Toth v State of New South Wales

[2023] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Toth v State of New South Wales [2023] NSWCA 206

Hearing dates:

27 July 2023

Date of orders:

01 September 2023

Decision date:

01 September 2023

Before:

Meagher JA at [1];
Payne JA at [70];
White JA at [71]

Decision:

(1)   Dismiss the notice of appeal filed on 14 November 2022 as incompetent.

(2)   Extend the time for the filing of the summons seeking leave to appeal to 21 September 2022.

(3)   Dismiss the summons seeking leave to appeal in relation to each of the grounds of appeal in the draft notice of appeal dated 13 September 2022.

(4)   Order that Mr Toth as appellant / applicant pay the costs of the State of New South Wales as respondent in summons proceeding 2022/282107 and appeal proceeding 2022/362371.

Catchwords:

APPEALS — competency of appeal — where claimed damages at first instance below statutory threshold — where appellant seeks to justify assessment of damages above threshold — whether further evidence sufficient to establish that amount in issue exceeds threshold — appeal dismissed as incompetent

APPEALS — application for leave to appeal — where applicant seeks damages for false imprisonments, battery, assault and malicious prosecution — where damages in issue do not exceed threshold — leave refused

Legislation Cited:

Crimes Act 1900 (NSW), s 91L

District Court Act 1973 (NSW), s 127(2)(c)

Summary Offences Act 1988 (NSW), s 4(1)

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Cases Cited:

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

BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414

Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164

Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17

Berry v Nicholls [2016] NSWCA 272

Collins v Wilcock [1984] 1 WLR 1172

Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527; [1938] HCA 2

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

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1

Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48

Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

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

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147

State of New South Wales v Le [2017] NSWCA 290

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344

Toth v State of New South Wales (District Court (NSW), Gibson DCJ, 19 November 2021, unrep)

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12

Category:

Principal judgment

Parties:

Andrew Toth (Appellant/applicant)
State of New South Wales (Respondent)

Representation:

Counsel:
Self-represented (Appellant/applicant)
S Free SC (Respondent)
G W Keesing (Respondent)

Solicitors:
Makinson d’Apice Lawyers (Respondent)

File Number(s):

2022/282107
2022/362371

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

Toth v State of New South Wales [2022] NSWDC 263

Date of Decision:

14 July 2022

Before:

Weber SC DCJ

File Number(s):

2020/55590

JUDGMENT

1. MEAGHER JA: On 1 March 2015, Mr Toth was arrested in relation to an alleged “upskirting” incident on the steps of Town Hall Station. He was convicted under s 91L of the Crimes Act 1900 (NSW). That conviction was quashed on appeal. Mr Toth subsequently brought proceedings in the District Court against the respondent in respect of the conduct of several police officers involved in the investigation and prosecution of the incident, claiming damages for false imprisonment, battery, assault and malicious prosecution. Mr Toth was wholly unsuccessful at first instance (Toth v State of New South Wales [2022] NSWDC 263).

2. By way of summons filed on 21 September 2022, Mr Toth sought leave to appeal from the orders of the primary judge, Weber SC DCJ, on the basis that the amount in issue was not greater than $100,000 (District Court Act 1973 (NSW), s 127(2)(c)). Although the summons was filed out of time, Mr Toth’s application for an extension of that time is not opposed by the respondent and should be granted.

3. A degree of complexity has been introduced, however, by the decision of Mr Toth to file a notice of appeal on 14 November 2022. In an affidavit sworn on 10 November 2022, Mr Toth records that his reason for filing that notice of appeal was that he “overlooked the matter of exemplary damages” and now realises that total damages would “easily meet the $100,000 threshold”, with the result that he is entitled to an appeal as of right. The respondent maintains that the amount at issue in the appeal is well short of $100,000.

4. This makes it necessary to consider Mr Toth’s claims in more detail. There follows a summary of the relevant background facts and of Mr Toth’s case at first instance. I propose then to consider the competency of the appeal and, if it is required, whether leave to appeal should be granted.

Background

Mr Toth’s arrest on 1 March 2015

5. At around 3:50pm, a member of the public, Mr Hedderman, observed Mr Toth filming below a woman’s skirt as they ascended the steps of Town Hall Station, using a camera disguised as a pen. He apprehended Mr Toth, seized the camera and, accompanied by a security guard, took Mr Toth to the Town Hall Police Station.

6. Constable Hetherington was on duty. When Mr Toth was brought into the Town Hall Police Station (which is described as “shop front” police station) at around 4:00pm, she took possession of the camera and asked him to take a seat near the police counter (J[11]). She then went behind the counter and, unbeknownst to Mr Toth, locked the automatic sliding door which provided access from George Street into the police station.

