Zreika v State of New South Wales

[2011] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:	Zreika v State of New South Wales [2011] NSWDC 67
Hearing dates:	7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 31 March 2011, last written submissions received 19 April 2011
Decision date:	01 July 2011
Jurisdiction:	Civil
Before:	Judge Walmsley SC
Decision:	Judgment for the plaintiff
Catchwords:	Wrongful arrest- assault by police- malicious prosecution- police failed to provide defence with exculpatory evidence- police prepared misleading facts sheet- maintained unmeritorious prosecution- damages awarded against police- aggravated and punitive damages
Legislation Cited:	Bail Act 1978 (NSW), s 9D Civil Liability Act 2002 (NSW) Director of Public Prosecutions Act 1986 (NSW), s 15A Evidence Act 1995 (NSW), ss 114, 115 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99 (3), 231 Law Reform (Vicarious Liability) Act 1983 (NSW), Part 4
Cases Cited:	A v New South Wales (2007) 230 CLR 500 Adams v Kennedy [2000] NSWCA 152 Alexander v The Queen (1980-1) 145 CLR 395 Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 17-18 Aslett v The Queen [2009] NSWCCA 188 Austin v Dowling L.R 5 C.P.534 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Brown v Hawkes (1891) 60 LJQB 332 Cannon v Rochford & Ors [2002] VSCA 84 Clark v Molyneux (1877) 3 QBD 237 Clyne v The New South Wales Bar Association (1960) 104 CLR 186 Coyle v New South Wales [2006] NSWCA 95 Diamond v Minter [1941] 1 KB 656 Festa v The Queen (2001) 208 CLR 593 Fox v Wood (1981) 148 CLR 438 George v Rocket (1990) 170 CLR 104 Gianoutsos v Glykis [2006] NSWCCA 137 Glinski v McIver [1962] AC 726 Gray v Motor Accident Commission (1980) 196 CLR 1 Hathaway v New South Wales [2009] NSWSC 116 Hunter Area Health Service and Anor v Presland [2005] NSWCA 33 Hussien v Chong Fook Kam [1970] AC 942 Liesbosch, Dredger v Edison,S.S. (Owners) [1933] AC 449 Lye v New South Wales [2005] NSWCA 282 Jones v Dunkel (1959) 101 CLR 298 Meering v Graham-White Aviation Co (1920) 122 LT 44 Mitchell v Heine (1938) 38 SR(NSW) 464 Nye v State of New South Wales (2004) Aust Torts Reports 81 O'Hara v Chief Constable of RUC [1997] AC 286 R v Jovanovic (1997) 42 NSWLR 520 Rapley v Rapley (1930) 30 SR (NSW) 94 Roberts v Bass (2002) 212 CLR 1 Ruddock & Ors v Taylor (2003) 58 NSWLR 269 Skrijel v Mengler & Ors [2003] VSC 270 Spautz v Butterworth (1996) 41 NSWLR 1 State of New South Wales v Delly [2007] NSWCA 303 State of New South Wales v Ibbett (2005) 65 NSWLR 168 State of New South Wales v Landini [2010] 157 State of New South Wales v Zaravinos (2004) 62 NSWLR 58 Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 Vignoli v Sydney Harbour Casino [1999] NSWSC 1113 Whitbread & Anor v Rail Corporation NSW and Ors [2011] NSWCA 130 Whitehorn v The Queen (1983) 152 CLR 657
Texts Cited:	Carolyn Sappideen, Prue Vines, Fleming's the Law of Torts, (10th ed, 2010) Stephen Odgers, Uniform Evidence Law, (9th ed, 2010) R P Balkin, JLR Davis, Law of Torts (4th ed, 2008)
Category:	Principal judgment
Parties:	Haysam Zreika (Plaintiff) The State of New South Wales (Defendant)
Representation:	Mr D Kennedy SC with Mr T Boyd (Plaintiff) Mr M Neil QC with Mr M Hutchings (Defendant) Kheir and Associates (Plaintiff) I V Knight (Defendant)
File Number(s):	2008/ 319779

Judgment

CONTENTS

Paragraph
Introduction	1
Summary of factual background	2
The Law	9
False imprisonment	9
Assault and battery	15
Malicious prosecution	18
The plaintiff's evidence	22
Plaintiff's evidence concerning identification	29
Mr. Ahmed Zreika	32
How police linked an innocent man to the shooting	34
The day of the shooting	34
The day after the shooting	36
What the police knew about the shooter on 21 July 2006	40
Mr Silver's observations	41
What the police did after receiving Mr Silver's telephone call	42
The arrest of Sarah Bright	49
The Platten Document	50
Mr Platten's Credit	59
The OTU request	60
An erroneous assertion	61
Red becomes orange	62
The Plaintiff is "unemployed"	63
State of police knowledge on the day of the arrest	65
The CCTV material	69
Detective Constable Ryder's evidence	70
The grounds said to have been reasonable	74
Arguments on wrongful arrest	77
Conclusion on arrest	87
Damages	90
The battery count	94
Detective Inspector Newman	97
Credit of Detective Inspector Newman	98
Inspector Smith	99
Credit of Inspector Smith	102
Detective Sergeant Davey	103
Sergeant McCormack	104
Credit of Sergeant McCormack	105
Detective Sergeant Navin	106
Credit of Detective Sergeant Navin	107
Chief Inspector Green	108
Credit of Chief Inspector Green	112
Sergeant Van Hoeven	113
Credit of Sergeant Van Hoeven	114
Acting Sergeant Christian Gost	115
Credit of Sergeant Christian Gost	116
Sergeant Marrs	117
Credit of Sergeant Marr	118
Plaintiff's credit	119
Credit of Ahmed Zreika	122
Consideration on battery count	125
Damages	132
Malicious Prosecution	134
Some legal principles	137
The evidentiary position following the arrest	140
A prosecutor's duty	141
The Facts Sheet	144
Events from 26 July onward	148
An interlude: some important evidence is kept from the accused	165
The narrative resumes	180
An incident at court on 9 August	193
Credit	222
Credit of Detective Sergeant Davey	223
Detective Senior Constable Ryan	224
Credit of Senior Constable Ryan	227
Constable Hayman	228
Credit of Constable Hayman	230
Ms Katherine Flynn	231
Credit of Detective Constable Ryder	232
The case alleged, of malice/ absence of reasonable and probable cause	234
Reasonable and Probable cause	235
The material which was available	236
The submissions	237
Did police ever have reasonable and probable cause?	241
When the plaintiff's girlfriend gave alibi evidence	242
When Jeremiah Mahoney told police the shooter had come to his home and threatened him	243
When the shooter was reported as having been seen in Parramatta Mall	244
When Ms Black was shown a photographic array and failed to identify the plaintiff as her daughter's friend, Michael.	245
When police viewed the CCTV footage of the person of interest in the Parramatta Mall	246
Conclusion on reasonable and probable cause	247
Malice	249
Consideration and conclusion on malice	287
Damages	296
Conclusion	300

Introduction

1. This case arose because of a police error, which led to the wrong man being charged with serious offences and kept in custody for two months. The plaintiff has sued the defendant for wrongful arrest, for an assault on him when he was being arrested, for malicious prosecution, and for misfeasance in public office. The defendant concedes police arrested and prosecuted the plaintiff, and that the charges were later dismissed. However, Mr M Neil QC who with Mr M Hutchings appeared for the defendant, put to me that the police were justified in arresting and prosecuting the plaintiff; the force used was reasonable and did not amount to an assault, and he was not maliciously prosecuted; nor was there any misfeasance in public office.

Summary of factual background

1. The plaintiff was born on 30 January 1979 and is aged 32. On 20 July 2006 he was living with his parents in Greenacre, an outer suburb of Sydney, but staying the night with his girlfriend, who lived at North Parramatta. On that evening, a serious offence was committed in a home unit in George Street, Parramatta. A man called Thomas Neville was shot on the right side of his scrotum. Police were notified, and attended. Later that night the plaintiff went into a store in Parramatta wearing a top similar to the one the shooter had worn. He was feeling despondent after an argument with his girlfriend, and was engaging in a bizarre monologue. He said aloud, while in the store, either that he had just killed, or felt like killing, "some cunt", and that he had "had enough". He was recorded on audio and video film while in the store. Although he did not fit the description of the shooter as described by witnesses, police decided to charge him. He had been in trouble with the police before, for armed robbery (nine years before) and deemed supply of drugs, (seven years before). Because of his record for armed robbery, and the fact that a gun had been used in the new offence, police decided he might be too dangerous for detectives to arrest. So the investigating team brought in the State Protection Group, a specialist group of police who are experienced at dealing with violent and armed criminals.

1. On 25 July, five days after he had entered the store in Parramatta, while the plaintiff was at work with his elderly father, who was helping him in his vehicle glazing business, the plaintiff was arrested by a group of men from the Operational Training Unit (OTU), part of the State Protection Group. Some were carrying shotguns and wearing special clothing. The arrest was in a public area of Artarmon. The events shocked the plaintiff, who immediately protested his innocence. But he was pushed to the ground, and he says he was dragged in the dirt and trodden on, and had a shotgun pointed at him. When told by police what he was to be charged with, he immediately told them they had the wrong man and asked for an identification parade. He was handcuffed and handed over to investigating police, who took him to Chatswood Police Station, where he was charged with common assault, shooting at a person with intent to inflict grievous bodily harm, and malicious wounding. Of those offences, the most serious, shooting at a person, carries a maximum term of imprisonment of twenty five years. He was not given police bail.

1. He appeared before the Local Court at Hornsby on 26 July, at Parramatta on 9 August and on 16 to 17 August. Bail was applied for on the first and third appearances. Each time, bail was refused. Police prosecutors, who received instructions from investigating police, opposed bail on each occasion. Because the charges were serious, police prosecutors eventually handed over the prosecution to the Director of Public Prosecutions. This occurred on 18 September 2006.

1. When the plaintiff was next before the court, on 21 September 2006, the DPP did not oppose bail. He was given bail on stringent conditions.

1. On 6 October 2006, just over two weeks after his release on bail, the plaintiff was again arrested by police, who said their records showed he should be in custody. Fortunately he was able to persuade police to release him after about half an hour, by which time they had looked at the bail reporting records he had in his car.

1. Once the DPP had reviewed the case, all charges were withdrawn. Formal dismissal of them occurred on 25 January 2007. By then the plaintiff had endured over two months in custody. He had lost his business. He had been left with a debt of over $30,000 for borrowings for his business, much of which he had had to spend on legal fees.

1. He says the police officers who arrested him had no right to arrest him, and are liable for false imprisonment. In charging him and then maintaining the proceedings in the face of strong exculpatory evidence, some of which they never disclosed to him or his lawyers, and some of which they deliberately ignored, he says they committed the tort of malicious prosecution. Further, he says police used quite unnecessary force when they arrested him, and are thereby liable in damages for trespass. Although the tort of misfeasance in public office was pleaded, that count was abandoned in the course of closing addresses. Both parties agree that the Civil Liability Act 2002 has no part to play in this case.

The Law

False imprisonment

1. False imprisonment is a form of trespass to the person. Actual damage is not necessary to support the action. An imprisonment consists in the restraint of the liberty of a person, by confining the person in a prison, or within walls, or by forcibly detaining the person in an open place: Meering v Graham-White Aviation Co (1920) 122 LT 44 at 51. The only defence is lawful authority: Ruddock & Ors v Taylor (2003) 58 NSWLR 269 at [4], per Spigelman CJ.

1. The plaintiff has sued the State of New South Wales. That is because the State accepts it is vicariously liable for the tortious acts of New South Wales police: Part 4, Law Reform (Vicarious Liability) Act 1983 (NSW).

1. The defendant in relation to the claim of trespass has pleaded that it was entitled to detain him as and when it did as it had lawful authority. It says it had that authority under s.99 (3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Section 99 is as follows:

99 Power of police officers to arrest without warrant

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

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

the person has just committed any such offence, or

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:

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

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

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

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

to prevent the fabrication of evidence in respect of the offence,

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.

