Mr J (a pseudonym) v State of New South Wales

In November 2019 the plaintiff was an experienced solicitor, and partner of a law firm, aged in his 50s. The law firm had a branch in Sydney and another branch or branches outside of Sydney. A 21 year old junior legal secretary who worked for the law firm outside of NSW made an allegation of sexual assault against him, and against another man also aged in his 50s, who undertook work for the law firm and was the plaintiff’s close friend, arising from the same occasion. The sexual assaults were said to have occurred in the Sydney home of the plaintiff on the morning after Melbourne Cup celebrations on 5 November 2019 organised by the law firm. Those allegations came to the attention of NSW police and on 19 December 2019 both men were arrested and charged with offences of aggravated sexual assault, and the plaintiff with a charge of sexually touching the complainant without her consent.

The arrest was made and charges instituted by Detective Sergeant Jesse Porter (then Detective Senior Constable) and taken over by the Director of Public Prosecutions (“the Director”) on 16 or 23 March 2020. These are conflicting dates in the evidence and the difference is immaterial. The Director issued a certificate pursuant to s 66 of the Criminal Procedure Act 1986 (NSW) on 4 June 2020 certifying that the evidence available was capable of establishing against the plaintiff each element of two counts of sexual intercourse without consent, and one count of intentionally sexually touching the complainant without her consent, knowing she was not consenting.

The circumstance of aggravation that formed part of the original charges but was not certified by the Director was the allegation that each man committed his own offence of sexual assault in the company of the other. The plaintiff takes no issue in these proceedings about Detective Porter’s view that this circumstance of aggravation was made out, and his view that the plaintiff was criminally responsible for the alleged sexual assault physically perpetrated by Mr K, and the Director’s decision to not allege this. The two charges of sexual assault maintained by the Director were based on the complainant’s allegations of two acts of sexual intercourse physically perpetrated by the plaintiff.

A joint jury trial of both men in the NSW District Court was terminated on 11 May 2021 when, during the course of the complainant’s evidence, she indicated that she was not prepared to continue, and the Director discontinued the proceedings.

The plaintiff now brings actions in tort for malicious prosecution, false imprisonment, and misfeasance in public office in connection with the actions of Detective Porter. The defendant is pursued on the basis of its vicarious liability for his actions. Detective Porter joined the NSW police force in August 2002 and was designated as a Detective in 2008. Between becoming a Detective and the date of preparation of his evidentiary statement in these proceedings (June 2024) he had investigated approximately 15 allegations of sexual assault.

On the application in the District Court of the Crown Prosecutor in the criminal proceedings, orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) as necessary to supplement the statutory prohibition against publication of material that could identify the complainant contained in s 578A of the Crimes Act 1900 (NSW). The Crown submitted, and it was accepted, that publication of the names of the two accused men, or the law firm of which the plaintiff was a partner and at which the complainant had worked, could act to identify the complainant.

On the plaintiff’s application in these proceedings I made orders to similar effect at the commencement of proceedings. The plaintiff will accordingly be afforded the pseudonym Mr J, or otherwise referred to as the plaintiff. His co-accused in the criminal proceedings will be referred to as Mr K. I will refer to the law firm of which the plaintiff is a partner and at which the complainant was employed in November 2019 simply as “the law firm”. The law firm is the solicitor on record for the plaintiff in these proceedings – which is relevant to one issue pertaining to liability.

The complainant in the sexual assault proceedings will simply be referred to as the complainant.

There were three important witnesses in the criminal proceedings who also worked at the law firm, and I will refer to them as Ms L, Ms M and Ms N. Ms M was a witness in these proceedings and in the criminal proceedings and has worked for the law firm at all relevant times, based in the State where the complainant lives and previously worked. Although I refused an application by the plaintiff for non-publication of her name on the basis that it was necessary to protect her safety, it does seem that naming her could identify the law firm.

Ms L was a female solicitor employed by the law firm and was in November 2019 in her late 20s and based in the Sydney branch. Ms M’s evidence suggests that Ms L still worked for the law firm in April 2023 when Ms M’s evidentiary statement was prepared. Ms L features very significantly in these proceedings because of the way in which the plaintiff has endeavoured to prove his case. Identification of her by name may lead to identification of the law firm. It is also the case that by virtue of the focus of the plaintiff’s allegations, her conduct is required to be subjected to significant critical analysis, in circumstances where she was not a witness in these proceedings and has not had a chance to respond to the imputations that have been said by Detective Porter to be available, and may objectively be raised, from her statements and alleged conduct.

Identification of Ms N could also lead to identification of the law firm and she will not be named, to protect the identity of the complainant.

There is no issue in these proceedings as to what the plaintiff is required to prove on the balance of probabilities to make out his claim of malicious prosecution. As set out in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A”) at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), for the plaintiff to make out his cause of action for malicious prosecution he must establish:

The first two elements are not in issue. No issue is taken with the fact that Detective Porter instituted the proceedings. It is common ground that he was at all material times deemed to be in the service of the Crown pursuant to s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW), and the defendant was vicariously liable for his actions.

Whether Detective Porter maintained the proceedings until their termination in the plaintiff’s favour on 11 May 2021 is in issue, in circumstances where the prosecution was taken over by the Director in March 2020. Also in issue is whether he instituted the proceedings (and maintained them, to the extent he did) without reasonable and probable cause. Further in dispute is whether his institution and maintenance of the proceedings was done for a purpose other than the proper invocation of the criminal law (that is, maliciously). If so, an issue for determination is whether the alleged improper purpose was the sole or dominant purpose actuating Detective Porter.

Proof of absence of reasonable and probable cause involves a subjective and objective aspect: A at [38], [58]. Consideration is required of the material available to the prosecutor to assess what he made of it, and what he should have made of it: A at [58]. In the case of a prosecutor relying on accusations made by another, as here, the capacity of a police officer to verify information and form an opinion about where the truth appears to lie may be limited: A at [36]-[37], [69], [73]. In such a case the relevant mental state to be proved by the plaintiff is that Detective Porter did not form the view that the material was sufficient to warrant prosecution, or set the process of the criminal law in motion: A at [58], [71], [80], [118].

Malice in the context of this tort means acting for an improper purpose – not for the purpose of carrying the law into effect: A at [40], [55]. Absence of reasonable and probable cause may be evidence of malice but there are two separate issues to be decided. To constitute malice, the sole or dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law: A at [91].

The plaintiff is presumed to be innocent of the charges laid against him, as is Mr K. This judgment is not concerned in any way with consideration of or displacement of that presumption. What is required is analysis of the material available to Detective Porter from time to time in connection with the allegations, for the purposes of determining what he made and what he should have made of this material.

The intentional tort of false imprisonment requires the plaintiff to prove that he was arrested or imprisoned. The onus then falls on the defendant to prove justification. In this case there is no dispute as to the arrest and imprisonment of the plaintiff for a period of time on 19 December 2019 until granted bail. The evidence of the defendant including that of Detective Porter raises s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) for justification.

The elements of the tort of misfeasance in public office were stated by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 370, citing Lord Diplock in Dunlop v Woollahra Council [1982] AC 158 at 172: (1) an invalid or unauthorised act; (2) done maliciously; (3) by a public officer; (4) in the purported discharge of his or her public duties; and (5) which causes loss or harm to the plaintiff. This statement has been cited with approval by the Court of Appeal a number of times, including recently in State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen [2024] NSWCA 308 (“Dickens”) at [141] (Gleeson JA with whom White and Stern JJA agreed). In the circumstances of this case, this claim added little to the plaintiff’s action in malicious prosecution.

The plaintiff seeks over $3,000,000 in damages comprising general, aggravated and exemplary damages for the claimed false imprisonment, malicious prosecution, and misfeasance in public office and additionally, as flowing from the malicious prosecution and misfeasance in public office, damages for reputational loss, legal costs, economic loss and out of pocket expenses.

The evidence before the Court on liability included the evidentiary statement and oral evidence of the plaintiff (although this mainly addressed damages) and the evidentiary statement and oral evidence of Ms M. Ms M commenced employment as a temporary secretary with the law firm at the beginning of 2017, at the branch where the complainant came later to work. She became a full-time legal secretary in 2017 and by late 2019 she was employed as a paralegal. She remained employed by the law firm as a senior paralegal at the time of completion of her evidentiary statement on 18 April 2023 and was still employed by the law firm when giving evidence in August 2024.

An evidentiary statement of the plaintiff’s wife was directed mainly to damages (although it addressed the plaintiff’s arrest), and she was not required for cross-examination.

In evidence is also the entire police brief in connection with the criminal prosecution, subpoenas issued from time to time on behalf of the plaintiff in the criminal proceedings and documents produced, and the transcript of four days of proceedings in the jury trial before his Honour Mahony SC DCJ. His Honour was not the District Court Judge who made the non-publication orders earlier referred to, and transcript and court documents associated with that application are also in evidence. There were answers to interrogatories provided in these proceedings which are also before me.

On liability the defendant also relied upon the evidentiary statements of Detective Porter and his second officer in charge, Detective Luis Espinosa. Both officers gave oral evidence and were cross-examined.

Extensive documentary material was before the Court on damages, as well as this being addressed in the evidence of the plaintiff’s witnesses. A joint expert report was the culmination of the work of the expert for each party on damages and these experts gave evidence before me concurrently.

In my view it is appropriate to address the malicious prosecution claim first, and absence of reasonable and probable cause before malice. The first allegation of malice particularised in the pleadings is the assertion that Detective Porter was motivated to appease the complainant and her family because her stepfather (who was unknown to Detective Porter) is “a high ranking [another State] police officer”. This proposition will be able to be disposed of quickly because there is no foundation for it. However the balance of the allegations of malice revolve around consideration of different small steps taken in the process of the criminal investigation and prosecution. Understanding that background (through the prism of consideration of absence of reasonable and probable cause) will be useful.

The first particular of absence of reasonable and probable cause suggested by the plaintiff is “DSC Porter did not honestly believe in the case that was instituted and maintained against the Plaintiff in respect of the charges…”. Absent some admission by the defendant, the plaintiff must prove the subjective aspect of absence of reasonable and probable cause by inference and, if the defendant gives evidence, by cross-examination: A at [61]. Although this allegation was made, it was not the focus of the plaintiff’s case.

I am of the view that it is appropriate to address the objective aspect of absence of reasonable and probable cause in detail before addressing the subjective aspect. One reason for this is that absence of an adequate objective basis for formation of the requisite opinion would make it unnecessary to decide whether Detective Porter in fact formed the opinion that the material considered by him warranted laying a charge against the plaintiff: cf. A at [104].

Further, I accept unreservedly Detective Porter’s evidence that he believed, based on the material available to him by 17 December 2019, that the plaintiff had committed the offences with which he charged him two days later. A police officer does not need to personally believe in the guilt of a suspect before charging them; and of course the onus is not on the defendant to prove that Detective Porter did hold a sufficient state of satisfaction regarding the propriety of prosecution. However in this case that is Detective Porter’s stated belief and I accept his evidence in this regard. To understand the challenge to this stated belief, to the extent there was one, it is convenient to first analyse the objective aspect of whether the proceedings were instituted and maintained by Detective Porter without reasonable and probable cause. I will then turn to Detective Porter’s subjective belief, and the attack made on his credit to the extent this is necessary; and this will in turn lead on to (and is closely related to) consideration of malice.

It is necessary to address the issue of absence of reasonable and probable cause chronologically, because of the temporal dimension of the analysis referred to in A at [59]. I will deal firstly with the material available to Detective Porter as at the date of arrest, then up to the time the Director took over the prosecution. I will then determine whether Detective Porter maintained the proceedings after that time, and address to the extent it may be necessary what he made and what he should have made of the evidence in that third period of time that continued through until the resolution of the criminal proceedings.

The detail of the evidence included is responsive to the way that the plaintiff has advanced his case, and I will incorporate the relevant particulars relied upon.

On 22 November 2019 Detective Porter received information regarding the allegations made by the complainant from the NSW Sex Crimes Unit. That unit had received material from interstate police, following the complainant’s stepfather’s notification to authorities in their State of the issue and provision to those authorities of the statements of the complainant and Ms M.

Detective Porter commenced investigating the matter. He received the typed statements from the complainant and Ms M by email. These are referred to in more detail below. The information available to Detective Porter by the time of charging the plaintiff was that a lunch function was hosted by the law firm at licensed premises in the Sydney CBD, with participants invited back in the late afternoon to the chambers of a number of barristers present. The allegation disclosed significant alcohol consumption at both venues. People from the branch of the law firm where the complainant worked (Ms M, Ms N and another secretary) left her at the chambers by about 9.30 pm. The complainant remained, and in the early hours of 6 November 2019 was in a small group in one barrister’s individual chambers. I will refer to this barrister simply as the barrister. Those present with her were the barrister, the plaintiff, Mr K and Ms L. It was alleged that cocaine was consumed. The complainant and Ms L travelled to the plaintiff’s home with the plaintiff and Mr K, which is where the sexual assaults allegedly occurred.

Over the next few days after 22 November 2019 Detective Porter obtained CCTV footage from the premises at which the Melbourne Cup function was held, the hotel where the complainant was staying, a bottle shop near the barristers’ chambers at which the celebration continued from about 5 pm, and the Council footage showing the taxi leaving the street front of the barristers’ chambers with the complainant, the plaintiff, Mr K and Ms L. He had a number of telephone discussions with the complainant. She did not want to participate in a pre-text telephone conversation with the plaintiff. He received a statement from the complainant’s mother on 28 November 2019.

On 3 December 2019 Detective Porter received, at his request, further versions of the statements of the complainant, her mother, and Ms M, witnessed (by the same person) and with a jurat included and their ages nominated rather than dates of birth. These statements were otherwise the same as the undated statements earlier received. The telephone services of the plaintiff and Mr K were intercepted. Call charge and reverse call charge records of the plaintiff and Mr K were obtained in early December.

Detective Porter’s statement of 13 February 2020 set out his investigative steps to that point. This included calls to Ms L including four on 5 December 2019 with a voicemail asking her to return his call left on the last, at 8:06 pm. Three minutes later the barrister called the plaintiff arranging to meet straight away. Ms L did not return Detective Porter’s call, but on 9 December he received an email from a solicitor who indicated he was assisting Ms L in relation to the investigation, advised Ms L was prepared to fully cooperate and had provided a detailed statement to that end, which was attached. This statement did not contain a jurat, and nor was it a sworn or affirmed affidavit. It was not signed. It did state that “The following statement is true to the best of my knowledge and recollection.” On 10 December Detective Porter sent an email to the solicitor with further questions he wished for Ms L to be asked.

The out of court representations made by Ms L forwarded by her solicitor to the police feature very heavily in the plaintiff’s case. I will interleave them, and other evidence relevant to the complainant’s account, topic by topic. However reference is also required to Ms L’s out of court representations to others after the complainant complained to Ms L, Ms M and Ms N. These are also important in assessing objectively the issue of reasonable and probable cause, and considering Detective Porter’s response to the representations sent to him by Ms L’s solicitor. This means however that the narrative of factual matters may seem chronologically awry at times.

Whilst at his residence, and shortly after being arrested, the plaintiff handed Detective Espinosa two USB memory sticks containing the CCTV footage from the pool area and front driveway of his residence. Detective Espinosa and Detective Porter watched aspects of this footage before the plaintiff was charged, and it features heavily in the plaintiff’s case. Some of it is relevant to the asserted absence of reasonable and probable cause at the time of charge, and some additional parts are relied upon to prove malice. It contained no audio recording.

Ms L signed an additional statement on 19 December 2019 which was forwarded to Detective Porter on the day he arrested the plaintiff. It is not entirely clear from the evidence whether he received this before or after the plaintiff was charged. Detective Porter agreed that he had decided to charge the plaintiff at least a day before he received it. The plaintiff has conducted his case on the basis that it was received after charge. I will proceed on the same basis, but for reasons that will become apparent when I consider its impact after charge, it would have made no difference to my determination of reasonable and probable cause to charge the plaintiff, had it been available to Detective Porter before that time.

Before setting out the evidence in further detail I will refer to the particulars of the objective aspect of absence of reasonable and probable cause pleaded by the plaintiff in his final amended statement of claim that pertain to this point in time. They have been re-ordered and numbered to reflect the chronology of receipt of the material, and names changed.

They were as follows:

I will refer to the three interstate witnesses’ unsigned statements received November 22 and 28 2019 and signed statements received December 3 as their statements, as they were effectively the same. There were statements provided later in time which will need to be referred to in relation to information made available to Detective Porter after the plaintiff’s arrest. I will refer to the document attached to the email sent to Detective Porter from Ms L’s solicitor on 9 December 2019 as Ms L’s statement.

The complainant’s statement was 7 pages long containing 83 paragraphs. It provided background information regarding some of her working relationships. She was a junior legal secretary who commenced employment with the law firm in January 2018. She travelled to Sydney with Ms N, Ms M and another secretary to attend a Melbourne Cup company function with members of the Sydney office of the law firm and others associated with it. They flew to Sydney on Monday 4 November 2019. On the morning of Tuesday November 5 she attended the Sydney office of the law firm in an observational capacity before returning to her hotel to change for the function.

The function commenced at about 1 pm at licensed premises in the Sydney CBD. The complainant stated that she consumed approximately five drinks and was extremely intoxicated during this part of the celebrations. She stated:

The celebrations continued at the floor of chambers of a number of barristers who had been at the function. The complainant stated that there was a make-shift bar set up there, with lots of alcohol. Whilst at the chambers she consumed a large and unknown quantity of alcohol.

The complainant alleged that throughout the night the plaintiff gave her many compliments on her physical appearance and physique, which made her feel flattered and less out of place in a gathering of people she did not know. She stated that the plaintiff told her she was his favourite, and kept patting and kissing her on the head. He is alleged to have placed his hand on her stomach and said that he could see her belly-piercing through her dress and liked it. She alleged that he questioned her on whether she was still with her former partner. The complainant’s former boyfriend had suffered a very significant injury in dramatic circumstances a year or so earlier, and the law firm was aware of the significance of this on her life. She had been provided with support and time off work. Ms M’s evidentiary statement in the civil proceedings indicates that the complainant was off work as his full time carer until July 2019 when she returned to the law firm on a part-time basis. The complainant states she advised the plaintiff on 5 November 2019 that they had parted ways. She stated that he questioned her on whether she had any tattoos, and when she said she did not, he said that he liked that.

Ms M’s statement supported the chronology of events regarding attendance at the two functions and other details such as the plaintiff’s provision of the jacket. She saw the complainant hand back a cardigan she had been borrowing from a female guest. She said that when she was then speaking with the complainant and the plaintiff the complainant advised the plaintiff that she was going to leave the function to go back to the hotel to get her jacket, and he offered her his, which she accepted. CCTV footage of a shop attended by Ms M and the complainant on the way to the barristers’ chambers shows the complainant to be wearing the jacket.

At the chambers Ms M observed the plaintiff say to the complainant words to the effect “you are my favourite” and kiss her head, with the complainant responding “you flatter me [the plaintiff].” Ms M said that at one point the plaintiff said to her, of the complainant, “Isn’t she amazing?” She provided an account of a conversation between the plaintiff and complainant about tattoos that roughly accorded with the complainant’s account.

Ms M stated that she went to speak to the complainant before she left the chambers, advising her of the reason for her departure - which will be referred to further below. She stated that she sent text messages to the complainant between 9:30 and 10:15 pm asking her to message her when she returned to the hotel room so she knew she was safe; and said she was not alarmed as she received messages in return stating she would be leaving shortly. She sent her a last message at about 10:20 pm advising that she was going to try to sleep but would leave her phone on loud so that if she needed her she could call or text when she returned back to the hotel room. The witness went to sleep.

The statement of Ms L was consistent with the complainant’s chronology of events up until Ms M and the other people from the complainant’s office left the barristers’ chambers.

The complainant stated that she was told by Mr K that the group that was left was moving into the private chambers of the barrister. She stated that after entering the chambers of the barrister she began to feel very ill and went to the bathroom twice, vomiting on each occasion. She said that when she was then sitting on a couch in the barrister’s chambers with the plaintiff, Mr K, the barrister and Ms L in the room, Ms L sat next to her and told her that everyone was going to have cocaine, and asked whether she would have some. She had never consumed cocaine before but did not want to appear childish. She stated that Ms L swore her to secrecy no matter what.

The complainant stated that the cocaine was produced by Mr K, and the barrister and Ms L prepared the cocaine into four lines on the barrister’s desk with a card. She said that she, Ms L, the barrister and Mr K all had cocaine. She stated she was given four lines of cocaine in about a 15-20 minute period. She stated that she saw the plaintiff consume the powder in the bottom of the bag by licking the plastic and rubbing the remaining bits on his gums. She stated that the plaintiff repeatedly patted her head and gave her compliments throughout the period of cocaine consumption. She stated that after she had consumed this cocaine she felt dizzy and sick.

The use of cocaine at the function and its association with Ms L was supported by the statement of Ms M regarding the circumstances in which she left (shortly before the complainant went to the barrister’s private chambers). She stated that she was in the barrister’s chambers for half an hour to 45 minutes discussing a personal matter. They left the room at the same time and Ms L and a secretary from the complainant and Ms M’s office came out from the next room, to which Mr K said “hey sniffies.” Ms M looked in and could see a group of people consuming what she assumed to be cocaine as they were bent over a table. She understood cocaine to have been consumed in the barrister’s chambers on several other occasions and decided to leave, stating to Ms N and Ms N’s husband “coke is out, I’m leaving.” They agreed. She said she approached the complainant who was surrounded by four barristers. She said that she told the complainant she was leaving because “the coke is out.” The complainant advised her that she wanted to stay and finish her drink.