7. Constable Hetherington formally arrested Mr Toth at about 4:05pm, once she had inspected the camera. It was not suggested that Mr Toth had been placed under arrest at some earlier point, including when he was first apprehended by Mr Hedderman.

8. At about 4:20pm, Constables O’Reilly and O’Donnell arrived at the police station. They asked to be let in, at which point Mr Toth realised that the sliding door had previously been locked (J[12]). The two officers spoke to Constable Hetherington and took possession of the camera and its memory card.

9. At about 4:50pm, Constable O’Reilly reminded Mr Toth that he was under arrest and cautioned him. He placed handcuffs on Mr Toth and drove him to the Day Street Police Station, which was a few minutes away. Mr Toth was held there in custody until 6:35pm, at which point he was released because Constable O’Reilly had been unable to access the video footage from the camera’s memory card (J[22]-[23]).

Prosecution of Mr Toth and successful appeal

10. Senior Constable Perry (SC Perry) was the officer in charge of investigating Mr Toth’s conduct. In the course of those investigations, he formed the view that Mr Toth should be charged with two offences: filming a person’s private parts without consent (Crimes Act, s 91L), and behaving in an offensive manner in a public place (Summary Offences Act 1988 (NSW), s 4(1)). Those charges were laid against Mr Toth on 2 June 2015.

11. On 30 May 2016, Mr Toth was convicted in the Local Court of the offence under s 91L, but not of the summary offence. His appeal to the District Court was unsuccessful. That decision was quashed by the Court of Appeal (Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344) and the appeal remitted to a differently constituted District Court. In 2019, Flannery SC DCJ upheld the conviction appeal because her Honour was not satisfied that Mr Toth had filmed the woman for the purposes of “sexual gratification”, being one of the elements of the s 91L offence.

12. On 10 October 2019, in the course of the hearing of those remitted proceedings, Mr Toth and Detective Senior Constable Sharkey (DSC Sharkey) were involved in a brief exchange during which, it is alleged, Mr Toth was assaulted and falsely imprisoned.

Mr Toth’s case at first instance

13. By his amended statement of claim filed on 12 August 2020 (ASOC), Mr Toth seeks damages for false imprisonment, battery, assault and malicious prosecution as follows:

1. That, on 1 March 2015, he was falsely imprisoned during the 5 to 10 minute period when he was sitting in the Town Hall Police Station prior to his being formally arrested.

2. That, on 1 March 2015, he was falsely imprisoned for the period following his arrest until his release from custody at 6:35pm.

3. That, on 1 March 2015, he was battered by Constable O’Reilly’s handcuffing of him for the purposes of conveying him by vehicle to the Day Street Police Station.

4. That SC Perry’s conduct in bringing the s 91 charge amounted to malicious prosecution.

5. That, on 10 October 2019, he was assaulted and falsely imprisoned by DSC Sharkey in the course of their conversation outside the courtroom.

14. The hearing before the primary judge commenced on 20 June 2022. Earlier, in November 2021, Mr Toth had sought by way of notice of motion to amend his ASOC. Gibson DCJ dismissed that motion on 19 November 2021 (Toth v State of New South Wales (District Court (NSW), 19 November 2021, unrep)). The effect of her Honour’s orders was to preclude Mr Toth from: claiming that his arrest by Constable Hetherington on 1 March 2015 was unlawful; alleging that SC Perry had falsified evidence by substituting for the video footage from the camera a different video; and expanding his claim to exemplary damages for malicious prosecution so as to include the conduct of the five police officers involved in that prosecution rather than that of SC Perry alone. There is no application for leave to appeal from the orders of Gibson DCJ.

Competency of the notice of appeal

15. Mr Toth requires leave to appeal from a final judgment of the District Court to this Court unless he can establish that the appeal involves “a matter at issue” amounting to or of the value of $100,000 or more (District Court Act, s 127(2)(c)(i)).

16. The relevant principles are summarised in Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 at [80]. The monetary limit requires that the realistic worth of the claim or claims made exceed $100,000. As Campbell JA observed in BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414 at [150], in circumstances involving a claim for an unliquidated amount:

… it is necessary for a litigant who seeks to demonstrate that [s 127(2)(c)] does not deprive them of an appeal as of right to demonstrate that they have a realistic prospect on appeal of lessening the prejudice that they suffer by reason of the order appealed against to an extent greater than $100,000.

