Welsh v State of New South Wales

[2018] NSWDC 412

District Court

New South Wales

Medium Neutral Citation:	Welsh v State of New South Wales [2018] NSWDC 412
Hearing dates:	11 September 2018
Date of orders:	14 December 2018
Decision date:	14 December 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT - claim for damages for false imprisonment, malicious prosecution and misfeasance of public office
Legislation Cited:	Crimes Act 1900 (NSW), ss 111 and 114 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Uniform Civil Procedure Rules 2005 (NSW), r 15.4
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500 Clavel v Savage [2015] NSWCA 61 Danthanarayana v Commonwealth [2014] FCA 552 Fountain Centre Christian School Inc. v Harrington (1990) 53 SASR 361 George v Rockett (1991) 70 CLR 104 Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 King v McKenzie (1991) Aust Torts Reports 81-118 McCarthy v New South Wales [2015] NSWCA 153 Minister for Immigration and Ethnic Affairs and Wu Shan Liang (1986) 185 CLR 259 Northern Territory v Mengel (1955) 185 CLR 307 NRMA Insurance v Flanagan [1982] 1 NSWLR 585 Ousley v The Queen (1997) 192 CLR 69 Prior v Mole (2017) 91 ALJR 441 Robinson v State of New South Wales [2018] NSWCA 231 Cannon and Rochford v Tahche [2002] VSC 84 State of New South Wales v Robinson (2016) 93 NSWLR 280 State of New South Wales v Smith [2017] NSWCA 194 Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 Talovic v New South Wales [2014] NSWCA 33 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Williams v The Queen (1986) 161 CLR 278
Category:	Principal judgment
Parties:	Plaintiff: Michael Welsh Defendant: State of New South Wales
Representation:	Counsel: Plaintiff: Mr M Preece Defendant: Mr B Nolan   Solicitors: Plaintiff: O’Brien Winter Partners Defendant: Crown Solicitor's Office
File Number(s):	2017/111492
Publication restriction:	None

Judgment

Introduction

1. The plaintiff by statement of claim filed on 6 April 2017 brings proceedings for false imprisonment, malicious prosecution and misfeasance in public office arising out of the circumstances in which he was arrested by Senior Constable Daniel Robins (“Senior Constable Robins”) on 24 April 2013 and charged with a series of offences.

2. The circumstances leading to the arrest are set out in more detail below. Following the arrest, he was refused bail by the Custody Manager at Maitland Police Station but later that day granted strict conditional bail by the Magistrate at Maitland Local Court, with the result that he was in custody between 11.30am and 3.34pm on 24 April 2013.

3. On 21 October 2013, the charge of aggravated break and enter with intent was withdrawn by the DPP. The charge of armed with intent to commit an indictable offence was dismissed after a paper committal. It is agreed that this amounts to a full discharge from the proceedings instituted by Senior Constable Robins.

4. The defence denies the claims and in further answer states that the plaintiff’s arrest was lawfully justified pursuant to s 99(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) as then in force (“LEPRA”), as Senior Constable Robins suspected on reasonable grounds that the plaintiff had committed an offence of aggravated break and enter with intent pursuant to ss 111(2) and 114(1)(a) of the Crimes Act 1900 (NSW). In addition, he suspected on reasonable grounds that it was necessary to arrest the plaintiff pursuant to s 99(3) of LEPRA (as then in force) in order to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the defence as well as to ensure the plaintiff’s appearance before a court in respect of that offence.

Procedural Issues

5. These proceedings were heard in the District Court at Newcastle on 11 September 2018. Due to availability promise for counsel and the congested state of the list, the proceedings were adjourned for submissions only to the Sydney Registry for hearing on 4 December 2018. I have had the benefit of a transcript and comprehensive submissions from both counsel in the matter. However, because of the gap in time, it was not possible for me to hand down an ex tempore judgment.

6. There are some deficiencies in the statement of claim in terms of particularisation of absence of reasonable and probable cause and malice in relation to the claim for malicious prosecution and in relation to the claim for damages. However, these difficulties have been able to be overcome by reason of the accommodation made to the plaintiff on these issues by the defendant. The claim is one of modest financial parameters, and both parties have endeavoured to keep costs to a minimum.

The circumstances leading to the plaintiff being arrested

7. On 26 March 2013 at about 11.30pm, Senior Constable Robins received a phone call from another police officer, Sergeant Towers, the Central Hunter Supervisor, to the effect that a home invasion was occurring in premises at Woodberry. Senior Constable Robins, who at the time was participating in a rotation with the NSW Police Force Detectives, in the form of training, arrived at Maitland Police Station and at about half an hour after midnight attended premises at Woodberry with other police officers. The two victims were Rhonda Baur and Mason Baur. Mr Baur had a number of cuts and abrasions to his face with a red substance Senior Constable Robins assumed to be blood on his face and shirt. A substance of a similar colour was on the floor in the lounge and kitchen areas of the unit.

8. Senior Constable Robins arranged for Mr Baur and Ms Baur to attend Maitland Police Station to make statements, which they did. Ms Baur’s statement, which is Exhibit B in these proceedings, described how she and her son Mason Baur had commenced living in the premises at Woodberry about a month beforehand after taking a sublease of an informal nature from a Michelle Joyce. According to Ms Baur, Michelle Joyce agreed to put Ms Baur “on the lease with the Department of Housing” (Exhibit B, paragraph 4). There was a dispute about whether rent moneys had been paid and at approximately 11.00pm on 27 March 2013, Ms Baur was awoken by a knock on the door.

9. Standing outside the door was Michelle Joyce, accompanied by two males. Ms Baur described these males as follows:

“9.   The first male person that I saw was about 50 years old. He was of slim build about 5”5 tall, Aboriginal appearance with short salt and pepper coloured hair. He was clean shaven. I can’t remember what he was wearing. The second male person that I saw was younger then [sic] the first. He was about 20-25 years old. He was an athletic build about 5”7 tall. He was Aboriginal in appearance. He had shoulder length hair that was cut into a sort of bob but straight. He was wearing a baseball cap and when I first saw him and his hair was in a ponytail at the back of the cap. I can’t remember what he was wearing.”

10. Ms Baur described what happened next as follows:

“10.   Michelle and the two males were crowding the door. The second male person lent over me and I saw him swing his closed fist in Mason’s direction. I heard the punch hit Mason. Michelle and the two males pushed their way into the unit. The two males started attacking Mason. They were in the lounge room at the time. The first male person picked up a broom and dust pan and started hitting Mason in the head with it in the head and body area. Mason tried to defend himself and he tried to cover up his head with his hands. Mason then started swinging punches at the first male. The second male started punching Mason in the head. I tried to stop him from doing it. The second male person went to the kitchen and took a knife from the kitchen bench. The second male came back into the lounge with the knife in his hand and said, “I’m going to stab ya, ya cunt, you punched my Dad”. The first male person went to the kitchen and he came back with a pot. I didn’t see him pick up the pot but it would have had to of been in the cupboard. The second male moved towards Mason with the knife pointed in his direction. At this time the first male person started swinging the pot at Mason. I saw the pot hit Mason in the head on more than [sic] two occasions. I got hit on the top of the head by a pot. I don’t know who hit me in the head with the pot because I didn’t see it. The second male still had the knife and somehow I have managed to stand between the second male and Mason. Michelle was sort of amongst it all. She tried to stop me from stopping the two males. Michelle was doing a lot of yelling and at one point accused me of not paying her rent. At one point, Michelle yelled, “You’ve got fifteen minutes to get out or where [sic] coming back and bashing you again and next time we will smash up your car”. I said, “Why are you doing this”. Michelle said, “Because of your smart arse son”.