Ms M’s statement addressed in detail conversation she had with the complainant and Ms L separately and together in the early hours of the morning of 6 November 2019 after the alleged sexual assaults and the complainant’s return to her hotel. This included an account provided to her by the complainant in the hotel room on the morning of 6 November in which she said to her in Ms L’s presence, without correction, that she, Ms L, the barrister, the plaintiff and Mr K were left in chambers and Mr K provided a bag of cocaine for everyone to share, and that she had approximately five lines of cocaine which is roughly what everyone else had as well, and that the plaintiff had not snorted it but put his finger in the near empty bag and rubbed the residue on his gums. Ms M’s statement also narrated a conversation she had on a long stool in the lift bank of the hotel with Ms L by herself, after she had asked her to leave the complainant, before she went back to the complainant herself. Ms M stated that “I asked whether she had also consumed cocaine and she confirmed that she had”.

Ms L’s statement referred to a period of about an hour with this small group in the barrister’s chambers with no reference to consuming cocaine, but to a number of them having a cigar, and to drinking, dancing and chatting.

The complainant’s statement indicated that after the group of five had consumed cocaine, the barrister left. The plaintiff then suggested that they go back to his home for a swim as he had a nice heated pool. The complainant stated that she was cold and very intoxicated and agreed. She stated that her memory was extremely hazy as to this period but that at about 1:35 am she got into a car (she could not recall whose car this was, and thought it may have been a cab) and drove to the plaintiff’s home. She said that Ms L said to her during the car ride that the plaintiff was “not an option” but she would let her sleep with Mr K. The complainant said she was surprised and confused and told Ms L she did not want to sleep with either of them as they were over 50 years old and she thought the idea gross.

Ms L’s statement indicated that after the barrister left Mr K started talking about the plaintiff’s pool, and invited her and the complainant to come for a swim. She said that she declined and she could not recall what the complainant said. She stated that all four went down in the lift to the ground level and she said goodbye to the men, intending to walk the complainant back to her hotel, but the complainant followed the men, saying she wanted to go swimming. Ms L said she tried convincing the complainant to retire for the night but she repeated that she wanted to go swimming, and so she accompanied her as she did not know if the complainant was familiar with Sydney. The Council CCTV footage obtained by Detective Porter before the plaintiff’s arrest showed the four getting in a taxi at 1:34 am on 6 November 2019.

Ms M’s statement includes, as part of the joint conversation she had with the complainant and Ms L at the hotel, Ms L’s report that after they left chambers she began to walk the complainant back to her hotel but both the plaintiff and Mr K had requested they come back to the plaintiff’s house for a night swim, and that she (Ms L) got into the taxi with the complainant because she was worried Ms M would be upset if she left the complainant on her own. Ms M also described, as part of the conversation with Ms L by herself, Ms L repeating that both the plaintiff and Mr K invited the complainant to go back to the plaintiff’s house for a night swim.

The complainant’s statement provided a coherent account of events in the pool at the plaintiff’s house after they arrived there. She described going up in the lift at his home straight to his pool area. She stated that the plaintiff undressed and entered the pool in shorts (it was actually underwear), engaged with her and “was encouraging me to get into the pool and he said it was 36 degrees and very warm and it would warm me up. He was talking about the steam coming off the pool and told me it would make me feel better.” She was encouraged as well by the fact that he was asking Ms L to get in. Although Ms L did not get in, the complainant knew the plaintiff to have known Ms L for a long period of time and so assumed she would be safe. She said that she got into the pool in her underwear.

The complainant said the warm water made her feel better as she had been feeling sick and dizzy from so much alcohol and the cocaine. She said she felt disorientated and dizzy so closed her eyes and leant against the side of the pool. She described the plaintiff coming up close behind her, suggesting she look out to the view. She felt uncomfortable and pushed him away with her legs, and swam away. She said she felt unable to say anything negative as he was her boss. She stated that he followed her, and blocked her into the side of the pool. She said she tried to keep a distance from him but he kept trying to press into her back, and grabbed her leg and held it against him.

The complainant stated that Mr K entered the pool wearing shorts and a rash vest. He gave her an alcoholic drink which was very strong. She stated that she swam to the other side of the pool, and as she took a drink from the glass at the side of the pool the plaintiff:

The complainant stated that Ms L had disappeared when this started happening and it made her even more scared. She stated that Mr K then blocked her into the corner of the pool steps. She said he repeatedly touched her on her breasts and buttocks and put his arms around her to stop her from getting away. She was scared to make a scene and risk losing her job. She said Mr K said that both he and the plaintiff wanted to have sex with her. She said that would never happen and he said that he could “make it happen.”

The complainant said that Ms L came back and Ms L and the plaintiff began an argument at the side of the pool. She stated that from what she could hear they were arguing about the fact that the plaintiff was touching the complainant, and it made Ms L angry. She stated that Ms L seemed very upset and angry with the plaintiff.

The complainant’s statement described Mr K as “trying to distract” her at this point, and very aggressive towards her. She stated that while she had her legs up against her chest to protect herself, he put his hand under her buttocks and then between her “butt cheeks” and pushed his fingers roughly inside her vagina which hurt a lot. She stated that she pushed him away and told him to stop and he kept pushing her back against the wall of the pool and kept putting his fingers inside her. This occurred three times.

The complainant stated that immediately after Mr K sexually assaulted her she was very scared and unsure what to do. She was very drunk and woozy from the cocaine, which she had never had before, and was not used to excessive amounts of alcohol. She thought she was going to be sick again and felt her head spinning and did not feel strong enough to get out of the pool.

The complainant said she swam away from Mr K, and the plaintiff approached her again. She said that he took her hand and put it on his penis and testicles and squeezed it with his hand around hers. She “freaked out” when she realised for the first time that he was naked and felt “scared and disgusted”. She said she felt panicked and unsure how to react, because he was her boss and she was scared of the repercussions including not only losing her job but having her name tarnished in the legal industry. She stated that she swam up to Ms L at the side of the pool and said “can you help me?” She said she told her she was scared and needed to get out of there. She said Ms L asked her if she needed to go right away and she said she did.

The complainant said that she got out of the pool and immediately put her dress on. She said she was dizzy and unsteady and tripped over a few times as she was trying to put her dress on. She said she had to sit down to put her shoes on as she could not stand up straight. She sat close to Ms L and asked her to call the cab immediately. She said that she was scared the plaintiff and Mr K would be angry she was leaving so she told them she had to be up for a flight back to where she lived in a few hours, but they continuously attempted to convince her to stay against her will. She said Ms L phoned for the cab and said it was 10 minutes away. She said:

She stated that she knew Ms L was aware that the plaintiff was naked, because he asked Ms L “can you see my cock?” and she said “Yes but I don’t want to.” The complainant said that she waved goodbye and left because she was nervous and unsure what else to do.

Ms L’s statement confirmed arrival at the plaintiff’s house at around 2 am, and taking the lift up to the outdoor pool area. She stated that the plaintiff removed his clothes and jumped into the pool in his underwear. She said that shortly afterwards the complainant removed her dress and heels and got in the pool in her underwear. She confirmed that Mr K entered the pool in shorts and a rash vest, and that she herself did not enter the pool but sat close by. She described twice leaving the poolside to go inside. She described no occasion of seeing the plaintiff in close proximity to the complainant. She said that after about 20 minutes, when she went inside to have a glass of water, she came back out and was “chatting” with the plaintiff while the complainant was in the shallow end near the step and seemed to be “chatting” with Mr K. She provided no account of arguing with the plaintiff or of being aware he was naked.

Ms L’s statement made no mention of the complainant asking to go or looking upset, or having cause to ask the complainant if she wanted to go. Her statement said: “At approximately 3.15 am, I recall saying to [the complainant] that I was keen to call a cab and go home. [The complainant] said she would come with me and then got out of the pool and got dressed. I then called a cab.”

Ms M’s statement described the conversation in which she was talking with the complainant and Ms L in the hotel room later that morning as including the following:

Ms M said that in this same conversation Ms L told her that at one point after seeing that the plaintiff was not wearing underwear anymore she asked him “what he was doing” and said he “needed to pull his head in.” Ms M said Ms L told her the plaintiff said Ms L was overreacting, and that he was not doing anything wrong.

Ms M’s statement included an assertion that Ms L said, in the conversation involving just the two of them at the lift bank, that she saw the complainant looking upset after being there for a maximum of half an hour and asked her if she wanted her to call a taxi to which the complainant said “yes”. Ms M also described the complainant’s account to her when they were by themselves as having mouthed words to Ms L along the effect of “help me” and “get me out of here.”

Detective Porter’s May 2020 statement explained that he used the 1:34 am departure from chambers to work out that the plaintiff’s CCTV footage was about 10.5 hours behind. This may have been worked out after Detective Porter charged the plaintiff, but it is not controversial. He calculated that this showed Ms L and the complainant leaving the plaintiff’s home at 3:25 am on 6 November 2019.

The CCTV footage confirmed that within about five minutes of the four exiting the lift at the plaintiff’s house the plaintiff removed his clothing except for a pair of underpants and entered the pool. Within a few minutes after that the complainant, who was facing the pool after the plaintiff entered it, removed her dress and entered the pool as well. Mr K came in some time later. Ms L stayed outside of the pool and was mostly near it but moved away a few times. The CCTV footage is not sufficiently clear to determine what occurred between people in the pool. The complainant was in the pool for approximately an hour.

It is not apparent from the portion of the CCTV footage showing the complainant getting out of the pool that she had difficulty getting out of pool; although I would not go so far as to say that it shows clearly that she did not.

The CCTV footage shows that the complainant did not get straight into her dress after exiting the pool. She spent close to three minutes drying herself with a towel before she put her dress on. In part of this time she appeared to be crouched down at the side of the pool engaging with a person or persons who were still in the pool.

The complainant did not appear to trip over in the time between getting out of the pool and leaving, although she was mostly seated. She did not appear stable throughout. She can be seen to lean backwards, sway slightly, stumble back on her seat after putting her shoes on and so on.

The complainant stated that she waved goodbye when she left because she was nervous and unsure what else to do. The CCTV footage confirmed a small wave as she left the pool area, a turn and smile when in the lift, and a movement when walking down the driveway to the taxi (which is the point at which I understand she stated the plaintiff and Mr K were yelling down at her to stay) that could have been a small wave up to the pool area – or a turn of her head with her hand up to her brow or covering her face. The CCTV footage (including the separate Exhibit F) shows a number of minutes before Ms L and the complainant entered the lift to leave where Mr K was out of the pool and engaging with the complainant in a way that appeared to make her uncomfortable.

The complainant said of the trip in the taxi after leaving the plaintiff’s house that Ms L was meant to drop her at her hotel and go home, but because she was so panicked and distressed Ms L said she was uncomfortable leaving her alone and came back to the hotel with her. She said Ms L told her in the cab that she needed to report what the plaintiff and Mr K had done to her to the police. She said that in the cab she asked Ms L if she had ever seen the plaintiff do this before and Ms L said she had never seen him act like this and could not believe he had done this. She said the plaintiff was ringing Ms L over and over but she did not answer her phone.

Ms L’s statement indicated no knowledge of anything being wrong until she left the plaintiff’s house and was in the taxi with the complainant. She described the complaint to her as follows:

This statement by Ms L includes no reference to raising with the complainant the prospect of reporting her allegations to the police. Ms M’s statement indicated that Ms L told her, as they talked on the long stool at the lift bank of the hotel, that after the complainant told her in the taxi what happened she advised her they should call the police, but the complainant was adamant she did not want to call the police. She also said of this conversation “[Ms L] was very adamant that she cannot believe that this had happened as she had been working with [the plaintiff] since she was 17 years old and he had never acted this way before in front of her.”

The complainant, Ms M and Ms L all described their interaction back at the hotel. The complainant said that when she got to the hotel she started shaking violently and had a complete panic attack. She said she was crying and in total shock. She felt ashamed and embarrassed about what had happened and begged Ms L to not tell anyone. Ms L said to her she was not comfortable leaving her and that she needed to report what had happened to someone. The complainant said Ms L could call Ms M. Ms L called Ms M and said something bad had happened and the complainant needed her, and she came promptly. CCTV footage from the hotel obtained by police demonstrated the complainant arriving back to her room at 3:42 am. Ms M describes being woken by a call from Ms L apologising for waking her, but telling her she needed to come to the complainant’s room.

The complainant said that she tried to explain what had happened to Ms L and Ms M. She said the plaintiff called Ms L during this time and Ms L ignored it. She said Ms L kept saying over and over again that she could not believe this had happened to her (the complainant). The complainant stated she was scared and yelling hysterically. Ms M left the room for a period and the complainant hyperventilated and had a panic attack. Ms M returned with Ms L and she told Ms M that both men had sexually assaulted her.

The complainant stated that she begged Ms M to not tell anyone. She said “I’m not sure how much time had passed but not long after [Ms M] came to me and told me that she had told [Ms N], the Solicitor that I work under at [the law firm]” She described a conversation with Ms N, and her feeling of devastation and humiliation, and terror about what would happen and whether she would lose her job. She told Ms N what had happened. She said they both cried, Ms N hugged her and she herself broke down and started to sob.

Ms M stated that Ms L called her and said she needed to come to the complainant’s room and when she went there Ms L looked extremely upset and on the verge of tears and the complainant looked extremely upset. She confirmed that she saw Ms L’s phone indicate an incoming call from the plaintiff which Ms L did not answer.

Ms M stated that most of the initial information came to her from Ms L, while the complainant sat there with tears running down her face. Ms L advised Ms M that the complainant had made allegations about the plaintiff and Mr K but Ms L’s demeanour “was not of a caring matter so I then asked [the complainant] to confirm what she had said.”

I have referred earlier to the complainant’s report to Ms M in Ms L’s presence of their cocaine consumption, and Ms L’s report of both the plaintiff and Mr K having requested they attend the plaintiff’s premises for a night swim. Ms M also stated that Ms L said she accompanied the complainant because she was aware Ms M had been messaging the complainant and was worried Ms M would be upset if she left the complainant alone. The complainant told Ms M what everyone was wearing in the pool. I have referred earlier to Ms L’s acknowledgment to Ms M of her awareness that the plaintiff came to be naked.

Ms M’s account of the conversation included the complainant disclosing five different times the plaintiff and Mr K placed a finger inside her – Mr K penetrating her vagina three times and the plaintiff twice. She recalled Ms L sitting cross legged rocking back and forth. She said Ms L’s telephone buzzed again and she did not answer it.

I referred earlier to Ms M’s account of Ms L saying she asked the plaintiff what he was doing and telling him he needed to “pull his head in.” This was allegedly at this point in the conversation, Ms M stating that Ms L said this after referring again to seeing the plaintiff not wearing underwear anymore. Ms M became upset after being informed of the sexual assaults and asked Ms L whether she had witnessed any of this. Ms L said she had not but confirmed the plaintiff was naked and she only found out about the assaults when they were in the taxi.

According to Ms M, Ms L then asked the complainant whether she had led the plaintiff and Mr K on. This caused Ms M to ask Ms L to leave. She then spoke further privately with Ms L (on the long stool in the hotel lift bank). Aspects of this conversation have been referred to earlier. Ms M described Ms L as visibly upset. She said Ms L said she did not know what to think.

Ms M and Ms L both state they went to the street level with the complainant for her to have a cigarette, and Ms L left in a taxi. Ms M went back to the complainant’s room with her. Ms M described the complainant becoming upset when she told her the police would need to be called, punching herself in the head. Ms M stated:

Ms M stated that she said “I don’t know what you want me to do then”, with some force. She said she left and became regretful, returned and apologised profusely. She remained seated on the floor stroking the complainant’s hair and telling her this was not her fault. They spent about two hours alone.

Ms M was told more information that had not been revealed when Ms L was present. This included the plaintiff putting her hand on his erect penis, which is when she realised he was naked in the pool, his attempts to kiss her, and Mr K’s statement that “[The plaintiff’s] never done this before but he wants you to stay the night and will pay for another flight home for you.”

Ms L’s statement indicated that when the taxi arrived at the hotel she offered to walk the complainant to her room as she “had a concerned look on her face.” Mr K rang Ms L from the plaintiff’s phone while they were in the lift and asked her if the complainant was going back to the plaintiff’s house. She said she told him she did not know what he was talking about and that she could not talk, and hung up. She saw the complainant in to her room and stood outside trying to process what had occurred. She rang Mr K on the plaintiff’s phone and asked him what he had meant, to which he said he was wondering if the complainant was coming back because she had said she would do so when she left. She told him the complainant would not be coming back. At some stage she contacted Ms M to come to the complainant’s room.

Ms L described the complainant, in Ms M’s presence, reporting “touching” by Mr K in the pool (with his fingers inside her) and that she told him to stop. She said both men had touched her but that Mr K was more forceful. She stated that her phone rang again from the plaintiff’s number, then Mr K’s, and she did not answer these calls. She stated that the complainant repeatedly apologised to them, and referred to the plaintiff’s family circumstances. Ms L stated that both she and Ms M advised the complainant there was nothing they could do to help her if she did not want to take it further.

Ms L described a private conversation with Ms M in Ms M’s room in which she told Ms M that she did not notice anything untoward going on in the pool, thought everyone was getting along fine and that the first time she became aware of anything was in the cab. Ms L’s version of her private conversation with Ms M is very different from the account of the private conversation as outlined in Ms M’s statement.

Ms M stated that in the morning after Ms N was advised Ms N, in the presence of Ms M, rang Ms L and put her on speaker phone to ask her what happened. Ms L kept repeating “I don’t know, I don’t know” and was extremely emotional.

The complainant’s statement described the flights for her, Ms M and Ms N being changed to mid-afternoon, with the other secretary from their office keeping the planned morning flight. She described a panic attack at the airport and communication with her mother, and going home. Ms M’s statement similarly described the complainant as upset at the airport. She took the phone from the complainant when she became too distraught to speak with her mother. Ms M conveyed the complainant home from the airport, and informed her parents what she had been told.

Ms L’s statement indicated that she spoke to the plaintiff about the incident on the evening of Wednesday 6 November 2019, telling him there had been an allegation of sexual assault or touching in the pool against both him and Mr K.

On 4 December 2019 Detective Porter received, additionally to the signed statements of the complainant and Ms M, the statement of the complainant’s mother. This was a four page statement with 21 paragraphs. It set out her belief as to the complainant’s vulnerability, due to the stressful year up to the complainant’s trip to Sydney as a result of her boyfriend’s very significant injury, and the law firm’s knowledge of this. She described the conversation with her daughter when she was waiting to board the flight home at Sydney airport, having received a text message from the complainant saying she was quitting her job, urging her mother to be home when she got back, and stating something bad had happened. On the telephone the complainant was distraught and barely coherent. Ms M took the phone and told the complainant’s mother that the complainant had told her she had been sexually assaulted in a swimming pool at the plaintiff’s house by the plaintiff and Mr K.

The complainant’s mother’s statement described her daughter in an extreme state of distress when she arrived home, going straight to her room. She was provided with a second hand account from Ms M, generally consistent with the account recorded in the complainant’s statement. After Ms M left the complainant’s mother and her husband were provided with an account from the complainant regarding what happened, generally consistent with the account recorded in the complainant’s statement. She explained her support for her daughter through medical assessments. She said that on 20 November 2019 the complainant asked her stepfather to call the police on her behalf and inform them that she had been sexually assaulted by the plaintiff and Mr K.

On 13 December Detective Porter made enquiries in relation to CCTV from the ground level foyer of the building in which the floor of barristers’ chambers is located, but was told this had been overridden. He later received it on 18 December 2019.

In answering interrogatories regarding the CCTV footage provided to police by the plaintiff on 19 December 2019, Detective Porter stated “I watched the entirety of the CCTV footage prior to charging the Plaintiff but I am not certain whether the CCTV footage I watched was the enhanced or the unenhanced version.” In evidence he said that he spent over an hour, watching the enhanced and unenhanced footage before charging. The questions asked of him in cross-examination were focused on what was shown after the complainant exited the pool, except for one question as to whether it suggested she had been in the pool for 10 minutes or 20 minutes when Ms L went to get a drink.

It was submitted for the plaintiff in closing written submissions that the document forwarded by Ms L’s solicitor on 9 December 2019 called into question the complainant’s version of events as she did not notice anything untoward going on in the pool and thought everyone was getting along fine, footnoting in support reference to her version of her conversation with Ms M when they spoke alone at the hotel. It was submitted that an objective person would have held reservations about the credibility of the complainant and Ms L after receiving Ms L’s first statement. It was submitted that after viewing the CCTV footage an objective person would have only held reservations about the credibility of the complainant, not Ms L, because the CCTV footage corroborated Ms L’s version of events.

The following opening submission had been made for the plaintiff:

It will be recalled that the final amended statement of claim included the suggestion that aspects of the complainant’s account directly relevant to the offending conduct were inconsistent with or not shown in the CCTV footage (particulars v to vii above at [41]). These assertions were not pressed.

Paragraph [130] of the plaintiff’s written closing submissions was far more focused than the particulars in the final amended statement of claim regarding the relevance of the CCTV footage. This focus was on the complainant’s conduct exiting the pool and afterwards – to suggest she did not have difficulty getting out, did not immediately put her dress on, was not unsteady, sat down to put her shoes on because of the nature of the shoes, and seemed relaxed and not in fear afterwards and gave a slight wave or smile to the plaintiff as leaving. These submissions corresponded generally with particulars viii to xii, above at [41].

The plaintiff’s closing written submissions still made far-reaching assertions as to the importance of the CCTV footage, such as:

There was still some reference to asserted inconsistency between the complainant’s account of what occurred in the pool and the CCTV footage. In the context of a submission regarding Detective Porter’s credibility it was submitted:

The following closing written submissions were made regarding the sufficiency of the material available to Detective Porter, albeit not limited to the point at which the plaintiff was charged:

The italicized portions of these two passages must be considered in light of the absence of cross-examination of Detective Porter on any such inconsistency, the Court not being taken to any part of the CCTV footage showing any such inconsistency, the lack of elaboration of this issue in the written submissions as to absence of reasonable and probable cause, and the express concession made by Mr Sullivan KC for the plaintiff during closing submissions. The focus in the written submissions on what happened after the complainant left the pool was raised, and Mr Sullivan confirmed “As I stand here now, I don’t make a submission that it’s clear from the footage that you can see various things, or what happened in the pool.”