17. Pursuant to an order of the Registrar made under Uniform Civil Procedure Rules 2005 (NSW), r 51.22(3), Mr Toth filed an affidavit on 9 January 2023 (January Affidavit) in which he sought to support his entitlement to an appeal as of right. That affidavit was supplemented by an affidavit filed on 27 March 2023 (March Affidavit) which was treated as containing Mr Toth’s submissions in support of the competency of the appeal. Rule 51.22(3) required that Mr Toth set out in his affidavit the “material facts” on which he relied to show that the jurisdictional limitation imposed by s 127(2)(c) did not apply. That called for more than bare assertions as to his beliefs about what he might recover on his claim as advanced at first instance (Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [17]).

18. The bringing of the present application was not an occasion for Mr Toth to reformulate his claim so as to meet that statutory threshold. Had he proposed in the appeal to amend his claim as made at first instance and to support that amended claim with further evidence, it was necessary for him to apply for leave to make such an amendment and have that evidence received in the appeal (Supreme Court Act 1970 (NSW), s 75A(7)).

19. Without having made those formal applications, Mr Toth, in his arguments in support of the competency of his appeal and the application for leave to appeal, departs from his case as pleaded and made before the primary judge and seeks to adduce further evidence directed to that amended case.

20. In addressing the competency of the appeal, it is appropriate first to consider the quantification of Mr Toth’s claim as pleaded and made before the primary judge and then to consider the consequences, if any, of the evidence relied on in his January Affidavit with respect to the quantification of the claim as sought to be made on the appeal. That approach is necessitated by the form and content of the January Affidavit, which is a mix of argument and factual assertions that does not have any separate regard to the admissibility of the material relied on.

Mr Toth’s case as made at first instance

21. Before the primary judge, Mr Toth provided a Schedule of Damages in which he assessed his total claim at $68,000. The respondent provided an alternative assessment of $12,500. Those sums were made up of the following heads of damage:

Head of damage	Mr Toth	The State
False imprisonments on 1 March 2015	$7,000	$2,000
Battery	$5,000	$500
Assault	$4,000	nominal damages
False imprisonment by DSC Sharkey	$2,000	nominal damages
Malicious prosecution	$25,000	$10,000
Exemplary damages	$25,000	nil
Total	$68,000	$12,500

22. The figure proffered by Mr Toth in his Schedule of Damages is relevant but not determinative of his entitlement to an appeal as of right. It is relevant because applicants to this Court should not be permitted to depart without justification from their case at trial. To proceed otherwise would undermine the function of the monetary threshold, which recognises the desirability of early finality in the determination of small claims (Berry v Nicholls [2016] NSWCA 272 at [6]). But his schedule is not determinative of that entitlement, particularly in circumstances where the primary judge declined to make any contingent assessment of damages. A further consideration is that Mr Toth, who represented himself in the underlying proceedings and in this Court, submitted that his initial estimate of damages was rushed due to the stress of preparing for trial, which caused him to focus on liability rather than quantum (March Affidavit [3]-[7]).

23. Turning to the particulars of his claim, Mr Toth seeks $18,000 in damages for the false imprisonments, the assault and the separate battery. He does not depart on appeal from his earlier assessment of these claims. Instead, the controversy before the Court is as to the quantum of damages realistically in issue in respect of the malicious prosecution, and for the purposes of resolving that controversy the assessment of the damages for his other claims as provided in his schedule may be accepted. It is unnecessary to do more than observe that the sum of the damages sought for these other claims is at the higher end of the range of realistic outcomes, given the short duration of the alleged detentions and the minor severity of the alleged battery and assault.

24. With respect to his claim for malicious prosecution, Mr Toth submits that his claim to general damages of $25,000 is too low and that the amount in issue on the appeal for those damages should be assessed at $205,000. He further submits in relation to his claim to exemplary damages that his assessment of $25,000 is too low and that he is entitled to at least $100,000.

25. In an action for malicious prosecution, the three recognised heads of damage are for loss of reputation, deprivation of liberty and interference with property, including costs expended in defending the charge (Savile v Roberts (1698) 1 Ld Raym 374; 91 ER 1147; Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 544; [1938] HCA 2). While Mr Toth ostensibly claimed under each head (ASOC [33]), his claim at first instance was almost entirely directed to the issue of reputational damage. That case was maintained in oral argument before this Court. In making that argument, Mr Toth identified no basis for claiming damages for loss of liberty in circumstances where he was not imprisoned but rather placed on a good behaviour bond. Nor did he particularise any costs expended in defence of the criminal proceedings.

26. In relation to his reputational loss, Mr Toth gave evidence as follows:

70.   But some things will not change. As a result of the police action my name and especially my image has been plastered all over the media. I think there would be very few people who have not seen my image associated with “upskirting”. When I go out selling door to door I worry that each person I call on has seen that image. That plays havoc with my sales. Too many people, it appears, now recognise me. Sometimes even as I enter a shop they tell me to get out, without bothering to find out why I am there. I have now had to stop work.