11.   Mason and I have back away into the bedroom just off the lounge room. Once Mason and I got into the room I closed the door to barricade ourselves in. I yelled to Mason, “Quick, ring the coppers”. I knew that Mason’s phone was on the charger in the room. I turned around and there was a female in the bedroom. The female was about 40-50 years old, she was about 5”4-5”5 tall, solid build and Aboriginal appearance. She had long curly, copper colour hair. Her hair was down to her mid back. I can’t remember what she was wearing. Mason grabbed the phone. The female person punched Mason in the head with both her fists. They ended up on the bed. Mason was on his back on the bed. I saw he was trying to use his phone. The female person was sort of on top of Mason. They had a bit of a struggle. I moved away from the door to help Mason. Someone opened the door and the female person yelled, “He has called the gungers”.

12.   I went out of the bedroom and into the lounge room. I made Mason stay in the bedroom. The two males ran out of the unit. Michelle and the other female stayed. Michelle said, “I want my keys”. The other female got my bag. I said, “They are the keys but I want my car keys”. I grabbed the keys off the female and took my car keys off. I said, “We’ll go, just leave us alone”. I gave the keys to Michelle. Michelle said, “Your son’s nothing but an arsehole. You’ve got fifteen minutes to get out then we will be back and we’ll smash the car”. Michelle and the female left. As Michelle was leaving she did something to the screen door with the keys that she took.”

11. The visit had not been a complete surprise, in that Michelle Joyce had sent a text message earlier that evening to Mason Baur. As he sets out in his statement (Exhibit C), he replied to that text message and was in his bedroom when Michelle Joyce attended with three other people. He describes these people as follows:

“10.   … I noticed three other people near the top of the steps and one male has attempted to walk in to the unit past me and as he got to the door, just to the left hand side of me, I pushed him way from the past. I would describe this male as, about 50-60 years old, about 5’5 tall, he came up to about my shoulder, thin build, aboriginal in appearance, black/grey short hair, a short grey coloured goatee style beard on his chin area, wearing black coloured shirt with a logo across the chest area, I am not sure whether he had shorts or long pants on and I think he had no shoes on.

11.   At this time, another person, I would describe this male as, 17-18 years old, 5’8’ tall, medium build, shoulder length curly hair, wearing a green coloured hoodie style jumper with a zip at the front and wearing a white coloured flat brimmed cap with NY in black writing on the front of it. This male has approached and has started throwing punches at me. Michelle and the males were saying words like “Get the fuck out of my house”, “You’se don’t belong here” and “You’se didn’t pay rent”. Both of the males have then attempted to get in to the unit and I have grabbed hold of both of them and pulled them both of the males to the ground. I saw Michelle and another female, I would describe her as about 40-50 years old, about 5’5’ tall, wearing a brown t-shirt and knee length cream coloured cargo shorts, solid build, short and curly dark brown coloured hair, come in to the unit and both of them have pushed my back causing me to fall to the ground face first.”

12. Mason Baur described himself as being hit over the head with a short broom on several occasions. They only left the premises when another neighbour came to the unit and told them to leave. After they left, Mason Baur rang the police. While waiting for them to come, he received another text message from Michelle Joyce telling him “U have ten 2 get out of MY HOUSE”.

13. The incident was viewed by police as a serious one. Mason Baur was hit a number of times over the head and threatened with a knife by the younger male. He suffered injuries to his top and bottom lip, a cut to the left cheek area and a scratch to the top front area of his hand. He also noticed after the intruders left that they had taken his wallet.

14. After Senior Constable Robins and Detective Senior Constable Bereza obtained the statements, they went to Michelle Joyce’s premises in Woodberry, which was relatively close to the place where the incident had occurred. Michelle Joyce was not at home and her partner told the police that he had neither seen nor heard from her since earlier that night. Senior Constable Robins looked at the descriptions given by Ms Baur and her son Mason in their statements. He was acquainted with Doug Byers, a well-known high-risk offender who resided in close proximity to the location of the accident in Woodberry and formed the suspicion that he may have been involved (T 43-45). He and his fellow officers decided to attend the residence of Mr Byers in Woodberry to see if the person identified by Ms Joyce and her son could be that person.

15. At approximately 5.05am on 27 March 2013 Senior Constable Robins and three other police officers attended the premises at Woodberry known to occupied by Doug Byers. They were attempting to locate Michelle Joyce. Senior Constable Robins spoke to the plaintiff who answered the door and observed that the plaintiff, an Aboriginal man of about 5’ 5” in height with a slim build and salt and pepper coloured hair, was wearing clothes which appeared to be consistent with the description given by Ms Baur and her son. He also observed Doug Byers on the premises. Both the plaintiff and Doug Byers, his son, were asked if they wished to participate in a line-up and be interviewed, but both declined.

16. When Senior Constable Robins took the statements from Rhonda Baur and her son, he had noted that Rhonda Baur had said the second male, who had been the younger of the two, had said to Mason Baur as he came back into the lounge room with a knife in his hand:

“I’m going to stab ya, ya cunt, you punched my dad.”

17. On seeing the plaintiff and his son together in the premises in Woodberry, Senior Constable Robins formed the view that the two offenders were not only father and son, but that they could be the plaintiff and his son. The plaintiff and his son were known to police and the plaintiff’s son, Doug Byers, was known to police to have been involved in violent attacks of this nature. Other factors relevant to this conclusion were the proximity of the plaintiff’s home to the location of the incident, the plaintiff’s statement that he and his son had not come home until 12.30am (implying they were not at home at the time of the incident) and the consistency of the description given with their appearance as well as with their clothing at the time of the police visit. However, erring on the side of caution, Senior Constable Robins decided to make further enquiries.

18. On the following day, 28 March 2013, Michelle Joyce went to the police station, was arrested, cautioned and placed in custody. Senior Constable Robins continued to make enquiries, part of which was the conducting of a photograph identification parade (45281 and 45284) with Rhonda and Mason Baur.

19. Rhonda Baur selected, from photograph identification parade 45281, the plaintiff’s son Douglas Byers (Exhibit 2) but was unable to identify any other person. Mason Baur participated in a separate photograph identification parade (also 45281 and 45284) but did not select any person from either parade.

20. The identification of the plaintiff’s son by Ms Baur was one of significance. She had witnessed the attack, as opposed to being assaulted, and she had given a clear and careful account of the events in question, including the conversation which occurred during the attack. In particular, she had noted that when the second male came back into the lounge with the knife in his hand, he said “I’m going to stab ya, ya cunt, you punched my dad”. By comparison, Mason Baur, who was 18 years of age, and who had been assaulted by the three persons who accompanied Michelle Joyce (the third being an Aboriginal woman in her mid-forties) was only able to describe a young male coming out with a medium sized kitchen knife in his right hand saying “I’ll stab you cunt”. He does not describe any other conversations having occurred during the assault, although he remembers other conversations before and after the events.