1. It is easy, with the benefit of hindsight, and after a lengthy and searching court hearing, as occurred here, to criticise a police investigation. Police are entitled not to be held to account for all of their errors. The expression "reasonable grounds" in s.99 (3) LEPRA Act allows that police may make some errors without being held accountable in a wrongful arrest action.

1. The police officer who the defendant concedes made the decision to arrest and charge the plaintiff was Detective Constable Jacqueline Ryder (formerly Devlin). She was the principal witness in the defendant's case. Her decision to arrest and charge the plaintiff and maintain the charges for almost two months was the subject of minute dissection, and her honesty was attacked. I shall return in time to consider her evidence and her credit.

1. In an action alleging a police officer has made a wrongful arrest, the defendant carries the onus of proving that the arresting officer did in fact suspect on reasonable grounds that it was necessary to arrest. As will later appear, the first time the plaintiff was physically detained, it was not by Detective Constable Ryder but by Sergeant McCormack of the OTU. However, as soon as the arrest was effected, he delivered him to Detective Constable Ryder, who then also formally arrested him. The parties are agreed that for all relevant purposes I should treat Detective Constable Ryder as the relevant arresting officer. In particular, Mr D T Kennedy SC, who, with Mr T Boyd, appeared for the plaintiff, eschewed any suggestion that the defendant had any obligation to prove Sergeant McCormack's state of mind at the time he arrested the plaintiff, in order to prove "lawful authority".

Assault and battery

1. The case put is one of battery.

"The form of trespass to the person known as battery is any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff's consent."

(R P Balkin, JLR Davis, Law of Torts (4 th ed, 2008) 32.)

The battery is said here to have consisted in being knocked to the ground, having his head stood on, having his mouth grabbed, being dragged along the ground, and having a shotgun pointed at his head. Although, as Balkin and Davis note at 3.18, pointing a gun at someone is in modern authorities regarded not as a battery but an assault, no argument was addressed to me on this issue, and in any assessment of damages, in the context of this case, I do not regard that as material.

1. By its defence the defendant denied any assault or battery had occurred, and asserted that the mode and manner of his arrest had been lawfully justified in accordance with section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That section provides as follows:

"S.231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."

1. The plaintiff did not identify the person or people he says assaulted him at the time of his arrest, save that he said one of the men, someone he said had on the uniform of inspector, was the officer who had grabbed his mouth while he was lying on the ground.

Malicious prosecution

1. In A v New South Wales (2007) 230 CLR 500 at [1] the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) said:

"For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause."

As the Court of Appeal said in State of New South Wales v Landini [2010] 157 at [20], to these elements should be added proof of damage.

1. The parties agree that the police officer who decided to maintain the prosecution against him until the matter was assigned to the DPP, was the charging officer, Detective Constable Ryder.

1. By its defence, the defendant denied the charges had been brought and prosecuted maliciously and without reasonable cause. Before me, Mr Neil conceded that the plaintiff had been prosecuted and that the charges had ultimately been terminated in favour of (or "favourably to" (T 696)), the plaintiff. In issue, were the elements of 'reasonable cause' and 'malice', as to both of which the plaintiff carried the onus of proof, and as to both of which, Mr Neil submitted, the plaintiff had failed to discharge his onus of proof.

1. I shall now deal with the evidence in the plaintiff's case and then the evidence called by the defendant, and consider it in the context of the cases put by each party.

The plaintiff's evidence

1. The plaintiff told me that in July of 2006 he was a self employed automotive glazier. His business had been going for about two months. Before that he had worked as an automotive glazier for a large company. When setting up the business he had borrowed $30,100 from Citibank. His monthly repayments had been $639.38 (Ex 'A' p.270). He had a criminal history. In 1997 he had pleaded guilty to three armed robbery charges and been sentenced to two years imprisonment to be served by periodic detention. In 1999 he had been convicted of deemed supply of drugs and served a term of full time imprisonment. As a result of that history, police had photographs of him and his DNA was on police records. On the evening of 20 July 2006 he had stayed with his girlfriend at her unit at North Parramatta. They had had an argument and he had left. At about 1am he had gone into the Coles Express Service Station and Convenience Store in Victoria Road Parramatta (the Coles store). The Coles store was two streets from his girlfriend's unit. He entered it to buy a soft drink. He was aware CCTV cameras were present. He was feeling upset about the fight he had just had with his girlfriend. He was speaking aloud about his feelings. Although there was a great deal of controversy about this incident before me, he said he recalled saying to himself at one stage, while in the store: "I feel like killing some cunt".

1. On 26 July 2006 he was at work in Waltham Street Artarmon, replacing a windscreen in a Hino truck. It was quite a heavy job, so he had his father with him to help. He was in the course of fitting new rubber around the new windscreen when he observed two four wheel drive vehicles stop nearby. This is how he described what then happened:

"Q. Yes.

A. And a bunch of blokes jumped out wearing all black, shotguns, looked like they were arresting a terrorist or something.

Q. Well, you just take your time, Mr Zreika, and tell us exactly what occurred.

A. And they jumped out of--

Q. Just take your time.

A. Yeah.

Q. You mentioned something about shotguns or guns?

A. Yeah, they've jumped out, all armed.

Q. Well, when you say armed, what other arms did they have--

A. They had pistols--

Q. --in addition to shotguns?

A. Pistols on each side.

Q. Yes.

A. Black head to toe.

Q. When you say black head to toe, what do you mean by that?

A. Like vested up.

Q. What about their face?

A. Covered.

Q. Did they have helmets?

A. A couple of them did, a couple of them didn't.

Q. Right. Well, then what happened as far as they were concerned?

A. They walked right past me, because I park my van inside of a little car park area and so I can work from the van, because a truck was parked on the road. They marched on past me, and I noticed them like with their guns hanging out, walking around like that.

Q. When you say their guns, were they pistols or were they shotguns?

A. Yeah, shotguns.

Q. Thank you.

A. The pistols didn't - they didn't remove the pistols. I was just there. They walked around the van, and I noted, like, this is odd, you know, and one of them come up to me, real large type of guy.

Q. How big would you estimate him to have been?

A. He was huge, a really big guy.

Q. Well, when you say--

A. Seven foot, probably about 150 kilos, solid, real big guy.

Q. Right.

A. And he's taken off his mask and asked me for my identification.

Q. So what did you do when he asked for identification?

A. I said, "What do you want from me?" And he goes, "Give me your ID." I pulled me licence out of me pocket, handed it to him. He's looked away at his boys and all of a sudden and I'm just - didn't see it coming - head first into the ground, zip-tied.

Q. When you say he zip-tied, zip-tied where?

A. He put some cable ties around me, from behind me.

Q. Yes.

A. And there was just - like I kept asking them, "Like, what's this about? What's it about?"

Q. What did you think in your mind, what could have happened to you?

A. I was spun out, I spun out. It was just something out of this world.

Q. What was going through your mind though when this was happening--

A. My head was spinning.

Q. --as to what might happen to you?

A. My head was spinning like. It was just sudden. I got a bad head spin, and I was asking him what this was all about and he was just being aggressive, violent.

Q. Look, just tell us what you observed to happen. Did he say anything more to you?

A. He said - didn't say anything. You know, he said, "You're under arrest." I asked him what was it about and he's picked me up and dragged me to the fence, and I kept trying to ask him, "What's this all about?" He said he had enough of me and just--

Q. Just tell us what he said to you, your best recollection of what he said.

A. I can't really recall like. Something like, "Oh, that's enough," or something like that. One of them came up pointing the gun at me and he goes, "We're not mucking--"

Q. When you say what - this was someone in addition to the large man?

A. Yeah, one of his personnel.

Q. When you say he came up to you, he came up to you with what?

A. With his shotgun.

Q. With his shotgun?

A. Pointed it to my head.

Q. To your head?

A. Yeah.

Q. And what did you think could happen to you then?

A. I thought I was going to be shot.

Q. Did he say anything to you?

A. He said, "We're not mucking around."

Q. So what then next happened to you?

A. The other guy that was in uniform, I think he was an inspector. Another fellow in uniform, I think he was an inspector. He had stars on him.

Q. Yes.

A. He grabbed me by the mouth.

Q. What, using his hand?

A. Yeah, he grabbed me by his hand, yeah, by the mouth like that, and he said something like, "Cooperate or shut your mouth, we're not here to play games," something like that, I can't recall. Then they just put me on my stomach, the other bloke, the big guy, the first guy I gave my licence to, the one that done the arrest. They stepped on my head and he goes to me, "Shut your mouth, cooperate, you just got done for a murder and plainclothes police will be coming over to see you very soon. And then he goes, "You're not to move. They're going to cut the cable ties and place cuffs." Put the cuffs on, they got the cable ties off me, picked me up and handed me over to two sergeants, two plainclothes police.

Q. Were there any other police other than these policemen who were dressed up in the - you know, had the shotguns and--

A. Plainclothes came and took me very soon after I was arrested, and jumped out of their cars.

Q. In relation to the times that you'd been arrested before, in connection with those offences you've told his Honour about, had you ever been arrested in that fashion before?

A. No way, never.

Q. When these plainclothes policemen came, did any of them identify themselves to you?

A. Detective Jacqueline Devlin approached me.

Q. Yes.

A. She goes, "How are you, Mr Zreika?" She goes, "You're under arrest for last Thursday's shooting in George Street, Parramatta," and I was spinning out. I hadn't even heard of this shooting, first--

Q. So what did you say when she said that to you?

A. I said, "What do you mean, what are you talking about? You've arrested the wrong guy. You've got the wrong bloke. How did you link this to me?"

Q. Yes.

A. And she said - she goes, "No, I got the right guy." She goes, "I've got five signed statements that you did it, Haysam Zreika did it, and you used your van as the getaway vehicle and your numberplate was taken," in exact words.

Q. So was anything else said to you at the scene, other than those words?

A. No.

Q. How were you feeling at this time when you were being - in this state?

A. Shattered, spinning out.

Q. When you say spinning out, could you just try and tell us something about what you mean by the term "spinning out"?

A. Well, I've just been arrested for a major crime which I had no knowledge of and the way it happened was just so sudden and no expectations at all, I felt like I'd died, I was in another world.

Q. You felt like a what?

A. I felt I'd died, like I was in another world. It was just unbelievable.

Q. Had you ever had an experience like that in your life?

A. No, never, never had a feeling like that.

Q. How were you - well, you were taken from the scene where you were arrested. Where were you taken to and by what means?

A. Chatswood Police Station.

Q. And by what means?

A. To be charged.

Q. Well, in some vehicle?

A. In a paddy wagon, the back.

Q. Right, and were you cooperative or uncooperative in relation to it?

A. I was just - I know I was - I was scared.

Q. Well, how were you behaving in the van?

A. I was screaming, tears, upset.

Q. At the place where the arrest took place, in addition to the police officers who were there, were there other people that were there watching what was going on?

A. Owners of the truck, owners of the - my other clients, panel shop owners. There was a lot of people, a bit of a crowd.

Q. How many people do you think came to be there watching what was going on and being said?

A. 20, 30 people.

Q. That's in addition to the police officers?

A. Yeah." ( T 31.33 to 35.33. )

1. At the police station he asked to be permitted to take part in a line up. He was told he would not be getting one that day.

1. He told me that when arrested he gave a DNA swab and a blood sample and the police took his two mobile phones and the clothes he had worn into the Coles store. (All were eventually returned to him.) He was kept in custody until 21 September and then released on bail with a $5000 surety and a requirement to report daily to the Bankstown Police Station. Eventually the requirement for a surety was dropped and reporting was reduced to weekly. Finally, on 27 January 2007 the charges were formally withdrawn, and they were dismissed by a Local Court Magistrate (Ex '3' p.167-172).