71.   Likewise I cannot ring up friends anymore. I simply do not know if they have seen the bad publicity. It is always in the back of my mind that they have. This plays havoc with my social relationships. My social life as I knew it has ceased.

27. In cross-examination the respondent obtained Mr Toth’s agreement as to his earlier conviction for covert surveillance, his publication of various books on topics including exhibitionism, upskirting and flashing (several of which remain in publication), and the existence of online footage showing him giving lectures on similar topics, at least one of which culminated in him “flashing” a female member of the public. Mr Toth, in contrast, adduced no evidence from any third party from which it might have been inferred that there had been an adverse change to his reputation. The evidence as to that change was his evidence in chief as set out above.

28. Even accepting that the publicity surrounding his initial conviction under s 91L was likely to have caused some damage to his reputation, that publicity could not on the evidence have justified any substantial award of damages for loss of reputation. Mr Toth had unrealistic prospects of recovering any amount greater than the $25,000 identified in his schedule and, for the purposes of determining the competency of his appeal, that estimate should be regarded as being generous.

29. That leaves the claim to exemplary damages. Mr Toth again submits that the sum of $25,000 as sought in his schedule is too low and that he is entitled to at least $100,000. That submission should be rejected. While a successful claim for malicious prosecution will often sound in some award of exemplary damages, Mr Toth has identified no particular aspect of SC Perry’s conduct that demonstrates a “conscious and contumelious disregard for [his] rights” (XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471; [1985] HCA 12). As has been noted above at [14], Mr Toth was denied leave by Gibson DCJ to further amend his pleaded case to incorporate a serious and wholly unsubstantiated allegation that SC Perry somehow switched the video footage recovered from his pen camera in the course of the criminal proceedings. Furthermore, Mr Toth’s claimed entitlement to a much larger award of exemplary damages is contingent upon the amendment of his claim for malicious prosecution so as to extend to the conduct of all five police officers involved in that prosecution. That argument is not available to Mr Toth in the light of Gibson DCJ’s decision to refuse leave to amend. In these circumstances it is not arguable that Mr Toth has realistic prospects of recovering more than $25,000 in exemplary damages.

Effect of Mr Toth’s January Affidavit on amount in issue

30. The January Affidavit is not a sound evidentiary basis for concluding that Mr Toth has realistic prospects of recovering more than $100,000 for the five causes of action that he presses on appeal. That conclusion does not depend upon the merits of his grounds of appeal. Rather, it reflects the inability of the material relied on in his January Affidavit to produce a realistic estimate of recoverable damages in excess of the threshold amount.

31. The January Affidavit contains a mix of submissions and factual assertions in support of Mr Toth’s claimed entitlement to general and exemplary damages in respect of the malicious prosecution claim, those damages said to exceed $300,000 in total. The only evidentiary material in the January Affidavit is contained in or constituted by the attached documents, which are as follows:

1. A consent form for the surgical removal of Mr Toth’s teeth, accompanied by an email from a dentist addressed “to whom it may concern” which says that stress can have a deleterious impact on teeth health.

2. A spreadsheet detailing periodic payments received by Mr Toth from Amazon for his book sales between 2014 and 2022.

3. Correspondence from Mr Toth’s strata unit contents and motor vehicle insurers in May 2019 which note the cancellation of those insurance policies due to non-disclosure of criminal history.

4. Screenshots of online search results, including from news sites, which report in varying ways Mr Toth’s conviction for upskirting.

32. None of these documents provides a sound basis for increasing the quantum of Mr Toth’s claim beyond what was claimed below in his Schedule of Damages. As to the document numbered (1), the fact that Mr Toth has lost his teeth is incapable of bearing upon his entitlement to general damages for stress and anxiety in circumstances where there is no medical evidence as to there being any causal connection between them. The email from the dentist is not directed to any relevant facts and accordingly has no probative value. Document (2) reveals that Mr Toth’s annual earnings from his book sales on Amazon peaked in 2015 at $472.75 and have since fallen to near zero. The relationship, if any, between this apparent decrease in earnings and the alleged malicious prosecution is not the subject of any evidence; and, relative to the $100,000 statutory threshold, the amount involved is insignificant. In relation to document (3), evidence of the cancellation of Mr Toth’s insurance policies is, contrary to his submission, not of itself capable of rationally bearing on the question whether he suffered any loss of liberty as a result of his prosecution. Finally, in relation to document (4), the news reports do not contradict or lessen the effect of the evidence as to the state of Mr Toth’s reputation, both “online” and generally, before his prosecution in 2015.