The following submission was made in the plaintiff’s closing written submissions:

It was submitted for the defendant that any differences between the complainant’s account and the CCTV footage were not of a kind that would mean the allegations lacked sufficient value to constitute cause for a prosecution. It was submitted that “The CCTV does depict the complainant, in her underwear, in the pool with the plaintiff and his friend [Mr K].” It was submitted that it was difficult to view, did not enable vision of the pool, and covered only surrounding circumstances. There was a clear account from the complainant as to what occurred. It was submitted that aspects of the complainant’s account such as the plaintiff being naked were supported by Ms M’s statement regarding the disclosures made to her by Ms L.

The statement of the complainant made out the elements of the sexual assault of her by the plaintiff by his digital penetration of her vagina without her consent, and unlawful sexual touching by taking her hand and putting it on his penis and testicles. It was a coherent account in a detailed statement which provided relevant surrounding detail supported by other evidence available to Detective Porter. It was a particularly serious allegation given the very significant power imbalance between the complainant and plaintiff.

It is frequently the case when allegations of sexual assault are made that no one is suggested to have witnessed the offending. The complainant did not allege that Ms L witnessed the offending conduct itself. Particular (iv), above at [41], does nothing to support absence of reasonable and probable cause. On the complainant’s account Ms L would however have likely witnessed the plaintiff touching the complainant or keeping very close to her in the pool, and was aware he removed his underpants, with one or both of these observations causing her to argue with him. On the complainant’s account Ms L realised she was upset in the pool and wanted to leave, because she communicated this to Ms L. On the complainant’s account Ms L would inevitably have heard the plaintiff and Mr K placing pressure on the complainant to stay.

There will be occasions when, despite a statement from a complainant which makes out the elements of an alleged sexual assault, there is other evidence which significantly calls into doubt the reliability of the complainant’s account. A complainant’s account may be undermined to such an extent that it is not appropriate to charge the suspect. This case comes nowhere close to such a situation. There was no basis for Detective Porter to do anything other than charge the plaintiff.

No submission or cross-examination was directed towards the first particular – that Ms M should have been understood to have been assisted by the complainant or her parents in the preparation of her statement giving rise to the suggestion of collusion between witnesses. There was not an evidentiary basis to suppose this at the time the plaintiff was charged. Incidentally, Ms M was a witness for the plaintiff, and her evidence made plain that this assertion was not correct. She said her first statement was drafted by her completely independently of anyone else, on 8 November 2019.

The two particularised inconsistencies between the complainant’s account and Ms L’s statement (ii and iii above at [41]) did not require, by themselves or in combination with any of the other factors, devaluing the complainant’s allegations to the extent that it was not appropriate to charge the plaintiff. There will inevitably be discrepancies between witnesses. Such differences, and the existence of points for cross-examination of a complainant, do not generally indicate that a person should not be charged when a serious criminal allegation has been made. The trial process exists for resolution of such issues.

Of further importance in relation to Ms L’s account at this stage, and even more clearly by early 2020, is the significant body of evidence which if true suggested that by the time her solicitor forwarded her versions of events to police she was covering up important observations she had made which were supportive of the complainant’s allegations. As I indicated at the outset Ms L was not a witness and has not had an opportunity to respond to the allegations of what she saw and heard, and what she is alleged to have said to Ms M and Ms N. However the requisite analysis of what Detective Porter made of Ms L’s accounts, and what he should have made of them, requires consideration of all material available to him as to Ms L’s out of court representations and reactions. These were capable of bearing on whether the prosecution would be obliged to call Ms L as a witness at all, the extent to which she could be discredited by the Crown by cross-examination as an unfavourable witness if called; and, in a more basic way, the police officer’s view as to where the truth lay.

The first particular relying on Ms L’s statement was the asserted discrepancy between the complainant’s account of seeking help from Ms L while she was in the pool, and Ms L’s account that she was the one who raised her own wish to leave. The available evidence also included Ms L’s far more immediate alleged report to Ms M that she offered to call a cab because the complainant looked upset in the pool and answered affirmatively Ms L’s question whether she, the complainant, wanted her to call a taxi (see above at [73]). Also relevant is that Ms M’s account of the complainant’s report, no more than an hour or two after she exited the pool, was that what she had done was mouth the words “help me” and “get me out of here” (see above at [73]). This far more contemporaneous version than her typed statement would have been consistent with Ms L’s alleged account to Ms M of seeing the complainant upset and asking her, for that reason, whether she wanted a taxi called.

The second particular relying on Ms L’s statement (particular iii above at [41]) was the difference between the complainant’s account that when travelling in the taxi to the hotel with Ms L, Ms L told her that she needed to report what the plaintiff and Mr K had done to her to the police (whereas Ms L did not say in her statement that she told the complainant she needed to report to the police). The statement did not contradict the complainant’s account, and it could almost be taken without saying that a woman in Ms L’s position would have made reference to the prospect of reporting the allegations to the police. The evidence available to Detective Porter included Ms L’s more contemporaneous report to Ms M that she did make a suggestion in the taxi to the complainant of going to the police (see above at [82]).

Additionally to the two inconsistencies particularised, Ms L’s statement made no reference to the consumption of cocaine by the five people in the barrister’s chambers although she is alleged to have confirmed to Ms M that this occurred. It stated that the invitation to the complainant to go to the plaintiff’s house came from Mr K, although she is alleged to have said at least twice to Ms M that the plaintiff also invited the complainant to his house. It made no reference to the plaintiff being naked whereas Ms M alleged Ms L confirmed three times on the morning of 6 November 2019 that she realised he was naked. It made no mention of having words with the plaintiff about his conduct towards the complainant whereas Ms M’s statement included Ms L’s report that she had.

None of the pleaded particulars regarding Ms L’s first statement support the objective aspect of absence of reasonable and probable cause.

As noted above the plaintiff did not press any contention that the CCTV footage was capable of showing inconsistency between the complainant’s account as to where she was and who she was near or what happened in the pool (particulars v to vii at [41]). Based on my own viewing of the footage, this concession was rightly made.

The criticisms of the complainant’s conduct as she exited the pool and afterwards are either not made out, do not support the propositions said to follow, or are nowhere nearly significant enough to support the plaintiff’s case on lack of sufficiency of evidence to institute criminal proceedings.

It is not apparent from the portion of the CCTV footage showing the complainant getting out of the pool that she had difficulty getting out of pool; although I would not go so far as to say that it shows clearly that she did not. Further, the complainant’s statement about not feeling strong enough to get out of the pool related to an earlier point in time, directly after being assaulted by Mr K. She was nonetheless able to swim away from him instead. On her account she was then cornered by the plaintiff and discovered he was naked when he placed her hand on his penis and testicles. She stated that when this happened she panicked and “freaked out” and was able to swim to speak to Ms L. Once she had been able to communicate with Ms L about needing help and wanting to leave straight away she got out of the pool. I see no inconsistency of anything like the order of importance that would objectively cause a reasonable police officer to see the prosecution case as undermined in any way relevant to whether the plaintiff should be charged.

The complainant did not put her dress on immediately but towelled herself dry first. It is likely that she regarded her dress, which is visible in the CCTV footage and other photographs in the prosecution brief, to be a special occasion fashion item which she did not want to get into while wet, or in wet underwear. She does seem superficially reasonably comfortable in the presence of the plaintiff and Mr K (who were in the pool) in these minutes before she dressed. On her account the plaintiff and Mr K continued to engage verbally with her once she exited the pool, and she was worried as to how to navigate this. Some display of confidence, and crouching to respond to one or both of them once she was out and not in immediate risk of further offending, is not inconsistent with this.

The complainant was not tumbling over when she was standing or walking, and her shoes would have been difficult to put on while standing even if she was not intoxicated. This does not mean that she did not feel dizzy or unsteady, nor that she did not genuinely recall feeling that way when providing her statement. The material available to the police at the time of charge suggested that the complainant, who was a slim young woman, had been drinking alcohol for 14 hours by the time she exited the pool and had consumed four or five lines of cocaine, for the first time in her life. If she exaggerated her level of impairment from intoxication that would be a standard enough topic for cross-examination at trial, particularly if the issue was consent. The opening address of defence counsel for the plaintiff at trial indicated that the defence case was that the acts did not occur.

I do not accept the plaintiff’s submission that the CCTV footage supported Ms L’s account and showed the complainant’s to be wrong. The footage showed the women waiting for a taxi for about the amount of time they both described. The clearest inconsistency between the footage and the complainant’s account is that she did not immediately get dressed. Ms L did not use the word “immediately”, but she also described the complainant getting out of the pool and dressing. She also did not address the detail of how long the complainant spent towelling herself dry.

Insofar as the plaintiff seems to be suggesting a broader consistency between the account of Ms L that she did not know anything was wrong until she left the plaintiff’s house in the taxi with the complainant, and the CCTV footage, I do not accept the submission. The CCTV footage does not answer in any way most aspects of the complainant’s account which suggest Ms L likely had an awareness of problems before the taxi – of the plaintiff touching and following the complainant in the pool, his removal of his underpants, Ms L’s argument with the plaintiff about his conduct towards the complainant, the complainant seeking help from Ms L when still in the pool, and the importuning of the complainant by the plaintiff and Mr K for her to stay. Mr K’s recorded conduct in the few minutes before the complainant entered the lift to leave is clearly consistent with the complainant’s account of pressure to stay - as are the persistent calls by the plaintiff and/or Mr K to Ms L’s mobile phone after they left (and as will be discussed below this became more clear still after the provision of the complainant’s January 2020 statement).

With the exception of my observation at [128] above, I do not accept the submission for the plaintiff that the CCTV footage shows a relaxed scene, a placid scene, or the complainant to be relaxed or relaxing or happy. There is inadequate detail in most of the footage for any such assertion to be made good. The complainant was not dramatically throwing her hands in the air, nor bent over wailing; but this does not make out the description contended for by the plaintiff. In relation to the footage in Exhibit F of Mr K’s interaction with the complainant before she entered the lift she is sufficiently close to the camera to enable the observation to be made that she appears uncomfortable, and unrelaxed.

I reject the plaintiff’s contention that the complainant would not have sat down in the pool area with Ms L and had a cigarette if she had been the victim of the offending described by her. I do not need to give myself a direction pursuant to s 292B of the Criminal Procedure Act, nor refer to the numerous decisions of the Court of Criminal Appeal exposing the potential problems with such arguments when raised in support of grounds of appeal that a conviction is unreasonable, to do so. The complainant had to wait for Ms L and a taxi, and the men were in the pool. Further, if the allegations are correct, the complainant provided a compelling explanation for why she tried to make as little a fuss as possible while still at the plaintiff’s house. The imbalance of power between the complainant and all people present, particularly the plaintiff, was enormous.

The complainant stated that she was conscious of the potential ramifications for her employment and future while still in the pool. She stated that after she exited the pool she was scared the plaintiff and Mr K would get angry at her for leaving, so she told them she had to be up for a flight back to her home city in a few hours. She said they continuously tried to convince her to stay. She stated that they were upset she was leaving and yelled down to her as she was waiting to get into the cab. She said “I waved goodbye and left because I was nervous and unsure as to what else to do.” Her words and behaviour when complaining to others in the hours that followed show her vulnerability and the complexity of her situation, if the allegations were true.

There was not objectively an absence of reasonable and probable cause at the time Detective Porter charged the plaintiff.

As noted earlier, Detective Porter’s evidence was that by 17 December 2019, based on the evidence then available to him, he formed the view that the plaintiff and Mr K had committed offences against the complainant. I take this in the context of all the evidence before me to be a composite assertion that he believed the material was sufficient to warrant setting the criminal law in motion and that he actually believed the complainant. The second of these propositions is not required in order for a police officer to lay a charge. To put it another way, a plaintiff alleging malicious prosecution will not succeed by simply proving that a charging police officer did not hold a positive state of satisfaction himself as to the truthfulness of a complainant.

It is also important to bear in mind that the plaintiff’s case has not been conducted on the basis of inadequate investigation. Although there was some suggestion that Detective Porter should have spoken more to the complainant before charging, and should have waited for Ms L’s second statement to arrive, it is not submitted that the investigation was not sufficiently complete to consider charging. The stark reality of the core contention of the plaintiff’s case is that on the basis of the inconsistencies identified (outlined above at [41]), determination by a Court of the complainant’s allegations should have been foreclosed by a police officer.

I noted above at [27] that the plaintiff pleaded that Detective Porter did not honestly believe in the case that he instituted, but that this was not the focus of the plaintiff’s case. The plaintiff’s case was very heavily focused on what Detective Porter should have made of the material available to him, one aspect of which was effectively that he believed too much in the complainant’s case, and that his blinkered conviction in guilt meant he failed to see how weak the case was. I will refer to some of the cross-examination that reflects this, as well as his evidence on the topics relied upon by the plaintiff as those which should have made him realise there was insufficient evidence to charge the plaintiff. The plaintiff would thus require the Court to draw the inference that Detective Porter in fact had that mental state of the hypothetical reasonable police officer.

Detective Porter gave evidence that he always understood Ms L to be a very important witness; not an eye witness, as she was inside at the specific time of the plaintiff’s alleged sexual assault of the complainant, but nonetheless very important.

Detective Porter was cross-examined about Ms L’s statement received by him on about 9 December 2019. He said that the complainant’s statement was supported by other evidence, and Ms L’s was not. He said that Ms L’s occupation would not have stood out, because he cares about what happened, not what a person does. It was suggested to him that her statement would carry greater weight because she is a solicitor. He stated that after what he witnessed in this matter, he did not agree with the proposition that prima facie Ms L should have been afforded a degree of trust because she is a solicitor. Pressed for his honest view as to what her being a solicitor meant, he said “I think she’s in a position to lie more carefully.”

Detective Porter was questioned upon the premise that there was a significant inconsistency between Ms L’s account in paragraph 21 of her statement regarding the complainant’s enthusiasm to go to the plaintiff’s house when they left the barristers’ chambers (see above at [57]), and the complainant’s account. There was no such inconsistency, as the complainant clearly stated her memory was hazy as to how she actually came to be in the car travelling to the plaintiff’s house. Detective Porter was not provided with the relevant part of the complainant’s account when answering this series of questions and said he was answering from memory. He conceded (incorrectly) that there was some inconsistency in this regard. It was put that he should have thus realised that one of them was “telling fibs” with doubt cast over the credibility of both the complainant and Ms L, in the eyes of an open-minded policeman. He responded by suggesting the need to consider who the witness is aligned with. As Ms L was aligned with the plaintiff, and was his friend, he took her evidence with “a grain of salt”, which he corrected to “some scepticism”.

Detective Porter said in cross-examination that he did not trust Ms L’s version, and thought she was lying. This took into account his experience as an investigator for 22 years which led him to “where the evidence took him”. He stated he formed the opinion that Ms L was misleading him.

It was put to Detective Porter that he did not make a record of his view regarding Ms L because it did not happen (which I take to be a suggestion that he did not hold such view). He denied this proposition.

When Detective Porter was then pressed about Ms L’s statement not corresponding with the complainant’s, he responded that it did not correspond with the first complaint witness’s statement (that of Ms M) either. He was asked about Ms L’s denial of arguing with the plaintiff by his pool, and acknowledged that she did deny this, but said she had told Ms N that she argued with him. Ms L’s denial of argument, and the account of Ms N, came to Detective Porter’s attention in January 2020, but the cross-examination was intertwined at this point between Ms L’s first and later statement. Detective Porter continued to state clearly in evidence a number of times that he did not believe Ms L’s account where it differed from the complainant’s. After stating that he had poked holes in Ms L’s story, the following answers were provided by him:

Of the CCTV footage provided to police by the plaintiff, there was no meaningful cross-examination of Detective Porter as to what he believed it showed regarding the time the complainant was in the pool. This is consistent with the circumstance I have outlined above of the plaintiff not pressing the suggestion that the CCTV footage undermined the complainant’s account of the alleged offending itself. The only cross-examination of Detective Porter regarding the complainant’s time in the pool related to the complainant’s statement that the first act of penetration occurred about 10 minutes after she was in the pool, when the total time she was in the pool was over an hour, and Ms L’s estimate of 20 minutes elapsing before she went inside corresponding more closely with the CCTV footage. Detective Porter stated he regarded this as immaterial, especially when the complainant was intoxicated.

Detective Porter stated that one cannot tell from the footage how much effort it took for the complainant to get out of the pool. He agreed that the complainant did not immediately put her dress on when she got out of the pool, but rather she dried herself first, and described this as a very minor inaccuracy. He acknowledged that she had no major trips, but suggested there could have been little slip-ups and she could have felt unsteady and light; the footage was too blurry to indicate she did not. He agreed she would have needed to sit down to put her shoes on because of the nature of the shoes. He stated he did not take the view that the video showed the complainant was at best grossly exaggerating what happened in the pool area after she left the pool.

Although the CCTV footage of the complainant’s interaction with Mr K in the minutes before she entered the lift was not particularised as relevant to absence of reasonable and probable cause, Detective Porter was questioned about it. It was played in Court and he was asked whether the complainant appeared distressed or upset there. He said “She wants to go, that’s for sure”. Pressed as to whether she appeared upset or distressed he said “All I can say is it looks like she wants to go and he’s trying to put his arm on her, and she’s not responding.” The complainant’s apparent turn and smile was played to him and he said it did not matter, “She clearly wanted to get out of there. That’s clear as a bell”.

During Detective Porter’s cross-examination he was also played footage of the complainant leaving the lift and walking down the driveway for the taxi. He gave the following evidence:

It was put to Detective Porter that he took at face value the complainant’s evidence. He disagreed, and stated that it was because he did not do so that he undertook further investigation such as seeking relevant CCTV footage.

The following proposition was put to Detective Porter and disagreed with:

During cross-examination Detective Porter said he had a number of telephone conversations with the complainant before the plaintiff was charged. Regarding the absence of detailed reference to these conversations in his evidentiary statement the following evidence was given:

At the very end of the cross-examination of Detective Porter the following exchange occurred:

Closing written submissions for the plaintiff on the absence of reasonable and probable cause included the submission that the plaintiff’s case is that the evidence proves that Detective Porter did not, at the point of institution of the criminal proceedings and beyond, honestly believe in the case against the plaintiff. It was submitted that because Detective Porter’s credibility and reliability as a witness was overwhelmingly impugned, the Court should reject his assertion that he believed in the case against the plaintiff from start to finish and instead should find that he did not. It was submitted that it was difficult to conceive of a stronger case for an absence of reasonable and probable cause on both bases, subjective and objective. The alternative case (the objective aspect of absence of reasonable and probable cause) was then dealt with at length.

Sixteen pages of the plaintiff’s primary closing written submissions were directed to the credibility of Detective Porter, and the plaintiff’s submissions in reply contended that his credibility looms very large in these proceedings. Many of the subheadings regarding Detective Porter’s credibility correspond with the plaintiff’s case on malice, and are dealt with below in that respect. This includes the allegation that Detective Porter was defensive about Exhibit C (an email sent by him organising the AVL appearance of witnesses at trial), and the submission that the Court should reject his evidence in that regard.

The plaintiff submitted that Detective Porter was combative, argumentative, sarcastic and disrespectful. The plaintiff relied upon his acknowledged errors in his evidentiary statement. The plaintiff referred to his evidence in cross-examination that he was never given the evidentiary statement of Ms M, whereas his evidentiary statement says he had read it.

In the course of explaining errors in his evidentiary statement Detective Porter said he had not been through this process before. The plaintiff relied upon his acknowledgement that he was involved in civil proceedings in 2010 (which the witness explained did not involve provision of an evidentiary statement by him).

The plaintiff’s written submissions spent close to two pages, under the heading of Detective Porter’s credibility, addressing what was said to be an issue about the genuineness of his belief in a stated investigative strategy. This was to delay approaching the building the barristers’ chambers were in to seek CCTV footage of the foyer because he was hoping that relevant people would speak more freely once the covert interception of telephone services was in place, if the barrister was not tipped off that police were actively investigating. By the time he made this inquiry on 13 December 2019 he was informed it had been overridden. The plaintiff submitted that the barrister had been tipped off by 5 December 2019 and so there was no explanation for the delay between that date and December 13 when Detective Porter sought the footage.

There was not the same level of analysis of the genuineness of Detective Porter’s belief in the sufficiency of the material to charge the plaintiff. The plaintiff’s case rests substantially on what the Court should make of the objective insufficiency. The plaintiff’s submissions did not analyse the material undermining the statements of Ms L, or the genuineness of Detective Porter’s answers regarding what he made of this body of evidence.

It was submitted that Detective Porter’s scepticism of Ms L was:

Closing submissions for the plaintiff contrasted Detective Porter’s alleged excusing major inconsistencies of the complainant as minor, with being “very quick and certain to dismiss anything which might be supportive of the plaintiff’s case, such as the evidence of [Ms L], because he thought she was a liar.” This was submitted to show an “imbalanced approach to the weighing and measuring of evidence which we say, with great respect, is inimical to doing justice, and displays a not proper purpose.” Similarly, during oral submissions Mr Sullivan KC for the plaintiff agreed that Detective Porter was entitled to be sceptical of Ms L, but submitted that such scepticism should have been on both sides, and it was not.

It was submitted that in not speaking significantly with the interstate complainant before charging, a comparison could be drawn with the decision of the Court of Appeal in State of New South Wales v Spedding [2023] NSWCA 180 (“Spedding”) at [122]-[123] regarding the Detective not speaking with the complainants in that case.