21. The next step in the investigation was the arrest of Douglas Byers, the plaintiff’s son, in Wagga on 19 April 2013. He was charged with offences relating to the incident. As he had been residing with the plaintiff at the time the incident occurred, it is more likely than not that the plaintiff knew of his son’s arrest at or shortly after it occurred.

The decision to arrest and charge the plaintiff

22. On 24 April 2013, 5 days after his son’s arrest, the plaintiff attended Maitland Police Station. Police had not requested that he attend, according to Senior Constable Robins, although this is disputed by the plaintiff. However, when Senior Constable Robins met the plaintiff in the police station foyer, he placed him under arrest and charged him.

23. The basis for the decision to arrest and charge the plaintiff arose, according to the evidence of Senior Constable Robins, from the totality of the facts set out above. This included his own observations of the father and son relationship between the plaintiff and Douglas Byers, who had been arrested as well as all of the information to hand.

24. Not all of the enquiries made by Senior Constable Robins had led to any result. In addition to the limited extent of identification of the plaintiff (in that neither witness had identified him from the photograph line up) there had not yet been a response to DNA and fingerprint evidence. Attempts to obtain CCTV footage of the offenders in the locality had been unsuccessful. The neighbour who came in to help (a woman named “Valmer”) had not been located and there was no apparent association between the plaintiff and Michelle Joyce.

The claim for wrongful arrest and false imprisonment

25. The plaintiff was arrested under s 99 of the LEPRA (in its current form at the time of the arrest). This means that Senior Constable Robins must be demonstrated to have suspected on reasonable grounds that the plaintiff had been involved in the home invasion the subject of the charges.

26. The plaintiff relies upon a series of pieces of factual information, the possession of which would have meant that no reasonable person could have suspected on reasonable grounds that the plaintiff played any role in the events in question. These are as follows:

1. The proximity of the plaintiff’s home to the home invasion site: Senior Constable Robins in his evidence said that the two homes were about 300 to 400 metres apart in a straight line. In those circumstances, it was to be expected that Mr and Mrs Baur would have seen the plaintiff “at least once if not frequently” (written submissions paragraph 10) during the period that they lived in that home (approximately one month) after moving there from Ourimbah. In those circumstances, the failure to recognise the plaintiff, whom they should have known as a neighbour, achieves great significance.

1. Inconsistencies in relation to the description of the older male offender in the police statements, and in particular the reference to a small grey-coloured goatee style beard which the plaintiff did not have. Senior Constable Robins was unable to recall whether the plaintiff had a goatee beard when he observed him on 27 March 2013.

2. There is no evidence of any association between Michelle Joyce and the plaintiff.

3. The DNA and fingerprint evidence was not available, and when it did become available, it supported the plaintiff in that his DNA and fingerprints were not found.

4. No CCTV evidence was able to be located.

5. The witness “Valmer” was neither located nor interviewed.

27. Mr Preece disputes the value of the “you punched my dad” statement, which depends for its efficacy upon the identification of the younger male offender as being Douglas Byers. The Children’s Court later dismissed the charges against Douglas Byers because there was no evidence, apart from the selection of his photograph by Ms Rhonda Baur, capable of implicating him in the offence.

28. Mr Preece also submitted that Senior Constable Robins was an evasive witness, who was content to advance fanciful propositions in order to explain his acts and omissions. He listed the following examples:

“i)   Attempting to advance the proposition that Douglas BYERS had “unique” hair,

ii)   His assertion in evidence-in-chief that he couldn’t remember whether Rhonda BAUR had made any comment concerning the Plaintiff or his appearance during her involvement in the Photograph Identification Parade. It is submitted that this would have been a matter at the absolute forefront of his mind,

iii)   His assertion that he did not contact the Plaintiff to have him attend Maitland Police Station in order that he may be arrested. It simply beggars belief that the Plaintiff would, of his own accord, find his way to Maitland Police Station unless he had been specifically contacted and asked to attend,

iv)   His insertion of the false information in the Fact Sheet to the effect that the Plaintiff had been identified during the Photograph Identification Parade, (bearing in mind the proximity of the Plaintiff’s arrest to the date of that process), and what, in the submission of the writer, is his obviously deceptive evidence in order to try to extricate himself from that position,

v)   His very obvious evasive answers in relation to what he transmitted to the Custody Manager, and what the Police Prosecutor had in court, and therefore what would have been before the magistrate. It was S/C ROBINS who was the office in charge of the matter, and S/C ROBINS who arrested the Plaintiff and provided material to the Custody Manager etc. The only way any other person (besides S/C ROBINS could have known anything about the matter concerning the Plaintiff is if S/C ROBINS told such person, or supplied such person with documents outlining any such other material. A very good deal of cross-examination was required to establish the obvious proposition, that all the police prosecutor had (and hence all the magistrate would have had) was the CAN, the Facts Sheet and the Plaintiff’s antecedents,

vi)   His prevarication in relation to the witness “Valmer”. He commences by claiming that he cannot recall Mason BAUR referring to this witness (even though he typed his statement), and then progresses to claim that he was led by other police to believe that no-one in the area of the home invasion wanted to provide police with a statement,

vii)   His apparent evasiveness when asked about his observations concerning whether the Plaintiff was clean-shaven or not,

viii)   His assertion that he didn’t know what penalty was carried by the offences that he charged the Plaintiff with. It is submitted that the court would reject that evidence out of hand. S/C ROBINS was essentially a detective in training, and held a sufficiently senior position to be recalled to duty to investigate the matter and be the officer-in-charge. It is not credible to claim not to know the available penalty for an offence that is being charged,

ix)   His assertion that, at the time of the incident, he did not know that the strength of the prosecution case was not one of the primary considerations as to whether bail would be granted or not. At the time of this matter, S/C ROBINS had been a police officer for 6 years and 2 months. He was a detective in training. This assertion, it is submitted, it [sic] simply not believable.”

29. For these reasons, it is argued that the belief held by Senior Constable Robins was neither genuine nor reasonable.

30. Section 99(2) of LEPRA as then in force requires “suspicion”, not a concluded opinion. Suspicion is not the same as belief, but is “a state of conjecture or surmise”, or “a slight opinion but without sufficient evidence”: George v Rockett (1991) 70 CLR 104 at 115. There must be sufficient factual basis for a suspicion as created in the mind of a reasonable person, but it is not necessary for there to be answers to all enquiries, or proof to the civil or criminal standard. What is more, some degree of conjecture may be involved: Prior v Mole (2017) 91 ALJR 441 at [4], [24], [73] and [98]-[100]; see also State of New South Wales v Smith [2017] NSWCA 194 at [111]-[121].

31. The word “necessary” in s 99(3) was the subject of consideration in State of New South Wales v Robinson (2016) 93 NSWLR 280 at [43]:

“[43] In our opinion, this last definition is the most apt to the meaning of “necessary” in s 99(3) in its form at the time of Mr Robinson’s arrest. That is, “necessary” means “needed to be done” or “required” in the sense of “requisite”, or something “that cannot be dispensed with”, to pick up the language in the other two dictionaries, for one or more of the purposes specified in the sub-section. Given that meaning of “necessary” we agree, as was submitted by the State, that properly construed, the correct test for s 99 is that for which the State contended and which is set out above at [27].”