33. This conclusion makes it unnecessary to consider the respondent’s submission that Mr Toth’s January Affidavit was, in effect, an application to adduce further evidence under s 75A in support of damages claims which were not made at first instance. Even taking into account the arguments which Mr Toth makes relying on that further evidence, the position remains that the amount in issue does not exceed $100,000.

34. It follows that the notice of appeal is incompetent and should be dismissed for that reason. It is therefore unnecessary to decide any issues arising from the late filing of that notice of appeal.

Leave to appeal

35. As a general rule, leave to appeal will be granted in matters involving issues of principle or questions of public importance, or in circumstances where it is reasonably clear, and not just merely arguable, that an injustice has occurred through error of the primary judge (The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]).

36. In his draft notice of appeal, Mr Toth identifies ten shortly stated grounds. On their face, those grounds are expressed in general terms and are capable of applying to any of the primary judge’s findings, although Mr Toth’s submissions indicate that they are substantially directed to his Honour’s findings with respect to the claim for malicious prosecution. Those grounds are:

1.    Procedural unfairness

2.    Lack of due process

3.    Failure to address the matter of malice (on the part of Constable Perry)

4.    Failure to address the matter of unlawful detainment (on the part of Constable Hetherington)

5.    HH made findings of fact fundamentally inconsistent with the evidence (note in particular the matter of the plaintiff’s credibility)

6.    HH relied on tendency reasoning, when there was no tendency brief

7.    HH admitted critical evidence (the video footage) which was in dispute and for which there was no provenance

8.    HH demonstrated bias

9.    HH failed to consider substantial portions of the plaintiff’s written submissions

10.    HH failed to consider a portion of the plaintiff’s oral submissions

Bias (Ground 8)

37. I will, as is generally required, deal first with the actual bias ground (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117]).

38. Mr Toth alleges that there were “numerous incidences of actual bias” on the part of the primary judge during the hearing (Summons [48]). This required Mr Toth to demonstrate that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]).

39. An allegation of actual bias is a serious one and should not be deployed as a vehicle to express disagreement with factual findings of a primary judge. None of the matters raised by Mr Toth in his oral or written submissions comes close to demonstrating any prejudgment on the part of the primary judge. Rather, they rise no higher than statements as to Mr Toth’s discontent with certain findings of fact and credit made in the respondent’s favour. This ground is untenable and leave to appeal should not be granted.

Procedural unfairness in relation to cross-examination (Grounds 1 and 2)

40. Mr Toth complains that he was denied procedural fairness because the respondent was allowed to cross-examine him on irrelevant matters (Summons [1]-[6]). The impugned questions related to books published and websites run by Mr Toth on topics such as “flashing”, “upskirting” and “exhibitionism”. Mr Toth’s objections to this line of questioning were overruled by the primary judge on several occasions. His Honour was correct in doing so. The questions were relevant to Mr Toth’s reputation before and after his arrest and prosecution for the “upskirting” incident, which was in issue because Mr Toth sought damages for loss of reputation in relation to the malicious prosecution claim.

41. Mr Toth also complains that he was denied a meaningful opportunity to re-examine himself because the primary judge: (1) did not allow him to access a “playback” of his cross-examination, which would have allowed him to address inconsistencies in his answers; and (2) actively discouraged him from undertaking a re-examination (Summons [7]-[8]). Neither submission has merit. As to the first, Mr Toth did not request a recording of the cross-examination prior to it occurring. To allow him to review that recording, assuming it was feasible to have done so, would in any event have caused considerable delay to the hearing. It is also not something that occurs in the ordinary conduct of a trial. As to the second, the applicant’s submission is not supported by the transcript. His Honour took time to explain the nature and purpose of re-examination and certainly did not discourage Mr Toth from giving evidence by way of re-examination. Even after expressing to Mr Toth some concerns about the manner in which he was conducting his re-examination, the primary judge allowed him time to consider whether he wanted to continue.

42. Neither of these grounds has any arguable prospect of success. Accordingly, leave to appeal on each should be refused.

Malicious prosecution (Ground 3)

43. In substance, Mr Toth submits that the primary judge erred in three respects in rejecting his claim for malicious prosecution by SC Perry. They are: (1) that his Honour should have found that the mistakes in the “Police Facts” document prepared by SC Perry gave rise to an inference of malice; (2) that his Honour erred in finding that SC Perry had formed a reasonable belief as to the prospects of prosecution because he failed to satisfy himself of the “sexual gratification” element of the s 91 offence; and (3) that the primary judge should have found that SC Perry’s failure to consider the possibility of a “wardrobe malfunction” was indicative of malice. None of those bases has merit.