The plaintiff’s written submissions addressed Detective Porter’s evidence regarding what he made of the complainant smiling in the lift area when in Mr K’s presence before entering the lift (that it may have been a nervous little smile; he was not sure), submitting that it demonstrated “his fixed and entrenched view about the credibility of the complainant and the guilt of the plaintiff, even in the face of the footage which clearly contradicted the complainant’s version of events.” It was submitted that Detective Porter only considered inculpatory evidence and closed his mind to clear exculpatory evidence.

There were occasional references to the plaintiff’s formal primary submission, that Detective Porter did not in fact believe there was a case to prosecute the plaintiff. For example it was submitted in writing that it was surprising that Detective Porter did not wait for Ms L’s supplementary statement before charging, and that such conduct supports an assertion that he did not have an honest belief in the guilt of the plaintiff.

The defendant relied upon what it submitted was the abundance of material supporting the propriety of setting the criminal process in motion, and Detective Porter’s belief that there was abundant cause to bring the proceedings. Reference was made to aspects of Ms M’s statement which suggested, if true, that Ms L was covering up her knowledge of important issues such as the plaintiff removing his underpants in the pool.

It was submitted for the defendant that while the Court may have some concerns about the reliability of Detective Porter, this was only as to things of little consequence. It was conceded by counsel for the defendant during oral submissions that I should reject Detective Porter’s evidence that he had not read all of Ms M’s evidentiary statement, including paragraphs [53] and [54]; but that this did not matter. It was submitted that I was not obliged to find that the allegations in paragraphs [53] and [54] of Ms M’s evidentiary statement were made out, but that it would not matter if they were. This is dealt with further on the issue of malice.

It was submitted for the defendant that the best prism through which to understand the evidence of Detective Porter was that of an officer affronted for being criticised for just doing his job, and his being entitled to be affronted. It was submitted that the cross-examination was often goading and antagonising, and the responsibility for any poor evidence arising from “fencing” between questioner and witness fell with the questioner as much as the witness.

The plaintiff’s contention that Detective Porter’s credibility looms very large in these proceedings is not accepted. To the extent it is relevant it has not been impugned in any sense that bears upon the issues for determination. For reasons already explained, there was very comfortably enough evidence to warrant – in fact require - prosecution. It would have been perverse for a police officer to not come to that view. Detective Porter was not tasked with deciding the case, but with deciding whether the allegations should be determined by a Court. His stated belief as to the sufficiency of the material to charge is the only reasonable belief which a police officer in his position could have held. The plaintiff thus carries the burden of persuading me that Detective Porter held a view that he says he did not have, and that would have been an unreasonable mental state for a police officer to have. That may be conceivable in a case where there is a strong improper or ulterior purpose in commencing a prosecution; but for the reasons explained below in relation to malice, that is not this case.

As I noted earlier, the subjective aspect of absence of reasonable and probable cause is generally proved by inference or cross-examination. Rather than assisting to prove the subjective mental state the plaintiff is required to prove, Detective Porter’s cross-examination provided an opportunity for him to elaborate on the reasons why he did not regard the 9 December 2019 statement of Ms L and the CCTV footage of the pool as significantly undermining the credibility of the complainant’s account. His answers were coherent, internally consistent, and accorded with the objective analysis of the evidence I have undertaken above. Almost five years after the relevant thought processes on his part, his answers provided a compelling explanation of why it was appropriate to charge the plaintiff.

There is no indication that Detective Porter has ever done or said anything to indicate a contrary view. His conduct at the time accords with his evidence as to why he did not regard Ms L’s account as a basis for dismissing the allegations. One focus of his questioning of Ms N and Ms M in January 2020 was clearly Ms L’s conduct and statements on 6 and 7 November 2019. I do not accept the submission that Detective Porter’s decision to charge the plaintiff without waiting for Ms L’s further response to his questions indicates he did not honestly believe in the plaintiff’s guilt (nor, to frame the relevant issue more appropriately for a prosecution relying on a report from another, did not honestly believe there was sufficient material to set the criminal process in motion).

Detective Porter’s position regarding Ms L is crystal clear. He already knew what Ms M said Ms L told her on issues such as the consumption of cocaine, the plaintiff inviting the complainant to his house, the plaintiff being naked, arguing with the plaintiff because of his inappropriate conduct, calling a taxi to leave the plaintiff’s house because the complainant was observably upset in the pool and wanted to leave, and her recommendation to the complainant in the taxi to contact the police. There was nothing Ms L could have said on the relevant issues in her potentially imminent second statement that would have meant there was not cause for a Court to hear and determine the complainant’s allegations. Further, he had tried to speak with Ms L directly but not been able to.

I do not accept the analogy drawn for the plaintiff with the failure to question the complainants in Spedding. The complainant in these proceedings lived in another State, and this explained why Detective Porter did not sit down with her to obtain her first statement. The facts in Spedding, with cogent evidence of an improper purpose in the prosecution, and a very strong body of evidence undermining the complainants’ allegations, were very different.

There is no aspect of Detective Porter’s evidence regarding the alleged inconsistencies between the complainant’s account and the CCTV footage of the pool which suggests to me that he formed the view before he charged the plaintiff that there were inconsistencies sufficient to render inappropriate the setting in motion the process of prosecution.

The submission for the plaintiff that Detective Porter was entitled to be sceptical of Ms L, as long as he was also sceptical of the complainant, does not assist the plaintiff in proving that Detective Porter did not subjectively believe there was an adequate basis to charge. Nor do submissions such as Detective Porter having an entrenched view as to the guilt of the plaintiff, or believing the complainant because she was the stepdaughter of a police officer. I realise that the plaintiff was pursuing alternate methods of proving absence of reasonable and probable cause. However the analysis of the contention that Detective Porter did not honestly believe in the propriety of charging seems to rest on the plaintiff’s case as to the assertedly overwhelming problems in the complainant’s account (which I have not accepted), and the creation of multiple fronts of attack on Detective Porter’s credibility (and a suggestion that I should make a blanket adverse finding regarding his credibility). I do not make a blanket adverse finding regarding Detective Porter’s credibility. I do not regard the attacks made as having much bearing on the real issues in the case.

Detective Porter’s difficulty at various points in the cross-examination in suppressing expression of frustration, irritation and affront at the nature of the cross-examination does not detract from my acceptance of his reliability on contested issues, to the extent that any of substance existed. Frequently exchanges such as this occurred:

I took such reactions as well within the range of fairly predictable response, and did not regard them as having any bearing on the real issues in this case. The matters which required correction in Detective Porter’s evidentiary statement were not important. I did gain the impression that Detective Porter was impatient at times and this may have produced answers that were not very carefully thought through. His evidence that he did not read the whole of Ms M’s evidentiary statement, which is contrary to his own evidentiary statement and has been specifically acknowledged to be unsupportable by counsel for the defendant, would seem to be an example of this. If this was a case that depended on acceptance of Detective Porter as extremely careful and accurate in his evidence and answers, and not hasty, this could have more importance.

However the real issues were much broader. Detective Porter’s strong sense of commitment to the case, belief in the cogency of the allegations and lack of meaningful detraction from them, and his perception that there were aspects of abuse of power, and the covering up of material by someone in a more powerful position than the complainant, was clear and compelling. As I said towards the outset of this judgment, I accept his stated evidence of his subjective belief unreservedly.

The miscellaneous submissions regarding Detective Porter’s credibility have either not been made out, or are not important, or both. For example I found his explanation of the investigative strategy he had in mind of delay in seeking any CCTV footage from the ground floor of the building in which the barristers’ chambers was located as completely rational; and also of no importance. Even accepting the plaintiff’s submission that the stated strategy cannot support not seeking the footage between 6 and 13 December 2019, this leads nowhere.

The plaintiff has not persuaded me on the balance of probabilities that Detective Porter did not believe there was sufficient material to warrant prosecution of the plaintiff, or setting the process of the criminal law in motion.

The plaintiff has not established more probably than not that Detective Porter acted without reasonable and probable cause in charging the plaintiff.

The following particulars are relevant to the objective sufficiency of the material by the time the proceedings were taken over by the Director, re-ordered and numbered and names changed:

On 10 December 2019 Detective Porter forwarded to Ms L’s lawyer 10 questions he wished for her to address. The solicitor advised the police that these had been conveyed to Ms L, and that she was away on business and would address them on her return. One issue was whether cocaine was consumed in the barrister’s chambers. Ms L’s statement dated 19 December 2019 was signed and included a jurat. It did not answer this question, but referred again to the time the five spent in the barrister’s chambers as involving two men having a cigar, to playing music, drinking, chatting and dancing only. She again referred to only Mr K inviting the complainant to come for a swim, not the plaintiff. She denied saying in the taxi on the way to the plaintiff’s house “[the plaintiff] is not an option.”

As to the questions directed to what occurred at the plaintiff’s home, Ms L denied an argument with the plaintiff about being inappropriate with complainant. She denied the complainant approached her at the side of the pool and asked for help, and said she did not appear distressed or unhappy in the pool. She denied awareness that the plaintiff was naked. She stated that she raised calling a cab with the complainant, because she (Ms L) wanted to go. Questioned as to whether she had said in the cab “I have never seen him act like this and I can’t believe he’s done this” she said that when the complainant asked her whether the plaintiff had ever been inappropriate to her before she said “no, I can’t believe this” referring to her complaint. The statement was otherwise similar to the document forwarded to Detective Porter on December 9.

On 21 January 2020 Detectives Porter and Espinosa flew interstate for the purpose of obtaining further statements from the complainant and Ms M, and a statement from Ms N. They obtained a further statement from the complainant. She provided additional information as to what the plaintiff said in the barrister’s chambers after the barrister left, which involved his assertion a few times of specific information about the situation in his home on that particular morning (including the absence of his wife and presence of other relatives) which made it not “an issue” for her to go there. She clarified that she was in the pool for about 10 minutes before any penetration occurred.

As to the representation in her earlier statement about the plaintiff’s hands inside her underwear, she added:

She described pain being caused by all of these acts. She stated that the plaintiff kissed her on her mouth using his lips forcefully during the acts of penetration. She stated she did not respond and kept her mouth closed. She said “I could not comprehend what was actually happening and was frozen in fear.”

The complainant provided greater detail regarding the conversation she heard between the plaintiff and Ms L. She said she heard Ms L say “You can’t be doing this” and “You can’t touch her.” She provided further details regarding the state of erection of the plaintiff’s penis when the plaintiff placed her hand upon it.

The complainant said the following conversation occurred close to when she and Ms L left:

She stated that while she was waiting for the lift to come so she could leave Mr K approached her and said to her:

She said Ms L said “Leave her alone, we are going.”

The CCTV footage previously provided to Detective Porter corresponded significantly with this description of Mr K’s interaction with the complainant as she was waiting at the lift. As earlier indicated there was no audio recording. The visual recording showed Mr K to be invasive of the complainant’s personal space, and she appears to be uncomfortable. She did turn and mildly laugh or smile towards the direction of the pool at one point.

The statement otherwise dealt with the dire consequences of the events of the night of 5 November 2019 and what followed for the complainant, including mental health impairment to the point of multiple occasions of contemplation of suicide. She explained in clear terms the devastating effect on her self-esteem, confidence to present herself in the legal community, and trust in the legal field, as a result of what happened to her.

On 21 January 2020 Detective Porter obtained a statement from the stepfather of the complainant, outlining the evidence he would be prepared to give in court. He recounted the extreme state of distress in which the complainant was when brought home by Ms M on 6 November 2019, the report from Ms M as to what had occurred including what she had been told, and the direct report by the complainant to he and his wife, in terms generally consistent with the complainant’s first statement. He described his assistance with medical and counselling appointments, and response to the complainant’s request on 20 November 2019 to contact NSW police on her behalf to report the sexual assaults by the plaintiff and Mr K. He sought advice and contacted the sexual crimes unit in their State. His statement concluded:

The police obtained a statement from Ms N, which was commenced on 21 January 2020 but provided to police by her, signed, on 22 January when she met them with Ms M. Ms N was employed as a senior associate at the law firm, based at the branch where the complainant worked. She was in effect the complainant’s immediate supervisor. She was a married woman in her mid-30s, and her husband accompanied her to the outings on Melbourne Cup day. The statement was in the form of an 18 page, 101 paragraph, statutory declaration with a jurat, as well as 20 pages of annexures.

Ms N recalled speaking with the complainant between courses at the Melbourne Cup function. The complainant was wearing another staff member’s cardigan, and it was cold. She said she believed the other staff member later asked for the cardigan back, and the complainant “said she was going to try and ask [the plaintiff] for his jacket as he had his hanging over his chair on the table behind them.”

She confirmed attendance at the barristers’ chambers. She described talk with her husband and Ms M on the walk back to the hotel after leaving the barristers’ chambers. She was worried about the complainant staying with the men she had seen around her when she left (not the plaintiff, Mr K or the barrister), and had asked her repeatedly to leave. She said they spoke about the complainant wearing the plaintiff’s jacket and queried whether she was flirting. She said Ms M told her that she saw the plaintiff kiss the complainant’s head during a conversation, to which she said words to the effect “you flatter me.”

After outlining that conversation, Ms N then relayed that when they were about to go inside their hotel Ms M said words to the effect of “she is going to call rape.” The witness continued: “I also felt this, however from the perspective that I was concerned for [the complainant’s] safety as she was left with 4 men alone at the Chambers. These 4 men were standing around [the complainant] in close proximity.” She mentioned that there were people highly affected by alcohol and other substances. She said that she woke up in the early hours of the morning and found it difficult to go back to sleep. Her husband asked her what was wrong and she said “something is wrong, something doesn’t feel right.”

The following morning shortly after 6:30 am Ms N spoke with Ms M who came to her room after saying that she urgently needed to speak with her. Ms M said “she’s done it, she’s called rape.” The witness stated that she felt like crying, and reiterated in her statement her impression that the complainant was not safe when she left her the previous evening. Ms M disclosed to her that the complainant had said the plaintiff was naked in the pool and she was in her underwear, and that the plaintiff and Mr K digitally raped her. Ms M told the witness the complainant was in her room and she had sent Ms L home after about an hour because she was starting to make the situation worse by asking the complainant if she “asked for it.”

Ms N stated that she then called Ms L. Ms N was with her husband and Ms M and put the phone on loudspeaker. She said Ms L sounded upset. Ms M told Ms L that she needed to tell Ms N what happened, and that she (Ms M) had told her. Ms L stated that the complainant had been invited to go back swimming. They were leaving and the complainant wanted to go with them and that she (Ms L) went to make sure she was okay as she didn’t want her to go on her own. She said she wanted to make sure she was safe. The witness continued:

Ms N said that Ms L told her that they had all taken drugs at the chambers. She answered affirmatively when Ms N asked her whether this was Ms L herself, the complainant, the plaintiff and Mr K.

Paragraph 67 of Ms N’s statement was in the following terms:

Ms N said she questioned Ms L further, and she kept saying “no [the plaintiff] wouldn’t do this, I’ve known him since I was 17.” Ms L was crying throughout the conversation, and sounded to the witness like she was in shock. Ms L was alleged to have said to the witness towards the end of the conversation “No one can know about this, we can’t tell anyone yet” and repeated this.

Ms N then went with Ms M to see the complainant in her room. She gave her a cuddle but she looked sad and upset, and seemed fearful to talk to her, and was not looking her in the eye. She was encouraged a few times to tell Ms N what had happened. She stated that she went back to the plaintiff’s house, having been invited by the plaintiff and Mr K. Ms N then described the complaint made to her as follows:

The complainant at that stage did not want the police to be involved. Ms N was very upset and not sure what to do, wanting to respect the complainant’s wishes but conscious of the seriousness of the allegations. She and Ms M left the complainant for a while. They continued to speak and were both crying. Ms N made some handwritten notes on a notepad. She made arrangements for the other secretary who had come to Sydney from their branch to return as planned, but for later flights for the complainant, Ms M and herself. She and Ms M returned to the complainant’s room and she asked her again what had happened, and she provided a consistent account. She felt pressured and mixed in her thoughts as to what to do, as Ms L kept saying to not tell anyone.

She then left the complainant a second time and went to Ms M’s room to call Ms L. She said the phone was on speaker and Ms L confirmed everything she had previously said. She alleged Ms L also said words to the effect “This has happened before… put it this way the boys know how to handle things like this.” She also said “This must stay between us… What has [the complainant] said… no one can find out.” The witness made a voice recording when by herself.

Ms N stated that later on November 6 when they were at the airport in the afternoon she told Ms L by telephone that the complainant had told her mother what had happened. She said that Ms L was crying and upset, saying words to the effect “I knew this would happen. I’m now going to be a lead witness in the case.” She stated an intention to see the barrister to obtain advice and prepare a statement. Ms N told her this was not a good idea. She said that she rang Ms L once she was home. She said Ms L was short and her tone had changed and she was more collected. She told Ms N she had spoken to the barrister. She said Ms L said words to the effect of “Everything is sorted her[e]… I have nothing more to say… I didn’t see anything.”

The notebook entries and transcript of voice recording made by the witness on 6 November 2019 were attached to her statement. These frame the allegation made by the complainant as the plaintiff trying to put his fingers in her vagina.

Ms N included phone records to support the chronology of telephone calls set out in her statement, and a copy of text messages from Ms L to her on 6 November including “This has to stay between us for now and as little people as possible should know” and “How did it go? What have you guys decided?”

Police attended upon Ms M at her home on 21 January 2020 as planned. There is a dispute or lack of clarity as to some of the communication with Ms M on 21 January 2020. A 13 paragraph statement with a jurat and annexures was signed by her on this date and served in the prosecution brief. The witness in fact typed most of it herself, having become impatient with the speed with which Detective Espinosa was typing it.

The statement includes paragraph [4] in relation to the time when she left the chambers with Ms N and her husband, a conversation she had with Ms N, as follows:

The statement indicates the witness had never known the complainant to previously use cocaine, and relates to her dealings with people on 5 and 6 November 2019. This statement included the following information:

Ms M rang Ms L at 5.23 am on 6 November. Ms L kept saying “I don’t know what happened [Ms M], I didn’t see anything.” Ms M said she asked Ms L if the plaintiff was naked and Ms L said “I didn’t actually see him naked but that I could see whilst he was underwater that he no longer had any underwear on.”

When Ms M told Ms L this was “too big” for her to deal with by herself, Ms L said “we cannot tell anybody.” Ms M insisted to Ms L that she had to at least tell Ms N, as she was herself just a “glorified secretary.”

When she was at the airport with the complainant and Ms N on the afternoon of 6 November she and Ms N had a conversation with Ms L in which Ms L said she was on a train heading to the barrister’s chambers to prepare a statement. Ms N told Ms L she should not go to the chambers as the barrister could be a witness.

While Ms M and Ms N were on the phone to Ms L the complainant waved her over, and told her that she was on the phone to her mother who wanted to speak with her. The complainant’s mother said “What the hell is going on [Ms M]?” Ms M broke down in tears and told her repeatedly how sorry she was and that she was bringing the complainant home and would talk to her then.

While they were waiting to board the plane Ms N rang Ms L and asked her whether she was at the barrister’s chambers yet. Ms L said that she was, and was waiting for him to finish a meeting. It is not clear whether Ms M directly heard this conversation or was advised of its contents by Ms N.

On 7 November Ms M rang Ms L, with Ms L saying “I talked to [the barrister] and I have nothing to say because I didn’t see anything.”

Annexed to Ms M’s 21 January 2020 statement were copies of screenshots of messages and call logs. These show that on Melbourne Cup day Ms M and the complainant sent text messages to each other with love hearts and kisses and which were generally indicative of care on Ms M’s part for the complainant.

The records supported Ms M’s account of the occurrence of the telephone calls with Ms L. A text message on 6 November at 6:30 am from Ms L to Ms M stated “this has to stay between us for now and as little people as possible should know.”

Early on the morning of 7 November Ms M and Ms N exchanged messages. Ms M said “hey – i am still all over the shop. went to bed ridiculously late. [complainant’s] parents were lovely and said the exact same thing as you, i have a son i need to provide for so i need this job. i am so angry as well. it was predatory and ruined any sort of confidence she had built back up.”

One annexure to Ms M’s statement included screenshots of text messages between Ms M and Ms N. One of those from Ms N to Ms M was apparently the forwarding of a message from the complainant to Ms N about testing she had just done. It included the statement “They found a couple of cuts and bruises. There is some bleeding but they couldn’t see where exactly it was coming from because I was panicking so much on the table.”

There is additional material contained in Ms M’s evidentiary statement in these proceedings regarding her meeting with Detectives Porter and Espinosa on 21 January 2020. This statement says in paragraph [46] that Detective Porter raised Ms N’s indication that Ms M had said the complainant was going to “call rape”. She alleges he said this needed to be addressed so that it could not be picked apart at trial. She states that she said words to the effect of “I said to [Ms N] what if she calls rape?” He asked what she meant, and she responded with words to the effect of “I was worried knowing her that there was a possibility that she would call rape. She has mental health issues, and I was worried she would do something like this.” She says Detective Porter questioned her meaning further, and she said words to the effect of “She’s a topper.” He questioned further what she meant. Her statement continued “I said words to the effect of ‘She tends to make crap up’ and proceeded to recount a number of incidents which [the complainant] was previously involved in which I thought had been made up by her.” She continued:

In relation to paragraphs [46]-[52] of this statement Detective Porter’s evidentiary statement says at [119]:

Detective Espinosa’s evidentiary statement indicated that he did not recall the exact conversation with Ms M, but recalls that she was asking a lot of questions and asking them for input on her statement. As to paragraphs [46] – [50] of the statement he said:

He stated that he did not recall Detective Porter saying words to the effect of “that’s not an invitation to sexually assault somebody.”