32. Senior Constable Robins’ evidence at T 50 was as follows:

“Q. The decision was made to arrest the plaintiff when he presented himself at Maitland. Why did you decide to arrest as opposed to any of the other powers that you had with respect to dealing with a matter like this, such as a future CAN or something like that?

A. Because of the seriousness of the offence and I held concerns that either Rhonda or Mason or both may have been there would could have been attempts to interfere with them, preventing them from either coming to court or changing their story because they had reported it to the police.

Q. How would arresting Mr Byers in any way ensure the protection of those witnesses?

A. Sorry, Mr Welsh?”

33. The decision to arrest needs to be seen in the context of a late night home invasion where the victims were well-known, if not to the perpetrators accompanying Michelle Joyce, certainly to Ms Joyce. There had been further threats to return, and the plaintiff’s son was already known to Senior Constable Robins as an offender with a history of violence.

34. Counsel for the defendant submits, and I agree, that many of the criticisms of Senior Constable Robins are of the “counsel of perfection” nature. He had sent away for fingerprints and DNA, he had endeavoured to obtain CCTV footage without success, he had taken statements from Ms Baur and her son and he had examined contacts and text messages involved around the time of the incident.

35. It was in these circumstances that he learned, according to his evidence, that the plaintiff was downstairs in the foyer of the police station. He described these events as follows:

“Q.  And insofar as these proceedings relate to the plaintiff, did you have any further involvement in the investigation with respect to the plaintiff?

A.  So, I didn't try and find him at all during that time, I got a phone call, I believe it was about 25 April.

Q.  Can I suggest it was the 23rd or 24th?

A.  24 April, I got a phone call when I was at work and it was around 11.30, that Michael Welsh was downstairs in the foyer of the police station.

Q.  11.30 in the morning or the evening?

A.  11.30 in the morning, which ‑ I thought that was a bit weird because I hadn't gone looking for him at that particular stage, we'd only gone looking for Doug Byers at that stage so I went down to the foyer, at that stage, I introduced myself and spoke to Michael Welsh.  At that stage, I told him he was under arrest in relation to the aggravated break and enter at Lawson Avenue at Woodberry.

Q.  How did you speak to him?

A.  In the foyer, it was fairly quiet, it was ‑ basically, we were very close to each other, there was ‑ just as ‑ pretty much as we're speaking now.

Q.  What did you do after you placed him under arrest?

A. So I opened the door that leads out towards the charge area. I said, "This way," or "Follow me," or words to that effect. We've then gone to the charge area. I've entered him into custody, as normal procedures would be, and then later on I'd been advised that he'd got legal advice, he'd been read his part 9 of ‑ under the Law Enforcement (Powers and Responsibilities) Act. I then went to the charge area and offered him an interview and at that stage he said, "I've been advised not to say anything." I said, "That's fine. That's up to you." I then completed the necessary charge paperwork, fact sheet, court attendance notice.

Q.  So the charges, I assume, were accepted?

A.  Yeah.” (T 48-49)

36. He listed the concerns as follows:

“Q.  What concerns did you have?

A.  Concerns that there may be interference with the witnesses because of the violence that was involved in the incident, had concerns that ‑ that whether Michael Welsh, Doug Byers, Michelle Joyce or anyone that they knew may try to go and find Rhonda and Mason and ‑ because they had reported it to the police, may want to try and stop them from either attending court or cause them harm in some way.

Q.  What was that based upon?  Why would you hold that concern with respect to this incident?

A.  Because during the incident the ‑ as part of the allegation that Mason and Rhonda were involved in, there was threats of being stabbed, there was ‑ there was assaulting of Mason, which ended up being believed it was with a frypan at some stage, or stick.  He had some ‑ a number of visible injuries.  The circumstances surrounding the incident, the two male POIs had to force their way into the house as well, they weren't ‑ it wasn't as if it happened on the street, so it was an invasion in, basically, Rhonda and Mason's residence at the time.  So due to those ‑ due to the serious nature, I guess, of the ‑ of the incident, I had concerns that further attempts to interfere with the ‑ Rhonda and Mason may eventuate.

…

Q.  The decision was made to arrest the plaintiff when he presented himself at Maitland.  Why did you decide to arrest as opposed to any of the other powers that you had with respect to dealing with a matter like this, such as a future CAN or something like that?

A.  Because of the seriousness of the offence and I held concerns that either Rhonda or Mason or both may have been ‑ there would ‑ could have been attempts to interfere with them, preventing them from either coming to court or changing their story because they had reported it to the police.

Q.  How would arresting Mr Byers in any way ensure the protection of those witnesses?

A.  Sorry, Mr Welsh?

Q.  What did I say?

A.  Mr Byers.

Q.  Sorry, Mr Welsh?

A.  Yeah.  So as part of that, we could put in place bail conditions to assist in as a deterrent to help prevent Michael Welsh interfering with the potential witnesses or any other witnesses as well.” (T 49-51)

37. He went on to say (at T 51):

“Q.  Your decision to charge the plaintiff, Mr Welsh, what was that based upon?

A.  It was based on the statements of Rhonda Baur, Mason Baur.  The conversation that they had with the two male POIs.

Q.  Which conversation's that?

A.  The conversation that related to, "No one hits my father," or words to that effect, relative or I guess basically identifying that the two male POIs had held some father/son or similar relationship.  The fact that the close proximity from Lawson Avenue to 163 Kingstown Road.  We go there six and a half hours later after the incident, both Doug Byers and Michael Welsh are there.  It wasn't as if Doug Byers is in Wagga, six hours away and couldn't physically conducted or committed the offence.

The descriptions provided by Mason and Rhonda Baur of the clothing of the two male POIs were consistent with the clothing that Michael Welsh had on.  Doug Byers, I believe he only had a pair of shorts on when we went there so it was hard to say whether that, that he was wearing consistent clothing.  The fact that Rhonda Baur had selected Doug Byers out of a line‑up.  And then with those circumstances, I formed the view by default that by selecting Doug Byers they have then ultimately selected Michael Welsh as well because of that relationship with the other evidence, the close proximity, the similar clothing.

Q.  Any other aspect?

A.  I guess the fact that we go there in the home around that time.  The fact that Michael Welsh says that we only got home at 12.30 inferring that they were actually out at the time and not home and that's about all.” (T 51-52)

38. At T 55, he was asked:

“Q.  You understand that in charging somebody with an offence, you need to give consideration to the sufficiency of the evidence that you would present on the charge, did you give that consideration?

A.  Yes.

Q.  And can you tell the Court what consideration you gave to the sufficiency of the evidence in charging Mr Welsh?

A.  So, in relation to Mr Welsh, I thought there was a reasonable chance of a prosecution due to the statements of both Rhonda and Mason where they outline the relationship between the younger male and the older male as being a father/son style of relationship, the close proximity from the victim's unit at Lawson Avenue, Woodberry to 163 Kingstown Road, the similar clothing between Michael Welsh and as described by Mason and Rhonda Baur.