44. The tort of malicious prosecution will not lie merely because an unsuccessful prosecution has been pursued. The claimant bears the burden of proving that the prosecutor brought or maintained a proceeding without reasonable and probable cause and that, in doing so, the prosecutor acted with malice (Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 at [4]). That is a high burden. Each element is to be established separately. Even if a claimant can point to certain inferences said to support the decision to prosecute and show that those inferences were not reasonably drawn, typically something further will be required to demonstrate malice. There may be occasions where the unreasonableness of the conclusions drawn is capable of supporting a further inference of malice (A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [40], [90]). However it remains the task of the claimant to show that is the case.

45. Mr Toth first says that the primary judge erred by not finding that there were four mistakes in the “Police Facts” document prepared by SC Perry and that the existence of those four mistakes in a relatively short document supported an inference of malice (Summons [11]). This argument was addressed by the primary judge at J[52]-[66] and [172]-[177]. His Honour found that only one of these constituted a mistake, being the statement that Mr Toth had extended his arm “directly underneath and between the legs of the victim” (J[64]), and accepted SC Perry’s evidence that he honestly believed this statement to be true at the time (J[65]).

46. Mr Toth’s second contention is that SC Perry did not form a reasonable belief as to the prospects of prosecution due to his failure to satisfy himself of the elements of the offence. Mr Toth sought to rely on a series of emails between SC Perry and Sergeant Drury, including the email extracted at J[39], in which SC Perry asks for advice about the “threshold” required to prove sexual gratification. Sergeant Drury was at that time a senior prosecutor at the Downing Centre.

47. As the primary judge correctly observed (J[40]-[49] and [160]-[161]), this email did not show that SC Perry had no reasonable belief as to the prospects of prosecution. On the contrary, SC Perry indicated early in his email that from his perspective the only “potential issues” were in relation to sexual gratification and, to a lesser extent, the absence of consent. He concluded the email by saying, “I’m of the opinion to run the matter. To me it’s clear he’s committed the offence. I just wanted to check with you on how high a threshold there is for the sexual gratification aspect.”

48. The primary judge regarded this email as demonstrating a “thorough and balanced analysis of the elements of the offence to be proved, and how they would be established” (J[160]). SC Perry’s evidence was that he believed Mr Toth’s purpose in filming a woman ascending the steps of Town Hall Station was or included “sexual gratification”. His Honour accepted (at J[163]) that SC Perry’s belief as to Mr Toth’s actual purpose was reasonably formed, having regard to the nature of Mr Toth’s previous conviction for unauthorised surveillance and the number of prior occasions in which he had been charged for or otherwise engaged in conduct of a similar nature but for which he had not been convicted.

49. Finally, Mr Toth sought to demonstrate malice on the part of SC Perry by suggesting that he failed to consider an alternative possibility, being a “wardrobe malfunction”. (Apparently the relevant “malfunction” was that the woman’s skirt blew up while Mr Toth was recording, causing him unwittingly to film her undergarments.) But the primary judge, having found SC Perry to be a credible witness (J[111]), accepted his evidence that he considered, and rejected, this alternative explanation prior to bringing the charge. There is no basis for this Court to disturb these credit findings (see Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]).

Unlawful detention (Ground 4)

50. Mr Toth claims he was unlawfully detained for a brief period between 4:00pm (the time when the sliding door to the shop front was locked) and 4:05pm (the time of his arrest by Constable Hetherington, the lawfulness of which is not challenged) (Summons [25]). Separately, he claims that he was unlawfully detained during the period between that arrest and his eventual release from custody at 6:35pm.

51. It is appropriate to commence by considering the first alleged detention prior to his arrest. The primary judge found that Mr Toth was not unlawfully detained. He did not ask or attempt to leave the room of the police station in which he was sitting at any point (J[11]), meaning there was “no coercion of the plaintiff’s will at the point at which the door was locked or thereafter” (J[127]). Rather, the evidence established that Mr Toth “was content to patiently await the outcome of the police interview with Mr Hedderman” (J[128]).

52. In support of the primary judge’s holding that there was no unlawful detention, the respondent refers to and relies on State of New South Wales v Le [2017] NSWCA 290. In that case, the plaintiff was stopped by a transport officer who wanted to check his Opal card. The plaintiff was asked to produce supporting identification documents, and then to wait while the officer confirmed his details over radio. The supposed detention occurred when the plaintiff, whose train was approaching, asked the officer whether he was “free to leave”. The officer replied, “Until we finish here you’re not leaving” (Le at [9]). The Court described this as a non-consensual detention. It therefore required lawful justification. Such justification was found in the Passenger Transport Regulations, thus providing a defence to the claim for false imprisonment.

