XYZ v State of NSW (No 2)

[2019] NSWDC 32

District Court

New South Wales

Medium Neutral Citation:

XYZ v State of NSW (No 2) [2019] NSWDC 32

Hearing dates:

8, 9, 10, 12, 15, 16, 18, 19, 22, 23, 24, 25, 26, 29, 30 May, 21 July 2017, 2 February, 16 March, 15 June and 2 November 2018

Date of orders:

28 February 2019

Decision date:

28 February 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the defendant;

 

2. The plaintiff is to pay the defendant’s costs on the ordinary basis, unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

TORT – claims made against police officers – alleged wrongful arrest, assault, battery, false imprisonment – alleged misfeasance of public office on part of police officers and child protection officer; DAMAGES – assessment of general compensatory damages

Legislation Cited:

Children And Young Persons (Care And Protection) Act 1998 (NSW), s 9
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Crown Proceedings Act 1988 (NSW), s 5
Director of Public Prosecutions Act 1986, s 9
Evidence Act 1995 (NSW), s 67, s 140(2)
Law Enforcement (Powers and Responsibility) Act 2002 (NSW) , Pt 9, s 99
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

Cases Cited:

A v State of NSW (2007) 230 CLR 500; [2007] HCA 10
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Christie v Leachinsky [1947] AC 573
Commonwealth v Fernando [2012] FCAFC18
Department of Community Services; Re Sophie [2008] NSWCA 250
Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311
Hamod v State of New South Wales and Anor [2011] NSWCA 375
HD v State of NSW [2016] NSWCA 85
M v M (1988) 166 CLR 69; [1988] HCA 68
State of New South Wales v Hathaway [2010] NSWCA 184
State of NSW v Delly [2007] NSWCA 303
Tampion v Anderson [1973] VR 715
Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316
XYZ v State of NSW (No 1) [2017] NSWDC 111
Young v State of New South Wales and Ors; Young v Young (No 2) [2013] NSWSC 330

Category:

Principal judgment

Parties:

XYZ (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr C Evatt with Ms L Evans (Plaintiff - 8 May 2017)
Ms L Evans (Plaintiff - on all other days)
Mr A Williams (For the defendant)
Mr R Lee (For the Commissioner of Police, intervening, on 19 & 22 May 2017)

  Solicitors:
James Patrick Pope (Plaintiff)
Crown Solicitor (For the defendant)
Crown Solicitor (For the Commissioner of Police)

File Number(s):

2013/336614

Publication restriction:

Non-publication order – see paragraph [1]

Judgment

Table of Contents

Non-publication order	[1]
Nature of case	[2]
Factual background	[3] – [17]
Claims by plaintiff	[18] – [20]
Summary	[21] – [25]
The pleadings	[26]
Representation of the parties	[27] – [29]
Evidence overview	[30] – [33]
Issues	[34]
Witnesses who gave oral evidence	[35] – [109]
The plaintiff	[36] – [44]
The plaintiff’s daughter	[45] – [48]
Ms Blazic	[49] – [54]
Sergeant Rutledge	[55] – [57]
Senior Constable Hulme	[58] – [63]
Detective Senior Constable Scard	[64] – [69]
Senior Constable Hewitson	[70] – [73]
Sergeant Murray	[74]
Leading Senior Constable Pavric	[75] – [78]
Constable Philip	[79]
Mr Collings	[80] – [85]
Mr Kent	[86] – [97]
Mr Ryan	[98] – [109]
Issue 1 – Justification for arrest on 10 August 2011	[110] – [119]
Issue 2 – Access to a lawyer on 10 August 2011	[120] – [122]
Issue 3 – Appearance before a Magistrate on 11 August 2011	[123] – [126]
Issue 4 – Proper cause for first prosecution	[127] – [155]
Issue 5 – Alleged malice in first prosecution	[156] – [164]
Issue 6 – Justification for arrest on 11 April 2012	[165] – [175]
Issue 7 – The prosecutor in the second prosecution	[176] – [183]
Issue 8 – Proper cause for second prosecution	[184] – [196]
Issue 9 – Alleged malice in the second prosecution	[197] – [204]
Issue 10 – Allegations of misfeasance of public office	[205] – [222]
Issue 11 – Assessment of damages	[223] – [231]
Disposition	[232]
Costs	[233]
Orders	[234]

Non-publication order

1. On the second day of the hearing of this case, on the application of the Commissioner of Police, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW), a non-publication order was made for the reasons given at that time. That order had the effect of prohibiting the publication or the disclosure of any information tending to reveal the identity or otherwise concerning the plaintiff and members of his family, including his estranged family, until the further order of the Court. The plaintiff has therefore been assigned the litigation pseudonym “XYZ”: T123.42.

Nature of case

2. The plaintiff, XYZ, brings these proceedings claiming damages against the defendant, the State of NSW, pursuant to s 5 of the Crown Proceedings Act1988 (NSW). The plaintiff seeks a finding that the defendant be held vicariously liable for the alleged misfeasance of police officers and an employee of the then Department of Community Affairs (“DoCS”). The plaintiff claims the actions of those persons have caused him to suffer harm which has left him feeling aggrieved: s 8 of the Law Reform (Vicarious Liability) Act1983 (NSW).

Factual background

3. This case arises from two occasions on which the plaintiff was arrested by police officers and later prosecuted. Those prosecutions did not result in any conviction of the plaintiff on any charge.

4. The background circumstances indicate that the plaintiff and his former partner had a history of domestic violence, and some involvement in illegal drug-related activity. There was antipathy between them.

5. Amongst the wide-ranging factual disputes ventilated in this case the central precipitating facts were as follows.

6. On 8 August 2011, the plaintiff’s child and her mother were residing in temporary accommodation in a women’s refuge. This was because the child’s mother required protection from the plaintiff. The plaintiff was inappropriately present at those premises: T41.50 – T42.6. Whilst the plaintiff was at the premises, neutrally described, an incident occurred.

7. Following that incident, the child and her mother went to the house of a neighbour. At that time, the child stated to the neighbour that “Daddy hit my forehead”.

8. Following those events, the child’s mother attended a meeting with her parole officer, Ms Blazic. At that time, the child disclosed to Ms Blazic, in words and gestures that her father had punched her in the forehead: Exhibit “34”, par 6.

9. At that time, the plaintiff was attempting to obtain access to the child and her mother at the premises of the probation and parole service. The police were called. Constable Rutledge attended, spoke with the mother and the child, he took a statement from the mother and later took a photograph of the child’s injured forehead: Exhibit “11”.

10. The first arrest and resultant prosecution of the plaintiff arose from that alleged domestic violence incident on 8 August 2011, in which the plaintiff’s four-year-old daughter received a blow to the head, which was reported or interpreted as being a punch to the child’s head. That account was also based on an account given by the plaintiff’s mother and a neighbour. The plaintiff claimed the injury was due to inadvertent contact between the child’s head and a cupboard door, when that door was opened by him.

11. Those circumstances were duly investigated by police. After interviewing the child, the investigating police formed the opinion, based on the child’s responses in a video-recorded interview, that the child had been punched on the forehead by the plaintiff. That opinion was also based on inferences drawn from the child’s answers to questions, and from interpreting her physical and verbal responses to those questions. Those questions were in part based on information provided by the child’s mother and in part based on information from a neighbour.

12. On 10 August 2018, the events described above resulted in police arresting the plaintiff and laying charges against him, and the child was removed from parental care by DoCS due to concerns over domestic violence issues, drug and criminal activity on the part of both parents, and concerns about the child remaining in a domestic environment that involved perceived risk of harm to her.

13. This led to an apprehended violence order (AVO) being issued against the plaintiff. He was charged with assault. He was denied bail, and was imprisoned in Silverwater gaol for a month. Ultimately, the prosecutor withdrew the assault charge and requested the related criminal proceedings be dismissed without a conviction. Nevertheless, the child was not restored to parental care due to continuing concerns held by DoCS regarding the welfare and best interests of the child. The plaintiff is much aggrieved by those events.

14. The second arrest and resultant prosecution of the plaintiff arose from events occurring on 8 January 2012 in the form of an alleged breach by the plaintiff of an AVO. In those events the plaintiff was accused of assaulting and detaining his former de facto partner.

15. That second arrest occurred on 11 April 2012. This led to charges that, on 8 January 2012, the plaintiff had allegedly detained his former partner against her consent with intent to obtain advantage, and in the alternative, a charge that he had assaulted his former partner, thereby occasioning her actual bodily harm. At his trial on those matters, the plaintiff was acquitted by direction on the first charge. He was also acquitted on the second or alternative charge as the prosecutor elected to call no evidence to support that charge. The plaintiff is also much aggrieved by those events.

16. In each instance, the plaintiff claimed the arrests were unnecessary and unlawful. He also claims that as a result of the assault charge involving his daughter, she was unnecessarily removed from parental care by the DoCS caseworkers. In that respect, he claims this occurred as a consequence of alleged misfeasance of office on the part of the caseworker who had carriage of the DoCS file on the matter at the relevant time.

17. Those combined events have led to a cascade of legal consequences which have been identified in the evidence. This has in turn led to the plaintiff seeking to deflect and to ascribe blame elsewhere for those adverse events, and to seek to avoid some of the consequences of those events.

Claims by plaintiff

18. The plaintiff’s claim comprises:

1. Two counts of wrongful arrest;

2. Two counts of wrongful imprisonment;

3. Two counts of malicious prosecution;

4. One count of misfeasance of public office on the part of a former DoCS employee, later expanded to include a claim of misfeasance on the part of police officers.

19. The defendant denies each of the plaintiff’s claims, and has maintained that all of the plaintiff’s claims are unfounded.

20. In these proceedings, it became evident that the plaintiff harbours considerable anger and resentment over the actions of the police officers who investigated and arrested him. The plaintiff also directed similar feelings towards the responsible officers of DoCS. Those circumstances have resulted in him bringing this action claiming damages.