Q.  Similar clothing when?

A.  At the time of me attending at around the 5am, six hours after the incident.  So, those similar characteristics in the clothing that had been described and the clothing that I observed Michael Welsh to be wearing, the fact that he'd said that they'd been out until 12.30, inferring that he'd been somewhere other than home prior to that.  Then Rhonda Baur picks Douglas Byers out of the ID parade.  When I looked at the whole evidence, all that evidence as a whole, believed that there was a reasonable chance of conviction for Michael Welsh.” (T 55-56)

39. In cross-examination, he was asked:

“Q.  I want to put to you that Michael Welsh went to Maitland Police Station as a direct result of a telephone call made by you to him whereby you asked him to attend Maitland Police Station, what do you say to that?

A.  I can't recall ringing Michael Welsh at all.

Q.  Did he, how did you become aware that he was in the foyer of Maitland Police Station?

A.  The person that was working as part of the station, as part of general duties, rang up to the Detective's office and said, "Michael Welsh is in the foyer to see you."

Q.  You went out there?

A.  (No verbal reply)

Q.  You went out and you saw him?

A.  Yeah, yeah.

Q.  I'm just looking at your statement.  You say at paragraph 19, "At about 11.30am the same day," and this is 24 April 2013:

"I have received a phone call that Michael Welsh was in the foyer of Maitland Police Station.  I have walked to the foyer area and observed Michael Welsh standing in the foyer area.  I walked up to him and said, 'I am Senior Constable Robbins from Maitland Police; you are under arrest in relation to an aggravated break and enter at Lawson Avenue, Woodberry.  You do not have to say anything unless you want to, do you understand'?"

That's what you said to him?

A.  Yes.

Q.  So for instance, wouldn't, it only accords with common sense then doesn't it that you knew exactly why he had attended the police station, you didn't for example, say to him, "Hello Michael, how can I help you?  What are you doing, nice to see you, what are you doing here?"  You didn't say that did you?

A.  I can't recall whether I said it or didn't say it.

Q.  Well I'm reading from your statement.  You say that you simply go straight up to him and say, "Hello, I'm Senior Constable Robbins from Maitland Police, you're under arrest in relation to an aggravated break and enter."  Straight off?

A.  There could have been other conversation.” (T 59-60)

40. The plaintiff’s description of the circumstances of his arrest were as follows:

“Q.  You were arrested in the foyer of the Maitland Police Station on 24 April 2013?

A.  Yes.

Q.  How did you come to arrive at Maitland Police Station on that date?

A.  After we'd come in.  They asked me to come in.

Q.  They asked you to come in?

A.  Yes.

HER HONOUR

Q.  Who is "they"?

A.  The police.

Q.  Any particular police officer?

A.  Constable Robbins.

PREECE

Q.  How did he communicate with you to ask you to come in?

A.  I'm not too sure.

Q.  You did make your way to Maitland Police Station on 24 April?

A.  Yes.

Q.  While you were there, Senior Constable Robbins walked out from the office area of the police station into the foyer area where you were?

A.  Yes.

Q.  He approached you?

A.  Yes.

Q.  He said something like this, "I'm Senior Constable Robbins from Maitland Police.  You are under arrest in relation to an aggravated break and enter and Lawson Avenue, Woodberry"?

A.  Yes, that's correct.

Q.  He went on to say, "You do not have to say anything unless you want to; do you understand"?

A.  Yes, that's correct.

Q.  You replied "Yeah"?

A.  Yes.” (T 9)

41. In cross-examination, Ms Nolan asked the plaintiff about the plaintiff’s prior association with Senior Constable Robins when he came to conduct bail checks on his son, to which the plaintiff replied “they all look the same to me” (T 21). After first insisting that he and his son had been arrested at the same time (T 22), the plaintiff agreed he had known when his son Douglas was arrested and received a Court Attendance Notice for the home invasion in Wagga that his son had been arrested in his presence (although he later said that he could not remember) (T 23) and he knew that police wanted to speak to him about the home invasion, although he thought this related to a line up.

42. The confused version given of these events by the plaintiff becomes apparent when viewed through the prism of the circumstances in which his son was arrested in the home they shared at the time. Ms Nolan asked the plaintiff at T 23:

“Q.  You knew, didn't you, when you went down to Maitland Police Station on the 24th, which is the day you were arrested, that the police wanted to speak to you, didn't you?  You knew that?

A.  Yeah.  I think a few times they asked me to go down for a line‑up and that.  I just declined and said, "No."

Q.  I'm sorry, I didn't hear that answer.

A.  A few times they asked me to go down for a line‑up and that, but I just said, "No."

Q.  In relation to this incident, is that what you're telling her Honour?

A.  Yeah, yes.

Q.  You knew when you went down to the police station that the police were interested in speaking to you about this home invasion incident?  You knew that?

A.  I didn't know it was, no, because I didn't know that particular ‑ they were on about that particular incident because I've been dealing with the police beforehand before that, about Douglas, so I don't know what it was about.

Q.  I suggest that you did know what it was about.  You knew it was about this home invasion.  You agree with that, don't you?

PREECE: The plaintiff said‑‑

HER HONOUR: The what?

PREECE: Sorry, the plaintiff said, no, he didn't know.

NOLAN: I'm testing that proposition.

HER HONOUR: He said, "I don't know what it was about."

NOLAN

Q.  I'm suggesting to you, you did know, in actual fact you knew that it was about this ‑ we're going to call it the home invasion incident.

A.  I didn't know anything about no home invasion incident, no.  No, I didn't know that they called me down there for it.

Q.  You've just told her Honour that you'd been asked to participate in some line‑ups.

A.  This is what he was asking me to do, Constable Robbins, asking me to go down to the ‑ "Will you come down to the police station," pulled me up in the main street, "Come down to the police station.  Can you jump in the car, Michael, and we'll go down and have a line‑up and see what's happening."  I said, "Mate, I'm not going nowhere."” (T 23-24)

43. I am satisfied that the plaintiff knew that his son had been arrested for the offence in question and that police were continuing their investigations. I am satisfied that he attended the police station on the basis of that information. I am also satisfied that, confronted with the appearance of a person he was already suspicious of, in circumstances where the plaintiff’s son had been arrested five days beforehand, Senior Constable Robins not only had the requisite state of mind in a reasonable person but considered it necessary to arrest him.

44. It should be remembered, when considering the process of making an arrest, that it is an administrative decision and not a judicial decision, and that the warnings of the High Court in Minister for Immigration and Ethnic Affairs and Wu Shan Liang (1986) 185 CLR 259 at 271-272 should be applied. I am satisfied that the decision in question was not one which Senior Constable Robins could not lawfully reach on the material before him: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 275-276.

45. It is irrelevant that the suspicions held by a person making an arrest later turn out not to have been well-founded, or that exculpatory material is obtained after the arrest. The requirement is that the person making the arrest be satisfied that at the time there are reasonable grounds for suspecting the person to be arrested could have committed the offence in question.

The credit of Senior Constable Robins

46. Counsel for the plaintiff challenges the evidence of Senior Constable Robins on the basis that he was evasive and advanced fanciful propositions in order to explain his acts or omissions in relation to the arrest process (see the list of these set out above). These challenges to credit are largely a call to find his evidence implausible by comparison to some higher standard of evidence-giving, rather than giving untruthful or exaggerated. For example, challenges are brought to the plaintiff’s evidence of being unable to recall the penalty carried by the offences with which he charged the plaintiff and whether or not the strength of the prosecution case was a primary consideration. These were challenged on the basis that he was a detective in training and had been a police officer for over six years.