53. In determining whether a person has been unlawfully detained so as to give rise to a claim for damages, the relevant question is whether his or her departure from an otherwise planned course is “voluntary” or “consensual” (Le at [5]; citing Collins v Wilcock [1984] 1 WLR 1172 at 1180).

54. The primary judge did not err in finding that Mr Toth consensually entered and remained in the shop front area of the Town Hall Police Station until his arrest 5 to 10 minutes later. The evidence demonstrates that Mr Toth: (1) chose to accompany Mr Hedderman to the police station in circumstances where he considered “he did not have to go with him” (J[6]), and (2) at no point expressed any desire by his words or conduct to leave the room in which he was awaiting the outcome of the police interview with Mr Hedderman.

55. Mr Toth argued that the effect of Constable Hetherington’s “direction” to him to sit down was an exercise of authority that Mr Toth felt reasonably compelled to comply with. Thus it was said that, in acting in accordance with that direction, he was in fact departing from his earlier planned course. This argument does not take account of his Honour’s finding that, whilst Constable Hetherington could be described as having directed Mr Toth to sit down, her doing so did not involve any exercise of coercion. She asked him to sit on a chair and he did so (J[11]). From Mr Toth’s perspective, the events that transpired were precisely what he must have contemplated having decided voluntarily to accompany Mr Hedderman to the police station and to wait while he was interviewed by the police (J[6]).

56. Although the primary judge found that for all of this first period Mr Toth was unaware that the door to the shop front of the station was locked, his Honour did not treat that lack of knowledge as necessarily barring a claim for unlawful detention. To have done so would have involved error (Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 at [45] (Gordon J); CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [155] (Hayne and Bell JJ)).

57. The second alleged detention following the arrest by Constable Hetherington can be disposed of shortly. Mr Toth’s submission is that his arrest was unlawful and, accordingly, that the State had no lawful justification for his detainment in the relevant period (Summons [27]-[28]). But Mr Toth did not run that case at trial, leave to make that allegation having been refused by Gibson DCJ.

58. As this ground does not raise any question of principle or any arguable error of law, leave to appeal should be refused.

Impermissible use of credibility and tendency reasoning (Grounds 5 and 6)

59. Mr Toth submits that the primary judge erred in making adverse findings of credit against him based on answers he had given with respect to questions concerning a range of aspects of his prior conduct (as to which see J[88]-[103]). His submission is that the matters to which the cross-examination was directed were not otherwise relevant to issues in the proceedings (Summons [29]-[30]). That is not correct. The matters included his publication of books and operation of websites, each of which was directed to subjects such as exhibitionism and flashing. They also included his allegations concerning the swapping of the video evidence from his pen camera by SC Perry and his encounter with DSC Sharkey during the hearing of the proceeding before Flannery SC DCJ. Each of these matters was relevant to an issue in the proceedings, being Mr Toth’s reputation, the purpose for which he was filming and whether conduct occurred as alleged in his claims for assault, false imprisonment and malicious prosecution.

60. Mr Toth also submits that the primary judge impermissibly allowed evidence of his previous conduct, namely of his publication of books and articles on exhibitionism and flashing and incidents of which he was charged but not convicted, for the purpose of proving a tendency which had not been the subject of notice or a ruling as to its admissibility. This submission misunderstands the bases on which that evidence was admitted, which did not include proving by way of tendency reasoning that Mr Toth’s purpose in recording with his pen camera a woman walking up the stairs of Town Hall Station was or included “sexual gratification”. The issues in relation to the claim for malicious prosecution included whether SC Perry had reasonable and probable cause to bring and maintain that prosecution and whether he did so without malice. Those issues were directed to his reasoning process, which included his being satisfied that there was a reasonable prospect of establishing that Mr Toth had acted for the purpose of sexual gratification. That reasoning process included SC Perry’s communications with Sergeant Drury and his consideration as to whether there was a sufficient evidentiary basis to prove the element of sexual gratification. One aspect of that consideration was the possibility of relying on tendency reasoning based on Mr Toth’s previous conduct to establish the s 91 offence; indeed, that was the course taken by the Crown in the remitted proceedings before Flannery SC DCJ. The evidence about which Mr Toth complains was directed to the reasonableness of SC Perry’s considerations and not relied on to establish any tendency on the part of Mr Toth.