1. On 6 October 2006, he had been in Bankstown, buying petrol. A police officer had come up to him and said "Put your hands in the air". Two female officers, with guns drawn, had approached him. He was told to turn around. He said "Me? " An officer told him he was under arrest as he was wanted for a shooting in Parramatta. He said "I've been charged with it already. I'm on bail for it". She said "We don't know that". He asked her to go to his glove box to see his reporting slips. Some other constables then arrived. He was handcuffed. He was in that state for 20 to 30 minutes. Then a sergeant arrived and told police to uncuff him. This officer said to him:

"Don't have a go at us we're just responding to intel. He read back on the computer that you're wanted for a shooting. We've got to arrest you and justify that. Have a go at the police officer that's put the intel on your van and hasn't taken it off that you're wanted for a shooting prior to even being charged."

1. Asked about his feelings about being incarcerated following his original arrest the plaintiff said he had felt distressed, and said:

A. It was bad, because I'd charged for a major - looking at a long time in gaol and not knowing if I was going to get convicted for something I didn't do. I thought about the people involved in this actual predicament, they all had their freedom, I did not know them from a bar of soap, they were all strangers to me, and I was the one incarcerated for this crime.

Q. Did you have any sense of anger?

A. A lot of anger.

Q. In the time that you were there, in the sense of what you've talked about, did that improve or get worse?

A. It got worse. You can kick and scream and yell, but no-one's there to say you're innocent or to believe you until your day comes up in Court.

Q. I think as far as your business was concerned after you got released on the bail, did you try and get your business going again?

A. Yeah, I tried but the financial status was not good and I still had prior Courts coming, I had to get more money for solicitors. So I ended up going back as an employee to my old company. ( T 41.6-24 )

1. After four or five months working as an employee he started his own business again. He told me a weekly wage for a person in his field at the time of his incarceration was about $550 per week net. He only ever managed to make one payment on the Citibank loan. Most of the loan money he had had to use for legal fees, and with interest, he still owed close to $40,000 at the time of the trial. According to records tendered on his behalf, his legal fees were $23,694 (Ex 'A' 275-6).

Plaintiff's evidence concerning identification

1. Identification evidence played a significant part in this case. It is the plaintiff's contention that the police quickly jumped to the wrong conclusion, namely that he had been the perpetrator of the shooting, based on flimsy evidence, apparently overlooking that though he undoubtedly had made a bizarre statement to a shop attendant a few hours after the shooting, and at a place proximate to it, he bore little resemblance to the person described by eye witnesses to the shooting, and was never proved to have been connected with it in any way. He told me that at the time of his arrest his hair had been short, slicked back, gelled, and coloured sandy brown or light brown. He told me too that he had been clean shaven and his build had been slight. At the time he gave evidence before me I was asked to look at a facial scar and I did so, as did counsel. Clearly, the scar would have faded since 2006, but in March 2011 it was still quite obvious, to my own observation. The plaintiff told me that at the time he had visited the Coles store on 21 July he had been wearing a "Sean John fiery red jumper with a hood...light khaki cargo pants and pure white plain K Swiss shoes" (T 36.1). The words "Sean John" had been written on the front (I was told by Mr Hutchings that Sean John is the real name of a popular rapper also known as Puff Daddy). He said that in 2006 the scar on his face had been prominent, red in colour, three to four centimetres in length, and had come from an assault in prison some years before that. The clothes he wore that night were put into evidence without objection. They fitted the description he had given of them. The words "Sean John Collection" may be seen written prominently on the front of the jumper.

1. The plaintiff was not cross examined on his evidence as to what he had been wearing. However he was cross examined about the colour of the clothes he had been wearing. Eye witnesses to the shooting told police the shooter had worn blue jeans. In at least one frame of CCTV footage from the Coles store his khaki trousers, to my observation, could be mistaken for being blue in colour, though the plaintiff did not accept that when it was put to him. I consider one does have to concentrate while watching the footage to see a blue colour. Nor did he accept that his red top could be suggestive in some frames as having an orange hue. To my observation, at a stretch, on some frames, it could I think be thought of as orange, but overwhelmingly the CCTV shows a red coloured jumper. As to what he had said while there, it was put to him he had said: "I've had enough" (That, to me, may easily be heard on the several versions of the recording put into evidence.) He agreed he had said that. He was then asked if he had also said "I've just killed somebody". But he denied that. He also denied having said "I've just killed some cunt". As to the alleged assault, it was put to him that when arrested, he had gone to the ground voluntarily. But he denied that. It was put to him that no guns had been pointed at him, that he had not been dragged by police, or thrown against a fence, or thrown to the ground, or grabbed by the mouth, or stood on. He maintained that what he had said in chief had been true. It was put to him that Detective Constable Ryder had not said when arresting him that she had five signed statements naming him as the shooter or had mentioned his van as the getaway car. But he maintained she had said those things. He agreed the scar on his face had faded over the years. He agreed the line up he had asked for when arrested had eventually been arranged.

1. It was never suggested to the plaintiff in cross examination that he had had anything to do with the shooting. It was never suggested to him that he had had any connection with the place where the shooting occurred, or with any of the people involved in it. He was not cross examined about the financial losses or expenditure he said had arisen from the loss of his business, and in retaining lawyers for his defence. At the time he cross examined the plaintiff Mr Neil told me he had no instructions on the incident at Bankstown on 6 October 2006 and he sought leave to cross examine the plaintiff on that issue once he had obtained instructions. In the course of his closing address he told me he had still not been able to obtain instructions on that matter. Given that, that the incident had not been particularised, and the defendant first given notice of it when the plaintiff gave his evidence in chief, Mr Kennedy then abandoned any claim arising from it.

Mr. Ahmed Zreika

1. Mr. Ahmed Zreika is the plaintiff's father. From time to time in 2006 he had helped in his son's new business, accompanying him on the heavier jobs. On 25 July 2006 he was working with his son at Artarmon. A man had approached him and told him not to say anything, and that police were doing their job. Then he had seen men getting out of two vans, holding shotguns. Guns had been pointed towards his son, who was knocked to the ground and handcuffed. He had then seen his son kicked and dragged; he saw feet on his body. Then his son had been made to stand, and his shoes and socks had been removed. He said he had asked his son in Arabic what was going on. His son had answered: "I swear by the souls of my brothers who passed away that I did not shoot anyone. I am accused of shooting someone" (T 84.45). His son had been taken away in a van. The police had eventually taken Mr Ahmed Zreika home. His house had been searched later that afternoon. His wife had been very upset.

1. It was put to him the police had not kicked his son, but he maintained they had. Asked how many had kicked his son he said two, three or four. Those who had kicked his son had worn a uniform- blue or black- he was not sure. It was put to him that no police had dragged his son or pointed weapons at him. He maintained they had. When it was put to him that his memory was not good for these events, he said he remembered some things very well and other things not so well. The things he remembered well, he said, were the things that he saw happen to his son that day.

How police linked an innocent man to the shooting

The day of the shooting

1. Police received a call to go to unit 2/179 George Street Parramatta at about 11pm on 20 July 2006. Initially, two uniformed officers attended. They were Constables Sturdy and Aitkin. It was clear to Constable Sturdy when he arrived that there had been a shooting. He found the victim, and a number of other people, in the unit. He saw a spent cartridge on the floor and an unfired round. A witness, Jeremiah Mahoney, the tenant of the unit, told him the victim had been "shot in the balls". He then observed a wound on the right side of the victim's scrotum. Mr Mahoney told him they had all been drinking after work. One fellow drinker, a 16 year old boy from Pendle Hill known to Mr Mahoney only as "Johnny", had a sister who had called in to pick him up. Johnny had had an argument with his sister and had hit her. Then his sister's boyfriend had entered the unit with a gun. Her boyfriend had waved the gun around at everyone. A struggle had ensued. The victim had then been shot.

1. It was obvious to police who attended that all present were intoxicated. There were empty bottles of various types strewn about the unit. Mr Mahoney gave written permission to police to take control of the unit as a crime scene.

The day after the shooting

1. On the day after the shooting, police spoke to and took a statement from the boy Mr Mahoney had described to police the night before as "Johnny", whose sister's boyfriend had shot the victim. Johnny's name is Jonathon Bright. He told police he lived with his mother and his sister. His mother's name was Elizabeth Black. He was employed as an apprenticed spare parts interpreter. He was aged 16. A few months before the shooting he had met a group of boys, including Mr Mahoney, with whom he had later gone skating and playing soccer. He had visited Mr Mahoney's unit at Parramatta and been treated as a brother. He gave police a plan of the unit and wrote on it the names of those who had been present, including one he knew as Michael, and showed where they had been at the relevant time. He said his sister Sarah lived with him and his mother and he would see her a couple of times a week. Sometimes she would stay away for a few weeks at a time. On Monday 10 July Sarah had phoned him and said she would pick him up from work. He was surprised, as she did not have a driving licence. At about 5pm that day a male called Michael had phoned him on his sister's phone, to ask for directions to his place of work. At about 5.30 pm Sarah had arrived with a male called Michael, and had picked him up. Michael had been driving a late model silver coloured Holden Commodore sedan. When Mr Bright saw Michael on that occasion he realised he had met him once before with Sarah and another male friend of hers called Frankie, in March 2006. Michael had on that occasion driven him to his friend's unit in Parramatta. His sister and Michael had come in with him on that occasion and he had introduced them to Jeremiah Mahoney. Later, Michael had driven him home. His mother had been at home when they had arrived there. His sister had then introduced Michael to his mother. At that time, Michael had been affected by drugs, and his behaviour had been very erratic. When Michael had been in the unit he (Michael) had helped his mother cut up vegetables. He had also spent some time talking on his mobile phone, and pacing the floor. Jonathon Bright had spoken to Mr Mahoney the next day. Mr Mahoney had remarked to him how annoying it had been that when Michael had visited his unit in Parramatta, he had spoken in Arabic.

1. The next occasion (the third time) Jonathon Bright had met Michael had been on the evening of 20 July. He (Mr Bright) had dropped in at Mr Mahoney's place. Other boys had been there. Some had come after him. They drank, and played X Box. He had noticed at one stage of the evening that his mother had tried to phone him on his mobile; but he had not answered, since he was playing, and he assumed his mother knew where he was. Later, his sister Sarah had arrived. Michael had walked in just after her. Michael had appeared to be affected by drugs, as he was pacing again. Sarah had asked him to come home. But he said he would get a lift with a friend. Sarah had asked why he had not answered when his mother had phoned. He had said he did not know. Then Michael had said to him "Get up and go outside and talk about it." Jonathon had then begun to walk out with his sister, while yelling to her that he had already made arrangements to go home. Michael had then said to him "She's your blood. They're just your friends." Michael had sounded angry. Jonathon said he would get his bag. Then Michael had produced a gun from the back of his pants and pointed it. Jonathon had run outside. Later he had seen Sarah and Michael in Michael's silver Commodore. The car had stopped in front of him. Sarah had opened the door and insisted he get in. He got in. Michael had then driven him home. Michael said to him: "If you fucking tell anyone, I'll kill you". At that time, Jonathon had not known anyone had been shot. Michael had then left. Jonathon told police when giving his statement that the night before, Michael had been wearing a jacket with a hood attached.

1. The police interview with Jonathon Bright was conducted by Detective Constable Ryan in the presence of Jonathon Bright's mother, Ms Black. When giving evidence to me Detective Constable Ryan told me that if Jonathon Bright's mother had disagreed with anything Jonathon told her when giving her the statement, she would have explored it further. I accept she would have.