47. The plaintiff was not caught out in any lies. He did his best to answers questions frankly. This included observations against interest, such as stating that it was “weird” that the plaintiff had attended the police station without being asked on the day of the arrest. He was frank about being mistaken in the way he prepared the brief and set out information about the identification parade, which was an overstatement.

48. Some of the submissions put on behalf of the plaintiff are implausible. For example, it is put to me that “it simply beggars belief” the plaintiff would of his own accord find his way to Maitland Police Station, when this was in fact what Michelle Joyce had done, and where his own son had been arrested five days beforehand. The plaintiff had been arrested a number of times in the course of his adult life and was well aware how the criminal justice system worked.

49. By contrast, as the above transcript extracts demonstrate, the plaintiff gave confusing and at times inconsistent evidence, sometimes acknowledging an event occurred, following which he would say that he could not recall whether it did or not. Some of his evidence, such as his statement that he was arrested on the same day as his son, was simply wrong. His recollection of events is poor. Where his evidence contradicts that of Senior Constable Robins, I prefer the evidence of Senior Constable Robins.

Conclusions concerning the plaintiff’s claim for wrongful arrest and false imprisonment

50. I am satisfied that it was open to Senior Constable Robins to form the opinion which he did upon the basis of the facts set out above. I am also satisfied that he considered an arrest was necessary and that, when the plaintiff attended the police station five days after his son was arrested, Senior Constable Robins took the opportunity to arrest him as well based on the factors he has identified.

51. As to the extent of time that the plaintiff was in custody, no submission is made that he was in custody for any unduly prolonged period.

52. In those circumstances, the plaintiff’s claim for wrongful arrest and false imprisonment fails.

Malicious Prosecution

53. The claim for malicious prosecution is restricted to the institution of the proceeding and not its maintenance (T 79). The elements of the tort are set out in A v State of New South Wales (2007) 230 CLR 500.

54. The principles laid down in A v New South Wales are not easy to summarise concisely, as the New South Wales Court of Appeal noted in Clavel v Savage [2015] NSWCA 61. Rather than attempt to do so, I set out the summary of the relevant principles from Clavel v Savage as follows:

“50 In State of New South Wales v Quirk [2012] NSWCA 216 Tobias AJA (Beazley and Hoeben JJA agreeing) distilled (at [70]) a number of propositions from the joint judgment in A v New South Wales:

“(a) To succeed with respect to the tort of malicious prosecution, the plaintiff is required to prove two distinct elements, one positive (malice) and the other negative (absence of reasonable and probable cause). Each has a separate role to play: [54].

(b) [[A] conclusion about malice does not render irrelevant the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain the prosecution. Even if the prosecutor acts maliciously and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.]

(c) Thus the inquiry about reasonable and probable cause has two aspects. The first is what did the prosecutor make of the material available to him and the second is what should the prosecutor have made of it. The first is a subjective test the second an objective test: [58].

(d) As the question … whether there is an absence of reasonable and probable cause must be determined at the time the prosecution is commenced, attention is necessarily directed to what material the prosecutor has available for consideration when deciding whether to commence or maintain the prosecution: [59].

(e) It is important to recognise that in an action for malicious prosecution the plaintiff must establish a negative (the absence of reasonable probable cause). The forensic difficulty of proving such a negative is well known. It is very much dependant upon the nature of the forensic circumstances of a particular case. What must be avoided is the tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to initiate criminal proceedings: [60].

(f) Subject to the qualification in (h) below, in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 Jordan CJ said that there were five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence:

‘(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.’

(g) To succeed on the issue of absence of reasonable and probable cause, the plaintiff has to establish "that one or more of the foregoing conditions did not exist" which, according to Jordan CJ, he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds: [64].

(h) The five conditions stated by Jordan CJ provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds. However those five conditions should not be understood as completely or exhaustively describing what will constitute reasonable and probable cause: [66].

(i) If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining a prosecution, that is an allegation about the prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the process of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies, the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt: [71].

(j) The negative proposition that the plaintiff must establish (that the prosecutor acted without reasonable and probable cause) may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief: [77].

(k) In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed or concluded, about some aspect of the material. However, if the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry: [78].

(l) What is required is an examination of the prosecutor's state of persuasion about the material considered by him or her. That should not be done by treating the five conditions stated by Jordan CJ as a complete and exhaustive catalogue of what will constitute reasonable and probable cause although they are generally sufficient where the prosecutor is not required to act upon information provided by others [as in the present case]. However the focus must be on the absence of one or more of those conditions: [81].

(m) The objective element of the absence of reasonable and probable cause has been couched in terms of the "ordinarily prudent and cautious man placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". The resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may (not must) depend upon evidence demonstrating that further inquiry could and should have been made [no such assertion was made in the present case]: [83], [86].”

55. Relevantly for the purpose of this application, the elements of the tort in contention are:

1. absence of reasonable and probable cause;

2. malice;

3. damage.

56. An initial problem is the absence of particulars of reasonable and probable cause and malice in the pleadings, contrary to the requirements of UCPR rule 15.4. However, these particulars have been reconstructed in the course of oral submissions. Counsel for the plaintiff has agreed to “cut and paste” the particulars provided for wrongful arrest in relation to absence of reasonable and probable cause and has defined the particulars of malice as being Senior Constable Robins’ knowing insertion in the Facts Sheet that the plaintiff was identified in a photo line-up when he knew that neither of the witnesses identified the plaintiff at all and that only one of the two witnesses had identified the plaintiff’s son. In addition, the plaintiff claims that Senior Constable Robins deliberately misstated this information so that the plaintiff would be refused bail.

57. By reason of the “cut and paste” nature of the particulars in relation to wrongful arrest, I note that the particularisation of reasonable and probable cause on this basis must similarly fail as well. The subjective belief of Senior Constable Robins for commencing the prosecution is consistent with his reasons for arrest (see T 55-56). Ms Nolan draws my attention to the statement in Williams v The Queen (1986) 161 CLR 278 at 300 where Mason and Brennan JJ stated:

“If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution.”

58. In Robinson v State of New South Wales [2018] NSWCA 231, McColl JA stated at [79]:

“Mason and Brennan JJ spoke to like effect in Williams, a case concerning unlawful detention as a basis for excluding evidence of records of interview containing confessions allegedly made to the police by the applicant, where their Honours explained:

“Nor is there any reason to think that, in general, an arresting police officer would be unable properly to make a complaint or to lay an oral information until he had had an opportunity to question the person arrested. In the ordinary case of an arrest on suspicion, the arresting officer must have satisfied himself at the time of the arrest that there are reasonable grounds for suspecting the guilt of the person arrested, although the grounds of suspicion need not consist of admissible evidence. If the arresting officer believes the information in his possession to be true, if the information reasonably points to the guilt of the arrested person and if the arresting officer thus believes that the arrested person is so likely to be guilty of the offence for which he has been arrested that on general grounds of justice a charge is warranted, he has reasonable and probable cause for commencing a prosecution: see Mitchell v John Heine & Son Ltd; Commonwealth Life Assurance Society Ltd v Brain; Glinski v McIver.” [Emphasis added; citations omitted.]

