for what was to follow in the ensuing period of almost three years. Further, the maintenance of tenuous charges of child sexual abuse may be apt to undermine credible charges.

318. The purposes of the component of the award of $300,000 for exemplary damages is to indicate the Court’s disapproval of the conduct, to uphold and vindicate the rule of law and to encourage the State to take steps to ensure that such reprehensible conduct does not recur. The primary judge’s award for exemplary damages falls within the range of appropriate awards, having regard to the conduct.

Conclusion

319. The State submitted that the damages award in the present case is, whether viewed in whole, or by reference to its component parts, “without compare in the context of malicious prosecution claims proved against the State”. So much may be accepted. However, the egregiousness of the conduct for which the State is vicariously liable is also “beyond compare”. The high-handed, self-serving, grand-standing undermining of the criminal justice system by the relevant police officers in arresting, charging, opposing bail and maintaining the prosecution against Mr Spedding has no relevant comparator in the reported cases in New South Wales. One can only hope that its standing as the worst case is never repeated and is never superseded by conduct that is even worse.

320. The award of damages in the present case has not been shown to be manifestly excessive. Accordingly ground 12 is not made out.

Orders

321. Although we have held that appeal ground 4 should succeed in relation to the finding of malicious prosecution by the DPP, that success does not affect the ultimate outcome as the State remains vicariously liable for the tortious conduct of the Police Officers.

322. Accordingly, the order of the Court is: “Appeal dismissed with costs”.

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Amendments

09 August 2023 - Name appearing in first bracket updated to read "Daniel" - [156]

09 August 2023 - “interviewswere” replaced by "interviews were" - headnote, paragraph 7

Decision last updated: 09 August 2023