1. On the same day police took a statement from Jonathon Bright, 21 July 2006, they also took a complete one from Mr Mahoney. He told police he was aged 25 and lived at the unit with his twin brother, Bartholomew, his younger brother Nathaniel ('Nat'), aged 24, and a mate called Wayne Bogle, aged 25. On the evening of 20 July his friend Thomas Neville (Tom) had come around. They and his two brothers and one Bain Farrawell had begun drinking. Nat had gone out and returned later with Mr Bright, who he called "Johnny". He had known Johnny for a month or so and had seen him on a dozen or so occasions. He said he thought he came from the Seven Hills area but now lived with his mother near Westmead. Wayne Bogle had then arrived. Johnny had received some phone calls from his mother but had not answered. At about 10.30pm there had been a knock at the door. Two people had come in. He recognized them as Johnny's sister and her boyfriend. He said he had met both of them once, about two weeks before, when they had dropped Johnny off, and he had spoken to them for about five minutes. He had remembered the occasion, as the boyfriend had tried to persuade him to have a drink and he had declined, as he had been feeling ill. He had not known his name or that of Johnny's sister. On this occasion, that is on 20 July, he could observe Johnny's sister was drunk and loud. She was carrying a bottle of Wild Turkey and Cola. She had asked Johnny why he had not answered his mother when she had phoned. Johnny had protested about going home. Then the boyfriend had slapped Johnny and started to drag him out. He (Mr Mahoney) had then intervened and slapped the boyfriend on the head. Then Tom had had an argument with Sarah, who had slapped his head. Then Tom had pushed her. Then the boyfriend had taken a gun from his crutch area, and waved it about. He had then hit Mr Mahoney with it on the side of his face. Tom had then punched the boyfriend in the head. The two had then wrestled, and the gun had gone off. Sarah and the boyfriend had run out of the unit. Tom had said "I've been shot". He gave this description to police of the boyfriend:

"I would describe the man with the gun (Johnny's sister's boyfriend) as being aged late 20s to 30 years old. He was only short, about 5 foot 4 tall. He had a stocky build. He was not fat, just stocky. He looked to be of middle eastern appearance. He had short black hair and was unshaven. He had a five o'clock shadow. He was wearing a long sleeved orange coloured hooded jumper, dark blue denim jeans and white and blue joggers. When he first arrived he had the hood pulled over his head. I think it came off in the struggle."

(Mr Mahoney's statement was witnessed by Detective Constable Fulmam, who did not give evidence.)

What the police knew about the shooter on 21 July 2006

1. In summary, after interviewing the two young men who had been present when the assailant had produced the gun, one of whom had witnessed the shooting, the police had this information about him:

(a)   Although his surname was not known, his first name was Michael;

(b)   He drove a late model silver Commodore;

(c)   He was a friend of Jonathon Bright's sister Sarah;

(d)   Jonathon Bright had met Michael on three separate occasions;

(e)   Michael had visited Jonathon Bright's home and been introduced to his mother, spending time enough there to help with the vegetables;

(f)   Mr Mahoney had met Michael on a previous occasion in Jonathon Bright's sister's company;

(g)   His age was late 20s to 30;

(h)   He was short, about 5'4";

(i)   He was of stocky build;

(j)   He was of middle eastern appearance;

(k)   His hair was black;

(l)   He was unshaven, in the sense that he had a five o'clock shadow;

(m)   He had worn a long sleeved, orange coloured, hooded jumper, dark blue denim jeans, and white and blue joggers;

(n)   He was a person with whom Jonathon Bright, his sister Sarah, his mother, Ms Black, and Mr Mahoney, were personally acquainted.

Mr Silver's observations

1. I have referred in [2] above, to the fact that early in the morning of 21 July 2006 the plaintiff, while in a despondent state, had said aloud, while buying a soft drink at the Coles store he had just killed ( or "I feel like killing"), "some cunt". The man behind the counter spoke briefly to the plaintiff when he served him. His name was Jayson Silver. In the course of serving the plaintiff he was able to observe him. He found the plaintiff's conduct odd. He was not sure what the plaintiff had muttered to him, but he thought he had said he had just killed someone. He took down the number plate of his vehicle and rang the police at Parramatta and passed on the information to them. The fact that this event occurred some three hours after the shooting, and within a few hundred metres from it, was obviously something police had to look at. Unfortunately that telephone call caused the police shooting enquiry to go off at an extreme tangent. From contemporaneous police records it is apparent that from the time Mr. Silver first rang police, investigating police essentially ignored the description witnesses had given them of the shooter, and instead, concluded that the plaintiff had been the responsible party.

What the police did after receiving Mr Silver's telephone call

1. Constable Hayman took a statement from Mr Silver on 21 July. Mr Silver's description of the plaintiff and what he said, (with my emphases) was as follows:

"2. I am 21 years of age...

3. I work as a Customer Service Operator at Coles Express Service Station at 88 Victoria Road, Parramatta...

4. About 01:25 21 July 2006, a man knocked on the door, I looked out and saw a white vehicle parked in the car park at the front closest to Victoria Road. I looked at the man, and made an assessment, and felt safe to let him in. At this time I did not pay particular attention to what he was wearing, I was looking at if he was wearing a hood, (which he was not) or if there were any obvious bulges in his clothes, which there was not. The way he dressed was just in casual clothes, but I can't remember what. He looked just like a general customer, by this I mean there was nothing that really struck me about him. I let him in and he went to the fridge on the left side of the shop (as I look from the console), near the back of the store. I wasn't watching him the whole time he was doing this. I'm not sure if there were any other customers in the shop at this time. I remember around this time someone came in and used the ATM, and then leave, (they did not buy anything, people often come in and use the ATM only,) but I don't know if this person was in the shop at the same time as the guy I was serving at the counter.

5. A couple of minutes later this man (who had got out of the van) came to the counter with a Disney Orange Pop-Top drink, they are about 300 millilitres. (They are quite skinny and maybe 10 or 15 centimetres high, and they have Disney characters on them.)

6. I looked at him and the first thing I noticed was a scar he had on his face. This scar was about one inch long, was oval shaped, and I could see the centre was about half to one centimetre in thickness. It looked to me like it was a cut that had not been stitched when it happened. It was not a fresh scar, it may have been two months old, it may have 12 months. There didn't seem to be any discolouration of the scar. It was on the right side of his face, just below his eye and a little bit to the side (towards his ear). He would have been about mid 20s, and he was Caucasian. I can't recall his hair colour. He was about 6'4" tall, and skinny. I would say he would almost be underweight for his height, and he was clean shaven. As he was at the counter, his body language suggested to me he was very uneasy. He appeared to be calm, but his demeanour was like he was on edge.

7 . As I was looking at his scar, I recall he was wearing something red, fire engine red, but I just can't recall what it was. He started speaking to me, I didn't hear exactly what it was, but I recall it made me uneasy. He put the drink on the counter and I was scanning it, he said what I thought to be "I've just killed somebody." I did not detect any accent in his voice, and the way he said this was very relaxed, almost conversational, like he was telling me he had just gone to the shop. He seemed very calm the way he said this, and this alarmed me. I don't remember saying anything back to him. I might have said something back to him, just conversation I make when I'm not really wanting to prolong the conversation, as I often do when serving customers, but I'm not sure. I remember thinking about pressing the hardwire alarm button, but I decided not to, as I didn't feel in any immediate danger. He gave me $2.40 in coins, the exact price of the drink. As he was doing this, he said, "I've had enough". When he said this, the tone of his voice had changed, and he seemed upset and angry. He had raised his voice slightly, but nothing drastic. I think I said, "That's ok." He then left the store, just walked out casually, and I was thinking about what he had said. I wondered if he had actually said to me, "I'm going to kill someone," in light of his other comment about having had enough, but I am 99 percent certain what he actually said was, "I've just killed someone."

8. I watched him get into the drivers seat of the van. I looked at the van, and saw it was a Toyota Lite Ace or Hi Ace, and it was white. I noticed a lot of dents along side the passenger door. It was a very old model, maybe a late 80's model. I could not see anyone else in the car. I noticed the registration to be VZL 917, and I wrote this down. He drove out the driveway and turned left onto Victoria Road and into the kerbside lane. I did not see him after this. I can't recall any other conversation with this man, but it should have all been recorded on the video and audio at the console. (At the time of making this statement, I have not seen this video or audio footage, the manager is the only person with access to the security footage.) I definitely recall this man saying he had killed somebody, (or was going to kill somebody, although my strongest recollection is that he said he had in fact killed somebody.) "

1. It is to be noted that he recalled the plaintiff as:

(a)   Having a prominent scar on the right side of his face;

(b)   6'4";

(c)   Skinny;

(d)   Clean shaven;

(e)   Caucasian;

(f)   Mid 20s;

(g)   Not wearing a hood;

(h)   Wearing something fire engine red;

(i)   Driving an old Toyota van with dents on the passenger door;

(j)   Speaking with no accent.

1. Constable Hayman said she went to the Coles store on 21 July and watched the video and listened to the audio. In a statement she signed two months later, but which I infer was constructed from her contemporaneous note book entries, she said she observed on the video a man wearing a red long sleeved top and heard him say to the console operator "I've just killed someone". Police documents in evidence show that Mr Silver did not phone 000, but spoke directly to a police officer: as a result, there was no recording of the call. A number of copies of the footage were in evidence. I have watched and listened to them a number of times. I have had difficulty hearing what was said. These things seem to emerge from them:

(a)   The plaintiff can be seen wearing a bright red top, white shoes, and dark coloured trousers;

(b)   He appears to be tall and thin;

(c)   The following conversation (or words similar) can apparently (although the audio is far from clear) be heard:

"Can I get a drink?"

"Sorry?"

"Can I get a drink?"

"Just that mate?"

"Just that one?"

"I'm so fucking..."

"I could kill some cunt"

"How much is that?"

"$2.40"

"I've had enough"

"Have a good night mate"

"Fuck off"

"I'll let you out now, sorry mate"

1. As can be seen, the only visual similarity the plaintiff had to the witnesses' descriptions of the shooter was that he was a male in his mid twenties, with a hooded top. As can be noted from what I can make of the dialogue, he did not say "I've just killed someone."

1. In a COPS entry in police computer records created by Detective Constable Ryder at 6.27am on 21 July 2006 (before signed statements from Mr Bright and Jeremiah Mahoney were obtained) she described the POI (person of interest) thus:

"Male, aged late 20's to early 30's, middle eastern appearance. Approx 5'4" tall, stocky build. Short black hair and unshaven. Wearing a long sleeved orange hooded jumper, dark blue denim jeans and white and blue sneakers. Armed with silver pistol with black butt;

...

Of note, about 1.30am the console operator from Coles Express located on Victoria Road and Macarthur St Parramatta, contacted Parramatta Police Station and stated that a customer had just entered the store and stated that he had shot someone tonight and possibly killed them. "

(My emphases.)

One thing from the audio is certain. He did not say he had just shot someone. The reference to shooting appears to have been poetic licence, at the least. As appears below, by 1.37pm that day, police were even asserting he had confessed to having "shot someone".

1. Because Mr Silver gave police the registration number of the plaintiff's van, they immediately discovered his name and address. No sooner had they done that, it appears, unquestioningly, they placed data in the COPS system which named the plaintiff as the party responsible for the shooting. There was a COPS entry for 21 July 2006 at 1.37pm saying this:

"J16 Syd INFT contacted Police and stated that a POI has just entered Coles Express Service Station and stated "I have just shot someone." Possibly related to shooting at 2/179 George St Parra. POI in vehicle- registered to Haysam Zreika of Greenacre. Approach with caution may be armed with pist."

(My emphases.)

Then there was a data entry at 10.52pm that day which named the plaintiff as the shooter. Thus by 10.52 pm on 21 July, the crime had apparently been solved.

1. Between 21 July and 25 July, when the plaintiff was arrested, police did not interview or take statements from any more eye witnesses to the shooting. That was unfortunate. As will become apparent when I set out the details police later obtained from eye witnesses, their descriptions were essentially consistent with those given by Jonathon Bright and Jeremiah Mahoney on 21 July.