59. At the time of the arrest, the relevant time to consider this issue having regard to the way in which the claim for malicious prosecution is pleaded, I am satisfied that Senior Constable Robins did hold a subjective belief that not only the arrest but the prosecution of the plaintiff for the home invasion offence was warranted. I am also satisfied that, objectively, there were reasonable grounds for the prosecution.

Whether the defendant’s conduct was actuated by malice

60. The precise words inserted into the Fact Sheet by Senior Constable Robins were as follows:

“On the 11th April 2013 Mason Baur and Rhonda Baur have completed photo ID parades in relation to Bayers [sic] and Welsh. At this time, Baur’s have nominated Bayers and Welsh as the POI’s involved in the incident.”

61. This is incorrect. Only Rhonda Baur selected the image of Douglas Byers and neither selected the plaintiff’s image.

62. This case is unusual in that no personal animus is alleged or indeed apparent on the facts. Even though the plaintiff’s son had been arrested five days beforehand, and the plaintiff appears to assert that police were pursuing him to get him to go to the police station for a line up, there is no suggestion of there being any improper behaviour by the plaintiff. It was never put to Senior Constable Robins that he had spoken to the plaintiff or behaved in a way that was uncivil; although this was the evidence of the plaintiff at T 26, no such claim was put to Senior Constable Robins in cross-examination.

63. The plaintiff’s case at its highest is that Detective Senior Constable Robins commenced the proceedings in order to bring the plaintiff before the Court for a trial in an unduly zealous and/or careless fashion by reason of the wrong description of both witnesses identifying the plaintiff when in fact neither had, and that the sole identifying evidence was Ms Baur’s identification of the plaintiff’s son. There appears to be a reliance upon the circumstances of the plaintiff’s arrest at the police station as well, in that the plaintiff is asserted to have been called to come in to be arrested and arrested by an officer who knew he did not have sufficient information to do so.

64. It is important to see these errors in context. The impact of the plaintiff’s wrong statements about identification evidence is restricted to the bail hearings in that, from that time onwards, the material in question, the Fact Sheet, was accompanied by the material which disproved its contents, namely the witness statements and photo line-up result. The decision to grant or revoke bail was not dependent upon this fact alone.

65. The Magistrate was not told that the plaintiff had been called in to be arrested; in fact, he took into account that the plaintiff appeared to have handed himself in to police (Exhibit D, T 17). The prosecutor said (Exhibit D, T 1-2):

“PROSECUTOR: Your Honour, bail is opposed, mainly because of the seriousness of the charge and the nature of the actual assault that is said to have taken place, but that needs to be looked at in light of his record. There’s two fails to appear, one in 2003 and one in 2006, but that’s not the issue. The issue is that it is just littered with matters of violence and quite serious matters of violence, including there’s still an outstanding matter of violence at Wagga and there is a number of other matters of violence of a similar nature. So the record is essentially of matters of violence and yet, here we are, back before the Court for another matter of violence which is of an extremely serious nature and extremely graphic in relation to its traits, if one reads the facts.

Having said all that, your Honour, I can only find one thing that is in his advantage and that is the fact that he has handed himself in today. The problem is that the matter that is still outstanding is in Wagga. I note his residence seems to be in the area but that would raise concerns in that at least he has an area to flee to in relation to that. Those are my submissions.

CLEAVES: As to the Wagga matter, your Honour, that’s 3 May. He is represented by ALS. It’s a defended matter and he’s ready to proceed there and he tells me he can get there without difficulty. The property at Woodbury is a property where he resides with his de facto partner of longstanding and two children. He has ties to the area.

He did in fact, on finding out that the police wanted to talk with him through other sources, come to the police station voluntarily to see what they wanted to speak to him about and has cooperated in all circumstances. He seeks to speak to ALS about these proceedings. There’s no reason it can’t go to Newcastle though, your Honour, and in the interim any conditions, they are partially suggested if granted bail on p 2 of the facts before your Honour and there’s no reason that he should not be able to comply with those conditions.”

66. I was unable to find any reference to identification evidence in the submissions made to the Magistrate. The representations of his counsel that the plaintiff went to the police station “voluntarily” is contrary to the submissions made on his behalf by his counsel. What is more, the fact of the plaintiff voluntarily handing himself in was put as being an issue going to his credit.

67. I note in addition the claim of an attempt to mislead the custody manager. That, however, does not relate to the act of prosecution and would not support the action alleged.

68. The claim that Senior Constable Robins engaged in conduct to mislead the Police Prosecutor and the Magistrate creates difficulties in that a breach of the duty to the Court may not be a ground for malicious prosecution or misfeasance: see Cannon and Rochford v Tahche [2002] VSC 84 at [59]. Counsel for the defendant puts to me that the plaintiff’s claim amounts to a collateral attack on the decision of the Magistrate to impose bail conditions which is impermissible: Ousley v The Queen (1997) 192 CLR 69. This is particularly the case where the decision in question is an administrative decision: Fountain Centre Christian School Inc. v Harrington (1990) 53 SASR 361.

Conclusions concerning malice

69. It has been said that courts should be slow to draw an inference of malice: King v McKenzie (1991) Aust Torts Reports 81-118. There is no suggestion that the plaintiff had any improper motive arising from hostility or ill will, or that he withheld the identification evidence.

70. Senior Constable Robins wrongly misstated the evidence on identification in the Police Facts. He explained his errors at T 73 as follows:

“Q. You knew quite firmly that what you had written in that fact sheet was false. What do you say to that?

A. I disagree with that. I was advised after the proceedings had finished, when that letter had been presented at the local at the Central Hunter Local Area Command, I'd got I was spoken to by Detective Sergeant Stace about it as an internal investigation for a complaint. He at that stage pointed out to me that that line, at the "At this time Baurs have nominated Byers and Welsh as the POIs involved in the incident" could be interpreted in different ways, and that was the first time that I was it was brought to my attention that how that sentence was written could be interpreted in a different way than what I intended to.”

71. This is certainly evidence of error, but falls well short of the evidence necessary to establish malice. Accordingly, this ground has not been made out.

Conclusions concerning the claim for malicious prosecution

72. Neither absence of reasonable or probable cause nor malice has been made out.

73. In relation to damage, I note my observations in the section of this judgment concerning the quantum of damages. I am satisfied that damage of a nominal form may be made out. However, the claim for malicious prosecution must fail by reason of the failure to establish absence of reasonable and probable cause and malice.

Misfeasance in public office

74. At paragraphs 49-53 the plaintiff brings a claim for misfeasance in public office which is particularised as follows:

“50. The actions of Senior Constable ROBINS in:

i) Arresting the Plaintiff without reasonable and probable cause, and whilst being fully aware that there was no reasonable and probable cause,

ii) Arresting the Plaintiff when he knew that such arrest was not authorised by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002, or common law,

iii) Detaining, or causing to be detained, the Plaintiff at Maitland Police Station for a period of just over 4 hours, whilst being fully aware that the basis upon which he arrested the Plaintiff was a basis entirely fabricated by himself,

iv) Inserting deliberately false information into the Facts Sheet, knowing that same would be relied upon by:

a. The Custody Manager,

b. The Police Prosecutor,

c. The Magistrate

when assessing the entitlement of the Plaintiff to bail, and in respect of any related matter

v) Failing to correct such deliberate falsehood for a period of 180 days.”