In cross-examination Ms M described this way the elaboration she provided to police regarding her comment to Ms N:

Pressed as to why she thought it important to tell the police that the complainant was a ‘slag’, she said “And a topper and a liar.” She was pressed again as to what it mattered that she was a slag, and said that it related to the comment “What if she calls rape,” because on several occasions she had been out with the complainant and the complainant had “…what – I don’t know how – what the word is…” Pressed further as to why being a ‘slag’ was of any importance, she said:

After agreeing that such incident had in fact occurred, and she had no knowledge of whether the complainant’s account of having her bottom touched and hearing the men speaking Japanese had occurred or not, she was asked “Is that the grounds on which you say she’s liar?” She responded “At what point did I call her a liar?” She was asked to explain what it means to be a “topper” and said: “It means she tells a – I would tell a story and then she would say, “Oh, that happened to me but then a pig flew over.””

Ms M was also cross-examined as to why she felt it necessary to tell the police on 21 January 2020 about the complainant’s mental health issues. She answered by describing the complainant as “suicidal” when at the hospital after the alleged sexual assaults. She referred to an inconsistency between the complainant’s account and her mother’s as to whether her family was supporting her sufficiently at that time. She referred to earlier observations of evidence of self harm on the complainant’s arms and legs. These assertions were not set out in Ms M’s statements to police nor her evidentiary statement in these proceedings.

On 23 January 2020 Detective Porter received medical records relating to the complainant. A ‘consult’ note created 9:35 pm on 7 November 2019 said “hard to discuss and tell the story due to her being so upset and crying during the discussion.” It said:

The notes record the patient found it distressing to further discuss the incident. There seems to have been a meeting at 7:15 pm and an examination at 8:05 pm. The complainant was noted to be highly distressed throughout the examination, crying and yelling at times and very overwhelmed by the examination. A note made at 10:04 pm said “It was difficult to gain a count of events due to her level of distress.”

Part of the note says:

The nurse’s statement provided in February 2020 says: “[The complainant] states the two males cornered her into a section of the pool, where one male kissed her on the mouth. [The complainant] states they then both at different times inserted their fingers into her vagina without consent while they were still in the swimming pool. She states both males then forced her to touch their penises”. She stated that general examination revealed a small scratch / abrasion to the back of the complainant’s right hand, which the complainant did not recall having prior to attending the function in Sydney. It confirmed there was no injury present on external inspection or on internal vaginal examination.

Detective Porter’s answer to an interrogatory regarding the listening device in the cells at the police station on the date of the plaintiff’s arrest indicated that he had not listened to the entirety of the recording, but had listened to several hours and could not hear very much due to audio quality. The recording was subsequently enhanced but it did not really improve his ability to discern words being said.

Part of the recording was played in Court and a larger portion tendered. It was very difficult to hear. It is submitted for the plaintiff, and Detective Porter was prepared to accept as am I, that the plaintiff said words like “This is a stitch up”, “The prosecutor guy has stitched us up”, “She might change her story” and “I can’t believe I’m in a police cell”. Counsel for the plaintiff indicated that the Court was not required to listen beyond this due to the length and lack of clarity of the recording. Detective Porter’s evidence was that the version played in Court was not what he had previously heard. Previously he heard a lot of whispering and unclear conversation.

It was submitted for the plaintiff that the second statement of Ms L cast further serious doubt upon the complainant’s version of events. Reliance in particular was placed on her denial of having an argument with the plaintiff, not witnessing any touching of a sexual nature, the complainant not asking for help or appearing distressed or unhappy when in the pool, and the plaintiff not asking “Can you see my cock?” to which she responded “I can but I don’t want to.”

It was submitted that the assertion by Ms M in her evidentiary statement in these proceedings as to what she told police she meant by “What if she calls rape”:

The plaintiff submitted that inconsistencies were exposed by Ms N’s contemporaneous notes and voice recording (which referred to the plaintiff trying to penetrate the complainant’s vagina) and the prosecution case of penetration, between the complainant’s text message to Ms N and the results of the sexual assault medical examination, and between the note from such examination that the complainant said both men forced her to touch their “penile area” whereas the complainant otherwise only alleged this against the plaintiff. It was submitted that the allegation made by the complainant in January 2020 of digital penetration of her anus “worked to undermine the credibility of the complainant.”

The defendant’s submissions referred to Detective Porter’s “justified” position regarding Ms L, who feared involvement in a prosecution and sought legal advice, then altered her account of what occurred (having “got with the program” to “protect her boss”); whereas she had earlier acknowledged awareness of the plaintiff’s nakedness, arguing with him and so on. It was submitted for the defendant that even at its highest, Ms M’s account in these proceedings of what she advised police on 21 January 2020 was unimportant.

The additional statements which came to hand between the plaintiff being charged and the Director taking over proceedings in March 2020 did not give rise to an absence of reasonable and probable cause in maintaining the prosecution.

The second statement of Ms L relied upon by the plaintiff did include her denial of arguing with the plaintiff about his conduct towards the complainant (first bullet point of plaintiff’s particular (i), above at [180]). However by January 2020 Detective Porter had available not only Ms M’s statement indicating that Ms L volunteered to her that such an argument occurred (see above at [72]), but Ms N’s as well. Ms N was able to give evidence that early on the morning of 6 November 2019 Ms L, who was extremely upset, described having a heated conversation with the plaintiff that morning while he was in the pool with the complainant, in which she told him to “pull his head in”, asked him “What the fuck are you doing?” and reminded him he was married.

As to the plaintiff’s second bullet point under the same particular, there was by January 2020 evidence from both Ms M and Ms N that Ms L was aware the plaintiff was naked. Ms N’s January 2020 statement complemented Ms M’s prospective evidence that Ms L said she suggested a taxi because the complainant looked upset, and confirmed that she (the complainant) wanted to leave, and that the complainant said she had mouthed her upset to Ms L. Ms N described the complainant stating to her on the morning of 6 November 2019 that while in the pool after the assaults she was trying to get Ms L’s attention and was trying to mouth to her “help… get me out of here”. This further evidence was consistent with Ms L’s first account to Ms M of noticing the complainant looking upset. It would have been well open to a tribunal of fact to reason that the complainant’s very proximate reports to Ms M and Ms N of trying to mouth her wish for help and to get out of the plaintiff’s residence were more accurate than her later recall, when she typed a statement, that she had actually said those words; and that the attempts to mouth a request for help aligned with Ms L’s early account to Ms M that she recognised the complainant was upset in the pool.

By 22 January 2020 Detective Porter had further evidence from Ms N proving, if accepted, that Ms L had in November 2019 made statements consistent with the complainant about the consumption of cocaine.

The January 2020 statements of both Ms M and Ms N, and the annexures to their statements, provided more elaborate information than known previously which, if accepted, described Ms L’s insistence within hours of leaving the plaintiff’s house that the allegations not be conveyed to others, her belief that “the boys” would know how to deal with this and had dealt with such situations before, the level of her upset at the situation including as to her position as a witness, her attendance upon the barrister with the intention of obtaining advice and preparing a statement, her doing so, and her changed attitude afterwards.

Particular (ii) at [180] has been addressed in relation to the period prior to charge. The complainant did not allege that Ms L actually witnessed the plaintiff sexually assaulting her.

Although not forming part of the plaintiff’s particulars as to absence of reasonable and probable cause, submissions were advanced in relation to Ms N’s note of the complainant saying the plaintiff was “trying” to penetrate her, and to the complainant’s additional allegation of anal penetration. These were simply areas for possible cross-examination.

Ms N specifically indicated in her statement with a jurat that she asked the complainant whether the plaintiff touched her inside or outside, and the complainant said “inside.” Ms N took a day to consider the terms of her statement and the annexures to it before being prepared to sign it and provide it to police.

The complainant had always spoken of the plaintiff’s finger touching her anus, and Ms L’s statement indicated that when she asked the complainant in the taxi where the plaintiff touched her she said front and back, and “inside.” Some shifting description as to whether there was sufficient anal penetration to amount to sexual intercourse was a matter to explore at trial, and related (directly) only to an element of one of the charges – one laid after the Director took over the proceedings. The two charges of aggravated sexual assault initiated by Detective Porter were based on the plaintiff’s alleged penetration of the complainant’s vagina, with Mr K acting in company with him, and his being in company with Mr K at the time of Mr K’s penetration of her vagina.

The complainant’s January 2020 statement additionally provided further detail regarding Mr K approaching her when at the lift, and his endeavours to persuade her to stay, with the plaintiff also yelling out to her. Although there is no audio recording, this account corresponds visually with the CCTV footage the plaintiff provided to police on the day of his arrest. Ms N’s statement also included the complainant’s description to her of this occurrence. The conduct alleged is also consistent with the evidence the police already had of the plaintiff or Mr K or both persistently calling Ms L after the two women left – between 3:30 and 4:30 in the morning – with the stated purpose, when Ms L did speak to Mr K, of getting the complainant back to the plaintiff’s house. It is unlikely either the plaintiff or Mr K had the complainant’s phone number readily available, and there was other evidence indicating that she had earlier run out of or was low in phone battery charge.

Also in January 2020 Detective Porter obtained the statement of the complainant’s stepfather. This provided a supportive account of her complaint to him on 6 November 2019, and the significantly distressed state she was in on that day.

Particular (iii) at [180] regarding Ms N’s prospective evidence about the use of the plaintiff’s jacket is immaterial. I have noted a number of times that there is not an absence of reasonable and probable cause simply because there is something to cross-examine a complainant about. In light of the obvious coherence of the collective witness statements on this topic (the complainant, Ms M and Ms N) there would be long pause before even cross-examining on this issue, other than in a clarifying sense, to avoid looking pedantic to the point of “clutching at straws”. The complainant was cold. She told Ms N she might ask the plaintiff for his jacket. The complainant was talking to the plaintiff and Ms M and made clear she was cold without directly asking for his jacket. He offered his jacket. She accepted his jacket.

Particular (iv) at [180] relied upon by the plaintiff is the comparison between the notes and statement of the nurse who conducted the sexual assault medical examination, and the complainant’s text message to Ms N referred to at [214] above. Exaggeration by the complainant on this issue would have been an appropriate topic for cross-examination. That does not demonstrate an absence of reasonable and probable cause – even with the rest of the minor inconsistencies relied upon. Further, there was a cut, and there was bleeding. The complainant had also seen a general practitioner before the nurse who conducted the specialised examination and it is possible that doctor mentioned a bruise or bruising. Her notes are not in evidence.

The “She’s going to call rape” / “What if she calls rape?” comment discovered by police in January 2020, and what Ms M is alleged to have said about it (particulars v to ix at [180]), did not detract at all from the existing cause to prosecute the plaintiff, far less “erode[d] the credibility of the complainant in a significant way, which in turn would have eroded the prosecution’s case.” Taking this aspect of the evidence at its absolute highest for the plaintiff, it was a potential body of evidence that was not only not exculpatory, but which would not even have been admissible in a criminal trial.

An opinion held at 9:30 pm on 5 December 2019 that the complainant might in the future falsely claim to have been raped (an interpretation of Ms M’s comment), or might be raped (Ms N’s opinion), was either not relevant or contravened the rule against admissibility of opinion evidence in s 76 of the Evidence Act 1995 (NSW). In so far as Ms N’s opinion was based on what she saw or perceived (the proximity of the men standing around the complainant and the drug or alcohol affectation of people present), it was not necessary for her to express her opinion to obtain an adequate account or understanding of her perception of the matter or event (that is, the exception in s 78 of the Evidence Act had no application) if those matters were relevant (which they do not seem to be). Ms N’s opinion that the complainant may “call rape” because she may be raped was as inadmissible as her having a strange feeling that something was not right when she woke up in the early hours of the morning on 6 November 2019.

Ms M’s questioning of Ms N “What if she calls rape?” was, so far as she endeavoured in these proceedings to say it was based on her perception of the complainant on other nominated occasions, also not within the exception in s 78 of the Evidence Act. Further, those underlying aspects of Ms M’s evidence were themselves inadmissible. It will be explained below, in my consideration of the evidence of Ms M’s discussion of this topic with police on 21 January 2022 insofar as it relates to malice, that I am not satisfied the evidence about what occurred is clear. However for present purposes, even accepting that she did specifically say to police that the complainant is a “topper” by which she meant “she tends to make crap up” and could show this because on one occasion the complainant came back to work after filing documents at Court and said someone had touched her bottom, and on one occasion she said men spoke in Japanese about her body, and on another occasion she said her boyfriend had suffered a significant injury in dramatic circumstances, and said someone was flirting with her at the work meeting on the morning of 5 November 2019 which caused Ms M to say “No he’s not he’s married” - none of this would have been admissible at a criminal trial, and nor was it important.

With the possible exception of Ms M repeating to police that she suggested to the complainant that the man in the meeting did not flirt with her, because he was married, the evidence does not even indicate that the witness conveyed to police that she thought the incidents were untrue, far less that she offered anything to support such a belief. There is no evidence to support any such belief, if held. The tragic event involving the complainant’s boyfriend was known to be true. There is no evidence that there were not men speaking in Japanese about the complainant’s body on the occasion she said they were, that no man touched her bottom at the Court complex when she went to file documents, nor that the man in the meeting did not flirt with her (or act or speak in a way which might have caused the complainant to think that). These four alleged incidents could have played no role in a trial for credibility purposes as they were irrelevant and, if barely relevant, inadmissible because of the credibility rule in s 102 of the Evidence Act. The exception in s 103 for evidence adduced in cross-examination permits such evidence to be adduced if it could substantially affect the assessment of the witness’s credibility. None of these four incidents passes that test. Further, if such cross-examination were ever permitted, it would end with the complainant’s answers, which would presumably be to deny that she lied on those occasions. For example there would be no evidence to rebut the complainant’s denial that she made up a lie to her friends about men speaking about her body in Japanese (s 106 Evidence Act), if she was ever permitted to be cross-examined about it.

Even accepting Ms M’s evidence that she told the police the complainant was “a bit of a slag” and mentioned an occasion where she allegedly kissed three strangers, this could have made no difference at all to the existence of reasonable and probable cause – subjectively or objectively. It would have been completely inadmissible in any criminal trial as irrelevant and by virtue of s 294CB of the Criminal Procedure Act, and the only available course for any police officer would be to completely disregard it in considering whether there was a sufficient evidentiary basis to maintain the prosecution.

Taking Ms M’s evidence at its highest for the plaintiff, what Detective Porter should have made of what she said to him on 21 January 2020 as to what she meant in saying to Ms N on 5 December 2019 “What if she calls rape?” was that it made no difference to the existence of reasonable and probable cause in maintaining the prosecution.

No difference to the sufficiency of material to maintain the prosecution should have been perceived either as a result of what was recorded pursuant to the listening device in the police cells (particular xii at [180]). Even attributing to Detective Porter knowledge of that which was played and listened to very carefully in Court on an enhanced version, it was not exculpatory in any sense meaningful to the issue now being addressed. The plaintiff agreed that as a lawyer the possibility of a listening device in the cell may have occurred to him. A legal practitioner in a police cell saying “This is a stitch up” did not alter the sufficiency of the material available in this case to prosecute him.

Further, the evidence does not indicate that these words were available to Detective Porter before he heard them in Court – and clearly not before the Director took over the proceedings. His evidentiary statement indicated that the recording he listened to was of very poor quality and no evidentiary value. Efforts to enhance it were made in May 2020.

Regarding the second statement of Ms L, denying having an argument with the plaintiff, Detective Porter gave evidence that as far as he was concerned this raised a question as to Ms M’s credibility because of the information he had from the first complaint statement (by which he means Ms M’s statement). I have set out earlier, regarding his subjective belief at the point of charging, his reliance on the statement of Ms M as undermining the statement of Ms L received at that time. He expressed the same issues in connection with the second statement of Ms L. As to Ms L’s denial of the complainant being upset and asking for help, he stated that he did not think she was telling the truth because he had caught her out lying.

Detective Porter referred a number of times to Ms M’s statement and Ms N’s statement contradicting Ms L’s denial in her second statement of arguing with the plaintiff by the poolside. He said for example that Ms L told Ms N about the argument in great detail “and then conveniently suddenly forgot it in her statement”. Regarding Ms L’s denial of the complainant asking “Can you help me”, he referred to the evidence which suggested that the complainant had mouthed this.

In the context of cross-examination about Ms L’s second statement Detective Porter said he did not think she was telling the truth because he had caught her out lying. He said he had done so by comparison with the statements of the first complaint witnesses (Ms M and Ms N). He said that “immediately after the incident, she makes a lot of statements that she doesn’t back up in her – in her statement; that she conveniently leaves out or lies about. And I can go through them with you if you like.” Detective Porter was not cross-examined regarding other particulars of alleged inconsistency set out above at the second bullet point of [180(ii)] above such as Ms L’s awareness of the plaintiff being naked. Detective Porter said, seemingly in relation to Ms L’s second statement but perhaps in relation to the first one, or both, “there were more lies in her statement than I’ve actually ever seen before, to be honest”.

Regarding Ms N’s statement about the plaintiff’s jacket, Detective Porter gave evidence that Ms N did not say the complainant asked the plaintiff for the jacket, so the statements could be compatible. The following questions were answered when dealing with this topic:

Detective Porter agreed that he was keen to see what Ms M would say about Ms N’s disclosure of the comment “She’s going to call rape”, indicating that it was a strange thing to say. He agreed that it was concerning and could indicate that Ms M thought the complainant would fabricate an allegation of rape. There was no suggestion in cross-examination of Detective Porter that anything Ms M said to him during their meeting on 21 January 2020 when he raised this with her (whether by reference to the complainant being a ‘slag’ or a ‘topper’, having mental health problems, to her complaints about a man touching her bottom and another two speaking in Japanese about her body, or otherwise) caused him to not believe there was a sufficient basis to maintain the prosecution.

Regarding the reference in the medical notes suggesting the complainant said both men forced her to touch their penises, whereas her allegation was only the plaintiff did this, the following evidence was given:

Regarding the text message about a finding of a scratch and bruise in the medical examination, the following answers were given:

Detective Porter said of the use of the word ‘tried’ in Ms N’s notes that it was so open to interpretation that he did not have a major concern with it. He said such variations occur. The following question was asked and answered:

It was suggested that Detective Porter washed away this inconsistency, and that regarding both penises being touched, and he responded:

As to the complainant in January 2020 adding an allegation of anal penetration, Detective Porter said he found her credible the whole way through, and that is just how memory works.

Detective Porter gave evidence that he thought it was possible the plaintiff was putting on a performance in the cells if he said “stitch up”. This however was his interpretation when giving evidence in August 2024, not at any relevant time, as he had not previously heard it. He found the recording mostly not able to be heard. He said previously he heard a lot of whispering. He said he can hear now “stitch up” said twice but this means absolutely nothing. In re-examination Detective Porter said the quality played in Court was better than the version he listened to.

I have already substantially dealt with the parties’ submissions regarding Detective Porter’s subjective belief, and credibility.

The plaintiff submitted that the aspects of the evidence concentrated on for the second period of time should have been ringing alarm bells for an open-minded, competent and careful detective. The submission continued in a way which was referable to malice, but has some bearing on the issue now under consideration:

My reasons above for determining this issue relating to when the plaintiff was charged remain apposite to this stage. There is significant weakness in the plaintiff’s case given that Detective Porter’s evidence of his belief in the sufficiency of the material to maintain the charge accords with the view to which I have come as to what he should have made of the material.

Detective Porter’s cross-examination highlighted a rational, cogent and consistent approach to the material that came to him. Again, as with the analysis of his mental state at the time of charging, the aspect of the plaintiff’s case pursued by cross-examination and submission contending that he believed too strongly in the credibility of the complainant does not advance proof of his not believing there was sufficient evidence to maintain the prosecution.

I accept Detective Porter’s stated view that he believed he had caught out Ms L lying in this stage of the investigation. I am of course not making a finding that Ms L was lying, nor that a police officer would have needed to form such a view to still have reasonable and probable cause to maintain the prosecution. Rather, I accept Detective Porter’s evidence as to his state of mind. It accords with the evidence available to him. There is no evidence or submission that I find persuasive which suggests Detective Poter regarded any information received in this stage of the investigation as indicating there was no longer a sufficient basis to maintain the prosecution.

The plaintiff has not established more probably than not that Detective Porter acted without reasonable and probable cause in maintaining the prosecution until proceedings were taken over by the Director.

The first issue for determination is whether Detective Porter remained a prosecutor after the proceedings were taken over by the Director. I am not of the view that he did.

Section 9 of the Director of Public Prosecutions Act 1986 (NSW) is in the following terms:

There may be multiple prosecutors, and the question is to be considered by looking to the substance of the matter, as opposed to the form. In Davis v Gell (1924) 35 CLR 275 at 282-283, Isaacs ACJ said that for the purposes of this tort:

The requirement to consider substance not form was confirmed in Spedding at [243] (Bell CJ, Ward P and Adamson JA), the Court continuing “In that context, it is perhaps notable that s 9 of the DPP Act only “deems” the DPP to be the prosecutor once the ODPP has taken over carriage of the matter.”

Detective Porter’s evidence regarding the steps he took after March 2020 shows that his actions were primarily in response to requisitions of the Director and involved functional and mechanical steps.

The Court of Appeal in Spedding considered and applied the earlier decision of the Court of Appeal in State of New South Wales v Landini [2010] NSWCA 157, a case where police officers responsible for initiating a prosecution were found to have maintained it as a matter of substance in part because of the withholding of information germane to the prosecution which required disclosure. It was held in Spedding that it was the police officers’ withholding of information from the Director (and also Mr Spedding) that warranted the conclusion that they maintained proceedings notwithstanding the formal position after the Director took over the criminal proceedings.

The Court in Spedding at [30] had however, in considering Landini, said this:

I accept that the prosecutor for the purposes of the tort of malicious prosecution need not be the formal prosecutor of the criminal proceedings or the deemed prosecutor. However to be a prosecutor the person must play an active role in maintaining the proceedings: A at [34]; Dickens at [102].