59. Neither of ground 5 or 6 identifies any arguable error and leave to appeal on each should be refused.

Error in admitting video footage (Ground 7)

62. Mr Toth says that the primary judge erred in admitting video footage into evidence (Summons [36]). Specifically, he alleges that the footage before his Honour was not the same footage as was on his pen camera, the videos having been swapped at some point (Summons [37]). The difficulty for Mr Toth was that he did not make any allegation in the ASOC that the video which was shown in the various criminal proceedings was different from that on the camera. He had sought to overcome that difficulty by seeking leave to amend the ASOC, but leave was refused by Gibson DCJ (see above at [14]). The result was that Mr Toth was precluded from making such an allegation in the proceeding before the primary judge, and he is similarly constrained in this Court.

63. There is a further difficulty for Mr Toth in pressing this ground. The relevance of the video footage was in establishing the reasonableness of SC Perry’s belief as to the prospects of prosecuting Mr Toth. This directed attention to SC Perry’s perception of the video. To the extent there was any issue as to whether the video tendered in evidence before the primary judge was the same as the video available to SC Perry when deciding whether to prosecute Mr Toth, that issue was resolved by the primary judge’s acceptance of SC Perry’s evidence that the video shown in court was the same as the footage he had viewed prior to charging Mr Toth (J[94]). In making that finding, his Honour preferred the evidence of SC Perry to Mr Toth (J[111]-[112]); and Mr Toth has identified no arguable basis on which those credit findings might be disturbed.

64. For these reasons, leave to appeal on this ground is refused.

Failure to consider submissions (Grounds 9 and 10)

65. Mr Toth says that the primary judge failed to consider various submissions made in the course of the hearing (Summons [82]). The consequences of any failures of the primary judge to do so are not explored in Mr Toth’s written or oral arguments. Nor do his draft grounds of appeal identify the particular submissions that are said to have been ignored. That said, his summons provides greater specificity.

66. The submissions said to have been ignored, and the position as revealed by his Honour’s reasons, are as follows. First, in relation to the false imprisonment claim against DSC Sharkey, it is said that the primary judge did not consider why it was necessary for DSC Sharkey to approach so close to the seated Mr Toth. His Honour rejected the premise of this submission. Having set out the relevant facts at J[82]-[85], his Honour accepted DSC Sharkey’s evidence of what had occurred, namely, that he stood at arm’s length while talking to Mr Toth (J[105]). On that basis his Honour considered it to be “inherently unlikely” that Mr Toth was imprisoned in the relevant sense. Secondly, in relation to the claim for battery, Mr Toth says that his Honour failed to consider his submission as to why handcuffing him in the police car was not reasonably necessary. To the contrary, the primary judge considered and dealt with this argument at J[138], finding that the risk of escape from a vehicle travelling through slow CBD traffic was obvious and provided a reasonable basis for the application of handcuffs.

67. Thirdly, Mr Toth says that the primary judge failed to consider his submissions as to the unlawfulness of Constable Hetherington’s arrest. That is so, and his Honour was justified in not doing so because that was not an issue in the trial, leave to amend the ASOC having been refused. Fourthly, Mr Toth says that a number of matters going to whether he had in fact committed an offence under s 91L were not considered. That is so. Those matters were not in issue and, to the extent that evidence relied on in the criminal proceedings against Mr Toth was also relevant to whether SC Perry had reasonable and probable cause in bringing the prosecution, those issues were addressed by the primary judge. Fifthly, it is said that his Honour did not consider whether SC Perry’s real motive was to record a conviction and/or to punish Mr Toth. That submission was dealt with by his Honour in the course of rejecting Mr Toth’s case on malice (J[172]-[178]). Finally, Mr Toth says that his Honour failed to consider whether the video was “the correct video”. Notwithstanding that this issue did not properly arise on Mr Toth’s pleaded case, his Honour did address it by finding that the video shown before the court was the same as that played in Mr Toth’s original trial.

68. Neither of these grounds has any real prospects of success and leave to appeal should be refused.

Conclusion

69. In the result, the following orders should be made:

1. Dismiss the notice of appeal filed on 14 November 2022 as incompetent.

2. Extend the time for the filing of the summons seeking leave to appeal to 21 September 2022.

3. Dismiss the summons seeking leave to appeal in relation to each of the grounds of appeal in the draft notice of appeal dated 13 September 2022.

4. Order that Mr Toth as appellant / applicant pay the costs of the State of New South Wales as respondent in summons proceeding 2022/282107 and appeal proceeding 2022/362371.

70. PAYNE JA: I agree with Meagher JA.

71. WHITE JA: I agree with Meagher JA.

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Decision last updated: 01 September 2023