75. A claim for misfeasance in public office may be brought if the holder of public office acted maliciously or knew that the action taken was beyond power and was likely to harm the plaintiff. The basis for the liability of the holder of public office is that executive and administrative power must be exercised only for the public good and not for an ulterior or improper purpose. It is a tort which must be distinctly alleged and sufficiently particularised, and the facts pleaded must go beyond innocence or honest incompetence: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 (“Three Rivers”) at 291 to 292 (Lord Millett); Danthanarayana v Commonwealth [2014] FCA 552 at [97] (Foster J); Streeter v Western Areas Exploration Pty Ltd (No 2) [2011] WASCA 17; (2011) 278 ALR 291 at [605]. It is not sufficient to allege unlawful conduct, as the primary facts relied upon to justify any inference of unlawfulness must be pleaded: Three Rivers at 292; NRMA Insurance v Flanagan [1982] 1 NSWLR 585 at 603.

76. What must be demonstrated is that the defendant acted “in bad faith”, namely, that the officer in question was motivated by a purpose foreign to that for which the duty was bestowed, and that the conduct was undertaken with the intention of harming the plaintiff, or, alternatively, that they were undertaken in the knowledge that they were beyond power and thus likely to harm the plaintiff.

77. The relationship between bad faith and malice is not always easy to explain. However, one of the requirements noted (although described as being a requirement of malice) is reckless indifference or deliberate blindness in relation to knowledge of invalidity or lack of power: Northern Territory v Mengel (1955) 185 CLR 307.

78. A police officer is a public officer for the purpose of the tort of misfeasance in public office: Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311.

79. This claim was pressed “faintly” by Mr Preece, and it was acknowledged that my findings in relation to the other causes of action pleaded would determine the success or failure of this claim. My findings are correspondingly brief.

80. I first note that the particular of failing to correct the “deliberate falsehood” for a period of 180 days appears to be in conflict with the claim for malicious prosecution in that it asserts not merely making the false accusation, but the continued conduct thereafter forms part of the claim. No cross-examination directed attention to this particular, and I was not addressed as to what Senior Constable Robin should have done during the 180 days. As to what made this a “deliberate” falsehood, I note my findings to the contrary as set out above. In the absence of evidence, the plaintiff should not be entitled to rely upon this particular.

81. In view of my findings as to malice, which I would repeat here in relation to issues of bad faith, I will deal with the submissions based on the assertion of reckless indifference. For those reasons, I am satisfied that it was not the conscious and deliberate act of essentially fabricating a state of affairs which caused Senior Constable Robins to misdescribe the identification evidence, but a mistaken understanding of identification evidence. This is put on the basis of whether Senior Constable Robins sought any guidance or assistance from any other senior officer about the caution that needs to be applied when dealing with identification evidence in a criminal proceeding. That is wholly insufficient to establish recklessness. Mere failure to ask a superior without more cannot amount to misfeasance of office. This claim must also fail.

Quantum

82. In the event that I have erred in rejecting the plaintiff’s claims, I make brief observations as to the quantum of the claim.

83. The claims for aggravated and exemplary damages are not felicitously pleaded. While the particulars of aggravated damages relevant to falsity, these same heads of damage will not suffice for the awarding of exemplary damages.

84. In the absence of evidence that Senior Constable Robins deliberately inserted false information into the Facts Sheet, it is hard to see how any claim for aggravated damages could be made out.

85. The range of damages put by the parties for general damages was between $5,000 (the amount suggested by the defendant) and $30,000 (suggested by the plaintiff). Counsel for the plaintiff submitted that an appropriate sum inclusive of aggravated and exemplary damages would be $60,000.

86. Damages for wrongful arrest for a period of incarceration of 4 hours where the plaintiff was well acquainted with the criminal justice system and had been arrested on a number of occasions in the past would be within a small compass. The claim for malicious prosecution would similarly be within a small range, having regard to the facts of the case. The amount of damages to be awarded would, in my view, be the sum of $10,000.

87. I would not be prepared to award aggravated damages in the absence of evidence of deliberate falsity of the documentation. I am satisfied that conduct of any kind warranting an award of aggravated damages should be made.

Exemplary Damages

88. Exemplary damages were particularised as follows:

“Particulars

i)   the matter in i)-v) above is repeated,

ii)   the conduct of Senior Constable ROBINS amounted to a contumelious disregard of the Plaintiff’s rights, feelings, dignity and well-being,

iii)   the conduct of Senior Constable ROBINS in prosecuting the Plaintiff for the offences nominated on the Court Attendance Notice brought with it the very real possibility of a custodial sentence being imposed on the Plaintiff,

iv)   the conduct of the part of Senior Constable ROBINS is such as to bring the New South Wales Police Force into serious disrepute,

v)   the conduct of Senior Constable ROBINS was calculated to mislead a judicial officer (the Magistrate at Maitland Local Court) in determining the vital issue of bail,

vi)   an award of exemplary damages will deter Senior Constable ROBINS, and other police officers, from repeating such conduct,

vii) an award of exemplary damages will encourage the Defendant to attempt to ensure that such conduct is not repeated – whether on the part of the police officers referred to in this Statement of Claim , or otherwise. In this regard, it is noted that not dissimilar conduct occurred in the matter of Zreika v State of New South Wales [2011] NSWDC 67.

viii)   an award of exemplary damages will vindicate the position of the Plaintiff.”

89. There are significant difficulties with the claim as particularised:

1. Matters relied upon to claim aggravated damages should not be relied upon to claim exemplary damages. While no objection was taken to a rolled-up award of aggravated and exemplary damages in McCarthy v New South Wales [2015] NSWCA 153 (where the award was set aside on other grounds), the general rule is that such heads of damages fill different roles in damages awards and should be kept distinct.

2. Grounds (iv), (vi), (vii) are effectively the same and amount to a generalised statement about the purpose of exemplary damages. The plaintiff needs to identify conduct of the kind set out by Basten JA in Talovic v New South Wales [2014] NSWCA 33 at [39] – [40].

3. Conduct calculated to mislead a judicial officer may amount to a collateral attack upon the findings of that judicial officer. This is complicated by the fact that the judicial officer does not refer to the identification evidence beyond noting that the plaintiff’s son was arrested. Whether the magistrate’s reliance upon such material would entitle a party to an award of exemplary damages must be a matter of doubt unless there is clear absence of good faith: Talovic v New South Wales at [158] per Tobias AJA. The claim is that the strict bail conditions prevented the plaintiff from attending the funeral of a close relative but I see no correlation between the identification evidence and the strict bail conditions.

90. The plaintiff’s case at its highest is that Senior Constable Robins was being overzealous in the performance of his duty. Absent a clear finding of evidence of the kind set out in Talovic v New South Wales at [158] by Tobias AJA, the entry in the Facts Sheet, there can be no basis for the finding of exemplary damages and I would not award them.

Conclusions and Orders

91. The plaintiff has failed in relation to each of the claims for damages. Judgment will be entered for the defendant with costs, together with an order for liberty to apply.

Orders

1. Judgment for the defendant.

2. Plaintiff pay defendant’s costs.

3. Liberty to restore in relation to costs.

4. Exhibits retained for 28 days.

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Decision last updated: 12 June 2019