The plaintiff referred to the judgment of Hulme J in Ea v Diaconu [2019] NSWSC 795 at [81] where his Honour referred to a requirement of “prosecutorial input” and provided an example of that someone with “decision-making responsibility” in relation to a prosecution.

The plaintiff relied upon the fact that Detective Porter organised for the taking of witness statements including one from the complainant. Reliance was placed upon his alleged non-disclosure to the Director of the vast majority of intercepted telephone conversations, two of which were played in Court and were said to have been clearly exculpatory.

I am of the view that Detective Porter ceased to be a prosecutor for the purposes of the tort of malicious prosecution once the prosecution was taken over by the Director. Detective Porter’s conduct thereafter did not go beyond that of the conventional role of a police officer assisting in the preparation of a prosecution under the control of the Director. He was not involved in determining which charges should be pursued, what the case theory might be or what forensic decisions should be taken at trial. He took no active steps in maintaining the prosecution. From March 2020 the Director was responsible for maintaining the proceedings, and Detective Porter can in no way be seen as taking action through the Director: cf. Dickens at [103]-[104].

Telephone intercept material that was not disclosed to the Director was not within Detective Porter’s knowledge, and was not exculpatory. There were two intercepted calls relied upon by the plaintiff which were, in effect, personal calls in which the plaintiff told people close to him that he was not guilty. They were of minimal evidentiary value, and the evidence indicates that Detective Porter was never aware of them. This was because another or others who were assessing the intercepted calls to check whether they were potentially legally professionally privileged (given the plaintiff’s occupation) had marked these as not available for Detective Porter’s use. These circumstances bear no relationship to the type of situation considered in Spedding, nor Landini as analysed in Spedding.

Even if I am wrong regarding the Director alone maintaining proceedings after March 2020, nothing that occurred after that time changes my view that the plaintiff has not established an absence of reasonable and probable cause. There were very few evidentiary developments in this period.

The pleaded particulars of absence of reasonable and probable cause relevant to this time period are as follows, with some names and details changed:

Exhibit J was an authority for an emergency examination of the complainant by police in her State in 2017. She was seen by police after an argument with her ex-boyfriend, pulling her hair with her right hand and repeatedly hitting the side of her head with a fist. The police officer formed the view that she needed urgent medical attention for self-harm, and that she was possibly inebriated and anxious. The document says on its face it was released under subpoena.

During cross-examination Detective Porter said he was prepared to accept he had that document at the time of charging, if the questioner had a record of this. However there is no record in evidence that I am aware of which supports it being available to Detective Porter so early. Even the medical records relating to the sexual assault medical examination were not sought until January 2020. The plaintiff’s particulars refer to Detective Porter requesting this information in May 2020. Detective Porter’s statement indicates that the plaintiff’s legal representatives had issued a subpoena a number of days earlier than the 4 May 2020 date specified in the particular recorded above, and that he was responsible for contacting police in the State in which the complainant lived and collating documents. Detective Porter’s statement speaks about finding out about the complainant having some depression and anxiety at about that time, and provision of the material to the Director. He was not challenged about this, nor his suggestion in oral evidence of seeking guidance on the issue of service of the material on the plaintiff with a representative of the Director.

The material regarding the complainant’s presentation in 2017 did not indicate that there was no longer sufficient material to maintain the prosecution. Nor did it give rise to such a view on the part of Detective Porter.

Although not included in the above particulars, on 19 May 2020 a further statement from the complainant was taken. It dealt with the employment structure in the law firm. She stated that the plaintiff was the partner of the department that she was employed to work in, with Ms N being the solicitor in charge of her branch, working directly under the plaintiff. The complainant stated that on occasion, before November 2019, the plaintiff would visit the office at which she worked, to check on the team. This makes no difference to the propriety of the prosecution continuing.

Although there was a submission advanced for the plaintiff that I should take into account the course of the trial in assessing reasonable and probable cause, there was no particular aspect of the trial that was submitted to make any difference to this issue. Further, objection was successfully taken by the plaintiff to parts of Detective Porter’s evidentiary statement outlining aspects of his knowledge of what occurred during the trial on the basis of it being hearsay, and it was thus not pressed by the defendant. Detective Porter was not cross-examined about any development during the trial which did or should have made any difference to any view he held as to the sufficiency of the material to maintain the prosecution.

Accordingly, even if Detective Porter remained a prosecutor after March 2020, the plaintiff has not proved on the balance of probabilities that he maintained the proceedings without reasonable and probable cause.

As indicated earlier, the plaintiff is also required to prove on the balance of probabilities that the sole or dominant purpose of Detective Porter was a purpose other than the proper invocation of the criminal law.

In considering malice, I take into account the terms of s 140 of the Evidence Act, which are to the following effect:

Relevant in this case is the fact that Detective Porter had no personal interest in the matter, no personal knowledge of the plaintiff, was acting pursuant to a public duty, and instituted proceedings in an organisational setting where the Director would (and did) take over carriage of the proceedings and assess the adequacy of the material to maintain the charges: A at [41]-[42].

An assertion of malice is a serious allegation where distinct pleading and clear proof is required. Rule 15.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) supports this pleading requirement. It states:

Particulars of malice were pleaded by the plaintiff. It was alleged that proceedings against the plaintiff were instituted and maintained maliciously by Detective Porter in the following respects (names altered and some amendment to link particulars with correct particulars of absence of reasonable and probable cause):

It was indicated that further particulars may be provided in due course. These particulars are dealt with in related blocks.

The evidence indicated that the complainant’s stepfather is a police officer whose rank in 2019-2021 was Sergeant, and he described himself in his email signature block as a Senior Police Prosecutor. Exhibit C was a copy of an email sent by Detective Porter to a police officer in the city in which the complainant, her parents, Ms M, Ms N and the nurse who examined her lived in the leadup to the trial, organising AVL facilities for these six witnesses who would be giving evidence remotely from that location. Detective Porter noted that the witnesses set out in a table would be attending, and that the complainant’s father is a police prosecutor “so it would be nice to look after them as much as possible.” He also gave the occupations of the other witnesses, except for the complainant’s mother.

Detective Porter’s evidentiary statement acknowledged his awareness from the outset of his investigation that the complainant was the stepdaughter of an interstate police officer who was a police prosecutor. His evidentiary statement made plain he did not know him. He said he had no prior or other relationship with him other than in connection with this matter, where he had the role only of being the father or stepfather of the complainant.

He confirmed that he had no other knowledge of the plaintiff or Mr K. He stated:

It was put to Detective Porter in cross-examination that he was influenced by the connection between the complainant and a police officer and he rejected it:

The following evidence was then given:

After having his attention taken to the email Detective Porter stated that he simply meant looking after them within the AVL process.

The police connection was dealt with very lightly in oral closing submissions for the plaintiff. After addressing a new allegation of malice (suborning perjury, referred to below) at length, and the other multiple instances of asserted impropriety or having a fixed view as to the guilt of the plaintiff, it was submitted that “the other two or three features that we say we rely on in respect of this malice is the motivation to help a family member of [another State] police officer and a dislike of lawyers.”

I accept the submission for the defendant that writing the email was clearly designed to orient the police officer coordinating the AVL process to the people he would be dealing with. It was appropriate to alert him to the fact that the stepfather of the complainant, who was attending in a civilian capacity, was a police officer – to avoid professional embarrassment. The occupations of the other witnesses were also provided. Further, this email was forwarded nearly 18 months after Detective Porter initiated the proceedings. There is no basis for inferring from it anything as to his having an improper purpose in charging.

Proof of malice will often be a matter of inference; but it is proof that is required, not conjecture or suspicion: A at [93]. There is no basis at all for the plaintiff’s first particular of malice. There is nothing more to it than an implicit assumption that any police officer charging a person where the alleged victim of the crime is a police officer or related to a police officer – even one unknown to the charging officer and in another state, perhaps even in another country – has an improper motive. If the balance of the plaintiff’s case on the absence of reasonable and probable cause and malice was very strong, one might consider whether professional identification and loyalty was a reason for pursuing an obviously unjustified prosecution. That is not this case.

The police Facts Sheet was prepared by Detective Porter, although he conferred with Detective Espinosa on 19 December 2019 regarding the charging of the plaintiff and the CCTV footage which had been provided to Detective Espinosa. A printout of the Facts Sheet in evidence has a time of 2:13 pm on 19 December 2019, some five or six hours after the plaintiff was arrested, and before the estimate I have been given of about 4:00 pm when the Local Court granted bail. The document is in a standard form and in this case seven pages long with approximately five of those setting out the allegations against the plaintiff and the way in which these had come to light, been investigated, and the material upon which the charges were based. A Facts Sheet is an important document to provide a charged person and a bail authority with an understanding of the evidence to be adduced in support of the charges laid, in advance of a brief of evidence being served.

After narrating the alleged offending conduct, based on the complainant’s account, the document simply states “She panicked and swam up to the side of the pool where [Ms L] was. The complainant asked [Ms L] for help. [Ms L] agreed. The complainant got out of the pool and put her dress on while [Ms L] ordered a taxi.”

The document stated that statements had been obtained from the complainant, her mother, Ms M and Ms L. The Facts Sheet did not go into detail as to what any of the three statements other than the complainant’s contained.

The Facts Sheet narrated the circumstances of the arrest of the plaintiff and Mr K, and revealed the plaintiff’s provision of the USB stick to police. Of the CCTV footage from the plaintiff’s residence the document states that it shows the complainant entering the pool after the plaintiff, and Mr K 13 minutes later. It is stated that Ms L sat by the side of the pool but walked around occasionally. It continues:

Detective Porter was not the decision maker regarding the refusal of bail by police, and when the matter was heard in the Local Court on 19 December 2019 he conveyed to the prosecutor appearing no objection to the grant of appropriate conditional bail.

Detective Porter was cross-examined regarding the assertion that the complainant appeared to cry and appeared to be consoled by Ms L. He stated that was his interpretation, although when it was played in Court he could not identify which portion of it gave him that impression.

Detective Espinosa maintained in cross-examination that his recollection of watching the CCTV footage was of seeing the complainant distressed and crying. He expressed the opinion that she appeared sheepish, to be wiping her face, and moving away from Mr K.

Objectively, the CCTV footage is capable of indicating within a minute of the complainant getting out of the pool Ms L apparently leaning in to and possibly comforting the complainant, and the complainant apparently dabbing her face as though she might have been crying – or she may have just been drying her face. The CCTV footage is of very poor quality and it is conducive to watchers of it seeing things in it from the perspective which they bring to bear in watching it.

Detectives Porter and Espinosa were not cross-examined about the CCTV footage showing Mr K approaching the complainant and appearing to apologise. Objectively, he did approach her and appeared to be beseeching her in some way. It was not unreasonable – far less malicious - to interpret this as apologising to her. In light of the complainant’s statement in January 2020 that Mr K was at the relevant time endeavouring to persuade her to stay, it is also consistent with such evidence. This alleged misrepresentation did not feature in the plaintiff’s closing written submissions where the allegedly false representations in the Facts Sheet were listed at paragraph [207].

Particular (c) at [295] relies upon the alleged absence of evidence that Ms L was a friend of the plaintiff, and that the complainant and plaintiff consumed numerous lines of cocaine. The relevant part of the Facts Sheet states:

Detective Porter was not cross-examined about his representation in the facts that the plaintiff and Ms L were friends. As noted above, in the context of his answers regarding his reasons for scepticism of Ms L, he gave evidence that in part this was because she was aligned with the plaintiff and was his friend. The basis of this assertion was not challenged. There was no closing submission advanced in support of this particular of malice. It is thus not clear whether it is pressed; but it was not formally abandoned. There was ample evidence to support Detective Porter’s opinion that Ms L and the plaintiff were friends. This included the length of time they had known one another (for over 10 years, in the Sydney office), her demonstration of a high level of upset regarding what occurred and what allegedly occurred on the morning of 6 November 2019 (not only from the perspective of concern for the complainant), the evidence of her consumption of cocaine with the plaintiff in an intimate setting in the early hours of the morning on 6 November 2019 and being invited to his house, and his physically demonstrative behaviour towards her as depicted in the CCTV footage of their arrival at his house walking to the lift, and then in the pool area in the minutes prior to his undressing and entering his pool.

The reliance upon this assertion for malice also overlooks the purpose of including this information in the police Facts Sheet. The relevance in this document of the friendship was its bearing on the feelings of the complainant, who described feeling safer in her decision to go to the plaintiff’s house, and get into his pool, because of her knowledge of the length of time Ms L had known the plaintiff. The inclusion of this assertion in the Facts Sheet does not support the proposition that Detective Porter had an improper purpose in charging the plaintiff.

As to the consumption of cocaine (particular (c)(ii) at [295]), there was ample evidence that the complainant and Ms L consumed numerous lines of cocaine. The complainant’s evidence was that the plaintiff consumed it by placing it on his gums with his fingers and licking the bag. The evidence available to Detective Porter at the time the Facts Sheet was created also included Ms M’s statement which indicated Ms L had confirmed this.

The method of the plaintiff’s consumption of cocaine was immaterial. The plaintiff’s reliance on this as an act proving malice also overlooks the fact that the relevance of this from the perspective of a prosecutor or bail authority was that the complainant was encouraged to and did consume cocaine in the circumstances she described. The custody management records indicate that a reason for the refusal of bail by the police officer who made that decision was the fact that the complainant was vulnerable due to her level of intoxication. The inclusion of joint consumption of cocaine by the plaintiff and complainant in the Facts Sheet does not support a finding of malice.

The plaintiff relied upon the suggestion in the police facts that the plaintiff “insisted” the complainant enter the pool despite there being no evidence of this (particular (e) at [295]). The complainant’s statement had included the plaintiff’s initial invitation to her while in the barrister’s chambers in the early hours of the morning to come to his house for a swim. She described their arrival at the pool area of his house, and his undressing and jumping into the pool, whereupon she felt uncomfortable as he was watching her intently. She stated that the plaintiff was “...encouraging me to get into the pool and he said it was 36 degrees and very warm and it would warm me up. He was talking about the steam coming off the pool and told me it would make me feel better.” There was no cross-examination of Detective Porter regarding this particular of malice and no submission advanced in support of it. This entry in the Facts Sheet does not support a finding of malice.

To the extent that there were inconsistencies between the complainant’s account and the CCTV footage (such as not immediately dressing when she exited the pool, but drying herself first) they were minor and not required to be included in the Facts Sheet.

Detective Porter disagreed with the proposition that he should have included in the Facts Sheet the complainant’s account of getting out of the pool and immediately putting her dress on, and it being contradicted by the CCTV footage, and her account of being unsteady on her feet after exiting the pool and the proposition that CCTV footage did not show her unsteady on her feet. Detective Porter agreed that the purpose of the Facts Sheet is to inform the Local Court for the bail application, and he had an obligation to present the Court the full picture. He disagreed that he did not mention these asserted inconsistencies because they did not help the prosecution case.

I accept Detective Porter’s above responses. The absence of reference in a document of the kind in question to the fact that the complainant said she dressed immediately after she got out, whereas police had discovered she towelled herself dry for nearly three minutes, does not indicate malice. As noted above, the plaintiff has withdrawn reliance on the more significant allegations of inconsistency between the complainant’s account and the CCTV footage. The Facts Sheet did not descend into detail on such issues – far less pointing out supporting or contradicting arguments about them. The document was concerned with the core aspects of the allegation.

The plaintiff relied upon the decision of the District Court in Madden v State of New South Wales [2022] NSWDC 647 at [301] regarding the exclusion of material information from a police Facts Sheet supporting malice, noting that the State’s appeal was dismissed. The facts as set out in the judgment of the Court of Appeal in State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 make plain that there is no analogy able to be drawn between the malice proved in that case, and Detective Porter’s actions.

As recorded in the Court of Appeal judgment in Madden at [177] and [197]– [202], the exculpatory matters found to have been deliberately concealed or withheld from the Facts Sheet were fatal to the charge. The respondent was refused bail and remanded in custody for five months, and had her parole revoked on the basis of the apparent strength of the prosecution case set out in the Facts Sheet which was completely misleading. There was evidence of negative background dealings between the relevant police officer and the respondent, and the clearly misleading Facts Sheet confirmed his improper purpose in prosecuting her.

For reasons set out in detail regarding the element of absence of reasonable and probable cause, no criticism of Detective Porter arises because he charged the plaintiff without waiting for an updated statement from Ms L. Far less was this an indication of malice (particulars (f)-(h) at [295]). Further, the suggestion that non-inclusion of supposed inconsistencies between the complainant’s account and Ms L’s first statement (particular (i) at [295]) is also not made out. The extent to which the complainant’s account was “contradicted” by Ms L’s unsigned statement did not relate to the elements of the alleged offences. To the extent that the inconsistencies were important, the complainant’s account was supported in multiple ways by what Ms L was alleged to have said to Ms M. The Facts Sheet was prepared in draft before the arrest, and finalised on the day of arrest. It was to be read by a busy Magistrate. It was not the forum for undertaking the detailed comparative analysis of the kind I have undertaken in connection with the absence of reasonable and probable cause.

Not including reference to the prospect of further answers from Ms L was not indicative of malice, especially when Detective Porter understood from Ms M’s statement that Ms L had acknowledged many of those issues consistently with the complainant. This level of detail was not descended into in the facts and was not necessary.

The plaintiff’s closing written submissions said “..it is submitted that the evidence, discussed below, proves each of the particulars of malice pleaded in paragraph 24.” This was the paragraph of the final amended statement of claim setting out the particulars of malice, set out above at [295].

However the pleaded suppression of exculpatory evidence flowing from Detective Porter’s meeting with Ms M on 21 January 2020 was not addressed upon, in the sense in which it was pleaded. Rather, a very serious allegation of suborning perjury was introduced as having been proved as a result of the evidence about that meeting. It was submitted that this alleged act of suborning Ms M to say something that was not truthful was so serious that it was sufficient, of itself, to make out malice existing at all relevant times.

Similarly, the plaintiff’s oral closing submissions did not refer to the suppression of exculpatory evidence, but the serious act of suborning a witness (as its first and most focused upon demonstration of malice). The allegation of suborning a witness is dealt with further below in relation to allegations of malice outside the pleadings.

Although particulars of malice (k) and (l) were not addressed upon in the sense in which they were pleaded, they were not explicitly abandoned. As will be explained further in relation to the allegation of suborning perjury, I do not accept that a coherent picture has been presented of everything that occurred during Ms M’s meeting with police on 21 January 2020. However, consistently with the approach taken in connection with absence of reasonable and probable cause, I find that this evidence at its highest for the plaintiff did not involve the provision of any relevant exculpatory evidence to Detective Porter on this date. Not disclosing what is alleged to have been said to him it did not demonstrate malice.

Detective Porter accepted during cross-examination that in April 2020 he contacted the plaintiff’s counsel regarding the prospect of arrest for breach of bail for speaking with witnesses. He explained that he was being bombarded by female employees of the law firm with concerns that they were being pressured to change their statements or lose their jobs, and would only have made such a call if he believed the plaintiff was in breach of bail. Although Detective Porter accepted the proposition put to him that there had been a change of bail conditions earlier in April 2020 (and the agreed position of the parties is that there had been a loosening of bail conditions to allow some work related contact with witnesses), he stated that he must not have been aware of this. He also stated that he would not have felt the need to check, because in his experience he is always made aware of changes to conditions of bail.

There was no display of malice in Detective Porter contacting the plaintiff’s counsel in April 2020 to raise the prospect of a breach of bail. It was a considerably more prudent course than arresting the plaintiff. It enabled the situation to be set right. As has also been already explained, I am not satisfied that Detective Porter was a prosecutor at this time. The plaintiff did not explain how this conduct could be attributed back to demonstrate malice at the time of charging.

Detective Porter’s evidence suggests that any decision about this document was taken by the Director. He expressed mixed views regarding whether it was required to be disclosed. He indicated essentially that if the complainant had said something false regarding her boyfriend on this occasion then his view would be that disclosure was required, but that some demonstration of anxiety – even to the extent of punching her own head – did not necessarily require disclosure.

This particular of malice did not feature in the plaintiff’s closing oral or written submissions. Without determining the matter conclusively, it seems that this document should have been disclosed to the defence. However if it was not, the evidence does not prove that this was Detective Porter’s decision. Even if it was, it comes nowhere near the type of irregularity, illegality or imperfection in the action of a police officer that indicates he had a dominant purpose other than bringing the law into effect. Far less could any such state of mind be attributed to him retrospectively to the time of charge.

Detective Porter’s evidence is that he did spend time watching aspects of the CCTV footage on 19 December 2019. He was not cross-examined specifically as to what he saw. There were no submissions advanced as to what he should have watched it concurrently with - and Detective Porter did not yet have the medical notes at the time of charging. There was no submission advanced as to what this would have achieved. The thumb drives contained multiple long files for much of which nothing is visible. Watching these fully would have improperly delayed taking the plaintiff before a Magistrate. Detective Porter saw enough to confirm the complainant and plaintiff were in the plaintiff’s pool in their underwear when she said they were, and the plaintiff has abandoned the suggestion that anything tangible regarding the alleged commission of the offences can be discerned. These particulars do not support malice on the part of Detective Porter.

Detective Porter agreed in cross-examination that he could have said “barristers get away with everything” on 21 January 2020 when talking with Ms M - although he did not recall saying this, it sounded like something he could have said. He expressed views about lawyers in this particular investigation based on the evidence obtained as a result of it. Detective Porter said “Because they’re at a position of power, which I believe played a big role in the – the allegations”. Similarly his evidence that Ms L could have lied more carefully because of her occupation was said only when pressed for such an answer. The effect of his evidence was clearly that her occupation did not mean anything to him. He disagreed with the proposition that he should have afforded Ms L’s first statement greater weight because she was a solicitor.