The arrest of Sarah Bright

1. Jonathon Bright's sister, Sarah Bright, was arrested by police on 21 July at 7.15pm at Westmead. She was charged with being an accessory after the fact of shooting with intent to cause grievous bodily harm, and concealing a serious offence. Somewhat bizarrely, though entirely consistently, police in the relevant Court Attendance Notices, alleged the plaintiff had been the principal offender. That is consistent with COPS entries for that day describing him as the shooter. According to Detective Constable Ryder's notebook for that day, after Sarah Bright's arrest she 'commenced, review of her mobile phone.' However documents in evidence show that it was not until over a year later when efforts were made to trace the identity of those whose numbers were recorded on that phone as having been in contact with her on the night of the shooting. That also was unfortunate. As later appears, one number found to have been in contact with her that night on several occasions, was from a phone police later found was used by Sarah Bright's friend Michael Farrugia, a man who, as it turned out, drove a Silver coloured Holden Commodore.

The Platten Document

1. On 23 July 2001, two nights after Sarah Bright's arrest, her mother, Ms Black, telephoned police, wanting to speak about the shooting. That telephone call led to an episode which was the subject of a great deal of scrutiny before me. Inspector Troy Platten (now retired) was on duty that night, took her call and then made another. There was a one page, undated, memorandum, put into evidence by the defendant, in which Mr Platten had purported to record the contents of the two calls. The document was never part of the police brief served on the defence, and first came to the notice of the plaintiff's representatives only in the course of this hearing. On its face, it is not a complete record of either conversation. The heading to the document says: " Calls made by offender Haysam Zreika (wanted for shooting at Parramatta) to friends of his and Sarah Bright (accomplice to Hysam (sic))". The author of the note then asserts that when he spoke to Ms Black on 23 July she identified herself as "the mother of the offender Sarah Bright who is the accomplice to offender Haysam Zreika who is the offender for the shooting the other night. " (The emphases are mine). Ms Black was recorded in the document as having told Mr Platten that the plaintiff had contacted a Mr Omar Abukhaled and demanded that he bail out Sarah Bright. Mr Platten was recorded as having phoned Mr Abukhaled and being told the plaintiff had phoned him, demanding he help bail Sarah Bright. The plaintiff was said to have been threatening in manner. A telephone number recorded by Mr Platten as that of the plaintiff was set out in the note.

1. Mr Platten told me that he had emailed a copy of the document to Inspector Newman (another officer working on the case) and had placed a copy on his desk the next morning. He said he had spoken to Inspector Newman on the phone while in the course of preparing the memorandum, on the evening of Sunday, 23 July. Detective Constable Ryder told me she was made aware of the contents of the document shortly after it had been prepared.

1. Obviously, if Mr Platten's note was accurate, the police case against the plaintiff had suddenly achieved a great deal of strength.

1. In cross examination Mr Platten first agreed that when he prepared the document he had the view that the plaintiff was wanted by police for having been the shooter. Later, however, he said he had not known at the beginning of his discussion with Ms Black that the plaintiff was regarded by police as the person of interest for the shooting. He said he had made no handwritten notes about the matter. He claimed to have read none of the statements taken by investigating officers. He maintained that all details, including the spelling of the plaintiff's name, he had obtained from Ms Black. He agreed he had had access to COPS entries at the time he created the document, though he said he did not recall the plaintiff's being named in them as the person of interest, and that what he described as the 'COPS event' had been minimal. (There is a note in his document saying 'no find on cops', confirming that he did have COPS access.) But he denied when it was put to him in cross examination that he had had access to a COPS entry which is at pp 16-34 in Exhibit 2, which refers extensively to the plaintiff by name, and as the person of interest. Mr Kennedy ultimately submitted I should not accept Mr Platten's evidence that the plaintiff's name had come to him from Mrs. Black and Mr Abukhaled rather than from his having read COPS entries.

1. I shall return in a moment to consider whether I accept that submission.

1. The day after Mr Platten says he made that note, police in fact spoke to Mr Abukhaled. The police officer who interviewed him was Detective Constable Ryan. He told her inter alia that at about 8am on 20 July 2006 Sarah Bright had asked if she could come to see him. At that time he had known her and her family for about eight years. The two of them had been best friends. Sarah Bright had arrived shortly after that phone call, in a silver or grey coloured Holden Commodore sedan, he thought a VX model. He had known Sarah Bright did not drive. He had seen a man in the car but could not make out his features.

1. Over the next several days he had tried unsuccessfully to call her. Then on 23 July he had read in the paper that she had been charged over a shooting. He had phoned Parramatta Local Court and been told she had been granted bail but had not found a surety, so was still in custody. He had sent a text to Sarah's friend, Frankie. He had asked him for the number of a man he had known as Sarah's friend, who had the names 'Ali', 'Michael' and 'Big Papa'. Later, he had received a text from a number he had not recognised, saying "Its Frankie call me back". He had rung the number. The man who had answered had not been Frankie. The man had told him Sarah was a good friend of his and he wanted to help her and he had 'five grand' to get her out. Mr Abukhaled had suggested they meet. The man had declined. The man had later given him a number he said was his 'new number'. (In the course of the conversation the man had told him he was aged 27.) He had then gone to Ms Black's home. (They seemed close, since he called her 'mum'.) He concluded in his statement:

"I do not know anything about the shooting that Sarah was charged for. I do not have any information apart from what I have mentioned in this statement if it relates to it at all. I do not know who I spoke with when I rang 016 644 977 but I know for sure it was not Frankie. The person I spoke with spoke Arabic and Frankie cannot speak Arabic. Frankie is Italian. The person I would describe the male as being Lebanese from the North Tripolo region. I think he might be aged 27 after he mentioned that during our conversation over the phone. The person spoke fluent English and didn't speak with an accent when he spoke in English. I don't really remember anything else about him."

1. As can be seen, Mr Abukhaled said nothing about the plaintiff, and confirmed Sarah Bright had a friend with the name Michael. In a statement police took from Ms Black after the plaintiff's arrest, her evidence was largely in accord with that of Mr. Abukhaled. In particular, she said nothing to show she had ever heard of the plaintiff.

1. I would have expected Mr Abukhaled to have mentioned the plaintiff's name to Detective Constable Ryan, who took a careful and detailed statement from him, had he in fact given details about the plaintiff the previous day to Mr Platten. The telephone number Mr. Platten asserted had been the plaintiff's was, as Detective Constable Ryder conceded, never found to have had the remotest connection with the plaintiff. Indeed, no steps were ever taken by police until well after the plaintiff's arrest, to see who it belonged to.

Mr Platten's Credit

1. Mr Kennedy subjected Mr Platten to a vigorous cross examination. Mr Platten seemed to take offence at the idea that his word might not be accepted. That is not unusual, especially for a former experienced police inspector. But I did consider Mr Platten overly aggressive and defensive in his assertions; he had kept no notes other than the one page document; he had had access to the COPS entries; as I have observed, his note did not sit at all well with the statements taken from Mr Abukhaled and Ms Black. It is I think highly significant that neither mentioned the plaintiff by name and both gave police evidence substantially corroborative of that of Jeremiah Mahoney and Jonathon Bright concerning the man Michael. I have no doubt Mr. Platten obtained the plaintiff's name from the COPS entries and put his name in various places as the suspect, and that the two people he spoke to that day never mentioned his name at all, and I so find. I reject Mr Platten's evidence to the contrary. I find he was mistaken in asserting Mr Abukhaled and Ms Black had given him the plaintiff's name.

The OTU request

1. On 24 July at 10am, four days after the shooting, and three days after the plaintiff had been nominated in the COPS records as the shooter, a job request was made by Detective Constable Ryder's senior officer, Detective Sergeant Davey, to the OTU, to arrest Mr Zreika. In the request, a description of the shooting appeared, in which it was asserted that Mr Zreika had been the shooter. Inter alia, this was said: "Police believe that Zreika will be armed with a firearm and is considered dangerous." The plaintiff was arrested by the OTU the next day.

An erroneous assertion

1. An investigator's note prepared by Detective Constable Ryder on 24 July 2006, apart from asserting as fact, that the person in the Coles store had said he had killed someone, asserted too: "Sarah Bright is the girlfriend of Haysam Zreika." When cross examined about that last entry, Detective Constable Ryder said the basis for asserting Sarah Bright had been Mr Zreika's girlfriend was "it could have been true": she denied that she had had no reasonable basis for making it.

Red becomes orange

1. As I have observed, Constable Hayman told me she viewed the CCTV footage at the Coles store on 21 July 2006, and observed on it the plaintiff wearing a red long sleeved top. It is to be recalled that the one person who had seen what the plaintiff was wearing at the store, Mr Silver, had said he had been wearing something "fire engine red". No new evidence of any kind about what the plaintiff had been wearing at the Coles store came to light between 21 July and 25 July 2006. Yet, curiously, from 25 July 2006, police in COPS entries began describing the jumper worn by the plaintiff that night as "orange coloured", that is, the same colour one eye witness said had been the colour of Michael's jumper. Further, that day, COPS entries began to describe the case against the plaintiff as a "strong prosecution case". Yet since Mr Silver had first contacted police, no evidence had been unearthed to link the plaintiff to the shooting. Police still had no eye witness who identified him as the shooter. A number of eye witnesses were yet to be interviewed. The only additional piece of investigation by police was for an officer to have looked at the CCTV footage and listened to the audio.

The Plaintiff is "unemployed"

1. Another, although less significant, error, in the COPS entries as at 25 July 2006 was as to his employment. He was described as "unemployed", whereas tax returns in evidence, which were unchallenged, show that at least since 2002 he had worked as a trades assistant, and the plaintiff's oral evidence, also unchallenged on this point, was that he had a successful vehicle glazing business at the time of his arrest. I conclude that police when creating COPS entries, had access to and regarded as useful, old police data.

1. Some of these errors later, perhaps unsurprisingly, found their way into a document somewhat ironically described as a "Facts Sheet", provided by Detective Constable Ryder to the police prosecutor, who in turn relied on it before a series of magistrates when later opposing bail for Mr. Zreika.

State of police knowledge on the day of the arrest

1. There was one thing the COPS entries as at 25 July did record correctly. They recorded this description of the plaintiff, from his previous encounters with the law:

"Facial appearance/ complexion: Middle Eastern Olive

Build/ Height/ Weight: Thin 180 to ____ cm...

Hair/ eye Brown hair Brow Eye."

1. Thus on the day of the arrest, this was the stage investigations had reached:

(a)   Police had signed statements from Jonathon Bright and Mr. Mahoney, containing a description of the shooter; they had a signed statement from Mr Abukhaled adding to evidence they already had, that Sarah Bright's boyfriend was called Michael and drove a silver or grey coloured Holden Commodore sedan, possibly a VX;

(b)   They had the names and addresses of a number of eye witnesses to the shooting who had not been interviewed;

(c)   They had the details (a signed statement from Mr. Silver, and their own CCTV observations and COPS entries from the plaintiff's police history) concerning Mr Zreika's conduct at the store, and his age and appearance.

1. Especially given that no one had given a positive identification of the plaintiff as the shooter, I infer it would have been elementary for police, (especially Detective Constable Ryder), before having the plaintiff arrested, to compare the descriptions of the assailant from eye witnesses, with what police knew of Mr. Zreika. This is a comparison I have drawn from the available evidence as at the day of the arrest:

The assailant	The plaintiff
First name:	Michael	Haysam (no evidence he was ever called Michael)
Surname:	Unknown	Zreika
Height:	5'4"	6'4" (from Mr. Silver), or 180 cm (from police records, which I calculate to be 5'11" on imperial measurements)
Build:	Stocky	Thin (from Mr Silver)
Hair:	Short, black	Brown (from Mr Silver, and police records)
Facial Hair:	Five o'clock shadow	Clean shaven (from Mr Silver)
Jacket:	Orange	Red (from Mr Silver, and Constable Hayman, after seeing the video)
Trousers:	Dark blue jeans	Dark pants (from CCTV)
Shoes:	Blue and White	White (from CCTV)
Vehicle driven	Recent model silver coloured Holden Commodore, possibly VX	1980s Toyota van, with dents on passenger side (from Mr Silver)
Other distinguishing features	None noted	Prominent facial scar (from Mr Silver)

1. What was the evidence against, and reasoning concerning, Mr Zreika?

(a)   According to Mr Silver, within about three hours of the shooting, and just a few streets away from the scene of the shooting, he had said something bizarre to Mr Silver: either that he had just killed "some cunt", or was going to; and that he had "had enough";

(b)   The plaintiff had worn a red top: it is possible to confuse red with orange;

(c)   Michael's top had been orange; ( Detective Constable Ryder claimed to me she had observed the plaintiff wearing an orange top on the CCTV);

(d)   Michael had shot the victim;

(e)   The plaintiff must have been Michael.