Summary

21. After listening to and reading the evidence, and after hearing final arguments delivered after 16 days of hearing and after various directions hearings, involving over 950 pages of transcript, and hundreds of pages of Exhibits in the series “A” to “CC” (as tendered by the plaintiff) and in the series “1” to “37” (as tendered by the defendant), some of which were extracted from the 900 odd pages comprising the 2 volumes of the Court Book, several matters have become clear.

22. First, it has become plain that the plaintiff sought to selectively reconstruct, in a nuanced way that best served his agenda, the significance of certain historical facts and recorded events that were not to his liking. In retrospect he sought to achieve a different legal analysis to that which was contemporaneously applied at the relevant time.

23. Secondly, in pursuing that course, the plaintiff has taken a selective approach, which either ignored, or sought to assign diminished importance to, significant contemporaneous events that were inconvenient to the case he now seeks to make.

24. Thirdly, this case stands to be determined by a consideration of the finite issues as identified to the legal representatives of the parties, and not by a more wide-ranging inquiry sought by the plaintiff, by which he sought to make allegations of a conspiracy against him. The wide-ranging matters needlessly occupied much time during the trial as they strayed from the core issues.

25. Fourthly, for the reasons which will follow and in which I will address the issues raised, I have concluded that the plaintiff has not established the required factual and legal elements that are necessary for any of his claims to succeed.

The pleadings

26. The plaintiff’s original pleadings contained a number of significant tensions and difficulties which required necessary amendments. Thereafter, a number of vacillating amendments were proposed. After a debate about amendments, ultimately, the plaintiff’s second further amended statement of claim was permitted to be filed in court on the 11th day of the hearing: T649.4.

Representation of the parties

27. On the first day of the hearing Mr C Evatt appeared for the plaintiff with Ms L Evans. Ms Evans and the plaintiff’s solicitor continued her presentation of the plaintiff on a pro bono basis on all subsequent hearing days. She had limited material of relevance with which to work. Given the subject matter of the proceedings and the material presented in the proceedings, I consider that she has said and put all that could reasonably be said and put on the plaintiff’s behalf.

28. The State of New South Wales, the defendant, was represented throughout by Mr A Williams, instructed by the State Crown Solicitor. In the course of the trial, the Commissioner for Police was granted leave to intervene for the limited purpose of ventilating an evidentiary matter requiring a non-publication order, which was the subject of a separate decision given on 22 May 2017, and which requires no further elaboration at this point: XYZ v State of NSW (No 1) [2017] NSWDC 111.

29. In this complicated case I have been greatly assisted by the carefully prepared submissions presented on behalf of the parties, for which I express my gratitude.

Evidence overview

30. In the plaintiff’s case, in addition to his own oral evidence, the plaintiff’s daughter, who was by then aged 11 years, was called to give oral evidence about the events in question, and in relation to an electronically audio-visually recorded police interview in which that child had participated when she was aged 4 years: Exhibit “M”.

31. In the defendant’s case oral evidence was called from Mr Shaun Collings, a former Constable of Police, Sergeant Darren Murray, Sergeant Aaron Rutledge, Senior Constable Paul Hewitson, Detective Senior Constable Shane Scard, Mr Tony Ryan (a client services manager of DoCS), Ms Sharon Blazic (Community Corrections, Probation and Parole Service Officer), Senior Constable Louise Philip, Senior Constable Rani Hulme, Mr Jason Kent (a former DoCS caseworker), and Leading Senior Constable Claudia Pavric.

32. Two police officers who had relevant roles in the investigation and charging of the plaintiff in relation to the first charge, Senior Constable Mark Duley and Detective Constable Katherine Davies, did not give evidence for validly explained medical reasons: Exhibits “37” and “32”. Their statements were the subject of notices prepared pursuant to s 67 of the Evidence Act1995. No adverse comment arises from the fact that they were not called as witnesses, although the plaintiff remained dissatisfied with that course. The plaintiff did not call a case in reply.

33. The defendant provided a well organised Court Book comprising two volumes and containing 900 odd pages. This had the effect of streamlining and rendering more efficient, the management of relevant documents. Relevant aspects of the documentary exhibits will be referred to in these reasons where it becomes necessary to do so.

Issues

34. An examination of the pleadings, the evidence and the submissions of the parties indicates that the key issues calling for decision may be conveniently identified as follows:

As to the first arrest and prosecution – events of 8 August 2011

Issue 1 - Whether on 10 August 2011, the plaintiff’s arrest was justified according to s 99 of the Law Enforcement (Powers and Responsibility) Act 2002 (NSW) (“LEPRA”);

Issue 2 -   Whether, in relation to the arrest of the plaintiff on 10 August 2011, he was either denied or permitted access to a lawyer;

Issue 3 -   Whether, in relation to the arrest of the plaintiff on 10 August 2011, he was brought before a magistrate in a timely manner;

Issue 4 -   Whether, in relation to the prosecution arising from the arrest of the plaintiff on 10 August 2011, the plaintiff can demonstrate the absence of a reasonable and probable cause for that prosecution;

Issue 5 -   Whether, in relation to the prosecution arising from the arrest of the plaintiff on 10 August 2011, the plaintiff can demonstrate that the prosecution was actuated by malice on the part of the prosecutor;

As to the second arrest and prosecution – events of 8 January 2012

Issue 6 - Whether on 11 April 2012, the plaintiff’s arrest was justified according to s 99 of the Law Enforcement (Powers and Responsibility) Act 2002;

Issue 7 -   The identification of the prosecutor in the prosecution proceedings which followed the arrest of the plaintiff on 11 April 2012;

Issue 8 -   Whether, in relation to the prosecution arising from the arrest of the plaintiff on 11 April 2012, the plaintiff can demonstrate the absence of a reasonable and probable cause for that prosecution;

Issue 9 -   Whether, in relation to the prosecution arising from the arrest of the plaintiff on 11 April 2012, the plaintiff can demonstrate that the prosecution was actuated by malice on the part of the prosecutor;

Issue 10 -   Whether the conduct of Mr Jason Kent, a case worker for the Department of Community Services, amounted to misfeasance of public office;

As to damages

Issue 11 -   In the event of findings in the plaintiff’s favour on the above issues, the assessment of the plaintiff’s entitlement to damages in relation to each of the issues raised, including any entitlement to aggravated or exemplary damages.

Witnesses who gave oral evidence

35. In the paragraphs that follow, in the order of their respective roles in the underlying factual circumstances, and not in the order in which they gave evidence, I set out my impressions and conclusions concerning the credibility and the reliability of testimony of the respective witnesses on key matters in dispute.

The plaintiff

36. The plaintiff was aged 41 years at the time of the events in question. He was aged 47 years at the time of the hearing. He had a lengthy criminal history in relation to, amongst other matters, driving offences and the supply of drugs. He had a past history of imprisonment. His past dealings with the police disclosed a history of failures to comply with bail and parole conditions, and a number of allegations of domestic violence and related offences. The plaintiff and the mother of the child had a long and troubled relationship. This was characterised by mutual drug use, drug supply, and repeated allegations of domestic assault by the plaintiff.

37. In December 2010, the child’s mother was released from prison having served a sentence on a number of offences, including fraud, money laundering, possession of amphetamines, and obtaining property by deception: Exhibit “S”. Whilst she was in prison the child resided with the plaintiff’s parents without incident.

36. The relationship of the plaintiff and the child’s mother included a history of her allegedly fabricating allegations of domestic violence in order to secure housing, and then not following through with such allegations: T44.19 – T44.34. The opinion of the mother’s parole officer was that she was considered to be a “professional liar”: Exhibit “17”. I draw no such conclusion in these proceedings as the mother was not called to give oral evidence.

37. The plaintiff gave his evidence in a fast, and at times, agitated manner, which was not calm. He was determined to seek to impose the force of what he had to say. This was consistent with his apparent anger of the events in question as they have adversely impacted upon him, including upon his role as a parent to his child.

38. At the time when aspects of his manner of giving evidence were raised with him, he explained that his rapid delivery was because he had the condition of attention deficit hyperactivity disorder, and he explained that he had not taken his medication, a circumstance which he said affected him in the manner that was observed and described.

39. The plaintiff’s conduct in court involved frequently distracting his counsel with notes and references to his electronic device in the course of interrupting her efforts to advance his cause with points he considered to be relevant at the time he made those interruptions and disruptions: T381.30 – T381.35. This inevitably made the task of his counsel even more difficult than might otherwise have been the case.

40. The recurring focus of the plaintiff’s evidence was his sense of anger and grievance over his perception of having been the victim of wrongdoing at the hands of multiple persons. His evidence was at times directed at extraneous and irrelevant matters. Whilst his sense of grievance was understandable from the viewpoint of the loss of his role as a parent in the life of his child, those feelings must be objectively evaluated in light of the compelling contemporaneously recorded facts.

41. After hearing the plaintiff’s evidence and considering it, I have formed the view the plaintiff was an unsatisfactory and unreliable witness. I considered that on many relevant matters in dispute, his quest for self-justification has led him to present a selective and unreliable version of events in his evidence.

42. In these reasons, bearing in mind that the onus of proof for justification for the arrests, detentions and prosecutions rested with the defendant, the focus for analysis was not so much on the plaintiff’s wide-ranging evidence of his grievances, but rather, whether, when tested, the justification evidence called by the defendant was either found wanting or should be accepted. Much of the plaintiff’s evidence was directed at extraneous irrelevant matters.

The plaintiff’s daughter

45. The plaintiff’s daughter, at the age of 11 years, gave clear evidence which revealed her to be an intelligent, insightful person possessed with wit and charm.

46. She was shy and discomforted at the circumstances of having to give evidence in the proceedings. The particular matter of difficulty in that regard was having to recount how, notwithstanding that, when she was aged 4 years, she had told police that her father had hit her in the events of 8 August 2011, that description was untrue, and instead, she had been struck on the forehead by a cupboard door.

47. The evidence of the plaintiff’s daughter was given in the presence of the plaintiff and his new partner. The child’s recollections were limited. I considered that her evidence about the underlying events should be viewed with considerable caution because of her young age of 4 years at the time the events occurred, and the obvious pressures placed upon her by the circumstances in which she gave evidence. Ultimately, the contemporaneous evidence of the uncontaminated video-recorded interview and the impressions of the prevailing circumstances obtained by those who investigated the precipitating events, must carry greater weight.

48. The true questions arising from the evidence on the video and other evidence obtained, is whether the arresting police officers had sufficient information to justify the arrest and charging of the plaintiff in relation to the events of 8 August 2011 and 8 January 2012.

Ms Blazic

49. Ms Blazic was a senior probation and parole officer of 27 years standing in Community Corrections, formerly known as the Probation and Parole Service in Wollongong. In 2011 she was the parole officer of the plaintiff’s de facto partner: T573. Her statement was tendered as Exhibit “17”.

50. The plaintiff’s de facto partner had an appointment to see Ms Blazic at 9.30am on 8 August 2011. Ms Blazic was advised, by a telephone call from a domestic violence worker, that the plaintiff’s de facto partner would be late for the scheduled meeting because of an incident in which it was alleged that the plaintiff had assaulted his daughter and the child’s mother in circumstances where there was a known history of domestic violence: T574.13 – T574.43.

51. Ultimately, the mother and her child attended Ms Blazic’s office later that day. Ms Blazic observed the child to be very distressed, crying and shaking, and when the reasons for this were explored by Ms Blazic, the child stated that her father had assaulted her. Consequently, Ms Blazic called the police: T575.5 – T575.34.

52. Whilst the mother and her child were at Ms Blazic’s office, during the course of that morning, the plaintiff had come to her office on four occasions that morning to seek out the mother and child: T576.32.

53. Ms Blazic was cross-examined about her knowledge of the fact of the criminal convictions, drug use history and consecutive sentences relating to the child’s mother: T579 – T585. Since the child’s mother was not called to give evidence and had not been provided with an opportunity to comment on those matters it is not necessary to further analyse those matters in these reasons.

54. On the topic of the underlying events, Ms Blazic stated that the child had told her she had hid in a wardrobe before she was hit in the head: T585.40. On 8 August 2011 Ms Blazic had seen the mark on the child’s forehead: T586.10. No credit issues arose from the cross-examination of Ms Blazic.

Sergeant Rutledge

55. On 10 August 2011 Sergeant Rutledge was a general duties Senior Constable at Wollongong Police Station. He, along with Senior Constable Dark and Constable Davey, was sent to the Wollongong Offices of the Probation and Parole Service to investigate and deal with a report by Ms Sharon Blazic that the plaintiff’s de facto partner had been the subject of a domestic assault by the plaintiff: T398 – T399.

56. Sergeant Rutledge said the plaintiff’s de facto partner had then told him that both she and her daughter had been assaulted by the plaintiff: T399.39. He said he then observed a red mark on the top of the child’s forehead: T399.48 – T400.5. He later photographed that mark at the Wollongong Police Station: Exhibit “11”.

57. Sergeant Rutledge took a factual statement from the plaintiff’s de facto partner: Exhibit “12”. He then prepared his own statement in which he described his own involvement in those events: Exhibit “13”. The evidence of Sergeant Rutledge was not relevantly challenged or contradicted.

Senior Constable Hulme

58. On 10 August 2011 Senior Constable Hulme was on general duties at Lake Illawarra Local Area Command. She accompanied Senior Constable Hewitson to the location where the plaintiff had been arrested. Those officers were required to take the plaintiff in custody to Wollongong Police Station in a caged vehicle: T660.40 – T661.29.

59. At some stage the plaintiff had shown Senior Constable Hulme a document that he said comprised his statement of events: Exhibit “K”; T661.35 – T662.16.

60. After some custodial formalities had been attended to, Senior Constable Hulme was later told by the plaintiff’s legal advisor, Mr McDonald, that the plaintiff was not prepared to be interviewed about the matter: T662.36. Senior Constable Hulme then updated the Computerised Operational Policing System (“COPS”) records and submitted the documents to a supervisor: T662.45 – T663.20. In evidence, she identified the entries she had made in the documentation (T664) and she then prepared a statement of her own involvement in managing the plaintiff that day: Exhibit “20”, T665.2.

61. The cross-examiner sought to explore with Senior Constable Hulme the underlying facts which had led to the arrest of the plaintiff. At this point it should be noted that those underlying facts provided just cause for the arrest of the plaintiff because of reasonable suspicions police had formed about the plaintiff having committed the offences alleged: T672.20 – T663.25.

62. In cross-examination, Senior Constable Hulme was asked many questions that strayed beyond her actual role in dealing with the plaintiff following his arrest. She made no relevant concessions in her evidence. The cross-examiner unsuccessfully sought a concession from Senior Constable Hulme that she had selected the charge of the plaintiff intentionally striking his daughter in the head with a wardrobe door without supporting evidence. She did not accept that proposition: T684.43.

63. No credit issues arose from the cross-examination of Senior Constable Hulme. I accept her evidence in its entirety.

Detective Senior Constable Scard

64. On 10 August 2011, Detective Senior Constable Scard was attached to the Wollongong Drug Unit. On that day he had arrested the plaintiff. In the course of his work he had some prior professional dealings with the plaintiff and his partner: T454.44; T458.7; T459.25 – T459.36; T469.45. On 10 August 2011 he had been informed the plaintiff was “wanted” in connection with an alleged domestic assault, which involved an assault on his child: T451.35.

65. Whilst driving in the general area, Detective Senior Constable Scard saw the plaintiff driving a vehicle. He followed and stopped the plaintiff’s vehicle, introduced himself as a police officer and told the plaintiff he was under arrest in relation to an assault. He also gave the plaintiff the appropriate warning against self-incrimination. He said the plaintiff was compliant with the arrest and offered no resistance: T451 – T452. At the time of the arrest, Detective Senior Constable Scard understood the basis for the plaintiff’s arrest to be that the plaintiff was to be arrested over an alleged assault on his partner and child: T453.14.

66. Detective Senior Constable Scard stated, uncontroversially, that allegations of domestic assault, including to a child were regarded by police as serious offences which raised an obligation to place the person charged with such offences before the Court: T623.25 – T623.30. He had been told the plaintiff was “wanted” for such offences, and he properly regarded those as being a serious offence: T626.35 – T626.41.

67. Detective Senior Constable Scard stood by his evidence that the plaintiff was told the reason he was arrested was in relation to an assault, notwithstanding the plaintiff’s stated denials: T632.8 – T632.20.

68. Detective Senior Constable Scard denied any involvement or contact with DoCS over child protection issues concerning the plaintiff’s child: T633 – T634. He denied assertions that he took steps to have the plaintiff evicted from his premises (T627.29), or that he held the view that the plaintiff was a person who should be off the streets: T626.48. I accept his entire evidence in that regard.

69. In my assessment, no credit issues were shown to have arisen from the cross-examination of Detective Senior Constable Scard. I accept his evidence in its entirety.

Senior Constable Hewitson

70. On 10 August 2011, Senior Constable Hewitson, who had prior police dealings with the plaintiff, attended the scene of the plaintiff’s arrest with Senior Constable Hulme to assist other police officers who had already arrested the plaintiff: T439.7. On his arrival, the plaintiff was already in the caged police vehicle: T413.

71. Senior Constable Hewitson and Senior Constable Hulme then transported the plaintiff to Wollongong Police Station where they handed the plaintiff over to the Custody Manager on duty. Senior Constable Hewitson had no further dealings with the plaintiff concerning his arrest in relation to the incident involving his daughter: T414.8.

72. Senior Constable Hewitson confirmed that at Wollongong Police Station, after the plaintiff had access to a solicitor, and had obtained legal advice, he had declined to be interviewed in relation to the incident involving his child: T417.13.

73. No credit issues emerged from the cross-examination of Senior Constable Hewitson. I accept his evidence in its entirety.

Sergeant Murray

74. At the time of the plaintiff’s arrest on 10 August 2011 Sergeant Murray was a general duties sergeant. He was the supervising sergeant who was in the role of the Custody Manager at Wollongong Police Station at the time the plaintiff was brought to the police station: T387.49. He prepared the Custody Management record in relation to the plaintiff: Exhibit “8”. He read the LEPRA Pt 9 Caution to the plaintiff whilst he was in custody: T390.26. There were no challenges of significance to his evidence.

Leading Senior Constable Pavric

75. Leading Senior Constable Pavric gave her evidence by videolink from a remote location. In April 2012 she was a general duties officer attached to Wollongong Local Area Command.

76. On 11 April 2012 Leading Senior Constable Pavric was despatched to arrest the plaintiff in relation to an alleged breach of an AVO. The documentation she had seen beforehand satisfied her that it was appropriate to proceed to arrest the plaintiff in accordance with her responsibilities pursuant to s 99 of LEPRA, particularly to ensure that repeated offences would not occur: T732.30 – T733.13; T739.37 – T740.15; T753.40.

77. Leading Senior Constable Pavric and Constable Philip arrested the plaintiff at about 9.00am on 11 April 2012 at Port Kembla Court House: T733.34 – T734.15. There were no procedural irregularities associated with that arrest of the plaintiff: T734.10 – T735.50.

78. Nothing that was raised in the cross-examination of Leading Senior Constable Pavric (T736 – T759) detracted from the reliability of her evidence in chief or the content of her contemporaneous statement: Exhibit “23”. She satisfactorily explained the actions carried out in the performance of her duty in arresting the plaintiff: T752.45. I accept her evidence in its entirety.

Constable Philip

79. On 11 April 2012, in company with Leading Senior Constable Pavric, Constable Philip attended at a location to arrest the plaintiff for an alleged breach of the terms of an AVO: T614; T616.28. The statement from Constable Philip’s notebook and her written statement were tendered as Exhibits “18” and “19”. Constable Philip noted the plaintiff had a conversation with his solicitor and then declined to participate in an interview: T615.29. No credit issues arose from the cross-examination of Constable Philip. I accept her evidence in its entirety.

Mr Collings

80. Mr Collings was a serving police officer between 2002 and 2014. As a Senior Constable, he had dealings with the plaintiff and his de facto partner in relation to the second incident on 8 January 2012, in which the plaintiff’s former de facto partner alleged the plaintiff had unlawfully detained and assaulted her. Those matters are the subject of Issues 6 to 10. His evidence appears between T267 – T385.

81. Senior Constable, Mr Collings had taken down details of a contemporaneous complaint that the plaintiff had assaulted his de facto partner resulting in a dislocated shoulder, and that she had been detained against her will: T269. He also interviewed a DoCS worker, Mr Kent about consequential child care issues (T271), and alleged breach by the plaintiff of an AVO (T272), following which he formed the view the plaintiff should be arrested and charged concerning those matters. He had no reason to doubt the information that had been provided to him by the plaintiff’s de facto partner (T367.4), and he had no reason to suspect that her evidence was untrue or had been concocted: T273.21.

82. Former Senior Constable Collings maintained that there was a sound basis for charging the plaintiff in relation to the incident of 8 January 2012. However, the plaintiff was not actually charged until 11 April 2012 because he had not been located beforehand: T316 – T317. As a Senior Constable, Mr Collings was the officer who created the “wanted brief” in relation to the plaintiff and the charges cited above: T317 – T320.

83. The evidence of former Senior Constable Collings established that he had reasonable evidence before him which would have supported a conviction, thus justifying charging the plaintiff: T345.15.

84. At the time, Senior Constable Collings prepared a relevant facts sheet for the prosecution of the plaintiff: Exhibit “2”, pp 161 – 171. His statement of evidence was admitted without objection, along with the AVO orders and the subsequent indictment that was issued against the plaintiff: T278 – T279.

85. Former Senior Constable Collings was extensively cross-examined, including on what transpired to be peripheral matters. Nothing arose within that cross-examination to raise any doubts or concerns over the veracity or the reliability of his evidence. I accept his evidence in its entirety.

Mr Kent

86. On 9 November 2011 Mr Kent was the assigned DoCS caseworker for the plaintiff’s child when she was taken into care. He worked under the supervision of Mr Ryan.

87. Beforehand, he sat in on the police interview with the child as a DoCS support person. His casework role extended to preparing care plans and giving evidence in Children’s Court proceedings on the care for the child programmed through the Children’s Court: T698 – T703; Exhibit “21”; Exhibit “22”.

88. Mr Kent was subjected to a lengthy and, as it turned out, largely irrelevant cross-examination: T704 – T730. In that cross-examination he confirmed some details of his attendance at the police interview of the child as the DoCS support worker, home visits, child safety matters, the history of domestic violence in the child’s home environment, and questions aimed at seeking to diminish the significance of the products of the police interview of the child.

89. In the latter regard, I see no need to review Mr Kent’s recollections about the police interview and its content because the film and the transcript of interview speak for themselves. Mr Kent’s comments, years after the event, were not relevant to these proceedings. In identifying that conclusion, I intend no disrespect to Mr Kent. That aspect of the cross-examination of Mr Kent was in my view a futile exercise in which the plaintiff sought to justify himself. That quest by the plaintiff did not in any material way serve to undermine the police evidence justifying the first arrest of the plaintiff.

90. On the specific issue of whether, as at 8 August 2011 the child had an injury to her forehead, Mr Kent stated that although the contemporaneous photograph Exhibit “11” showed some evidence of the injury, the photograph did not do it justice, and that the injury was more pronounced than that which was shown in the photograph: T717.47 – T718.22.

91. Mr Kent explained the departmental view that had been expressed to the Children’s Court to the effect that the department did not support the child being restored to her father: T721.19 – T721.28. Those circumstances were plainly of some significance to the plaintiff’s sense of grievance.

92. The cross-examiner cited the evidence given by Mr Kent in the Children’s Court and therein summarised the plaintiff’s 300 police events and 37 convictions on various matters, including contravention of AVOs, destruction or damaging property, fraud, possessing stolen goods and supplying prohibited drugs: T727.46 – T728.4.

93. On the question of whether or not DoCS held reasonable concerns as to whether in fact the plaintiff had punched the child in the head, DoCS still had broad concerns over the safety of the child: T783.3. The extended cross-examination undertaken in relation to the evidence of Mr Kent was flavoured by the plaintiff’s dissatisfaction with the way in which he had been dealt with over the punch theory.

86. That said, the cross-examination of Mr Kent did not at all derogate from the reasonableness of the belief as to the punch theory held by police at the time of the plaintiff’s first arrest. That view was based on disclosures from mandatory reporters, the products of interview with the child, and the evidence of injury to the child’s forehead. In those circumstances, DoCS left that issue to be determined by the Children’s Court: T790.41. In those circumstances, DoCS did not back away from the punch theory: T800.20.

87. The child protection stance taken by DoCS was an entirely separate evaluation to the evaluation the police were required to undertake with respect to a suspected breach of the criminal law: T802.11; T802.45. This was in circumstances where DoCS believed there was an atmosphere of domestic violence involving the plaintiff: T832.50 – T833.26; T835.10; T846.37 – T846.41; T854.24.

88. Mr Kent rejected the proposition that he had exaggerated his description of the child’s injury that occurred on 8 August 2011: T722.36. I accept his evidence in that regard. He justified his view by reference to his personal observations at the time and by reference to the content of the interview with the plaintiff.

89. No credit issues arose from the cross-examination of Mr Kent. I accept his evidence in its entirety.

Mr Ryan

98. Between 2011 and 2012, Mr Ryan held the position of the DoCS Manager of Client Services in Wollongong. His duties included supervision of Mr Kent, the DoCS caseworker with responsibilities for dealing with matters concerning the plaintiff’s de facto partner and child: T481.8 – T481.33.

99. Mr Ryan’s general duties included at times liaising with police in order to exchange information in cases where a child was thought to be at a risk of harm: T481.41. Mr Ryan’s involvement with the plaintiff’s daughter was in relation to the alleged incident of domestic violence in which the child was allegedly injured, and where the Department had concerns over alleged drug use by the plaintiff and his partner involving the drug methamphetamine: T484.5 – T484.9. Mr Ryan was cross-examined at length on those matters but his credit was not damaged.

100. Counsel for the plaintiff sought to attack the credit of Mr Ryan on what I considered to be peripheral issues: T485.36. Mr Ryan had no knowledge of police officers Collings, Duley and Davies: T483.39 – T484.50. The attack the plaintiff sought to make on the evidence of Mr Ryan was along the lines of a suggestion that there was some relationship of undue influence upon him that in some way affected the manner in which he had fulfilled his departmental functions: T488.28 – T488.34.

101. The cross-examiner sought to explore with Mr Ryan an attempt that was made by an acquaintance of Mr Ryan to speak to him about the department’s involvement with that friend’s child. In that regard, Mr Ryan had referred that inquiry to another departmental officer because there was a suggestion of conflict that could arise from a past association, a matter which Mr Ryan had disclosed to his own supervisors: T490.25 – T495.23. Nothing of a credit significance arose from that cross-examination.

102. The cross-examiner put to Mr Ryan that he had inappropriately discussed or disclosed some proscribed information to that acquaintance about the plaintiff and his child. Mr Ryan denied that assertion: T497.40; T498.38. I accept his rejection of the credit matters that were put to him.

103. Mr Ryan was plainly aware of the boundary between his professional responsibilities and any conflict or potential for inappropriate discussions with persons other than those connected with his duties: T509.45 – T509.48.

104. The cross-examiner repetitively sought to attack Mr Ryan’s character by seeking to explore extraneous matters such as whether he had a clearance certificate for working with children. I accept that he had those certificates over successive years, without interruption: T510 – T512.

105. In my view it is not necessary to analyse the irrelevant matters that were raised with Mr Ryan in cross-examination. Further, the plaintiff has failed to establish that Mr Ryan was in any way derelict in his child protection duties or in the manner in which he had supervised Mr Kent in respect of those same duties. Significant time was taken up with argument about those matters. Plainly, the questions asked in cross-examination of Mr Ryan reflected the plaintiff’s state of upset and annoyance over the involvement of DoCS in removing his child from parental care on 9 November 2011. Those feelings had little to do with the basis for his arrests and prosecution. Those considerations and grievances, if shown to be substantive, would have been matters for determination by the Children’s Court, not this Court in this case.

106. More than 5 years after the event, through cross-examining Mr Ryan, the cross-examiner sought to construct a different interpretation of the police video evidence of the plaintiff’s child: T537 – T543; T562 – T563.

107. In my view, that was necessarily, a futile exercise and comprised an attempt by the plaintiff to justify himself as to the interpretation of past events, which was not the issue to be determined in this case. It was not open to Mr Ryan to comment on the quality of police evidence and in fact he eschewed doing so.

108. The plaintiff even sought to cross-examine Mr Ryan, irrelevantly, on the content of Children’s Court rulings on certain issues: T607.30. The plaintiff’s cross-examination of Mr Ryan was the subject of much latitude, but ultimately, nothing of substance emerged from that process to further the plaintiff’s case.

109. Having considered Mr Ryan’s evidence and the lengthy cross-examination of him, I concluded that I was left in no doubt that he was an honest and truthful witness whose evidence I should accept as being entirely reliable.

Issue 1 – Justification for arrest on 10 August 2011

110. The first issue calling for determination is whether, on 10 August 2011, the arrest of the plaintiff was justified according to the requirements of s 99 of LEPRA, which at the time, provided as follows:

99 Power of police officers to arrest without warrant

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

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person.

(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

111. On 10 August 2011 the plaintiff was arrested by Detective Senior Constable Scard. At the time of the arrest, Detective Senior Constable Scard had identified himself to the plaintiff as a police officer and told him that he was being arrested in relation to an assault matter. The arrest was carried out without the use of force.

112. The evidence of Detective Senior Constable Scard was not contradicted when he said that he had given regard to the provisions of s 99 of LEPRA when he carried out the arrest of the plaintiff: T453.10. He said that he had suspected on reasonable grounds that the plaintiff had committed an assault on a woman and a child as had been relayed to him by another police officer: T451.42.

113. The information available to Detective Senior Constable Scard was plainly based on material that had been gathered by Senior Constable Duley, who had earlier initiated a standing request for police officers to arrest the plaintiff. He had made an adequate supporting entry in the COPS record system to justify such an arrest.

114. That information comprised a photograph taken by Senior Constable Rutledge of the injury to the plaintiff’s child (Exhibit “11”); information from Ms Blazic, the probation officer to the child’s mother: (Exhibit “27”); a statement from a neighbour to the effect that the child had been hit on the head by the plaintiff (Exhibit “34”); two statements from the child’s mother (Exhibits “12” and “28”); and the products of a police interview with the plaintiff’s daughter: Exhibits “M”, “N” and “33”.

115. In my view, that material provided a more than adequate basis for Detective Senior Constable Scard to have formed the opinion that an offence of domestic assault had been committed by the plaintiff upon his child: T451.34 – T451.36; T451.42; T453.14.

116. On behalf of the plaintiff, it was contended that he should not have been arrested over the events of 8 August 2011, and instead, the complaint made by his de facto partner, which he described as malicious, should have been dealt with by way of court attendance notice. I do not accept that submission because of the seriousness of the alleged offence.

117. As the plaintiff’s de facto partner, the child’s mother, did not give evidence I am unable to reach the suggested finding that her complaint about the plaintiff had been made maliciously. The police officers were entitled to act upon what she had said as indicating a serious complaint of domestic violence involving injury to a child. Accordingly, this was not a matter for a court attendance notice rather than arresting the plaintiff.

118. I am satisfied that at the time of the plaintiff’s arrest, Detective Senior Constable Scard had suspected on reasonable grounds that it was necessary that the plaintiff be arrested. The arrest was justified because of the serious nature of the alleged offence and the need to protect the victim of an alleged assault, who was a defenceless child, and it was necessary to ensure the plaintiff’s attendance before a court in relation to those matters: T451.42; T453.4.

119. It therefore follows that on 10 August 2012, the plaintiff was arrested lawfully. I reject the submissions made on the plaintiff’s behalf to the contrary.

Issue 2 – Access to a lawyer on 10 August 2011

120. The second issue calling for determination is whether, following the plaintiff’s arrest on 10 August 2011, he was in any relevant way denied access to a lawyer.

121. The un-contradicted factual evidence on this issue is that the plaintiff said in his evidence that following his arrival at the police station, the plaintiff saw Mr McDonald, a solicitor, at about 5.00pm on the day of his arrest: T138.28. The custody management record shows that the plaintiff saw Mr McDonald whilst in custody following a request he made at about 16:48 hours: Exhibit “8”, pp 3 – 4. Following that legal visit, the plaintiff had made it clear that he declined to be interviewed by police officers about the allegations that had led to his arrest: T662.37.

122. The question of whether or not the plaintiff had access to a lawyer for legal advice is not a matter that impacts upon the validity or otherwise of the arrest itself. The fact that the lawyer who saw the plaintiff was one who was not of his choosing, as asserted at paragraph 21 of the plaintiff’s second further amended statement of claim, is not a matter that has any impact on the lawfulness or otherwise of the plaintiff’s arrest and ongoing detention before he was brought before a Court.

Issue 3 – Appearance before a Magistrate on 11 August 2011

123. The third issue calling for determination is whether, following arrest of the plaintiff, he was brought before a Magistrate in a timely manner.

124. The plaintiff’s complaint is simply that after his arrest on 10 August 2011, he was not brought before a Magistrate until the day after his arrest. In my view, for the reasons that follow, that submission is glib, oversimplistic, and does not take into account the chronological facts, or the fact that the Local Court ordinarily sits between limited hours.

125. The extent of normal court sitting hours is not a matter that requires formal evidence in this case. It is against that background that the following chronology arises for consideration concerning the events of 10 and 11 August 2011:

1. At 3.45pm on 10 August 2011, according to the evidence of police officers, and at about 3.10pm according to the plaintiff (T61.30), he was arrested. The time difference is immaterial. Whatever the time of the arrest, some further time was necessarily required to transport the plaintiff to the police station and to process the arrest;

2. At 4.00pm the plaintiff arrived at the police station;

3. Between about 4.48pm and 5.45pm the plaintiff was with a lawyer, and he later declined to be interviewed by police;

4. At about 7.25pm the process of charging the plaintiff had concluded. Indisputably, this occurred at a time that was well beyond normal court sitting hours;

5. The plaintiff was brought before the court the following day, 11 August 2011.

126. The inevitable conclusion that follows from the above chronology is that the plaintiff’s assertion the police failed to comply with s 99(4) of LEPRA by failing to bring him before a court as soon as practicable and according to law, is unfounded. I reject the submissions to the contrary made on behalf of the plaintiff.

Issue 4 – Proper cause for first prosecution

127. The fourth issue calling for determination is whether the plaintiff has shown that the prosecution of him over the events of 8 August 2011 had proceeded in circumstances where there was an absence of reasonable and probable cause for that prosecution.

128. On behalf of the plaintiff it was submitted that he was falsely imprisoned for 29 days after being denied bail because the factual basis of the initial assault charge laid against him by Detective Senior Constable Duley on 10 August 2011, namely allegedly injuring his daughter on the forehead by opening a wardrobe door, was upgraded the following day at a bail hearing to allege the plaintiff had intentionally punched the child’s forehead with his closed fist: MFI “28”, paragraphs VI (a) to (b), sic for (g).

129. It was argued that the plaintiff was refused bail on the stronger of those charges in circumstances where on 11 August 2011, Detective Constable Davies did not believe in the truth of the stronger charge. That assertion was said to have been evidenced by the fact that subsequently, at a hearing on 9 September 2011, when prosecuting, Detective Constable Davies reverted to the lesser of those two formulations.

130. It was further argued that the inclusion in the prosecutor’s brief of a printout of the Court attendance notice with the wording of the stronger charge was evidence of an alleged shortcoming on the part of the prosecution. Whilst it is true that there was some confusion within two court attendance notices each printed at 1.20pm on 29 August 2011 (Exhibit “CC”; Defendant’s Court Book, pp 46 and 47) the first of which related to common assault in the domestic violence setting and an offence of driving whilst disqualified, and the second, using an uninsured motor vehicle and punching his child in the forehead with a closed fist, in my view, nothing of substance turns on those variations.

131. The plaintiff’s submissions relied upon the plaintiff’s surreptitious recording of the pen camera evidence (Exhibit “R”) taken by him on an uncertain date, which resulted in the following submission:

“(e)   Davies admitted in the pen camera evidence that she did not think that the Plaintiff had hit his child and she said that she did not lay the charges against the plaintiff. Davies’ body language is relaxed in the recording and she appears to know the plaintiff quite well. She does not appear at all fearful of him.”

[MFI “28”, par VI(e), p 14]

132. There is an inherent fallacy in the plaintiff’s argument cited above in that there is no validity in the differential comparison sought to be made between the prosecutor’s factual particularisation on 10 and 11 August 2011 and the conversation with Detective Constable Davies taken on some later date when she was unexpectedly confronted by the plaintiff in an intimidatory way where she was plainly wanting to limit that contact and remove herself from that situation. This is apparent from the material accompanying the s 67 notice relating to the evidence of Ms Davies.

133. An allegation of absence of reasonable and probable cause is an element that stands to be proven separately from an allegation of malice: A v State of NSW (2007) 230 CLR 500; [2007] HCA 10, at [40]; HD v State of NSW [2016] NSWCA 85, at [83] – [87].

134. It is possible for a plaintiff to show an absence of reasonable and probable cause by showing either there was a subjective lack of cause for the prosecution, which requires a lack of belief as to the existence of sufficient material to commence or maintain proceedings, or an objective lack of cause, which requires a conclusion that the belief as to the existence of sufficient material was not held on reasonable grounds: A v State of NSW (2007) 230 CLR 500; [2007] HCA 10, at [80].

135. The defendant points to a lack of particularity or substance to the complaint of absence of reasonable and probable cause for the prosecution. Against the background of the vagueness of the allegations in the plaintiff’s second further amended statement of claim (at paragraphs 16, 24, 25, 29C and 46B) and the fact that there were sound reasons for neither Detective Senior Constable Duley nor Detective Constable Davies giving evidence, as established in Exhibits “24”, “25”, “31”, “32” and “37”. Those circumstances leave the plaintiff bereft of an evidentiary foundation for his claim of an absence of reasonable and probable cause for a prosecution of him based on the evidence of a blow to his daughter’s head.

136. The infliction of a blow to the child’s head, whether from opening a door or from a punch with a closed fist, comprised a foundation fact which, in my view, represented adequate reasonable and probable cause for an arrest and prosecution. The factual account of a blow to the head was supported by a witness statement comprising Exhibit “34”, par 6, quoting the child as having reported “Daddy hit my head”.

137. The absence of evidence from police officers Duley and Davies means there is no evidence from them in the form of an admission of a lack of belief in the propriety of the charge that the plaintiff assaulted his daughter. Nor is there evidence which supports an inference to that effect.

138. In coming to the above views, I have not overlooked the content of Exhibit “R”, which consists of the surreptitious pen camera recording of an interchange between Detective Constable Davies and the plaintiff, in which Detective Constable Davies made the acknowledgement cited at [131] above.

139. That evidence must be viewed in the proper context. In that recording, the plaintiff simply obtained a comment from Detective Constable Davies at 1.12 minutes into the recording to the effect that the child never said her father had hit her. That comment was of limited evidentiary value as Detective Constable Davies had other evidence, including from the neighbour, on that issue. It was an intimidating meeting so far as Detective Constable Davies was concerned: Exhibit “R”. From the context, without other evidence form Detective Constable Davies as to the circumstances of that secret recording, I consider that little evidentiary credence should be given to its content. I do not consider the cited comment made by Detective Constable Davies to be an admission of absence of reasonable and probable cause for the arrest and prosecution of the plaintiff.

132. I accept the defendant’s submission that an allegation that a police officer would act in bringing criminal proceedings without reasonable and probable cause is a grave one that requires proof according to the standard identified in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, and now enacted in s 140(2) of the Evidence Act.

133. According to that standard, there is no evidence that would lead me to a state of comfortable satisfaction for a finding that either Detective Senior Constable Duley or Detective Constable Davies had acted with a subjective lack of belief in the propriety of the charges laid against the plaintiff in relation to the events of 8 August 2011.

134. In that regard, on behalf of the defendant, it has been observed, correctly in my view, that a prosecutor is entitled to rely on a range of information in evaluating whether or not to bring a charge, or to maintain a charge, including to have regard to inadmissible material: Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316, at [105].

135. Turning then to a consideration of the objective basis for the charges against the plaintiff arising from the 8 August 2011 incident, there was a literal plethora of material available to the police officers that constituted reasonable and probable cause for considering whether to lay and then maintain the charges against the plaintiff in relation to the events of 8 August 2011.

136. In my view, those justifications have been correctly, appropriately and fairly assembled and described in the defendant’s written submissions at sub-paragraphs (a) to (k) of par 7 of those submissions which include annotated cross-references to the documentary evidence: MFI “28”.

137. It is not necessary to recite the intricate detail or a catalogue of those matters. It is sufficient to identify the range of those matters as follows, namely: the underlying background of domestic violence allegations; the contemporaneous photograph of the child’s injury; the police statements obtained in relation to the matter; the child having told her mother and another witness that her father had hit her head; the presence of a lump on the child’s head; evidence of the plaintiff’s previous issues with loss of temper and related acts of violence in the presence of the child; the need for police assistance at the offices of the Probation and Parole Service involving the plaintiff’s unwelcome presence; statements made by the child in a recorded transcribed interview, particularly the answers at Q43, Q71, Q73, Q128, Q160, Q166, Q203, Q210, Q223, Q261, Q281, Q282 and Q291, along with the recorded video footage of the child’s accompanying gestures.

138. Significantly, Detective Senior Constable Duley was present at that interview, and had observed the child’s verbal responses and gestures. That evidence provided a more than adequate basis for arresting the plaintiff and maintaining the charge that the plaintiff had struck his child in a violent manner.

139. The fact that the plaintiff’s daughter, when aged 11, gave different evidence of events that occurred when she was 4 years old, adds little to the evaluation because of her young age and the limited reliability of hindsight evidence comprising childhood memory of distant events when compared to other contemporaneously recorded factual descriptions. The relevant consideration was what the police officers had before them at the time of the plaintiff’s arrest and prosecution.

140. In these proceedings, the plaintiff had placed his child in an invidious position by calling her to give evidence of such matters where it is plain that evidence was of very limited reliability and relevance.

141. In reaching these conclusions I have not overlooked the plaintiff’s criticisms of the police interview of his daughter. In my view, those criticisms arise from the fact that the child was aged 4, and was obviously shy about describing the actions of her father.

142. That said, the cited criticism is in my view met and outweighed by the content of Exhibit “E”, which comprises a police response to the plaintiff’s complaint to Police Professional Standards, in which Superintendent Starling stated his concluded opinion about that interview with the plaintiff’s child, namely that “… it appears it was conducted in a professional, sensitive manner, by a skilled officer, fully trained in techniques for speaking to children of your daughter’s age, without prompting or leading questions”. Significantly, that opinion was not contradicted by other evidence. I reject the criticisms to the contrary that were made on the plaintiff’s behalf.

143. In circumstances where the police had credible evidence from the identified sources as described in these reasons, the plaintiff has not established a sound basis for the submission that the police should not have acted upon the complaint made by the child’s mother. For the police to have proceeded in the way suggested by that submission would have been contrary to the obvious duty they were required to fulfil in the circumstances.

144. The final consideration on this fourth issue concerns the plaintiff’s complaint about the shift in police particularisation of the charge against him from injury to the child coming into contact with a wardrobe door as opposed to the later version of an injury having occurred from contact with the plaintiff’s closed fist.

145. In my view, given that the cited injury occurred in the surrounding context of an episode of domestic violence alleged against the plaintiff, the police had amply sufficient reasonable and probable cause to proceed against the plaintiff for the charge of assault against his daughter. The police actions were appropriate to the circumstances.

146. The prosecutor had the option of proceeding on either of the available charges because there was reasonable and probable cause for each of them to be laid. In my view, nothing turns on the fact that one course was followed instead of the other.

147. I therefore reject the plaintiff’s claim that the prosecution against him arising from the events of 8 August 2011 lacked reasonable and probable cause.

Issue 5 – Alleged malice in first prosecution

156. The fifth issue calling for determination is whether the plaintiff has shown that the prosecution arising from the arrest of the plaintiff on 10 August 2011 was actuated by malice.

157. It is axiomatic that a prosecution actuated by malice requires a state of comfortable satisfaction commensurate with the gravity of such an allegation against police officers: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, and now enacted in s 140(2) of the Evidence Act.

158. The defendant submits that the state of the particulars of malice as set out in paragraphs 29, 29A, 29B, 45, 46 and 46A of the plaintiff’s second further amended statement of claim is inadequate to sustain such an allegation, which is in any event denied by the defendant.

159. The plaintiff’s submissions seeking to justify a finding of malice are based on claimed inferences.

160. The contended inferences are said to be that the existence of two versions of the charge against the plaintiff and the initial choice of the more serious charge, later reduced to the less serious charge leads to a conclusion that the prosecution was actuated by malice: Plaintiff’s written submissions par VII(a) to (d), pp 15 – 16.

161. In my view, that submission is fundamentally flawed and must be rejected. On either formulation of the charge against the plaintiff, it involved an assault upon a child. In my view, Detective Senior Constable Duley and Senior Constable Davies had ample evidence to justify proceeding with either of those charges. There can be no fair criticism of the fact that those witnesses did not give evidence in these proceedings. There were sound reasons for them not being called to give evidence as set out in the two Notices tendered pursuant to s 67 of the Evidence Act: Exhibits “37” and “32”.      

162. There is no evidence that either of those officers, or any other police officer involved in any way in the prosecution of the plaintiff over the events of 10 August 2011, had acted improperly in any way.

163. In essence, the particulars of malice alleged an improper investigation, acting partially against the plaintiff, intervening improperly in the interviewing of a child, causing an unlawful arrest, failure to grant bail, opposing bail in Court, alleged failure to inform the Court there was no evidence of a closed fist punch to the child’s head, tendering improperly obtained evidence, failure to terminate the prosecution when it was apparent it was bound to fail, and bringing and maintaining the proceedings for the improper collateral purpose of seeking to influence proceedings in the Children’s Court.

164. The plaintiff has failed to call evidence to make good any of those assertions. I therefore find that the plaintiff has failed to establish that his prosecution over the events of 8 August 2011 was out of malice.

Issue 6 – Justification for arrest on 11 April 2012

165. The sixth issue calling for determination is whether, on 11 April 2012, the arrest of the plaintiff was justified according to s 99 of LEPRA, terms which have already been set out at [110] above.

166. On behalf of the plaintiff it was submitted that Senior Constable Collings, the officer in charge of formulating charges against the plaintiff arising out of a 31 January 2012 complaint concerning an incident on 8 January 2012, did not believe, on reasonable grounds, that the plaintiff had committed a serious assault and kidnapping of his de facto partner. It was further submitted that the plaintiff was not informed of the real reason for his arrest at Port Kembla Children’s Court by the arresting officers Senior Constable Pavric and Constable Philip, contrary to the requirements of s 99 of LEPRA, and well settled common law principles: Christie v Leachinsky [1947] AC 573, at 591; State of NSW v Delly [2007] NSWCA 303, at [18], [63], [65].

167. In order to evaluate those submissions it is necessary to focus on the underlying facts within the knowledge of the investigating and arresting police officers.

168. On 31 January 2012, Senior Constable Collings had taken a complaint from the plaintiff’s de facto partner which led him to form the view the plaintiff was in breach of the terms of an AVO that was in force and applicable to the plaintiff at that time. Consequently, Senior Constable Collings formed the view that the plaintiff ought to be charged on that account. He therefore prepared a “wanted” brief in order to inform other police officers that the plaintiff should be arrested.

169. Senior Constable Pavric saw the plaintiff’s “wanted” file, which then established a proper basis for her to arrest the plaintiff: Exhibit “23”, par 5. This was in the context that matters of domestic violence and related breaches of protective AVOs must be taken seriously by police officers. Senior Constable Pavric’s evidence that she had regard to the process of s 99 of LEPRA was not contradicted: T733.8.

170. In that context, I reject the proposition put forward on behalf of the plaintiff that the service of a court attendance notice on the plaintiff would have been a sufficient police response without recourse to an arrest. That submission must be rejected as it pays insufficient regard to the risk of harm arising from a breach of an AVO, and the related need for the protection of likely victims from repetition of the conduct in question.

171. I accept the evidence of Senior Constable Pavric that she suspected on reasonable grounds that the plaintiff was guilty of breaching the terms of an AVO: T732 – T733. All that was required for her to reasonably form that view was for her to have been made aware that there was an AVO in place, and that its terms had been breached.

172. The statement by the plaintiff’s former de facto partner which provided evidence of the plaintiff’s behaviour and actions contrary to the terms of the AVO was sufficient justification for Senior Constable Pavric to arrest the plaintiff. On the evidence, I consider that it is more probable than not Senior Constable Pavric had access to and saw that statement: T742.21.

173. I am satisfied that Senior Constable Pavric knew from the fact that there was a “wanted” brief in relation to the plaintiff, that there had been difficulty locating the plaintiff. Consequently, I am satisfied that it was necessary to arrest the plaintiff because of a concern that he might commit further breaches of the AVO (T733.11 – T733.13) that led to the creation of the “wanted” brief.

174. I am also satisfied that at the time Senior Constable Pavric arrested the plaintiff on 11 April 2012 she identified herself and Constable Philip as police officers and told the plaintiff he was under arrest for breaching the terms of an in force AVO that applied to him: Exhibit “23”, par 7.

175. I therefore find that the plaintiff has failed to establish that his arrest on 11 April 2012 was unlawful.

Issue 7 – The prosecutor in the second proceedings

176. The seventh issue calling for determination is the identification of the prosecutor in the prosecution which followed the arrest of the plaintiff on 11 April 2012.

177. The plaintiff maintained that Senior Constable Collings was the prosecutor of the charges listed on the Court Attendance Notice served on the plaintiff, and it was submitted, although the Director of Public Prosecutions (DPP) was briefed on or about 10 May 2012, that it was Senior Constable Collings who remained responsible for the prosecution of the plaintiff by way of the Disclosure Certificate tendered in Exhibit “6”.

178. The identification of the prosecutor in criminal proceedings is primarily a practical question that is not determined by form. Anyone initiating the prosecution may be regarded as a prosecutor: Young v State of New South Wales and Ors; Young v Young (No 2) [2013] NSWSC 330, at [141].

179. It is plain on the evidence that between 10 April 2012 and the date on which the prosecution was taken over by the DPP, apparently on 14 May 2012, that the prosecutor of the charges against the plaintiff was Senior Constable Collings. This was conceded by the defendant: Exhibit “2”; T272.11 – T272.15. That position is consistent with the statement of Senior Constable Collings: Exhibit “3”.

180. The plaintiff complains that the charges against him changed when the DPP became involved in the prosecution and when a prosecution Bill was found against him. A comparison between Exhibit “2” and Exhibit “3” suggests the charges laid against the plaintiff were determined by a decision made by a Crown Prosecutor.

181. I accept the evidence of Mr Collings to the effect that once the prosecution of the plaintiff had been taken over by the DPP he had no further decision making role as to composition or formulation of the charges to be presented against the plaintiff: T273.6.

182. As at 14 May 2012, s 9 of the Director of Public Prosecutions Act 1986 provided as follows:

9 Taking over prosecutions or proceedings

(1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and:

(a) carry on the prosecution or proceeding,

(b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence,

(c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and

(d) conduct, as respondent, an appeal in any court in respect of the offence.

(2) The Director may not take over a matter under this section involving a summary offence, unless:

(a) the offence is a prescribed summary offence, or

(b) a person otherwise responsible for the matter has consented in writing.

(3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents.

(4) If the Director takes over a matter under this section:

(a) the Director shall, as from the time when the Director complies with section 10 (1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and

(b) the Director may decline to proceed further in the prosecution or to carry the proceeding further.

(5) For the purposes of this section, proceeding includes any application, appeal or other proceeding commenced under Division 1A of Part 3 of the Confiscation of Proceeds of Crime Act 1989.

183. It follows from that provision, that the DPP was the prosecutor of the charges against the plaintiff from about 14 May 2012. There is no allegation made by the plaintiff of malice on the part of the DPP or any DPP officers.

Issue 8 – Proper cause for second prosecution

184. The eighth issue calling for determination is whether, in relation to the prosecution arising from the arrest of the plaintiff on 11 April 2012, the plaintiff can demonstrate the absence of reasonable and probable cause for that second prosecution.

185. The plaintiff sought to obfuscate that question by seeking to raise matters that concerned the involvement of DoCS in issues over the care of the plaintiff’s daughter, asserting in effect, a conspiracy and concoction of evidence between the DoCS worker Mr Kent, and Senior Constable Collings.

186. In the background of that scenario, a significant event had occurred on 8 January 2012, when the plaintiff was alleged to have physically assaulted his de facto partner, dislocating her shoulder, requiring medical treatment. That event occurred in the course of an arguable breach by the plaintiff of an AVO that was in force against him.

187. The plaintiff bears the onus of proving there was an absence of reasonable and probable cause for the prosecution of him over those events. In a case such as this, that goal may be most conveniently and objectively achieved by the tender of the brief of evidence as evidence of the underlying facts: Hamod v State of New South Wales and Anor [2011] NSWCA 375, at [33]; State of New South Wales v Hathaway [2010] NSWCA 184, at [180]. The plaintiff did not tender the full prosecution brief against him.

188. Instead, there is only limited material tendered from the brief of prosecution evidence. Those limited materials consisted of a brief head which included a cover sheet, a list of contents, a witness list and summary of evidence, court attendance notices and a facts sheet: Exhibit “2”. I accept the defendant’s submission that it is plain from the brief head comprising Exhibit “2” that there was far more material in the brief compared to that which has been tendered. That selective tender of material has a somewhat curtailing effect on the task of seeking to reach an objective analysis and finding of the kind the plaintiff seeks.

189. Amongst the selected documents tendered by the plaintiff was Exhibit “U”, which comprised a statement by Ms Magri. That document formed only part of the brief. It is an insufficient basis for a full and objective analysis of whether or not the second prosecution lacked reasonable and probable cause.

190. Notwithstanding that the plaintiff had not tendered the expected material to enable a full analysis on the issue, the defendant tendered other materials comprising Exhibit “3”, consisting of a statement from Mr Collings dated 2 May 2012 which described his investigation of events and listed the evidentiary statements obtained by him in that investigation. The defendant also tendered Exhibit “7” which comprises a statement that Mr Collings obtained from the plaintiff’s de facto partner on 31 January 2012.

191. I accept the defendant’s submission to the effect that statement in question makes it plain that Senior Constable Collings had a sound basis for supposing that the plaintiff had breached the terms of an AVO, and that in those events, the plaintiff had forcibly detained and assaulted his de facto partner, as alleged.

192. On an objective analysis of the limited materials that touched upon the question of reasonable and probable cause for the second prosecution, no proper basis has been demonstrated for a conclusion that there was an objective lack of reasonable and probable cause in relation to that prosecution of the plaintiff.

184. The defendant submitted that it was scandalous to assert (on the basis of allegedly concocted statements) there was an absence of reasonable and probable cause for a prosecution where critical material and statements were not even tendered for analysis. I accept the persuasive force of that submission.

185. On the question of whether there was a subjective absence of reasonable and probable cause for the second prosecution of the plaintiff, any such conclusion would, on the evidence, have to be based on an analysis of the evidence of Mr Collings to that effect. In this case, the evidence of former Senior Constable Collings does not reasonably permit any such inferences to be drawn, despite a lengthy cross-examination of him that unsuccessfully sought to establish such a conclusion without success.

186. For his supposition of the existence of reasonable and probable cause, Senior Constable Collings was entitled to, and did rely upon the statement obtained from the plaintiff’s former de facto partner on 31 January 2012. The shortcomings identified in that statement, such as the late complaint of assault and detention by the plaintiff, and the reference to an admittedly earlier untruthful account given to the hospital as to the cause of her injuries on account of the domestic dynamics, did not mean that the document was an unreliable basis for finding there was reasonable and probable cause for the second prosecution.

187. I therefore find that the plaintiff has failed to establish that his second prosecution lacked reasonable and probable cause.

Issue 9 – Alleged malice in the second prosecution

197. The ninth issue calling for determination is whether, in relation to the arrest of the plaintiff on 11 April 2012, the plaintiff can demonstrate that the prosecution was actuated by malice on the part of the prosecutor.

198. The plaintiff claims that Senior Constable Collings contrived with Mr Kent to have the plaintiff arrested for breach of an AVO when the true purpose was to have the plaintiff arrested and charged with an indicatable offence so as to advantage his former de facto partner in Children’s Court proceedings to ensure that the child would not be restored to the plaintiff.

199. The plaintiff alleges those events as stated, constitute an improper purpose, and they were maliciously contrived by Senior Constable Collings. Those assertions were denied by the defendant. The plaintiff claims that in those events Detective Senior Constable Duley had also acted maliciously. That allegation remained inadequately particularised, and it was denied by the defendant.

200. I do not accept the plaintiff’s submissions as cited above. Senior Constable Collings identified his purpose in prosecuting the plaintiff as being that he had a written complaint in relation to an offence, and that he had gathered appropriate evidence to support a prosecution: T274.41 – T274.48. It was not suggested to former Detective Senior Constable Collings that he had a different purpose to that which he had stated, as identified above. I accept the evidence of former Detective Senior Constable Collings in that regard.

201. At the time he gave his evidence, Detective Senior Constable Collings was a disinterested witness. He was no longer a serving police officer. He was not obliged to support DoCS, or to support the evidence given by Mr Kent or Mr Ryan.

202. Insofar as there was an alleged lack of proper purpose of the plaintiff’s arrest by Senior Constable Pavric, that allegation has not been made good. Similarly, the plaintiff has not made good his allegation there was a sub-standard or negligent police investigation.

203. Insofar as the plaintiff alleges that the second prosecution was undertaken for a collateral purpose, namely to disadvantage the plaintiff in childcare proceedings concerning his child, I find that allegation has not been made out on the evidence. In that regard, the defendant submitted the plaintiff had made that assertion because of paranoia on his part. There is much persuasive force in that submission.

204. The DPP took over the prosecution of the plaintiff on about 14 May 2012. It was open to the DPP to select the precise charge to be presented against the plaintiff. There is no justification in the evidence to support a finding that the second prosecution of the plaintiff was undertaken with malicious intent. I therefore find that the plaintiff has failed to establish that his second prosecution was actuated by malice.

Issue 10 – Allegations of misfeasance of public office

205. The tenth issue calling for determination is whether the conduct of Mr Kent, the DoCS caseworker, amounted to misfeasance of public office. Initially, the plaintiff’s allegation of misfeasance of public office was made against Mr Kent. That allegation was later expanded to also relate to Detective Senior Constable Duley and Senior Constable Davies.

206. The essence of the allegations is that those police officers ought not to have pursued a charge based on the factual premise that the plaintiff had punched his daughter with a closed first. Instead, it was argued that they should have been cautious in respect of allegations made by the plaintiff’s former de facto partner in light of her prior criminal record and her history of drug use, including in relation to matters of dishonesty, and her claim she was in peril from the plaintiff.

207. For the purpose of analysis it may reasonably be assumed that at the relevant time, Detective Senior Constable Duley and Senior Constable Davies held relevant public office. The defendant offered no argument against that proposition.

208. The proposition that the police should have treated a complainant’s evidence with caution must be considered in light of the fact that there was an allegation of injury to a child, which had to be taken seriously. It was not the function of police officers or DoCS workers to arrive at final conclusions about the evidence on such matters. The function of the police officers was to form a belief as to whether there were reasonable grounds for thinking the child in question had been assaulted in the manner alleged.

209. Malfeasance in public office is recognised to constitute a deliberate tort: Commonwealth v Fernando [2012] FCAFC18, at [107], [130]. In cases where the evidence permits competing factual inferences, police officers are entitled to take a view of those matters to the extent of forming a belief there was a reasonable basis for allegations of criminal behaviour on the part of a person requiring that he or she be prosecuted. I find that was the case in the circumstances of the second prosecution of the plaintiff.

210. An allegation of misfeasance is of such gravity, that for proof, comfortable satisfaction is required: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, and now enacted in s 140(2) of the Evidence Act.

211. On the evidence of their statements, I am not satisfied that Detective Senior Constable Duley and Senior Constable Davies acted with malice in taking the view that the plaintiff’s behaviour merited that he be charged and prosecuted.

212. I now turn to a consideration of the allegations of misfeasance made against the DoCS worker Mr Kent. Proof of such an assertion must be along the lines cited at [209] above.

213. The allegation that Mr Kent was guilty of misfeasance of public office must be considered in light of a series of significant facts that emerged from his evidence: T699 – T702.

214. Mr Kent was supervised in his work by Mr Ryan. Furthermore, he acted on legal advice, in accordance with a proper purpose which influenced and provided him with appropriate direction to the performance of his duties (T702.16). I find that there was no basis upon which to reasonably infer that he acted improperly towards the plaintiff: T702.18 – T702.20.

215. In those circumstances, I see no proper basis for finding that Mr Kent was actuated by malice towards the plaintiff. A positive finding of malice, a matter of some gravity, is required to base a finding of misfeasance. That requirement is not met in this case.

216. The defendant submitted that a social worker in the position of Mr Kent was not a holder of public office in the required sense, particularly as he was not responsible for laying charges against the plaintiff: Tampion v Anderson [1973] VR 715, at 720.

217. In that regard, the defendant submitted that, relevantly, Mr Kent had acted under the supervision of Mr Ryan. Whilst the plaintiff has proceeded upon the basis that Mr Ryan was the delegate of the Minister in carrying out child protection duties (T806.41), no equivalent suggestion of ministerial delegation was put to Mr Kent.

218. Therefore, on the evidence, I accept the defendant’s submissions that at the time, Mr Kent was not a relevant holder of public office even though he was in public service employment which required him to act in accordance with a duty to the public.

219. For completeness, in considering the claims made against Mr Kent concerning alleged misfeasance of public office, I am of the view that the following matters compel the rejection of that claim:

1. There was no evidence that Mr Kent was involved in the arrest or charging of the plaintiff, or that he had assisted in the prosecution of the plaintiff. His role was limited to being a DoCS support person for the plaintiff’s child at the time the child was being interviewed by police;

2. There is no particularised basis for identifying how, if at all, Mr Kent failed in his duty when acting as a support person for the child;

3. There is no sound basis for concluding the interview of the child had been conducted improperly so as to provide a foundation for asserting that Mr Kent had failed to intervene as a support person;

4. It was not part of Mr Kent’s role to evaluate the arguability or otherwise of the closed fist punch theory as the explanation for the child’s injury. That was the subject matter that was explored by the interviewing police;

5. Mr Kent’s role in bringing and maintaining childcare proceedings on behalf of DoCS was not dependent on the truth of the closed fist punch theory of injury to the child. There were other child protection concerns held by DoCS as to whether the plaintiff’s child was at risk of harm: M v M (1988) 166 CLR 69; [1988] HCA 68, at (25); Director General of Department of Community Services; Re Sophie [2008] NSWCA 250;

6. Mr Kent was not responsible for procuring evidence to support the AVO that was obtained against the plaintiff. Insofar as it is asserted by the plaintiff that the evidence given in the child care proceedings was improperly obtained, the plaintiff has not discharged the onus of establishing that matter. The record of the childcare proceedings was not tendered in evidence in these proceedings so as to enable a reasoned evaluation of that aspect of the plaintiff’s claim;

7. The plaintiff has not provided evidence of the extent of Mr Kent’s powers, functions and duties to enable a methodical evaluation of precisely how it is alleged that he had failed in the performance of such duties, if at all, or so as to amount to misfeasance;

8. There is no evidence that Mr Kent had acted improperly, partially or in any way that was inconsistent with the proper discharge of his child protection duties. Instead, the effect of the evidence was to the opposite effect;

9. There is no evidence that Mr Kent had attempted to influence the course of criminal proceedings the police had initiated against the plaintiff;

10. The fact that ultimately it determined that the charge against the plaintiff of having assaulted his child was withdrawn, had nothing to do with Mr Kent’s discharge of his child protection functions.

220. The defendant has submitted, aptly in my assessment, that:

“The whole approach of the plaintiff with respect to the care proceedings is, with respect to him, narcissistic. It has no regard for the protective purpose of those proceedings, or their focus on the welfare of children as opposed to the interests of parents. The plaintiff is utterly dismissive as to why anyone might have had child protection concerns about his child at the time, notwithstanding abundant evidence as to the threat presented by him, including of violent harm, to his daughter.”

[MFI “29”, par 16, p 35]

221. For the reasons outlined above, I find that the plaintiff has failed to establish his claim of misfeasance of office on the part of Mr Kent, or any other officer of DoCS, in relation to the events of which he complains.

222. Instead, I find that both Mr Kent and his manager at the time, Mr Ryan, had acted entirely in accordance with their statutory duties as provided by the provisions of the Children And Young Persons (Care And Protection) Act1998 (NSW), including in accordance with s 9 of that Act, in the paramount best interests of the plaintiff’s child, who I have refrained from naming in these reasons.

Issue 11 – Assessment of damages

223. Although the effect of my findings is that the plaintiff is not entitled to an award of damages, lest I be found to be wrong in that conclusion, I set out in brief form, the assessments of damages I would otherwise have arrived at but for those stated findings if I had accepted the substance of the case the plaintiff has failed to establish.

224. At the outset, I record my view that there is no basis in the evidence for an award of damages for misfeasance of public office or for aggravated or exemplary damages.

225. If there had been a verdict for the plaintiff in relation to his first arrest and prosecution, the general compensatory damages would have been assessed as being of the order of $10,000, especially since no physical force had been used.

226. In relation to the first arrest, there is no basis for assessing substantial damages for wrongful imprisonment beyond 11 August 2011 because the plaintiff had bail properly refused by a Court on 11 August 2011. No damages would flow beyond that time: Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311; at [251].

227. In those circumstances, assuming the first arrest was unlawful, damages for wrongful imprisonment overnight would also be appropriately assessed at $5,000. The plaintiff had been in prison on numerous prior occasions. The injury to his reputation would be less than if that were otherwise.

228. In relation to the second arrest, general compensatory damages would have been assessable in the amount of $10,000. The plaintiff was granted conditional bail on the same day he was arrested. If his second arrest was unlawful, this would then have resulted in a damages assessment of the order of $2,500 for wrongful imprisonment.

229. In relation to the first arrest, on the total assessment of damages of $15,000, pre-judgment interest at 4 per cent over 5.73 years from 11 August 2011 to the commencement of the hearing would result in an interest assessment of $3,438.

230. In relation to the second arrest, on the total assessment of damages of $12,500, pre-judgment interest at 4 per cent over 5.07 years from 10 April 2012 to the commencement of the hearing would result in an interest assessment of $2,535.

231. The aggregate of these amounts, including interest, would have been an assessment of $35,473.

Disposition

232. The plaintiff has failed to make good any of the claims that he sought to make. As a consequence, there should be a verdict and judgment for the defendant.

Costs

233. It follows that the successful defendant should have its costs paid by the plaintiff on the ordinary basis unless a party can show a basis for some other order.

Orders

234. I make the following orders:

1. Verdict and judgment for the defendant;

2. The plaintiff is to pay the defendant’s costs of the proceedings on the ordinary basis unless a party can show a basis for some other order;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 28 February 2019