Detective Porter had a fully formed coherent allegation of serious sexual assault, and supporting evidence of surrounding circumstances. As I indicated in connection with reasonable and probable cause, there was no basis on which he could have legitimately not charged the plaintiff. The plaintiff’s occupation had nothing to do with this.

As the investigation continued after charge, Detective Porter’s views regarding the covering up of evidence by Ms L became stronger, and there was an evidentiary foundation for this view.

Ms M’s evidence of being given a Crime Stoppers number relates to Detective Espinosa, not Detective Porter. She made no allegation of being asked to make a false complaint. She stated:

Ms M’s evidentiary statement provided no information as to what, if anything, she had said that might relate to such a suggestion. She did not describe by reference to anything she had said, or anything Detective Espinosa said, what the anonymous complaint might be expected to relate to.

Detective Porter had a recollection of Detective Espinosa providing the number. He gave evidence about the conversation he heard between Ms M and Detective Espinosa. It was about the barrister, with Ms M alleging that the barrister had drugs at his house. She said she would like to report this anonymously, and Detective Espinosa gave her the Crime Stoppers number. Detective Porter was not involved. Detective Porter’s evidence was plausible and coherent. Ms M’s evidence was obviously incomplete because it provided no context or explanation for what she or anyone else anticipated she might make a report about.

As submitted by the defendant, any potential search envisaged was of the barrister’s chambers or home, not any residence occupied by the plaintiff. The action was that of Detective Espinosa, not Detective Porter. There has never been any evidence to support the contention that a false report was contemplated. There is no basis for the allegation that this occurrence demonstrated Detective Porter’s malice.

It follows from my determination of the issue of absence of reasonable and probable cause that the plaintiff cannot prove malice indirectly or by inference from the fact that there is no explicable reason for Detective Porter to have charged the plaintiff other than the existence of an improper purpose.

For the above reasons, none of the pleaded particulars of malice, even taken in combination, prove that Detective Porter was acting for any purpose other than the proper invocation of the criminal law.

The plaintiff placed significant reliance in closing written and oral submissions on additional matters, not pleaded, that were said to demonstrate Detective Porter’s malice. This included the very serious allegation of suborning perjury, as well as the suggestion of non-disclosure of telephone intercepts, and a misleading CCTV chronology being provided to the Director.

The defendant objected to this course being permitted. The defendant relied upon the plaintiff having had every opportunity to plead and particularise his case. It was submitted that “Omissions should not be treated as oversight, and any attempt now to expand the scope of the pleaded case, especially in malice, should be refused.” The defendant contended that the plaintiff should be confined to the very extensive, and amended, particulars of malice set out in paragraph [24] of the plaintiff’s final amended statement of claim (those set out above at [295]).

The defendant’s oral closing submissions emphasised that the plaintiff’s pleaded case had nothing to do with telephone intercepts or logs with respect to them, and nothing to do with suborning witnesses. Counsel emphasised the grave nature of an allegation of malice, such that “It’s not a matter for imprecision, for casualness, for want of care, for adding things as you go along.”

The plaintiff contended in response that the defendant cannot complain that the plaintiff’s forensic approach impermissibly went beyond the scope of the case as pleaded when the defendant barely objected to the forensic approach adopted by the plaintiff during the cross-examination of Detective Porter. This submission was advanced in the same paragraph as the one which contended that all of the cross-examination of Detective Porter was relevant to facts in issue and Detective Porter’s credibility.

There is considerable force in these submissions for the defendant, and otherwise significant evidentiary problems in the plaintiff’s changed case. I will deal with the pleading issue as well as the problems in the allegations to some extent, as they are related. Together they dictate that these contentions for the plaintiff must fail.

The statutory offence of suborning perjury is contained in s 333 of the Crimes Act. It is in the following terms:

The basic offence of committing perjury is contained in s 327(1) of the Crimes Act, which states:

Ms M’s evidentiary statement was dated 18 April 2023. It included allegations about her meeting with police on 21 January 2020 as I have earlier set out.

As is clear from the pleaded particulars of malice set out above at [295], based on paragraph [24] of the plaintiff’s final amended statement of claim, suborning Ms M was not pleaded. Rather the alleged suppression of exculpatory evidence was pleaded as arising from the conference between Ms M and police on 21 January 2020, after the first proposition concerning appeasing interstate police officers, then well down a list of allegations about the course of the investigation.

The pleaded particulars of the objective aspect of absence of reasonable and probable cause referred to aspects of Ms M’s evidence regarding the meeting on 21 January 2020, including an alleged response by Detective Porter: see above at [180](x)]. Such particular was not fairly reflective of Ms M’s evidence, and not in fact relevant to the objective aspect of reasonable and probable cause. It could theoretically have been relevant to the subjective aspect of reasonable and probable cause. As noted earlier, Detective Porter was not cross-examined to suggest that anything said to him on 21 January 2020 by Ms M caused him personally to doubt the sufficiency of the available material to maintain the prosecution.

Opening written submissions for the plaintiff, dealing with absence of reasonable and probable cause, advanced the proposition that I have otherwise dealt with, that the comment about “going to call rape” undermined the credibility of the complainant. In that context it was submitted that the explanation of the comment in Ms M’s 21 January 2020 statement was “concocted by DS Porter who no doubt was acutely aware of how [Ms M]’s comment would be construed by the arbiter of fact at trial.” It was submitted that Detective Porter suggested to Ms M that her explanation be put a certain way, asked her whether she was happy with it, and she agreed as she wanted the conference to be over. It was submitted that:

A further opening written submission was advanced regarding absence of reasonable and probable cause:

I do not regard a flourish in submissions on reasonable and probable cause suggesting Detective Porter had “concocted” Ms M’s explanation for the comment about “calling rape” as sufficient to have alerted the defendant to a proposed expansion of the plaintiff’s pleaded particulars of malice to include suborning perjury.

In relation to malice, the plaintiff’s opening written submission made reference to the indirect method of proof related to absence of reasonable and probable cause, and confirmed that paragraph [24] of the final amended statement of claim (as set out above at [295]) pleaded the particulars of malice. Reference was then made, in order, to the relationship between the complainant and a police officer, the Facts Sheet aspects of the plaintiff’s allegation of malice, and the alleged neutralising of the “call rape” comment because of the failure to disclose evidence.

No objection was taken on behalf of the defendant to paragraphs [46]–[54] of Ms M’s evidentiary statement (see above at [215]), nor other paragraphs relating to the meeting on 21 January 2020. Ms M was cross-examined reasonably lightly, but effectively, in relation to those paragraphs. No evidence in chief was adduced from Detective Espinosa or Detective Porter about paragraphs [53] and [54] of Ms M’s evidentiary statement specifically, and none was adduced from Detective Espinosa about paragraph [52].

Detective Espinosa was called before Detective Porter, and not cross-examined about paragraphs [52] to [54] of Ms M’s evidentiary statement. He was not challenged regarding his stated recollection of Ms M asking a lot of questions on 21 January 2020 and seeking a lot of input from them regarding her statement: see above at [217].

The concept of suborning a witness arose for the first time in the cross-examination of Detective Porter. It was first raised towards the start of the cross-examination of Detective Porter, as follows:

Detective Porter was not challenged regarding paragraph [119] of his statement (see above at [216]). Detective Porter was taken to the terms of paragraph [53] of Ms M’s evidentiary statement and he denied that this occurred. It was put to him that he knew that if Ms M’s version of events at the meeting on 21 January 2020 was accepted he faced a serious risk of criminal prosecution, and he repeated that he did not say what was set out in that paragraph and has never said such a thing.

It was not put to Detective Porter that he knew that if Ms M gave evidence in accordance with paragraph [4] of her statement dated 21 January 2020 (see above at [209]) it would be false testimony, amounting to perjury.

The evidence concluded without application by the plaintiff to amend his pleadings as to malice. There has been no subsequent application.

As noted above, the plaintiff’s closing written submissions did not address the pleaded particular (k) of malice, of withholding exculpatory evidence; but rather cast the events of 21 January 2020 as Detective Porter suborning Ms M. This new allegation was elevated to be the primary focus of the plaintiff’s submissions on malice, and was said to be so serious that by itself it established malice at all relevant times.

The plaintiff’s closing submissions did not identify the material facts relied upon to prove that paragraph [4] of Ms M’s 2020 statement would, if given in evidence, amount to perjury (as distinct from being incomplete, because it did not include references to the complainant being a “slag” and “topper” and kissing three strangers on one night and complaining about her bottom being touched and so on). The plaintiff’s closing submissions did not identify the material facts relied upon to prove that Detective Porter knew that if Ms M gave evidence in accordance with paragraph [4] of her 2020 statement it would be false testimony amounting to perjury.

The plaintiff’s closing written submissions regarding the assessment of credibility and reliability of witnesses suggested that it was significant that Ms M was not challenged about paragraphs [52] and [53] of her evidentiary statement. This included the submission that after Ms M “recounted incidents involving the complainant exaggerating events”, Detective Porter said something to her about not putting that in there because the other side would “tear it up”.

It was submitted, regarding absence of reasonable and probable cause, that the “going to call rape” comment was obviously of concern to Detective Porter when he heard it from Ms N because he obtained a supplementary statement from Ms M addressing it. It was submitted that the explanation included in Ms M’s statement was identical to that given by Ms N, and was said to be nonsensical. It was submitted that the explanation was “concocted by DS Porter who no doubt was acutely aware of how [Ms M’s] comment would be construed by the arbiter of fact at trial.”

It was submitted for the plaintiff that because Detective Porter was alleged to have said “they will tear it up” that he did not take the disclosure as anodyne.

The submission was advanced for the plaintiff that I would more readily find that Detective Porter suborned Ms M in circumstances where the defendant did not lead evidence from Detective Espinosa “on the topic”. It was submitted that in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (“Ferrcom”) at 418 Handley JA said that he could see no reason why the principles in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8:

The defendant submitted that subornation of a witness contrary to s 333 of the Crimes Act was never more than dangled, and never squarely put. It was submitted that the cross-examination indicated a preparedness to wound but not to strike, with illegality only being raised in a hypothetical way. The defendant relied upon the fact that, to the extent anything was put to Detective Porter regarding suborning Ms M, he denied it.

The defendant referred to the fact that on Ms M’s own account she told police she was happy with paragraph [4] of her 2020 statement, and did not communicate to Detective Porter that she was only saying so to end the conference. It was submitted that there was a significant difference between the offence of suborning on the one hand, and on the other, a police officer not adhering to an ethical obligation that would pertain to a solicitor of not volunteering or leading in suggestive terms a witness’ evidence or prospective evidence, even if sincerely thought to be the evidence the witness can give. It was emphasised that suborning is to invite perjury, and even if paragraph [53] of Ms M’s evidentiary statement was correct, it had not been suggested to Detective Porter that he knew that the relevant paragraph of her 21 January 2020 police statement was untrue.

The plaintiff submitted in reply that the substance of the allegation that Detective Porter suborned Ms M was put to him and nothing more was required. The plaintiff criticised aspects of the defendant’s submissions including that Ms M was still an employee of the law firm. It was submitted that it was not put to her that she was motivated to give evidence in support of the plaintiff, and more fundamentally that it was not put to her that the conversation as set out in her evidentiary statement did not occur.

I referred above at [294] to the pleading requirements where malice is alleged. Further to that, the allegation of suborning perjury is of a criminal offence, akin to fraud. As stated by Ward P in Muriniti v Lawcover [2022] NSWSC 90, a case in which suborning perjury was one of a number of serious allegations:

Rule 15.3 of the UCPR is in the following terms:

I referred above to the terms of s 140 of the Evidence Act. In Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 Bell CJ, with whom Ward P and Macfarlan JA agreed, confirmed at [86] the relevance of such provision where serious misconduct is alleged, and its equation with the well-known observations in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360–362. These observations of Dixon J include, at 362, the proposition that a state of mind of reasonable satisfaction is not attained independently of the nature and consequence of the facts to be proved. The seriousness of an allegation and gravity of its consequences wards against reliance on inexact proofs, indefinite testimony, or indirect inferences. Bell CJ in Admiral International also referred to the requirement, in a case involving allegations of serious misconduct with grave consequences, of “clear or cogent or strict proof”.

At [88] his Honour stated:

His Honour then quoted r 15.4 of the UCPR which is set out above at [294]. At [89] his Honour stated:

I recognise the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at [2]; [1992] HCA 66.

There is no requirement for a judge to accept the evidence of a witness because it is unchallenged. Of the rule in Browne v Dunn (1893) 6 R 67 (HL), Gummow, Kirby and Callinan JJ in MWJ v R (2005) 80 ALJR 329; [2005] HCA 74 said at [39]:

Of the rule in Browne v Dunn, albeit in the context of this criminal appeal, Gleeson CJ and Heydon J had said at [18] that the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

It was stated by Gummow, Kirby and Callinan JJ at [38]:

Their Honours further said at [40]:

Counsel for a defendant in civil litigation is not obliged to obtain instructions about, and lead evidence from witnesses who have the capacity to comment upon, every aspect of evidence adduced in the plaintiff’s case. Nor is cross-examination required regarding every aspect of the evidence of a plaintiff’s witness which is disputed by the defendant’s witnesses. Counsel does have an obligation to the Court to present the case for the party represented as efficiently as possible, which involves making forensic judgments so as to confine any hearing to those issues which the barrister believes to be the real issues, and present the client’s case as quickly and simply as may be consistent with its robust advancement: rules 43 and 58 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), as well as overarching principle of efficiency in the UCPR.

Any relevant principle set out in Ferrcom is related to the rule in Jones v Dunkel. As stated by Bell CJ in Wild v Meduri [2024] NSWCA 230 (White and Kirk JJA relevantly agreeing) at [203]:

In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, Heydon, Crennan and Bell JJ distinguished at [63] two types of inferences that can be drawn where Jones v Dunkel applies (citations omitted):

Their Honours further stated that where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the Court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. The footnote to that proposition cites Ferrcom at 418-419, continuing “Handley JA stated some stronger propositions in those passages, but what he said is at least authority for what is stated above”.

At [64] their Honours confirmed that the rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.

The decision of the Court of Appeal in Wormald v Maradaca Pty Ltd [2020] NSWCA 289, relied upon by the plaintiff, followed Ferrcom to the extent of not drawing an inference in favour of a party who carried a burden of proving causation of damage by allegedly misleading and deceptive conduct by non-disclosure. The principal of the respondent company was an experienced commercial participant, and she did not give evidence to the effect that, had she known of the relevant information allegedly withheld from her, she would not have gone ahead with the acquisition or gone ahead only at a lower price. This raised at least the possibilities that she did in fact know of the matters alleged to be non-disclosures or that, even if she did not know some or all of these matters, that would not have made a difference to her decision. It was in those circumstances that it was held at [173] by Bell P (as the Chief Justice then was, Bathurst CJ and Payne JA agreeing), in line with Ferrcom, that no favourable inference should be drawn in her favour in this regard.

The allegation of suborning Ms M in January 2020 is based on oral evidence about a conversation that occurred over 4 ½ years before the relevant witnesses gave evidence, and three years and three months before Ms M’s evidentiary statement was prepared.

The oft cited statement of McCleland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-9, in the context of the precision required where spoken words are relied upon for misleading or deceptive conduct, provides invaluable guidance, as noted by Bell CJ in Wild v Meduri at [251]. His Honour said:

Bell CJ confirmed at [254] that judges are alive to the imperfection of memory and artificially precise recollections, and with the guidance of Watson v Foxman, remain arbiters of what may or may not have been said.

The joint judgment in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] encourages judicial reasoning to conclusions to be based as far as possible on contemporary materials, objectively established facts and the apparent logic of events.

The defendant is entitled to take objection to the plaintiff’s reliance on an allegation of suborning perjury when this was not pleaded. The pleaded case rested on Detective Porter’s alleged withholding from the plaintiff evidence of what Ms M did say to him on 21 January 2020. The defendant was entitled to regard the material allegedly withheld as relatively inconsequential, for the reasons I have earlier explained. That allegation is fundamentally different from one of persuading Ms M to say something that she had not said, and that Detective Porter knew to be false.

The defendant’s objection to the expansion of the plaintiff’s case for malice beyond the pleadings is not answered by reference to failure to take objection during the cross-examination of Detective Porter. Detective Porter’s cross-examination was wide-reaching and, as has been confirmed by the plaintiff’s submissions, was directed throughout to undermining his credibility. Perhaps some of it could have been successfully objected to. Any failure to object does not amount to acquiescence to a new case.

Nor was objection required to be taken to the content of paragraphs [52]-[54] of Ms M’s evidentiary statement. This was part of her narrative of the active provision of the information to police set out in paragraphs [46]-[50], being those matters that were not included. The fact that parts of paragraphs [52] and [53] of Ms M’s evidentiary statement were included in the pleadings regarding the objective aspect of absence of reasonable and probable cause confirms the intended use of this evidence as closely tied with the allegedly exculpatory material which was suppressed. The alleged recommendation by Detective Porter was related to the suppression of the exculpatory material, and it was the allegedly exculpatory material that was relevant to the objective aspect of reasonable and probable cause (and malice) as the plaintiff conducted his case.

The plaintiff has still not indicated the basis on which he alleges that paragraph [4] of Ms M’s 21 January 2020 statement was false, and Detective Porter knew it was false. Ms M did not give evidence that it was false. Her evidence suggests that she was not completely happy with it, because her evidence is that she said she was happy with it because she wanted the police to leave. It can be taken that from Ms M’s perspective it was incomplete, because it did not include reference to the complainant being a ‘slag’ and a ‘topper’ and talking hysterically about a man touching her bottom, and kissing three strangers at the pub, and so on. But Ms M has not said it was false. She was a paralegal in her 30s at the time of typing the statement herself, and signing it, with a jurat in the usual terms:

I surmise that the plaintiff must be contending that I should find that paragraph [4] of Ms M’s January 2020 statement was false because I should take Ms M’s evidentiary statement as almost precisely correct regarding what she did say on the relevant topic to police, and what was said to her, and in what order; and as her not having said anything else on the topic that would be consistent with the way in which paragraph [4] of her 2020 statement was framed. However Ms M does not state that to be the case, it is against the inherent probabilities of what occurred at the meeting, and I do not accept such a proposition.

The defendant no doubt made forensic choices in circumstances where the plaintiff was relying upon what Ms M had said was left out of her statement, but which was not important. Had Ms M’s evidence been that she said those things and nothing else, and paragraph [4] of her January 2020 statement was false, with suborning perjury particularised as the plaintiff’s case for malice, the defendant’s evidence and cross-examination of Ms M may be expected to have taken a different path.

I do not regard the defendant’s reliance on Detective Porter’s denial of paragraph [53] of Ms M’s evidentiary statement, despite Ms M not having been cross-examined upon it, as indicating non-compliance with the rule in Browne v Dunn with any consequence. Ms M was called and the ambit of her cross-examination determined at a time when suborning her was not a particular of malice pleaded by the plaintiff. The plaintiff now makes a very serious allegation that was not pleaded at the time Ms M came and went from the witness box. Were I not able to so comfortably reject the plaintiff’s allegation of suborning Ms M on the evidence that is before me, this lost opportunity for the defendant would have been a sound reason for refusing to consider the plaintiff’s changed case.

I do not draw any inference from the fact that Detective Espinosa’s evidence did not address specifically paragraphs [52] and [53] of Ms M’s evidentiary statement, for the same reason.

The chronology of events is important in considering the meeting between police and Ms M, and understanding how Ms M likely interacted with police and how police would likely have taken Ms M’s comments. Ms M was at the time the complainant’s friend. She had previously driven the complainant to and from work daily. Ms M was clearly not on friendly terms with the complainant when giving evidence. Despite acknowledging specifically in her evidentiary statement that she and the complainant became work acquaintances and eventually friends, when the simple proposition that the complainant was in the past Ms M’s friend was put to her in cross-examination, she responded sharply “She was a work colleague.” Despite the statement in her evidentiary statement that she agreed with police that the complainant was very pretty, when asked in cross-examination whether she agreed the complainant was a conventionally attractive young woman, she responded sharply again “If she tickles your fancy. She’s not my type.”

There is no evidence suggesting that Ms M and the complainant had ceased being friends by January 2020. It seems now that Ms M had ambivalent feelings about the complainant at that time, as some people do for their friends. Ms M was not then in contact with the plaintiff due to his bail conditions which prevented contact until April 2020. Ms M has remained working for the law firm, and the complainant ceased working for the law firm immediately after the alleged sexual assaults.

January 21 2020 was the first occasion Ms M met face to face with Detective Porter. Ms M’s previous statement, typed out by herself, portrayed a caring, concerned and supportive attitude towards the complainant. It demonstrated the steps she took to keep an eye out for the complainant on the evening of 5 November 2019. Ms M’s first statement expressed criticism of Ms L for not acting in a caring way towards the complainant when the three women were in the hotel together in the early hours of 6 November 2019, and protection of the complainant when Ms L asked the complainant whether she had led the men on, causing Ms M to ask Ms L to leave. Ms M described an extended period of time in which she stroked the complainant’s hair and assured her this was not her fault. The statement described Ms M crying on many occasions on 6 November (and this flowed through to her report to police on 21 January 2020 of crying when she apologised to the complainant’s mother on the phone). She took the complainant home to her parents and ensured her parents understood what had been alleged. It revealed no negative thoughts whatsoever about the complainant.

Detective Porter met with Ms M in that context for a meeting scheduled well in advance of Ms N’s revelation to him. However despite the apparently caring and supportive tenor of Ms M’s first statement, Detective Porter was an experienced investigator. Although Ms N had just told him she thought on the evening of 5 November 2019 there was a prospect the complainant may be raped because she was worried about her, he was keen to see what Ms M would say about the comment “She’s going to call rape”, because it was a strange thing to say, and concerned him because it could indicate that Ms M thought the complainant would fabricate an allegation of rape. Detective Porter may very well have said something like “We need to address this so that it can’t be picked apart at trial.” However Ms M did not say that this is what she meant.