The CCTV material

1. It is necessary to say something about some differences of opinion about what the CCTV material disclosed. I consider however that in assessing whether the defendant has discharged its obligation on the false arrest count of proving 'reasonable cause', I should assume that what Mr Silver told police is the best evidence on that issue. The memory of what he thought he heard, was, I infer, fresh in his mind when he was interviewed. He had heard the plaintiff say the words. Unlike investigating police, he had no need to rely on the CCTV. I appreciate Mr Silver's statement disclosed he was not 100% sure whether the plaintiff had spoken in the past, or future, tense. But I think it was appropriate for police on 21 July to have assumed that he had heard the plaintiff say he had just killed someone. I consider too that police ought to have paid heed to what Mr Silver said about the colour of the plaintiff's top. In any event, to my observation, the overwhelming impression from the video and DVD evidence is that it was red. So there was on that issue a coincidence of his description, and what had been captured by the camera. That there were, by 24 July, even after seeing the CCTV footage, obvious differences between the description of the shooter, Michael, from those who knew him, and that of the plaintiff, should, I consider, have been obvious to the average astute police investigator. Yet those obvious differences, which I consider suggested strongly that Michael and the plaintiff were different people, did not seem to have troubled police. As Mr Neil said in his address, on the issue of description: "It is clear ... [police worked] ... on the basis of that [factor] being either a non-relevant matter or one that didn't impact on them, I accept that." (T 663.4.) From their perspective, especially that of Detective Constable Ryder, I infer the case was regarded as solved once Mr Silver had made his phone call. That, I infer, explains why there is no evidence any eye witness was ever asked by police if he had heard of the plaintiff, and why police did not interview any more eye witnesses to the shooting until after the arrest.

Detective Constable Ryder's evidence

1. Detective Constable Ryder, the relevant investigating officer, was recalled to duty on the night of the shooting, being on call at the time. She created a COPS event, on the police computer system, containing a report of the shooting. She told me that officers have access to such entries through the computer system, and that the entry can be added to as time goes by. She described these additions as 'narratives'. She said she had created such an addition on 21 July 2006 at 6.27am. (This appears at pages 13-16 and 18-22 in Tab 21 of Exhibit '2'.) Much of the history of the investigation I have referred to above was from her evidence of what she did after being called in on the night of the shooting.

1. As to the arrest itself, she said that on 25 July 2006 she had gone with Detective Inspector Newman and Detective Sergeant Davey, to Artarmon. Inspector Newman, she said, had at the time been the operation commander and crime manager at Rosehill. By the time she had arrived at Artarmon, the OTU had carried out the arrest. She had observed the plaintiff seated on the ground, with his wrists in flexicuffs, and placed behind him. The police present when she arrived had worn black overalls, with the word 'Police' on the back. She said she had seen no one kick the plaintiff, or grab him by the mouth, or stand on him, or sit on him or point guns at him. The only officer of the rank of inspector she could recall seeing there, had been Inspector Newman, who had been in standard police uniform with the rank insignia on his shoulders. She said she had had a conversation with the plaintiff, when the following had been said:

Detective Davey said, "I am Detective Sergeant Davey and this is Detective Devlin from Rosehill Detectives. You are under arrest. You don't have to say or do anything if you do not want to. Anything you say or do will be recorded and may later be used as evidence. Do you understand that?"

Zreika said. "Yeah. What am I under arrest for?"

I (Detective Devlin) said, "You are under arrest for a shooting that occurred at George Street, Parramatta on Thursday 20 July 2006."

Zreika said, "Are you serious? You must be joking."

I said, "I am very serious."

Zreika said, "What for? When?"

I said, "You are under arrest for a shooting that happened on Thursday night."

Zreika said, "This is a joke. You have got the wrong man. I didn't shoot no cunt. This is fucked."

(See pages 17-18 of Ex 'A'. See plaintiff's evidence to the contrary in para [22] on page 14.)

1. She denied that when she had arrested the plaintiff she had said on being told she had the wrong bloke:

"I've got five signed statements that you did it, Haysam Zreika did it, and you used your van as the getaway vehicle and your numberplate was taken."

In fact the evidence discloses he had been driving a van in the early morning of 21 July, his number plate had been recorded by Mr Silver, and Detective Constable Ryder had, by the time of his arrest, at least five statements, including ones from Jeremiah Mahoney, Jonathon Bright, Mr Silver and Mr Abukhaled. Detective Sergeant Davey conceded the words may have been used. (T 361.25.) As later appears where I discuss Detective Constable Ryder's credit, I have concluded that her evidence lacked frankness, and that I cannot rely on it on any matters of importance. I find she did say those words to the plaintiff when formally arresting him.

1. Detective Constable Ryder left the arrest scene and went to the Chatswood Police Station, to where the plaintiff had been taken. She told me it had not been possible that afternoon to arrange an identification parade, but she had later pursued vigorously arrangements to have one. Although she made arrangements for tests for finger prints, DNA, and gun shot residue, no results arising from those tests were received by police before the charges were dismissed. She considered having Mr. Zreika's top tested for gun shot residue, but police who seized it from his house formed the view it had been washed after the offence. So as any gun shot residue would have disappeared, the laboratory would not accept it for testing.

The grounds said to have been reasonable

1. Detective Constable Ryder said she had been the one who had decided to charge the plaintiff. She had made that decision "Because I believed there was(sic) reasonable grounds and sufficient evidence to charge him." (T 136.26.) She also said she had decided to have the plaintiff arrested: "Essentially because he was considered a suspect for the shooting that had occurred involving Thomas Neville." (T 162.40.) Further, she had seen that as her duty as a police officer. Her opinion at the time he was charged was that he had been guilty. (T 136.40.) She had had no prior dealings with him. She said she had watched and listened to the CCTV video from Coles: she had not found the audio easy to hear, but had read carefully Mr Silver's statement. She said her belief when listening to the audio on the CCTV footage, was that the plaintiff had said "I've just killed some cunt." She said she had considered s.99(3) of the LEPRA Act . Asked why she had recommended using the OTU she said:

"The main reason for recommending that the Tactical Operations Unit was involved related to the offence that was being investigated. It was an offence of violence; it was an offence involving the use of a firearm that, to me, appeared indiscriminate, and then that was also combined by looking at Mr Zreika's past involvement with police, and the intelligence holdings on the police computer system." ( T 164.01. )

1. She claimed to have had no difficulty with identification. (Although controversial at trial, I accept she probably did watch the video before the arrest). These were some of the statements she made to me on that issue:

"I'd say the description of him did match the descriptions provided by the witnesses" (T 140.40);

"The descriptions were very similar" (T 140.49);

"The clothing worn by Mr Zreika at the Coles Service station was almost identical to that described by one of the witnesses on the night of the shooting." (T 141.10 i.e. Mr Mahoney.)

1. She could not recall ever having made an enquiry before the arrest, of any police sources, as to whether there had been any other shooting reported in New South Wales on 20-21 July 2006.

Arguments on wrongful arrest

1. Mr Neil submitted that the defendant had made out its case on the balance of probabilities: the decision to arrest and charge had been reasonable.

1. In particular, he argued that the male customer's clothing as described by Mr Silver "substantially fitted the description of the shooter as provided by [Mr] Mahoney." (Defendant's written submissions [17].) Although he conceded Mr Silver's description had varied, he put to me that the real inquiry involved a comparison of the description from Mr Mahoney with what could be seen on the CCTV, the fact that on the CCTV he looked to be in his late 20s, or early 30s, and to be of medium height, stocky, of middle eastern appearance, and with short black hair.

1. A difficulty with that argument, as I see it, is that even assuming it is a correct description of the plaintiff as seen on the CCTV, it is different from the description police already had of the plaintiff in its own records. And it is not as though police regarded making an arrest of the plaintiff as an especially urgent matter. As I have observed, they labelled him the perpetrator shortly after Mr Silver's phone call, yet waited another four days before arresting him. I conclude they had plenty of time to check their recorded facts.

1. In fact there never were any such results and I did not understand Mr Kennedy to press this allegation.

(d) Arresting, charging the plaintiff with serious offences involving a presumption against bail, and persisting in the prosecution of those offences in circumstances where there was no evidence of the plaintiff's involvement in the shooting or any reasonable circumstantial evidence of his involvement in the crime.

1. It was not the offences which involved there being no presumption of bail, but the fact that the plaintiff had convictions for indictable offences and had been charged with at least one more: see s 9D Bail Act 1978 . Mr Neil put to me additionally however that the combination of the eyewitness evidence and the CCTV footage amounted to more than reasonable circumstantial evidence of the plaintiff's involvement in the offence: the eye witness evidence he said was the evidence of Jeremiah Mahoney and of Mr Silver. I shall return to consider this with others.

(e) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn alibi evidence exonerating the plaintiff, sworn evidence from the victim of the shooting exonerating the plaintiff, and evidence from a witness of the shooting exonerating the plaintiff.

1. I do not consider this of itself indicative of malice. Police were entitled to be cynical about alibi evidence given by the plaintiff's girlfriend. As to persisting with the prosecution in the face of the evidence in the Local Court from Jonathan Bright and Jeremiah Mahoney, it is not strictly correct to say that each gave evidence "exonerating" the plaintiff. Their evidence was consistent with and confirmatory of statements each had given police shortly after the incident. As I have observed, this evidence, with all the other evidence, was significant. But of itself, it is not necessarily evidence of malice. I shall return to consider this with the others.

(f) Falsely representing to the magistrate that the colour of the assailant's top was orange and that the colour of the top being worn by the plaintiff at the Coles service station was also orange when the video material indicated it was fire engine red.

1. Detective Constable Ryder did not herself make any representations to any magistrates. So this cannot be evidence of malice

(g) Failing to disclose to the magistrate that the description of the plaintiff did not match the description of the assailant provided to the police by witnesses to the shooting.

1. My observation under (f) applies here.

(h) Persisting with the prosecution of the plaintiff in circumstances where the description of the plaintiff, including the clothes he was wearing on the night of the shooting, did not match the description of the assailant or the clothes the assailant was wearing provided to the police by witnesses to the shooting.

1. Of itself, given the coincidence of time and place for the Coles store visit by the plaintiff, this, in the first few days after the offence, was not, in my view, evidence of malice. As time went by however and more evidence exculpatory of the plaintiff emerged, the position changed. I shall return to consider this with others.

(i) Failing to disclose to the court the statement of a witness to the shooting, Jeremiah Mahoney, that the shooter had been seen and identified at the premises where the shooting occurred at a time when the plaintiff was incarcerated.

1. What I have said under (f) applies here. Mr Hutchings submitted that the plaintiff was in effect submitting there had been a breach here of the prosecutor's obligation of disclosure: Cannon v Rochford & Ors [2002] VSCA 84 and that no action could be brought for breach of that duty. But I do not consider that is what the plaintiff is alleging here or in any other particulars.

(j) Failing to disclose to the court that the clothing worn by the plaintiff and depicted in the CCTV footage which was available, did not match the clothing identified by witnesses as being worn by the shooter at the time of the offence.

1. What I have said under (f) applies here.

(k) Failing to inform the magistrate of material information obtained in the course of investigations, including:

The description of the assailant and the clothing he was wearing which would have exonerated the plaintiff;

The results of forensic tests which would have exonerated the plaintiff;

The result of identification parades.

1. What I have said under (f) applies here.

(l) Charging the plaintiff with serious offences and proceeding with the prosecution of the offences in circumstances where the witnesses to the shooting positively identified somebody as the shooter other than the plaintiff.

1. There is no doubt that police had evidence from eye witnesses which positively identified someone other than the plaintiff as the shooter. From 20 July that evidence began to emerge: and more of it emerged each time another witness was interviewed. I shall return later to consider whether this on its own or with other factors, constituted malice.

(m) Maintaining the allegation that the plaintiff was guilty of a serious offence on the balance of probabilities until 1 December 2009.

1. The statement of claim was issued in 2008. Until 1 December 2009 the defendant maintained in its pleading that the plaintiff was guilty of the offences. That was a somewhat remarkable assertion. On that date the assertion was dropped, when an amended pleading was filed. The defendant called no evidence to explain either pleading. Whilst to continue to make the assertion, on its own, that the plaintiff was guilty, is not necessarily evidence of malice, it is open to that interpretation. However, Mr Kennedy did not specifically put to Detective Constable Ryder this was evidence of her malice, or that she had been responsible for the initial pleading. So I accept Mr Hutchings' submission that I should not regard (m) as evidence of malice.

(n) Persisting in the prosecution of the plaintiff and opposing bail when the defendant knew that the plaintiff was innocent of the alleged crimes.

1. No one called for the defendant said he or she knew the plaintiff was innocent. Nor was it otherwise proved. It is not implicit in Mr Neil's submissions that the defendant conceded that he is. Rather, what was conceded was that the proceedings had been concluded in his favour.

(o) The actions of the defendant as particularised above constituted ill-will and spite towards the plaintiff.

1. This is merely a repetition of matters I have already dealt with.

(p) Failing to advise and inform the Director of Public Prosecutions of the matters referred to above.

1. The DPP took over this prosecution on 16 September 2006. Mr Kennedy made no specific submission about this particular. There was no evidence before me as to what the DPP was told by the police. I am not persuaded this allegation is made out.

(q) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn alibi evidence of Melissa Peterson given to the Local Court at Hornsby on 26 July 2006.

1. This is dealt with under (e) above.

(r) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn evidence given to the Local Court at Hornsby on 26 July 2006 by Jason Barakat, solicitor, that Sarah Bright had said to Mr Barakat that the plaintiff was not the assailant.

1. Of itself this may not have amounted to malice. However I shall return to consider this with others.

(s) Failing to include in the police brief information provided by Elizabeth Black (aka, Bright) to Inspector Platten on 23 July 2006.

1. I do not regard this failure as significant one way or the other. The information was later given in the form of statements from Ms Black and Mr Abukhaled. I have found it is obvious from those statements that Inspector Platten's document was significantly incorrect.

(t) Failing to include in the police brief information provided by Omar Abukhaled to Inspector Platten on 23 July 2006.

1. For the reasons under (s) above I do not think this was necessary.

(u) Failing to show relevant witnesses, in particular Elizabeth Black (aka, Bright), a photograph of the plaintiff which would have formed part of the defendant's CNI file of the plaintiff, which would have established that the plaintiff was not the boyfriend of Sarah Bright and therefore not the assailant.

1. As is now known, police did show the plaintiff's photograph to Ms Black as part of an array.

(v) Failure to provide to the plaintiff, the Police Prosecutor, the magistrate considering and hearing any relevant bail mention or bail application, and to include in the brief to the DPP the information contained in document entitled "CCT footage CBA Parramatta re: sighting of shooter" dated 10 August 2006.

1. Counsel for the defendant submitted there was no requirement for Detective Constable Ryder to place in the brief of evidence or put before the court the CBA CCTV footage: since he said it was "largely irrelevant" and not probative: further, Mr Thomas Neville on 17 August 2006 gave evidence in the Local Court of having seen the shooter at the Parramatta Mall. However, as police who observed the CCTV footage formed the conclusion that a person of interest in connection with the shooting could be seen on it, this I consider was a highly significant omission. I shall return to consider this with others.

(w) Persisting in the prosecution after the receipt of the information referred to in (v) above.

1. This is relevant to (v) above and what is said there applies to (w).

(x) Failure to provide to the plaintiff, the Police Prosecutor and the magistrate considering and hearing any relevant bail mention or application, and to include in the brief to the DPP the results of a photo array which array included a photograph of the plaintiff and which array was viewed by Elizabeth Black on 28 July 2006 and in which array she did not identify the plaintiff as the person known to her as "Michael".

1. This was a most significant omission. It is particularly disturbing, given the opening by senior counsel for the defendant, and the sworn evidence of Detective Constable Ryder, that no such procedure had occurred and that any such procedure would have been inappropriate. But as to this, Mr Hutchings submitted that Ms Black had not seen her daughter in Michael's company on the night of the shooting, and the mere fact she had not identified the plaintiff as Michael did not mean the plaintiff was not the shooter. He said the evidence was "only... circumstantial. It was not dispensable as to the question of the guilt or innocence of the plaintiff... [Further], there is no evidence that the existence of Exhibit AA was (or was not) communicated to the defence." ( Mr Hutchings written submission of April 2011. ) Though he conceded there was a suggestion it had not been. I shall return to consider this with others.

(y) Persisting in the prosecution after the receipt of the information contained in (x) above.

1. This is related to (x) above. The defendant submitted there is no evidence this was reviewed by the prosecutor or Detective Constable Ryder; Mr Hutchings put to me that the "best evidence" is that Detective Constable Ryder first saw it on 31 July; and anyway it did not warrant withdrawal of the charges. I shall return to consider this with others.

(z) Failure to provide to the plaintiff, the Police Prosecutor and the magistrate considering and hearing any relevant bail mention or application for bail and to include in the brief to the DPP the tape of a computer ID with Elizabeth Black (being exhibit AP).

1. This does not significantly add to (v) above. Again, the defendant's junior counsel maintained (despite Mr Neil's earlier apparent concession in address it had not been) that there was no evidence this was or was not communicated to the plaintiff. I shall return to consider this with others.

(aa) Persisting in the prosecution after the coming into existence of the tape of the computer ID.

1. This is covered by (z) above.

1. I shall now consider whether collectively, some, of the particulars made out, bear out the allegation of malice.

1. In that context, I shall consider whether I find Detective Constable Ryder brought or maintained the prosecution for some illegitimate or oblique motive, or for some purpose other than the proper invocation of the criminal law. Mr Kennedy put to me that proof of the various particulars in paragraph 33 of his client's pleading would establish an illegitimate motive, or improper purpose. He identified that motive or purpose as to cover up for her own error. I took the ultimate thrust of Mr Kennedy submission to be however that Detective Constable Ryder had launched the prosecution without sufficient cause and then maintained it, despite the progressive appearance along the way of various significant pieces of exculpatory evidence, engaging in what might be called an exercise of wilful blindness. Mr Neil, however, submitted that she had acted only through a desire to discharge her duty, and in accordance with what she had sworn to do when she became a police officer, and that she had no improper motives.

1. Given that police held back (either by accident or design) what I regard as significant exculpatory evidence until the ninth day of the trial, it was not surprising that Mr Kennedy was obliged to expand on the particulars of malice as the trial progressed. In his opening ( T 10.11 ) he referred me to [118] in Hathaway : and said "[O]nce you become aware that there is no justification, you've got to withdraw the charges." Part at least of that lack of justification Mr Kennedy submitted ( T 23.18 ) was the failure by police to include in the police brief when it was served, relevant information police had obtained from Ms Black and "another person", whom I took to be her son, Jonathon.

1. In his final address however, Mr Kennedy submitted that Detective Constable Ryder had not been frank concerning the photographic array: she had not included it in the police brief, or mentioned it to me, or to the plaintiff's solicitors after he was charged: this lack of frankness showed her motive had been malicious, he put to me. ( T 712.5. ) So was the facts sheet evidence of malice, given, he put, it had been deceptively written. ( T 712.21. ) Mr Kennedy submitted that ( T 136.45 ) her evidence that she still considered the plaintiff a suspect showed she had closed her mind: that she was incapable of appreciating he was innocent or of accepting or facing up to having made an error: further, he put that she had deliberately covered up the array evidence. ( T 765.5 to765.10. ) Mr Kennedy said:

"[A]s time went by, she must have come to the realisation that, in fact, she had completely got it totally wrong but persisted. She must have come to the realisation at a very early time that this man was innocent and did nothing about it but still persisted in the prosecution and still persisted in opposing bail. What happens when the DPP gets into it? Bail is consented to. Your honour can draw your own inference from that."

1. Mr Kennedy submitted that I would not accept that Detective Constable Ryder had an honest view that there had been a proper case for a prosecution, either at the start, or as it went along. ( T 76 8.19. ) When I questioned why a police officer would do such a thing, Mr Kennedy said: "having completely botched this up and to protect herself". At T 747.36 Mr Kennedy said:

"She's made a mistake and then she's not prepared to concede it or accept it and we have the cover up anyhow of the information relating to Ms Black... What clearer case could you have of malice [than] that? "

He said since she had not been recalled to say she had overlooked the array evidence I should infer she had lied to me about that, and had not forgotten the array. It had been her job to prepare the police brief.

1. When I put to him she might have believed him guilty, Mr Kennedy said such a belief would have been an irrational one. ( T 769.24. ) When I raised with Mr Kennedy the fact that police had evidence to suggest possible interference with witnesses, his response was that in the end there was no evidence of any such an attempt but in any event the evidence showed no more than a possible attempt relating to the two witnesses who had arrived at court on 9 August.

1. Mr Kennedy put to me that absence of reasonable and probable cause is of itself some evidence of malice: Brown v Hawkes (1891) 60 LJQB 332 at [51]; Mitchell v Heine (1938) 38 SR(NSW) 464 at 474 (per Jordan CJ); A v New South Wales at [90]. Mr Kennedy submitted I would find that here, there existed: "a motive that was improper or, alternatively... the actions of [Detective Constable Ryder] can only be accounted for by the imputation of a wrong and indirect motive": Skrijel v Mengler & Ors [2003] VSC 270. Mr Kennedy also referred me to Fleming (9 th Edition) at p. 683 for the proposition that evidence of malice may be proved by showing no reasonable person could have believed in the plaintiff's guilt.

1. The relevant part from the 9 th edition as it appears in the 10 th edition of Fleming's the Law of Torts (Carolyn Sappideen, Prue Vines, 2010) (at p. 703) is as follows:

"[I]n order to establish the prosecutor's disbelief in the plaintiff's guilt, the plaintiff must give evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not enough merely to adduce reasons for non-belief, without showing that they were in fact operative. The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed in the plaintiff's guilt, but it is not sufficient merely that the defendant had information, some of which pointed to guilt and some to innocence."

1. Mr Kennedy put that Detective Constable Ryder's maintaining the case had been due to deviousness, not stupidity. (See Clark v Molyneux , above).

Consideration and conclusion on malice

1. I bear in mind that the Court of Appeal observed in Lye v New South Wales [2005] NSWCA 282 at [59] some ineptitude in a prosecution in which a prosecutor believes there is a case to answer, and police resources and procedures are such that there is incomplete attention to and undesirable delay in the prosecution, falls short of malice. Further, it does not follow from Detective Constable Ryder's lack of frankness with me that I ought find that she brought or maintained the prosecution maliciously. It is an extraordinary proposition that a police officer who has sworn to uphold the law would knowingly maintain a prosecution in the face of powerful evidence that a person charged is not guilty. But unfortunately her lack of frankness makes it difficult for me to accept the evidence she gave about her reasons for continuing the prosecution beyond the first Local Court appearance. In A v New South Wales the High Court observed (at [83]) that proof of malice will often be a matter of inference; but it is proof which is required- not conjecture or suspicion: this element focuses on the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.

1. As I have observed I fully concur with the reasonableness of the police in developing a suspicion after Mr Silver's phone call, that the plaintiff had been involved. But beyond 25 July, as I have found, the case lacked reasonable and probable cause.

1. But has the plaintiff discharged his onus of proving malice on the balance of probabilities, applying the principles in Briginshaw ? I have not found this an easy decision. I have begun with the assumption that the only reason any police officer would usually prosecute an individual is to comply with the oath or affirmation taken or given on becoming a police officer, namely to uphold the laws of the State.

1. So I acknowledge that it would be rare and exceptional for a court to find a police officer has taken or maintained a prosecution for an improper purpose.

1. I have no doubt Detective Constable Ryder considered the plaintiff was guilty of the offence as soon as she learned of Mr Silver's phone call. As I have found, however, by the time of the arrest, she lacked reasonable grounds to suspect the plaintiff was guilty. In making the findings I am about to make, I take account inter alia of my own assessment of Detective Constable Ryder's personality from my observations of her over a lengthy examination in chief and a very lengthy cross examination. To my observation, she is not unintelligent. However in giving her evidence she was most reluctant to admit she had made any error or left any stone unturned in the investigation or indeed that there was even a point of view where two minds might reasonably differ. Unfortunately, her treatment of the facts sheet shows a poor understanding of the obligations of police to be objective, and to take care with peoples' liberty. I accept her evidence that she did not know the plaintiff before the offence occurred. I accept she did not bear him any particular spite or ill will before or after the arrest. But as the authorities show, malice covers any motive other than a desire to bring a criminal to justice: Glinski v McIver [1962] AC 726,766; Rapley v Rapley (1930) 30 SR (NSW) 94,99; A v New South Wales at [55]. Mr Kennedy submitted a desire to cover up the error he said she had made would be such a motive. Further or alternatively, I took him to argue that to prosecute in circumstances of wilful blindness would be such a motive. I did not take Mr Neil to submit either would not amount to malice, though he submitted there was no foundation for any finding of malice. The conclusion I have reached is that although well aware from 31 July 2006 onwards that the case against the plaintiff was unmeritorious and bound to fail, and lacking reasonable and probable cause, she continued to maintain them in the face of that knowledge.

1. A summary of my findings and relevant facts follows:

(a)   She believed the plaintiff was guilty of the offence from 21 July 2006 onward;

(b)   On 25 July, the day of the arrest, she had not yet realized her error; further, as Mr Neil conceded, once the plaintiff had been arrested, police stopped looking for any other suspect; as it happened, what occurred then was that a minor avalanche of additional exculpatory evidence soon became apparent;

(c)   At about 9am on 26 July police phoned Ms Black to give her the news that the shooter had been arrested: however that did not seem to put her mind at rest: she told police she was still very fearful for her safety and that of Sarah and Jonathon Bright: although police tried to reassure her they had no fears for her safety, she "claimed to know otherwise"; later that morning Ms Peterson gave sworn alibi evidence at the plaintiff's first bail hearing; she swore she had never heard the plaintiff speak of Mr Mahoney, Jonathon Bright or Sarah Bright; Mr Barrakat, solicitor for the plaintiff, swore in the course of the bail hearing, that he had spoken to Sarah Bright and had been told by her she knew nothing of the plaintiff; a description he gave her of the plaintiff did not ring a bell with her, and her accomplice on 20 July had not been the plaintiff;

(d)   On 27 July Thomas Neville gave police a description of the shooter which was consistent with that given by Jonathon Bright and Jeremiah Mahoney. William Neville also gave a description consistent with that of the other eye witnesses, including that his name was possibly Michael; on the same day both men reported to police they had seen the shooter on the Parramatta Mall; police broadcast a description of him that day (consistently with those descriptions) as of middle eastern appearance, medium build, white Bonds shirt, faded blue jeans, white Nike sandshoes with blue around lower edge; on the same day, Mr Mahoney phoned 000 with a report that the shooter had revisited his unit and threatened him with a gun of the same description earlier given to police; he gave the man's name as Mick, whom he described as small, with red hooded jumper, jeans, blue and white shoes, 5' 4" to 5' 5";

(e)   On 28 July police interviewed Ms Black who confirmed Sarah Bright's relationship with Michael, who drove a Commodore, whose description was consistent with that given police by others; further, on that day, Ms Black was shown the photographic array and did not recognize the plaintiff as Michael. (Given her concern for her family's safety even after she was told police had arrested the shooter, one would have expected her to have been keen to pick out her daughter's close companion.)

(f)   There was evidence that Detective Constable Ryder was away from work for several days at the end of July 2006, but I infer that she knew all of the above matters by, at the latest, 31 July. She realized, I find, at that time, that an error had been made, and that the case was without merit. Whereas before that time she had treated significant exculpatory evidence as of little moment, and, at least, ignored it, from then on she either ignored it or went out of her way to denigrate it. I find she did that, realising that there was no case against the plaintiff, but hoping one would turn up.

(g)   For example, I am satisfied she regarded the array evidence of Ms Black as of so little consequence she failed to tell any prosecutor of it or the plaintiff's then solicitors; she had, as I have found, forgotten about it by the time of the trial, so that she denied to me on oath such an array could occur or had occurred, and maintained such a thing would have been improper and against the plaintiff's interests.

(h)   She treated the incident at court on 9 August as one where the plaintiff was trying to intimidate witnesses, However it must have been clear that the two witnesses were puzzled about the arrest of the shooter when they had seen him at large after the plaintiff's arrest. That is not how she treated their attendance at court to inspect the plaintiff; she noted the incident in police records as one of intimidation by Mr Dandan.

(i)   Although police records of 10 August described the person seen on the CCTV at the Mall on 27 July as "a person of interest as described by the victim and witness" she said to me in evidence that at that point she had not put an end to the proceedings as "I still believed there was sufficient evidence for the matter to proceed".

(j)   Although she took a careful and detailed statement from Mr Jeremiah Mahoney on 12 August about the shooter's visit to his unit and threats, she placed a note on police files later on the same day saying:

"After obtaining the statement Mahoney stated to police that he was only about 50% sure that it was the same person. He admitted that he only saw the person for a couple of seconds in a dark stairwell."

She was not able to explain adequately to me why that was not in the statement.

(k)   Her recognition of her difficulties caused by having no identification evidence may be seen in her request to Sarah Bright's solicitor on 13 August not to show her a photograph of the plaintiff, in case police might want to use her to identify him.

(l)   I infer her acknowledgement the case was in trouble may be seen in her memo to Mr Rapp on 13 August noting:

"[T]he most important link at this stage we need to establish is between Zreika and Sarah Bright."

(m)   As if she needed more reminders of the problems for the case, there was the identification parade on 15 August when, consistently with the evidence gathered before and after the arrest, no one associated with the shooting identified the plaintiff.

(n)   Even when Mr Bartholomew Mahoney gave his curious and disturbing statement on 15 August and said Mr Dandan had become involved, he confirmed Mr Dandan had asked Bartholomew Mahoney and Thomas Neville to go to court on 9 August "so they could see if it was the guy that shot him". The mention of money was treated by her as a bribe not to tell the truth, rather than to tell it.

(o)   When Bartholomew Mahoney told Detective Constable Ryder on 23 August he may have been wrong about the bribery aspect, and wanted to amend his statement, she made an appointment to take an amended statement but then broke the appointment and never took another statement from him.

(p)   She spoke to Ms Black on 24 August, when, again, Ms Black expressed concern for the safety of her family; she told her she believed Michael had been with her daughter on the night of the shooting.

(q)   She noted on 4 September 2006:

"[P]olice have no further evidence to ... assist in the prosecution of Zreika."

(r)   On 28 August 2007 when looking back at the events of 2006 she noted:

"[I]nformation was received that witnesses were bribed to not identify Zreika by his cousin, Khaled Dandan...Investigators first became aware of [an] association between Bright and [Michael] Farrugia on ... 14 August 2007."

(s)   On the same day she wrote:

"Farrugia... is considered a person of interest in relation to this investigation."

(t)   On 27 February 2008 she wrote:

" Farrugia matches the description of the offender as described by the witnesses."

(u)   When giving evidence to me in March 2001 she said Farrugia did not meet the description as described by witnesses.

1. Neither she, nor any other police, have pursued Michael Farrugia. (Whether this was because to have done so might have been seen to be an admission of error in these proceedings, was not explored before me and I do not speculate about it.)

1. I find she knew from 31 July 2006 she had erred in arresting the plaintiff, and that she lacked reasonable cause for the prosecution but she maintained the case thereafter with that knowledge, hoping she would find enough evidence against him. I find that had she recommended it to her superiors on or at any time past that date and before it was in the hands of the DPP, they would have accepted her recommendation to have the charges dismissed. I find further that no reasonable person could have believed in the plaintiff's guilt beyond 31 July 2006. Particulars proved and collectively supportive of that finding are (b), (d), (e), (h), (l), (r), (v), (w), (x), (y) and (z).

.

1. It follows that the plaintiff has established both of the elements of the tort of malicious prosecution which were in issue. There will be judgement for the plaintiff on that count.

Damages

1. Mr Kennedy submitted that I would award compensatory damages of $100,000 if I were to find this count established. Bearing in mind the period he was in custody was about two months, and that the DPP took over the prosecution on 16 September, the damages awards on the other counts, and my concern overlapping does not occur, I consider the appropriate award should be $75,000. In maintaining the prosecution as she did, I regard Detective Constable Ryder's conduct as contumelious. Her employer needs to pay a substantial sum for exemplary damages so it will learn that police need to be educated and guided properly and not treat suspects in the base way Detective Constable Ryder treated the plaintiff. Police should understand that people's liberty is not to be trifled with. As the court of appeal said in Adams v Kennedy [2000] NSWCA 152 at [36]:

"Th[e] figure should indicate... that the conduct of the defendant... was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained... so that abuses of the kind that occurred [here] do not happen."

1. I consider the appropriate sum for exemplary damages is $100,000. I would award aggravated damages too, of $25,000, for the increased mental suffering I find the plaintiff suffered by the manner in which the defendant behaved in the course of maintaining the prosecution.

1. As to the Citibank loan, there was no argument addressed to me about whether, in the light of the rule in the Liesbosch Dredger case, ( Liesbosch, Dredger v Edison,S.S. (Owners) [1933] AC 449 ) I should not award the interest the plaintiff is liable for, because he lost his business and ability to repay the loan. However I have in mind what the High Court said in Fox v Wood (1981) 148 CLR 438 per Gibbs CJ at 441-2 and per Murphy J at 442, concerning impoverished plaintiffs rendered so by a defendant. (Unfortunately the argument on this whole economic loss issue was somewhat underdeveloped). I do not consider the plaintiff is entitled to both compensation for his defence costs, and a sum to cover the principal and interest on the Citibank loan. I took the plaintiff to say he had met his defence costs by using the capital borrowed from Citibank. Since the defence costs were $23,694, and the loan $30,100, the balance, $6,406, I infer was applied for personal expenses. He is, I consider, entitled to an amount to cover the interest on that part of the capital used for defence costs. The sum of $23,694 is approximately 79% of the sum borrowed. The sum outstanding at the time of trial was $37,268 for capital and interest, only one payment having been made. I consider the plaintiff should recover a sum representing his costs and 79% of what I calculate to be the interest component of $7,168, or $5662. Thus under this element of damages the amount should be $23,694 + $5662 = $29,356.

1. As to other economic loss, Mr Neil submitted there is no possible basis to assess "loss of contract or opportunity costs." However I consider it appropriate to award a sum for the loss of eight weeks income, which I assess to be $5000.

Conclusion

1. The plaintiff has succeeded in all three pleaded causes of action. Damages will be:

(a) Wrongful arrest	$50 000
Lost income	$500
Aggravated damages	$10,000
(b) Battery	$10 000
(c) Malicious prosecution (compensatory)	$75,000
Exemplary	$100,000
Aggravated	$25,000
Defence costs and interest component	$29,356
Economic loss	$5,000
Total	$304,556

1. There will be judgement for the plaintiff. I will hear counsel on interest and costs.

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Decision last updated: 15 July 2011