On 21 January 2020 Ms M provided police with screenshots of messages in which she showed her care and concern for the complainant on the evening of 5 November 2019, as her previous statement had described. Her messages were affectionate. They included a message Ms M sent to the complainant at 9:58 pm within what must have been less than half an hour after the alleged “What if she calls rape?” comment, in which she said “let me know when you are back safe please. i know you are a big girl but worried about you being there alone” That is consistent with what was included in paragraph [4] of her 21 January 2020 statement. It included the message to Ms N on 7 November indicating that Ms M, like Ms N, was angry about what had occurred, as it was predatory, and had set back the confidence the complainant had just started to get back.

These text messages were shown to police and annexed to Ms M’s statement, at the very meeting under consideration. The messages would obviously have been looked at and considered, if not also discussed. Ms M’s consideration of them and production of them to police, and discussion about them, is not addressed in Ms M’s evidentiary statement. I have no information as to the order in which the issues in the typed police statement were discussed, as a laptop was being used and can accommodate insertion of points discussed towards the end of the meeting, towards the top of the statement. Ms M’s evidence that she told the police she was happy with paragraph [4] of her 21 January 2020 statement as she typed it, because she wanted them to leave, tends to suggest that this was being discussed towards the end of the meeting (that is, after the consideration of the abovementioned text messages) rather than at the beginning. Paragraph [3] in the 21 January 2020 statement is about the complainant not previously consuming cocaine, whereas in Ms M’s evidentiary statement she narrates it as being discussed after the “call rape” comment. This confirms that the material before me does not indicate the order in which issues in Ms M’s 21 January 2020 statement were discussed.

Ms M’s reference on 21 January 2020 back to her expression of anger on 7 November 2019 at the predatory conduct, which would have set back the confidence the complainant had just started to get back, is connected with what I see as another obvious gap in Ms M’s evidentiary statement about conversation relevant to the topic of how paragraph [4] ended up in her 21 January 2020 statement. She states that she told the police the complainant had mental health problems, but has included no conversation as to what she said about this. Ms M was clearly on the day, by reference to the abovementioned text messages, recalling concern for the complainant being left by herself, and about some improvement, recently prior to November 2019, in a confidence problem the complainant had suffered.

The evidence indicates that the complainant did have a history of anxiety and depression. Ms M stated in Court that the complainant was suicidal in the days after they arrived back in their home city, and this is consistent with the statement police also obtained from the complainant herself on January 21 2020. Ms M stated in Court that the complainant had engaged in self-harm prior to the alleged sexual assaults. The detail of Ms M’s understanding of the complainant’s mental health vulnerabilities is not referred to in her evidentiary statement.

Detective Porter’s main recollection of the conversation that followed when he asked Ms M to elaborate on the “call rape” comment was that it was to do with the complainant’s mental health. He was not challenged about this evidence, but it is missing from Ms M’s evidentiary statement. One particular aspect of that topic Detective Porter recalled being discussed was the traumatic injury to the complainant’s boyfriend (which he wrongly remembered as death). Discussion about this injury and the ramifications for the complainant is not referred to in Ms M’s evidentiary statement but I accept it was discussed. It was volunteered by Ms M in cross-examination as demonstration to the Court that the complainant is a “topper”. As with most of Ms M’s other examples, this disclosed nothing negative about the complainant’s credibility, but only about Ms M’s judgmental thought processes about the complainant.

A further indication that Ms M’s account of how paragraph [4] came to be in her January 2020 statement is not complete, is the evidence of Detective Espinosa that Ms M was asking a lot of questions and seeking guidance as to how best to frame aspects of her statement. This was not challenged. It is unlikely that this related to the bulk of the rest of her statement, which was more mechanical explanation of when she spoke to people and what was said.

The passage from Watson v Foxman quoted above at [392] is highly instructive in understanding the importance of nuance. A relevant example here is Ms M’s evidence of what she first said when asked why she made the comment to Ms N “What if she calls rape?”. Ms M’s evidentiary statement says she said words to the effect of “She has mental health issues and I was worried she would do something like this”. This is clearly consistent with having said “She has mental health issues and I was worried something like this would happen.” There was no obligation to cross-examine on every possible variation that could be consistent with words the witness only stated she remembered the gist of – particularly in light of the problem of suborning not being pleaded.

Even if Ms M was at the time subjectively thinking in a judgmental way about the complainant, such different phrasing or words would have meant her dark thoughts were not apparent to Detective Porter. This then ties in with the conversation about the complainant’s mental health vulnerabilities, in a way that would no doubt have been regarded as sympathetic by police. The information available to Detective Porter included the complainant’s mother’s statement which expressly linked the occurrence with the complainant’s boyfriend – discussed with Ms M in relation to the relevant topic at the meeting – with her daughter’s vulnerability in travelling to Sydney.

On the face of Ms M’s evidentiary statement and evidence in Court, the police acted towards her on 21 January 2020 as though they regarded her as aligned with the complainant, making reference to problems in what “the other side” might do, and commenting that certain information would not help the complainant’s case, using the complainant’s nickname, on the seeming understanding that Ms M would want to help the complainant’s case.

Given the context of the meeting, I regard it as highly improbable that Ms M would have expressed clearly and starkly to police that the complainant “tends to make crap up”. Ms M’s evidentiary statement says that she said words to that effect when asked what it meant to be a “topper”. When asked in Court what it meant to be topper her answer was more suggestive of someone who seeks attention or tries to outdo others in reports of her own life. Ms M also suggested twice in Court that she said that the complainant was a liar (which is not contained in her evidentiary statement), before asking, when questioned as to whether it was incidents such as the complainant saying her bottom had been touched which made her a liar, “At what point did I call her a liar?”: see above at [220]-[221].

I indicated earlier that Ms M was cross-examined lightly but effectively regarding the meeting on 21 January 2020. She was simply asked in a non-leading way to state again what she said, and stated “I remember advising them that she – and I apologise for the language I am from [birthplace], I called her a bit of a slag and a topper (because she would constantly make up stories while she was out on junior duties). And they advised me that being a slag doesn’t really give the right to be sexually abused” (parentheses added).

I have added the parentheses because I take what is within them as Ms M explaining to the Court why she said what she did to the police, not what she said to the police. This is similar to the point I explained in relation to the absence of reasonable and probable cause – Ms M’s evidentiary statement does not go so far as to state that she told the police she thought the events were untrue.

Ms M’s response to the non-leading question as to what she said also confirmed that which is apparent from her evidentiary statement – that the only thing she said to police which attracted a negative comment and express indication that it should not be included was the reference to the complainant’s alleged promiscuity.

I accept that Detective Porter steered Ms M away from including reference to the complainant being “a bit of a slag” and the nominated demonstration of this, if she gave it. “That’s not an invitation to sexually assault somebody” would have been a perfectly appropriate response. However I have no doubt that police officers regularly speak in a colloquial way with witnesses who have a misunderstanding of the real issues in an investigation or the appropriate focus of a witness statement. After Ms M called the complainant “a bit of a slag” Detective Porter might also have said “We won’t put that in there because the other side will tear it up” (Ms M’s account in her evidentiary statement) or that “being a slag doesn’t really give the right to be sexually abused” (her account of Detective Porter’s response in Court). These are much more realistic responses than a discussion of the law of evidence.

It is important to recognise that in both Ms M’s evidentiary statement and in her evidence in Court it was only following reference to the complainant’s promiscuity that Detective Porter is said to have made any negative comment at all about what Ms M was telling him. Particulars (ix) and (x) of the plaintiff’s case on the absence of reasonable and probable cause (above at [180]), and the submission reproduced above at [368] do not fairly reflect Ms M’s evidence in these proceedings. It was only after Ms M raised the complainant’s alleged promiscuity that anything was alleged to have been said by Detective Porter regarding not including what Ms M was saying in the statement.

The observations in Watson v Foxman about the fallibility of human memory for conversation, particularly where disputes or litigation have intervened, offer important guidance in this case. Ms M provided two statements to police which were of assistance in the prospective prosecution of the plaintiff. They were also important in establishing, if true, that Ms L had considerable direct knowledge of the allegedly problematic conduct of the plaintiff with the complainant on the morning in question. Ms M and Ms L have remained employed at the law firm. Ms M gave evidence that she has suffered panic attacks two to three times every day since the events of 6 November 2019, through until giving evidence in 2024.

Ms L was the solicitor at the law firm responsible for assisting in the preparation of Ms M's evidentiary statement in these proceedings. I do not suggest for a moment any impropriety on Ms L’s part in her involvement in that process. However in my view it potentially amplified the reasons that Ms M otherwise had for reconstructing, even subconsciously, the course of events on 21 January 2020 in a way which emphasised the negative comments she had made about the complainant, and downplayed the sympathetic ones.

Ms M has come to feel a need to justify why her 21 January 2020 statement is in the terms it is in, and aggrieved that nothing negative she told police about the complainant ended up in the statement she typed herself. The evidence provided of the relevant part of the conversation is unstable and clearly incomplete. I noted earlier also the plainly incomplete aspect of her evidence about provision of the Crime Stoppers number. The only comment I am persuaded was said, and would clearly have been regarded as critical of the complainant by a police officer hearing it, was about the complainant’s alleged promiscuity. She may have said the complainant was “a bit of a topper” amongst all the other things discussed, but I am not satisfied any criticism of the complainant would have thereby been apparent to police.

I expect that Ms M’s attempt to explain what she meant by the “call rape” comment would not have been clear to the police. It seems from Ms N’s statement to have been made following discussion about whether the complainant was flirting with the plaintiff. Ms M seems to have engaged in speculation, because of the complainant’s alleged promiscuity, that she might engage in (consensual) sexual activity that evening. The prospect that she may call it rape is not logically connected with any of the incidents Ms M states she told police about. Ms M had difficulty in Court explaining what she meant.

If Ms M, for example, was asked why she made the comment, and then started talking about the complainant having mental health problems (which were discussed further), and stating that the complainant’s partner had suffered significant injury in dramatic circumstances (which were discussed further), and that one day the complainant left the office and came back and said hysterically that someone had touched her bottom, and another day said that someone said in Japanese they liked her body, and said that someone in a meeting in the Sydney office on Melbourne Cup day 2019 had been flirting with her, and once Ms M saw her kiss three strangers on one night, a police officer may well gain the general impression that the witness was providing information that was irrelevant, but the gist of which was that the complainant was vulnerable, and received male attention. This in combination with the contemporaneous record of Ms M’s text messages to the complainant just after she made the comment on the evening of 5 November 2019 and to Ms N on 7 November 2019 (see above at [211], [213] and [407]) – shown to police in this meeting on 21 January 2020 – is in a general sense consistent with paragraph [4] of Ms M’s 21 January 2020 statement.

I do not have a positive state of satisfaction that Detective Porter said words to the effect of paragraphs [52] and [53] of Ms M’s evidentiary statement in the circumstances there described. I do not draw the inference that anything he did say came of his own creation, without being based on what Ms M was telling him. I accept there was likely an exchange between Ms M and police in working out exactly what she meant (other than that the complainant was promiscuous), based on Detective Espinosa’s evidence. Her meaning remained (and remains) difficult to understand.

The plaintiff has not proved that paragraph [4] of Ms M’s 21 January 2020 was false, far less that Detective Porter knew it was false and encouraged Ms M to make a false statement. I do not need to turn to the materiality requirement of perjury (although I have earlier outlined why the issue was not material). The case for suborning, which has not been pleaded, and was not squarely put to Detective Porter, is based (to the extent I have surmised it to be) on inexact proofs, indefinite testimony and indirect inferences: cf. Briginshaw at 362.

A subpoena to police issued on 1 May 2020 by the Downing Centre Local Court required production of material on 7 May 2020. It did not seek telephone intercept material. A further subpoena returnable on 8 October 2020 was issued by the District Court. It did not seek records of intercepted communications.

A third subpoena returnable on 14 January 2021 sought a copy of all telephone intercept material recorded as a consequence of the two warrants including, but not limited to, material deemed to be “legally privileged” regarding the plaintiff. Correspondence indicates that the Commissioner of Police raised an objection to this paragraph, but discussions were continuing.

I dealt on the first day of the hearing with a Notice of Motion to produce records of telephone intercepts. This related to a subpoena issued on 29 May 2024. This was pursued on the basis that it related to the absence of reasonable and probable cause (by analysis of the intercepts available to Detective Porter). Ultimately there were two calls produced which were tendered and played in the plaintiff’s case. They made no difference to the issue of reasonable and probable cause. It was also submitted, in seeking access to the recordings, that the calls were relevant to malice if indicating the suppression of evidence.

It was submitted for the plaintiff that there was uncontradicted evidence that Detective Porter was the one who advised the Crown Solicitors that certain intercepted calls were the subject of legal professional privilege. However Detective Porter had not heard the relevant calls, as he was not allowed to. He had submitted a Request for Assistance to people at the telephone intercept branch and they provided this advice to him.

There is no evidence to suggest that any call Detective Porter had access to did or should have made any difference to his belief in reasonable and probable cause. Detective Porter had not previously heard the two calls played in the plaintiff’s case, and as I have explained above, they were not significant.

A sub-heading of the long analysis of Detective Porter’s credibility and reliability in the closing written submissions for the plaintiff was entitled “False instructions provided to the Crown Solicitor regarding the phone recordings being privileged and the Travertine log”. By reference to Exhibit I, it was submitted that none of the phone recordings or text messages had been marked “prohibited for use”. It was submitted that most, if not all, of the recordings have been marked “Not protected”. The issue was referred to again under the heading of malice, with the non-disclosure of the two telephone calls tendered by the plaintiff submitted to be of grave concern.

Counsel for the defendant reiterated that the telephone intercept issue was simply not pleaded as an aspect of malice and suggested that it was perhaps just a credit point. The written submissions for the defendant contended that the plaintiff appeared to have spent much of the cross-examination trying to develop new bases of malice, not pleaded. The telephone intercepts was one example. The defendant submitted that for good reason (legal professional privilege) Detective Porter was not privy to the content of all the telephone intercept material. If errors of classification were made, they were not errors of his and were incapable of supporting findings of malice.

Junior counsel for the plaintiff acknowledged that the evidence indicated Detective Porter had never seen Exhibit I before it was shown to him in cross-examination.

There is no demonstration of malice arising from Detective Porter’s non-disclosure of the two intercepted conversations relied upon by the plaintiff.

An additional particular of malice relied upon in closing submissions, said to be aligned with the preparation of a Facts Sheet with demonstrably false representations, was the presentation of an incomplete or inaccurate still-photograph chronology for the purposes of the police brief to be delivered to the Director and the plaintiff for his criminal trial. This was developed no further in oral submissions. In written submissions it was contended that a misleading chronology of CCTV footage in the pool area had been produced, omitting parts which contradicted the complainant’s version of events.

The evidence indicated this chronology of still photographs had been produced by Detective Porter in February 2020. It included only four still shots from the pool CCTV footage (one with a caption stating that it showed the group arriving, another stating that it showed them socialising, then two of Mr K with the complainant near the lift before she left, with one including the caption indicating he was trying to stop her from leaving). Detective Porter was cross-examined about only including these four. He said he included these four because they were clear, and they were only intended as an aide memoire. The plaintiff submitted that he should have included many other still shots which were exculpatory in the sense that they undermined the complainant’s version of events.

To the extent that this is related to the particular of malice pertaining to the Facts Sheet, although created three months later in time, I am prepared to determine the issue although not pleaded.

There is no suggestion other than that the entirety of the relevant files of the CCTV footage were served on the Director by Detective Porter – and it was always within the possession of the plaintiff. Neither the Director nor the plaintiff needed further assistance to understand what was shown on the CCTV footage. The entire footage after the complainant exited the pool is less than 15 minutes long. Still shots with time stamps showing the length of time between the complainant emerging from the pool and completing drying herself could theoretically have been included as well – but so could many other things that were supportive of the complainant’s account, which were not included.

I repeat my earlier findings regarding the relative insignificance of these issues, and in particular repeat my earlier finding that the fact that the complainant sat with Ms L having a cigarette while they waited for the arrival of the taxi is not exculpatory in the sense the plaintiff has suggested. Detective Porter not including a still image of this for the assistance of the representatives of the Director with carriage of the matter – who were obviously going to watch the footage for themselves – did not indicate malice on Detective Porter’s behalf.

The plaintiff was arrested on 19 December 2019 and detained for a period of time until released on conditional bail by the Local Court. The defendant relies upon Detective Porter’s power pursuant to s 99 of LEPRA to justify that arrest and detention. Section 99 of LEPRA is in the following terms:

For the reasons set out in support of my determination that the plaintiff has failed to prove absence of reasonable and probable cause, it is clear that Detective Porter suspected on reasonable grounds that the plaintiff had committed an offence.

The plaintiff’s opening submissions on liability for wrongful arrest indicated that this would be addressed once the defendant had explained Detective Porter’s justification. It was however submitted that exemplary damages for wrongful arrest should be awarded because the arrest was undertaken for the primary purpose of placing the plaintiff in a cell with Mr K so that Detective Porter could utilise a listening device that had been placed in the cell.

Detective Porter’s evidence was that by 17 December 2019 he had formed the view that not only had the plaintiff and Mr K committed the offences and should be charged, but that they needed to be arrested. He stated that he took into account the need to preserve evidence, prevent interference with witnesses, and prevent fabrication (or further fabrication) of evidence. He also took into account the nature and seriousness of the offences and the need to protect the safety and welfare of the complainant.

There was no cross-examination of Detective Porter regarding his holding of the view outlined in the last paragraph, and it being based upon the matters he said that he took into account. He agreed in cross-examination that he wanted the plaintiff in a cell with Mr K to see if any incriminating evidence could be recorded.

The plaintiff’s closing written submissions in reply contended that in circumstances where the plaintiff’s phone calls were being monitored so his location could be known, and the complainant and complaint witnesses lived interstate, the arrest for a purpose set out in s 99 of LEPRA was properly characterised as manifestly unreasonable or arbitrary, capricious, irrational or not bona fide, citing Reeves v State of New South Wales [2024] NSWCA 125 at [108]-[122] (Bell CJ, with whom White and Stern JJA agreed).

I am satisfied that Detective Porter regarded the arrest as reasonably necessary for the reasons set out in s 99(1)(b) of LEPRA, as listed in his evidentiary statement. There was no challenge to the bona fides of his stated subjective belief. Particularly in light of the seriousness of the alleged offences and the information available to Detective Porter regarding Ms L’s change of account on important issues, his decision is not properly characterised as manifestly unreasonable or arbitrary, capricious, or irrational. It was appropriate for the plaintiff to be quickly brought before a Court (or police officer acting as bail authority), with bail conditions such as non-contact with witnesses to be imposed. Further, Detective Porter was being given only limited access to intercepted telephone communications because of the concern that he should not be provided access to calls with potential legal professional privilege claims.

The plaintiff’s closing written submission argued that the elements are unsettled, referring to Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [48] (Payne JA). The plaintiff nonetheless accepted that proof was required of the five elements I have set out above at [19].

The plaintiff submitted that malice for the purposes of this tort required proof that:

The plaintiff relied upon the pleaded particulars of malice in paragraph 24 of the final amended statement of claim (paragraph [295] above) to support malice in this context. The asserted inaccuracy of Detective Porter’s treatment of the CCTV footage of the pool area in particular was said to have demonstrated an intention on his part to harm the plaintiff, or alternatively shown that he acted with reckless indifference to the harm that was likely to ensue. It was submitted that his “neutralising of the damaging evidence of [Ms M]” was in breach of his duty of disclosure and demonstrated an intention to harm, or reckless indifference to the harm likely to ensue.

The parties do not agree that the fourth element of this tort (see above at [19]) was established. The plaintiff submitted that in arresting the plaintiff without warrant and commencing proceedings, Detective Porter was purporting to discharge relevant power.

The submissions for the defendant confirmed that the question of whether to arrest and charge is an exercise of a power deriving from the public office held by Detective Porter was in issue. The defendant did not admit this to be the case, however submitted that “the matter will not likely turn on the question in circumstances such as the present where malice at the time of arrest and charge will lead to a judgment for the plaintiff in malicious prosecution.” In those circumstances the argument as to whether this element would be made out was not elaborated upon, other than to remind the Court that the ability to arrest or charge does not belong only to police officers, notwithstanding that the grounds on which an arrest may be made by a police officer pursuant to s 99 of LEPRA are more extensive than for others.

In oral submissions King’s Counsel for the plaintiff accepted that in the circumstances of this case, it would be hard, if not impossible, to succeed on misfeasance in public office if not successful in the claim for malicious prosecution.

For reasons set out in relation to the claims in malicious prosecution and wrongful arrest, I am not persuaded on the balance of probabilities that Detective Porter committed an invalid or unauthorised act, nor that any act was done maliciously.

It is not necessary in these circumstances to resolve the dispute between the parties as to the fourth element. The plaintiff’s claim for misfeasance in public office must fail.

Each of the plaintiff’s claims fails. Judgment will be entered for the defendant.

Although there is benefit in determining as many issues as possible, I am of the view that it is not appropriate to endeavour to assess damages in this case.

Counsel for the defendant acknowledged the general good practice, even where there is a judgment for the defendant, of assessing damages. However the following submission was made:

It was further submitted that:

Junior counsel for the plaintiff made the following submissions in response, on this issue:

It was submitted that it would be easier to assess some heads of damages than others. Apart from these submissions of the parties which I accept, there are significant variations as to the timing of any tortious conduct. The evidence led in support of damages was itself complex, and it would need to be assessed differently depending upon whether the plaintiff was maliciously prosecuted from the commencement of the criminal proceedings, or only from January 2020, and whether Detective Porter was a prosecutor at all from March 2020.

I make the following order: