Moore v State of New South Wales

1. [1]

   The plaintiff claims damages from the defendant, the State of New South Wales (“the State”), for malicious prosecution and misfeasance in public office.

2. [2]

   As set out in the Second Further Amended Statement of Claim filed on 4 December 2024, his causes of action are based on the conduct of three (then) serving police officers for whom the plaintiff asserts the defendant is liable.

3. [3]

   Put simply, the plaintiff alleges that, as a result of a false statement made by one police officer (Senior Constable (“SC”) Keneally) on 24 February 2021, he was arrested, charged with offences including threatening to kill a police officer, and then kept in custody until 19 March 2021. On that day, he was granted conditional bail.

4. [4]

   The charges against him said to arise from the false statement by SC Keneally were formally withdrawn on 7 June 2021. A further charge against him (based on the content of his website) was withdrawn on 25 June 2021.

5. [5]

   For the purposes of his claims, the plaintiff maintains that as the person who made the original false statement, SC Keneally was a prosecutor, and further that two other police officers, Detective Sergeant (“DS”) Felgate and Sergeant (“Sgt”) Comer, should also be considered prosecutors as they allegedly took steps to maintain the charges against the plaintiff, even when they knew that there was no basis for the charges (I will come to precisely how the case is pleaded later in this judgment).

6. [6]

   SC Keneally is no longer a police officer. He was convicted of one count of fabricating false evidence with intent to mislead a judicial tribunal in judicial proceedings, contrary to s 317(b) of the Crimes Act 1900 (NSW) in relation to the statement he made about the plaintiff. He did not give evidence in these proceedings. DS Felgate remains a police officer. He gave evidence in these proceedings.

7. [7]

   Sgt Comer has retired from the Police Force. She gave evidence in these proceedings. I will refer to each of the police officers by their former rank.

8. [8]

   Although the defendant admits that it is liable in damages to the plaintiff for the tort of malicious prosecution arising out of the conduct of SC Keneally, the plaintiff maintained his case against the defendant arising from the conduct of DS Felgate and Sgt Comer on the basis that, as asserted by the plaintiff, their conduct would entitle the plaintiff to additional sums for exemplary and aggravated damages.

9. [9]

   Much of the hearing was taken up with the plaintiff’s case based on the conduct of DS Felgate and Sgt Comer. There is also a significant dispute on the damages to which the plaintiff is entitled, including the level of compensatory, aggravated and exemplary damages.

10. [10]

    As far as I can determine, this is the third (successful) claim for compensation pursued by the plaintiff against the State arising out of the conduct of New South Wales police officers towards him. It is a somewhat ironic feature of this case that, shortly before the events which give rise to this claim, the plaintiff had established a website styled “isuepolice.com” in which he made allegations against two senior police officers (and police generally) and advertised himself as the person who could assist people to sue the police for damages. On the night of his conversation with SC Keneally, he was ringing police stations to inform them of his website and his proposed activities purporting to hold them to account.

11. [11]

    He then became the victim of a false statement made by SC Keneally resulting in being wrongly charged and placed in custody and of course providing him with a further opportunity to sue the State.

12. [12]

    I mention that not to cast doubt on the validity on his claim against the defendant but only to observe that the plaintiff was already a person who had seemingly suffered some injustice at the hands of the criminal justice system. He might be viewed as already determined (or obsessed or fixated) on exposing what he viewed as police misconduct. Being locked up for something which he did not do must have been particularly difficult for him.

13. [13]

    Having said that, the content of his isuepolice.com website was scandalous and scurrilous. He makes unfounded and absurd allegations against members of the police. The fact that he holds himself out as the expert in obtaining maximum compensation for these types of claims cannot be ignored.

14. [14]

    Further, by his own admission, he had previously engaged in dishonest conduct involving a substantial sum of money. These matters do not detract from the strength of his claim for malicious prosecution against the defendant, but they certainly impact upon the damages to which he would be entitled, having regard to his claim that, if not for the conduct of the three police officers, he would have been admitted and practising as a solicitor.

15. [15]

    The essential facts grounding the plaintiff’s claim are not in dispute. The main area in dispute relates to the conduct of DS Felgate and Sgt Comer as well as damages issues. The credibility of the plaintiff is in issue in some respects.

The evidence

1. [16]

   The plaintiff prepared two evidentiary statements. The plaintiff also relied on statements from his partner, Shae Jacinta Greene, and his mother, Annette Helen Moore. Both Ms Greene and Mrs Moore gave oral evidence and were cross-examined, albeit the cross-examination was limited.

2. [17]

   The plaintiff was cross-examined extensively, mainly in relation to the content of his website and damages issues.

3. [18]

   In closing submissions, the plaintiff made much of the fact that various aspects of his written statements were not the subject of a challenge in cross-examination.

4. [19]

   The defendant relied on statements of Sgt Taleski, the person whom SC Keneally originally reported the call, as well as DS Felgate and Sgt Comer. All of those witnesses gave oral evidence and were cross-examined.

5. [20]

   The plaintiff took DS Felgate and Sgt Comer to extensive documentary evidence, being principally internal records of the NSW Police Force which were all admitted into evidence.

The relevant events

1. [21]

   The plaintiff is currently 38 years old. He is in a long-term relationship with his partner, Shae Jacinta Greene. They live in Nowra and have two children. He is not currently working and is in receipt of a disability support pension. The plaintiff says that he is not working and has not worked since the events giving rise to this claim because of mental health issues caused by those events.

2. [22]

   Whilst the existence of some of those mental health problems is not in dispute, the nature, extent and cause of those problems is in dispute. This is because in the 15 years or so prior to the relevant events, the plaintiff had been involved in or been subject to a number of other events which had impacted upon him on an ongoing basis. In my view he has attempted to minimise the significance of those earlier problems for the purposes of maximising this claim.

3. [23]

   Having left school in year 11, he completed a tertiary preparation certificate (being the equivalent of year 12) at TAFE. The plaintiff says that he went travelling and worked around Australia doing various jobs including labouring, fruit picking and as a removalist. He then returned to Goulburn in 2006 (as an 18 or 19-year-old) and obtained work in the abattoirs before obtaining work at the Coles distribution centre in Goulburn. He worked there for three years and managed to save enough money to buy a house in Goulburn.

4. [24]

   In 2008 he changed jobs, working as a bank teller at the Commonwealth Bank. Unfortunately, in November 2008 he was involved in a serious accident. His promising start to his adult life and career appears to have changed as a result thereof. He spent three nights in hospital. In his evidentiary statement prepared for these proceedings he listed his injuries as a broken collarbone, ribs, wrist and a lacerated spleen. It is apparent from other evidence adduced that he also sustained a significant head injury, albeit the consequences of that injury are in dispute in these proceedings. It is puzzling although consistent with the running of this case that he did not mention the head injury in his statement.

5. [25]

   The plaintiff says that following that accident he had some time off work and became very depressed. He spent time in a mental health facility. He was prescribed SSRIs, anti-depressants and Effexor. He ultimately got back to work at the bank but lost his job because of his mental health struggles. He was unemployed for a period and receiving Centrelink payments.

6. [26]

   At some stage he established a bank account with the St George Bank. Due to what must have been an error in the bank’s systems, he was permitted to draw down on the account over and above any account balance. That is, he could withdraw money from the bank using that account, even though there were insufficient funds in the account and the account was not secured by way of any mortgage or other security.

7. [27]

   Over about a three-year period, he withdrew $2.1 million from the St George account. He transferred large sums directly from the St George account to other accounts. He also used the money to do things such as purchase expensive artworks and expensive cars. It appears to have taken three years for the St George Bank to discover what was happening and freeze the bank account as well as obtain orders in respect of his NAB account. I understand from his evidence on this topic that whilst the St George Bank did recover some of the funds, there was a significant amount not recovered.

8. [28]

   During the period that he was doing this, he owned a home in Goulburn which was subject to a mortgage. He sold the property in 2010 seemingly around the same time as his access to the St George account was coming to an end.

9. [29]

   In December 2012 he was arrested and charged with one count of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act, and one count of dealing with proceeds of crime, contrary to s 193B(2) of the Crimes Act. Bail was refused initially but he was later granted bail. He pleaded not guilty. In February 2015 he was convicted and sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months. He appealed to the Court of Criminal Appeal where he represented himself. He was granted bail in September 2015. In December 2016 his conviction was overturned on the basis that the elements of the offence with which he had been charged had not been established, although the finding of dishonesty remained. He spent a total of six months in prison in 2015.

10. [30]

    In October 2016, he commenced studying law by way of remote learning at the Charles Sturt University Bathurst. He ended up completing his law degree in October 2021. He says he came first in civil procedure and received an award for that achievement.

11. [31]

    The plaintiff also says that, prior to the events of 2021, he had been subject to strip searching by the police on a number of occasions. He says that in 2011 he was strip searched in the back of a paddy wagon outside the school. In 2017 he was strip searched by police officers whilst in Goulburn. He was charged with offences to which he pleaded not guilty. He was legally represented and was convicted in the Local Court. He appealed to the District Court representing himself and the conviction was overturned.

12. [32]

    The plaintiff says that he sued the defendant arising out of these events. He obtained compensation and entered into a confidential deed as part of the settlement arrangements. He also says that in May 2017 he was again strip searched by a Detective. He says he again sued the defendant in respect of that incident and received compensation.

13. [33]

    In his first evidentiary statement dated 22 December 2023 he makes observations about the degrading and humiliating effect of being strip searched. He says that he became determined to educate people about their legal rights arising from being strip searched. Shortly prior to February 2021 he established a website called www.isuepolice.com. I will comment on the content of this website later in this judgment, but the plaintiff says that it was his intention to expose unlawful police conduct and refer potential plaintiffs to a law firm in return for a commission. He says that his long-term aim was to set up a civil rights law firm.

14. [34]

    The plaintiff says that, despite all of these earlier events and recurring mental health problems, during the three years prior to February 2021 his life had been great; he was in a stable relationship and had obtained employment.

15. [35]

    Sometime in February 2021, he must have decided that he was going to ring police stations around New South Wales to both inform them of his website/business and warn them about strip searching. On 24 February 2021 he made a number of calls to police stations.

16. [36]

    His call to the Newtown Police Station during the evening of 24 February 2021 initiated the events which lead to this judgment.

17. [37]

    SC Keneally answered his call. Unbeknownst to SC Keneally, the plaintiff was recording the conversation. Immediately after the conversation between SC Keneally and the plaintiff, SC Keneally reported the conversation to another more superior officer (Sgt Taleski). He included in his report of the call comments said to have been made by the plaintiff during the call, the effect of which was that the plaintiff was threatening to kill a senior police officer, a Detective (being a person who had previously strip searched him).

18. [38]

    As matter of fact, the plaintiff had made no such statements and nothing said by the plaintiff during that conversation could have been interpreted by SC Keneally as any threat by the plaintiff to inflict violence on that police officer. The Detective was not mentioned in the conversation, although he featured prominently on his website.

19. [39]

    The plaintiff was reported to the Fixated Persons Unit within the NSW police. DS Felgate (then SC Felgate) was appointed to investigate, and he became the Officer in Charge (“OIC”) of the investigation.

20. [40]

    The plaintiff was charged with the following offences:

    1. (1)

       Sequence 1: Use carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) (“Criminal Code”);

    2. (2)

       Sequence 2: Use carriage service to threaten to kill, contrary to s 474.15(1) of the Criminal Code; and

    3. (3)

       Sequence 3: Use carriage service to menace/harass/offend, contrary to s 474.17(1) of the Criminal Code.

21. [41]

    The first two charges relate to his alleged conduct on the phone. The third relates to the content of his website. He was subsequently charged with an additional offence (destroy or damage property) which arose out of him grabbing a clock off the wall and smashing it over his head in frustration about not being released.

22. [42]

    The plaintiff was brought before the Local Court and bail was refused. Despite his protestations, he remained in custody until the next bail application again in the Local Court on 19 March 2021. At that time Sgt Comer appeared as the police prosecutor. She opposed bail but the Magistrate granted bail.

23. [43]

    Once out of custody the plaintiff continued to agitate for the withdrawal or dismissal of the charges against him. He filed a motion.

24. [44]

    Sequences 1 and 2 were withdrawn by the Commonwealth DPP (“CDPP”) on 7 June 2021. Sequence 3 was ultimately withdrawn on 25 June 2021 and the charge relating to damage property was also withdrawn.

25. [45]

    The plaintiff spent 22 days in custody between first being arrested and being released on conditional bail on 19 March 2021.

26. [46]

    In February 2021 the plaintiff was studying law. He went on to complete his law degree. He appears to have done very well before and after February 2021. Although he has completed a law degree and indeed the practical legal training requirements, he has never applied for admission.

27. [47]

    He continues to live with his partner and two children. Other than occasional counselling paid for by Victims Services, he has received little by way of treatment for his mental health conditions. He says that he remains unfit for work because of his mental health conditions. He says that if not for the tortious conduct of the defendant through its servants and agents, he would have applied for admission and become a solicitor and would be working his way up as a solicitor with consequent increases in salary.

28. [48]

    Although he makes that claim, in closing submissions, his Senior Counsel, Mr Campbell, put his claim somewhat less specifically in the sense that he suggested his claim should be assessed as the loss of opportunity to become a solicitor and damages on this basis should be awarded as a form of “buffer” rather than any weekly sum (on top of damages based on average weekly earnings).

Issues

1. [49]

   I emphasise that:

2. [50]

   The defendant has admitted liability to pay damages to the plaintiff arising out of the conduct of SC Keneally. Indeed, the defendant says (rather succinctly) that this is a case in which “the plaintiff won’t take yes for an answer”. I assume that this is a reference to the plaintiff running all issues despite the defendant admitting liability.

3. [51]

   As such there remain some difficult issues including:

The tort of malicious prosecution

1. [52]

   As stated in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A v State of NSW”) at [1] (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), the four elements of malicious prosecution are:

   1. (1)

      that proceedings of the kind to which the tort applies (generally, criminal proceedings) were initiated or maintained against the plaintiff by the defendant;

   2. (2)

      the proceedings were terminated in the plaintiff’s favour;

   3. (3)

      the defendant, in initiating or maintaining the prosecution acted with malice; and

   4. (4)

      the defendant acted without reasonable and probable cause.

2. [53]

   Pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW), the defendant is vicariously liable for torts committed by persons in the service of the Crown.

3. [54]

   In a case such as this, it is necessary for the plaintiff to identify those persons for whom the defendant is said to be vicariously liable.

4. [55]

   The defendant admits that each of the four elements of the tort have been established in respect of the conduct of SC Keneally. It denies that the conduct of DS Felgate and Sgt Comer was malicious.

5. [56]

   It is not in dispute that the proceedings were terminated in the plaintiff’s favour. It is not in dispute that when terminated the proceedings lacked reasonable and probable cause.

6. [57]

   However, in respect of both DS Felgate and Sgt Comer, it is in dispute that:

Misfeasance in public office

1. [58]

   It is not entirely clear why the plaintiff pursues this alternative cause of action, the defendant having admitted liability in respect of the conduct of SC Keneally. Be that as it may, during closing submissions, the plaintiff maintained his pleading, albeit little attention was directed to this cause of action during the proceedings.

2. [59]

   In Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65, Brennan J observed at 357:

3. [60]

   The defendant’s approach to this tort was to accept that the plaintiff’s success rises or falls on the same basis as the claim in malicious prosecution.

4. [61]

   In saying this, the defendant points out (correctly) that the damages recoverable by the plaintiff would be the same such that, if the defendant is liable for the malicious prosecution by DS Felgate or Sgt Comer, then there would be no additional benefit to the plaintiff in a finding of misfeasance in public office.

The pleaded case

1. [62]

   As identified in Spedding (at [258]), it is necessary for a plaintiff to particularise his claim against individual persons for whom the defendant is vicariously liable with some precision.

2. [63]

   The plaintiff pleads ten aspects of malice of SC Keneally’s conduct to support his allegation that SC Keneally instituted and/or maintained the prosecution of the plaintiff in the absence of reasonable and probable cause and acted with malice. These matters are pleaded in paragraph 45 of the Amended Statement of Claim. The defendant admits paragraph 45 but does not plead to the particulars of malice maintaining that it was not required to do so. The plaintiff took issue with this approach.

3. [64]

   The plaintiff relies on the defendant’s response as giving rise to an additional sum on account of aggravated damages. I will come back to that issue later in this judgment.

4. [65]

   It is only necessary to say that the defendant’s admission of tortious conduct on the part of SC Keneally, for which it is vicariously liable, is not an admission of every aspect of the allegations in respect of SC Keneally. Malice and lack of a reasonable and probable cause are admitted, but why SC Keneally did what he did is unclear. It may be possible that he was mistaken in his original report of the conversation to his superior, but there can be no room for any inference that he might have been mistaken when he completed his signed statement.

5. [66]

   In that statement, he recounted a conversation with the plaintiff which simply did not occur. SC Keneally wrongly told his superior officer that the plaintiff had threatened to kill the Detective and then prepared and signed a statement purporting to record the words spoken by the plaintiff when no such words were used. He maintained his version of events even when spoken to subsequently by DS Felgate (after DS Felgate had listened to the recording).

6. [67]

   As against DS Felgate, the plaintiff pleads nine particulars of malice. The defendant denies the allegation of malice and again does not plead to particulars. Whether DS Felgate acted maliciously in the ways pleaded is very much in issue. DS Felgate gave evidence and the plaintiff urges specific findings in respect of the pleadings of malice, having regard to that evidence.

7. [68]

   As against Sgt Comer, the plaintiff’s case is more limited because the complaint is confined to her conduct in resisting the bail application made by the plaintiff on 19 March 2021. Again, it is difficult to understand how anything Sgt Comer did could result in additional damages, but the plaintiff maintains that adverse findings in respect of the conduct of Sgt Comer should lead to additional aggravated and exemplary damages.

8. [69]

   The defendant also denies that Sgt Comer acted with malice and again does not plead to the particulars of malice.

The conversation between the plaintiff and SC Keneally

1. [70]

   At approximately 8:30pm on 24 February 2021, the plaintiff rang Newtown Police Station. SC Keneally answered the phone. SC Keneally commenced by saying that he could not hear the plaintiff properly, but then said he could make out what he was saying. Presumably in response to this comment, the plaintiff initially spoke rather loudly and slowly; introducing himself by name and stating that he was the co-founder and CEO of “isuepolice.com”.

2. [71]

   The plaintiff directed SC Keneally to his website and SC Keneally asked some questions, plainly trying to get further information about the plaintiff, such as his phone number and address. The plaintiff responded again referring to his website and indicating he could be contacted through the phone number he was using. Although he declined to give his address, he did say that SC Keneally could look it up on the system if he wanted to.

3. [72]

   It must be that, whilst the initial part of the conversation was taking place, SC Keneally did access the website as he said words to the effect that he was on the website and it was quite interesting. He offered the plaintiff the chance to speak to a duty officer at some other time. The plaintiff then commenced to explain the purpose of the call, giving details of his grievances and providing a summary of his own personal history, suggesting he had been harassed by police for 10 years and that he sued them twice and recovered damages, specifically referring to recovering $30,000 from the police because he was strip searched.

4. [73]

   The plaintiff made statements to the effect that there were 50 jobs for police officers in his business and they could all earn $250,000 a year. He said he was specifically putting the police on notice and noting the time of this conversation so that any further strip searching would result in aggravated and exemplary damages in favour of those persons who were strip searched. He referred to the failure of the Police Commissioner to properly train police officers that strip searches were illegal and the problem of strip searching children and Aboriginal people.

5. [74]

   After the preliminary discussion with SC Keneally, the plaintiff spoke for approximately eight minutes uninterrupted (that is, without any words from SC Keneally being recorded) about strip searching, his business and what he was doing before he perhaps realised that SC Keneally was not responding. He asked to confirm the name of the officer he was speaking to, and with no response, he then hung up.

6. [75]

   There is no suggestion that the recording is not an accurate recording of everything that the plaintiff said. Nothing said by the plaintiff could be construed as any threat of violence towards anyone.

7. [76]

   Further, the plaintiff did not mention the Detective by name or even indirectly.

8. [77]

   Having said that, the only inference from the conversation as a whole, is either that the plaintiff was completely deluded at the time, or that he was knowingly making false statements.

9. [78]

   Leaving aside his general commentary about strip searching, the statements about his so-called business were simply false. No police officers were working for him at the time; the idea that he was going to be paying them $250,000 a year and he was seeking to employ 50 police officers was absurd. He was seemingly boasting about his two successful claims against the police for compensation and promoting the idea that he would, in some way, be representing people subject to strip searches and could recover substantial sums on their behalf. He spoke for eight and a half minutes uninterrupted. He apparently rang other police stations that night. This is hardly rational behaviour.

The website

1. [79]

   At some time prior to 21 February 2021, the plaintiff developed and published a website which he called “isuepolice.com”. That website contained many false statements and allegations; some of which were quite scandalous, particularly, his statements about police officers generally and two particular police officers, being the Police Commissioner and the Detective with whom the plaintiff had had dealings. The front page of the website included the following:

2. [80]

   On the second page of the screenshots of the website included in evidence, the plaintiff spoke in further detail about strip searching and its consequences.

3. [81]

   On the third page, the plaintiff advertised his own services, suggesting he could protect people from illegal strip searches. He referred to having “expert strip-search claims specialists” who regularly win $20,000, $30,000 and $40,000 for people. He said he had the best police misconduct experts in the country and that they are the fastest growing network of police accountability specialists in the world. He said he had been strip searched, and he received $30,000 and the police paid all his legal fees.

4. [82]

   On the fourth page, he went on to talk about the role of the judiciary and then made allegations about the Police Commissioner, his activities and relationship with a particular law firm.

5. [83]

   On the fifth page, he continued with those allegations and then made allegations about the Detective, suggesting he was a sexual predator.

6. [84]

   On the sixth page, he referred to an upcoming mediation with New South Wales Police to negotiate a further payment to him. He said he could teach people how to pursue their own claims and said he would assist them.

7. [85]

   On the seventh page, he referred to receiving lots of calls from people and then reaching out to New South Wales police officers who may be reading his website, suggesting he could offer a guarantee of $260,000 salary per year with a $200,000 sign-on bonus, but there were only limited positions available.

8. [86]

   On the eighth page, he continued to promote work for police officers.

9. [87]

   At the end of this page and on the next page, after purporting to sign off, he then continued with scurrilous allegations against the Police Commissioner and the Detective including encouragement of others to approach the Detective and inform him that the plaintiff was coming for him (in the sense of having him removed from the Police Force), allegations that the Detective was a sexual predator and allegations that the Police Commissioner was a racist bigot.

10. [88]

    The allegations and commentary about the Detective and Police Commissioner then continued on for a further two pages. Whatever might be thought about the language used by the plaintiff, there was no threat to kill the Detective or anyone on the website. The reference to “coming for” the Detective when read in context, is a reference to taking steps to have him removed from the Police Force. On a fair reading of the plaintiff’s words, it might be taken as a call to harass the Detective, but nothing said by the plaintiff in his website could be taken as a threat to kill any police officer.

11. [89]

    Of course, this sort of conduct on the part of the plaintiff must be denounced in strong terms. All citizens including police officers are entitled to be protected from such scandalous, unfounded and absurd allegations. Yet, the plaintiff’s behaviour prior to being arrested does not justify him being placed in prison wrongly. The defendant accepts this.

12. [90]

    It is important to understand that the context of the phone call to Newtown Police Station and the content of the website, provides context and background to that which happened thereafter including the police investigation but importantly, it is not suggested by the defendant in these proceedings that there is anything on the website or the statements made by the plaintiff in the conversation, that would have led SC Keneally to have a mistaken view that the plaintiff had threatened to kill the Detective.

13. [91]

    Whatever may be thought of the plaintiff’s conduct, it does not preclude him from obtaining damages in these proceedings. Indeed, the defendant accepts that it is liable to pay damages to him.

The plaintiff’s evidence

1. [92]

   Other than in respect of matters about which I granted leave to the plaintiff to adduce further evidence, the plaintiff’s evidence in chief comprised his evidentiary statements. He detailed his background, his version of the various problems that had befallen him and the consequences of the incarceration in February 2021. He spoke of significant ongoing mental health problems which continue to preclude his return to work and have left him isolated seemingly unable to care for himself.

2. [93]

   He did give further evidence as to his conversation with DS Felgate in the cell when he was initially refused bail. He said:

3. [94]

   In cross-examination he was taken to the parts of the interview conducted on the date he was arrested. He agreed that he did not tell the police during the interview that he had a record of the phone call with SC Keneally.

4. [95]

   He disputed that the police had indicated that they were interested in obtaining any exculpatory material during that interview. He was wrong about that as there is a question in the ERISP interview to that effect.

5. [96]

   Indeed, the following exchange occurred during cross-examination:

6. [97]

   It is difficult to know why he did not tell the police during that first interview about his recording, particularly when by his own statement he knew the police were looking for exculpatory material at that time.

7. [98]

   I do not accept his suggestion that he might have not understood what exculpatory meant. It may be that he thought that the police would have had their own recording, but it remains puzzling why he did not tell the police that he had recorded the conversation when offered an opportunity to provide the police with exculpatory material.

8. [99]

   He could have offered an explanation in his oral evidence, but he chose to suggest that he might have misunderstood. The plaintiff agreed in cross-examination that after being arrested he had an opportunity to speak with a Legal Aid solicitor before the first bail hearing. He then retained Mr Marrochi and had an opportunity to provide instructions to his solicitor.

9. [100]

   It was put to him that Mr Marrochi wrote to the police saying, “Please inspect my client’s phone and listen to the contents of it.” He denied knowing about that communication. Again this is difficult to accept.

10. [101]

    He was challenged as to his alleged reference to the recording to DS Felgate in the cell on the first occasion. It was put to the plaintiff that:

11. [102]

    He agreed that he had chosen not to tell the police during his ERISP interview about the phone and one of his concerns was that the police would delete things that were on it.

12. [103]

    The plaintiff was cross-examined extensively about the content of his website. He was taken through many of the statements he made about the Police Commissioner and about the Detective with reference to the precise words he used.

13. [104]

    The plaintiff’s response to many of these questions was disingenuous. He took to suggesting that he could have phrased his language better or that he could have chosen better words. He generally did not accept that the various statements he had made about the police, the Police Commissioner and the particular detective were without foundation. For example, he pointed to the strip searching of Aboriginal people as somehow supporting his statements about the Police Commissioner, and his own strip searching as providing a foundation for his statements about the Detective.

14. [105]

    He accepted that the content of his website had been removed at the suggestion of his lawyers, although he acknowledged that the website itself remained in place, pending further developments (which I take to be a reference to the conclusion of the case).

15. [106]

    He attempted to justify statements about the Police Commissioner on the basis that the Police Commissioner was a leader of an organisation which engaged in strip searching and that somehow justified his suggestion that the Police Commissioner was a racist, bigot and child sex offender.

16. [107]

    He was disinclined to accept that his encouragement of people to approach the Detective and tell him that he, the plaintiff, was coming for him was an encouragement of people to harass the Detective.

17. [108]

    The evidence he gave about his website and its content sits uncomfortably and inconsistently with his attempts to portray himself as a person who had recovered from any mental health problems three years prior to February 2021 and a person who was seemingly living a peaceful and productive life, just finishing off his law degree with the intention of being admitted as a solicitor as soon as possible.

18. [109]

    The content of his website tends to suggest that he was at best, rather obsessed and at worst, content to make false and absurd statements and keen to encourage others to harass and make similar statements about the Police Commissioner and the Detective.

19. [110]

    The plaintiff was also asked about the events surrounding the St George bank account and his imprisonment, conviction and subsequent overturning in the Court of Criminal Appeal.

20. [111]

    In the end, the cross-examiner achieved what he wanted to achieve out of the questioning, that is, to gain an admission from the plaintiff that his conduct was dishonest. On a full consideration of the questioning on this topic, I am left with the impression that the plaintiff was not really accepting any responsibility for that which occurred. For example, when asked why he would have been transferring money from one bank account, that is the St George bank account, to another bank account, being the NAB bank account, he seemed to suggest that it was just the way the process worked. He then suggested that it was difficult to explain. He then finally settled on the idea that he just wanted to have money in the NAB account to pay back to St George when St George wanted the money back (as if he was just really borrowing the money). This is absurd.

21. [112]

    He said it was never his intention not to pay back the money but in reality he spent large sums of money on personal acquisitions when he had no ability or capacity to repay. The idea that he was just borrowing the money or never intended to not repay does not sit well with his complete inability to pay it at the time, and his expenditure of large sums on luxury items.

22. [113]

    I formed the view that some of the plaintiff’s answers were disingenuous and self-serving. He wished to maintain the idea that there was not much wrong with the content of his website that could not be remedied by some slight change of words. He sought to explain away his earlier dishonest conduct. His attempt at presenting as a person free of problems and fit for work prior to being imprisoned in February 2021 does not sit well with other significant evidence. It is clear that his own evidence and presentation was very much directed at obtaining compensation in these proceedings. Perhaps, as he suggests in his website, he is an expert in obtaining compensation, but it must be said that in his own case, his own evidence did not assist him.

What did SC Keneally do?

1. [114]

   SC Keneally did three things relevant to the tortious claim against the defendant:

   1. (1)

      he told Sgt Taleski that the plaintiff had threatened to kill the Detective;

   2. (2)

      he then completed a written statement in which he set out in detail a conversation with the plaintiff which did not occur; and

   3. (3)

      he maintained the accuracy of his version when spoken to by DS Felgate.

2. [115]

   As far as I can determine, SC Keneally had no further involvement in the matter.

What did DS Felgate do?

1. [116]

   In February 2021, DS Felgate was working in the Fixated Persons Investigation Unit of the NSW Police Force. He had achieved the rank of Detective Senior Constable. In October 2023, he was temporarily transferred to the Engagement and Hate Crime Unit of the NSW Police Force. In March 2024, his transfer became permanent, and he was promoted to the rank of Sergeant.

2. [117]

   On 25 February 2021, DS Felgate was allocated the investigation into the plaintiff. He had not had any previous dealings with the plaintiff. He became aware that the plaintiff had allegedly made threats to kill the Detective in a telephone call with SC Keneally on 24 February 2021. His initial approach was to conduct inquiries, which included reviewing a downloaded PDF document of the content of the plaintiff’s website. In his evidentiary statement he says that he was affronted by the website and considered the content to be offensive.

3. [118]

   At the same time, he reviewed statements provided by both SC Keneally and the Detective. Then on 25 February 2021, he attended the Sutherland Local Court with his colleague DSC McGill and applied for a warrant to search the plaintiff’s residence. He made arrangements to travel with other colleagues from Sydney to Nowra. Arrangements were also made for officers attached to the Nowra Police Station to arrest the plaintiff if he was sighted by them before his arrival.

4. [119]

   As he says in his statement, his intention was to have the plaintiff charged and brought before a court. At the time, he suspected that the plaintiff had committed a number of offences, being the offences with which he was later charged.

5. [120]

   According to DS Felgate, he considered it necessary that the plaintiff be arrested at that time to prevent a continuation or a repeat of the offences, and to protect victims, namely victims he had threatened.

6. [121]

   By the time DS Felgate got to Nowra, the plaintiff had already been arrested. At approximately 2:45pm, DS Felgate commenced an electronically recorded interview with the plaintiff (in company with DSC McGill). He paused the interview at 3:05pm as his presence was required at the execution of the search warrant at the plaintiff’s property.

7. [122]

   As he says in his statement, a number of items were seized as a result of the search warrant including a laptop, a mobile phone, four external hard drives, a second mobile phone and cannabis leaf and bud. After the search warrant was completed, he returned to Nowra Police Station and completed the charge process, which included preparing a Court Attendance Notice and a Facts Sheet.

8. [123]

   At the time he prepared the Court Attendance Notice and the Facts Sheet, he had available to him witness statements from SC Keneally and the Detective as well as a PDF document of the content of the plaintiff’s website isuepolice.com. DS Felgate charged the plaintiff with the three offences. He considered there was sufficient material available to support the charges.

9. [124]

   For reasons best known to the plaintiff himself, the plaintiff did not inform the police in his initial interview of the existence of his recording despite being asked about any exculpatory material.

10. [125]

    The plaintiff says that he told DS Felgate about the recording for the first time on 25 February 2021, but DS Felgate denies that he had any conversation with the plaintiff about there being a recording of the conversation at that time. DS Felgate completed entries in his duty book as to the work he had undertaken. He was then off duty for two days. After being denied police bail on 25 February 2021, the plaintiff was brought to Court and bail was refused again in the Nowra Local Court on 26 February 2021.

11. [126]

    On 1 March 2021, DS Felgate recommenced investigation of the matter. He spoke to an officer of the CDPP about obtaining a copy of the body worn footage of the plaintiff’s arrest and requested a reverse call charge record in respect of the calls made by the plaintiff on 24 February 2021. He undertook further tasks on 2 March 2021, again reviewing body worn video and reviewing bail conditions.

12. [127]

    On 2 March 2021, he asked another officer to conduct a Cellebrite download of the plaintiff’s Samsung mobile phone and Google mobile phone. The officer completed the Cellebrite download on 3 March 2021.

13. [128]

    DS Felgate was off duty for a period and did not return to further work on the matter until 11 March 2021. On that day, he reviewed the Cellebrite download of the mobile phones and listened to several audio recordings recovered from the devices. As he says in his statement, this included a recording of the telephone conversation between the plaintiff and SC Keneally.

14. [129]

    The plaintiff says that from the time that DS Felgate heard the recording he wrongfully maintained the proceedings knowing that the proceedings lacked reasonable and probable cause.

15. [130]

    In his evidentiary statement prepared for the purpose of these proceedings dated 25 September 2024, DS Felgate says:

16. [131]

    He also says that immediately thereafter, he sent an email to Sgt Comer from Nowra Prosecutors asking whether she had time to discuss the matter in the light of what he considered a potential issue as to the evidence. Although he does not recall when he had a conversation with Sgt Comer, he believed it was on the same day. There is reference in his duty book of 11 March 2021 to him speaking with Nowra Prosecutors. Sgt Comer did not recall the conversation.

17. [132]

    At least in his statement he said he could not recall exactly what was said when he spoke to Sgt Comer, but he also said she had expressed some views about that matter. Thereafter, he continued to investigate the matter including requesting statements from other police officers.

18. [133]

    On 16 March 2021, he sent an email to SC Keneally asking him to call him to discuss the conversation. On 17 March 2021, he received a call from SC Keneally. DS Felgate says in his statement that SC Keneally confirmed with him that SC Keneally recalled the plaintiff making a threat to kill the Detective over the phone. DS Felgate says that SC Keneally also confirmed with him that everything set out in his witness statement was correct. In his oral evidence he again stated that SC Keneally told him that everything in his statement was correct.

19. [134]

    In paragraph 53 of his statement, DS Felgate says:

20. [135]

    DS Felgate continued to investigate the matter in March 2021 and prepared his own statements dated 23 and 25 March 2021. On 1 April 2021, he finished compiling the brief of evidence and sent it to the plaintiff’s solicitors. He believes that he sent the brief of evidence to the CDPP at around the same time.

21. [136]

    In April 2021, he received further statements from other police officers. He became aware that the plaintiff’s solicitors had ceased to act for him. On 13 May 2021, he travelled from Sydney to the plaintiff’s home in Nowra to serve the brief of evidence on him.

22. [137]

    Again, in his evidentiary statement prepared for these proceedings dated 25 September 2024, he refers to being aware that the CDPP withdrew sequences 1 and 2 on 7 June 2021. He says that he had spoken about the withdrawal of those charges with an officer of the CDPP, probably Jon Kisch. He says that he did not take any contrary view to the position adopted by the CDPP.

23. [138]

    He then became aware of the plaintiff’s motion to permanently stay the proceedings, and he became aware that the CDPP had also withdrawn sequence 3.

24. [139]

    DS Felgate was the OIC of the investigation. He was the person who considered and determined the charges that should be laid against the plaintiff. He organised for the search warrant, and he conducted the initial electronic recorded interview.

25. [140]

    DS Felgate was subject to extensive cross-examination relating to all of the steps he took between the time of his appointment and the charges being withdrawn. The allegations against DS Felgate are based on his appointment as the OIC and in particular, the fact that he listened to the recording on 11 March 2021 when the plaintiff was in custody.

26. [141]

    According to DS Felgate, the two matters of significance that he did subsequent to listening to the conversation were to:

Was DS Felgate a prosecutor?

1. [142]

   DS Felgate was the police officer responsible for initiating the proceedings. He caused the plaintiff to be charged and prepared the Court Attendance Notice. He did so on the basis of the information provided by SC Keneally.

2. [143]

   The plaintiff did not assert that in undertaking these steps, DS Felgate was acting with malice or without reasonable and probable cause, albeit he was plainly a prosecutor at the time. The case against DS Felgate can thus only be that he maintained the proceedings at some point after obtaining sufficient information so as to know that the allegations against the plaintiff were without foundation.

3. [144]

   The person against whom a claim may be brought for malicious prosecution in respect of is not limited to the actual instigator or initiator of the proceedings. A person who maintains proceedings (usually a police officer) could also be guilty of tortious conduct provided that, at the time when that person acted in maintaining the proceedings, he or she did so with malice and in the absence of reasonable and probable cause.

4. [145]

   In Spedding, the Court (per Bell CJ, Ward P and Adamson JA at [15]-[17]) said:

5. [146]

   As is apparent from Spedding, once the ODPP formally took over the carriage of the prosecution, the Director of Public Prosecutions was deemed to be the prosecutor in connection with the prosecution of the plaintiff. However, that does not mean that the person responsible for initiating or maintaining the proceedings, in this case DS Felgate, may not continue to hold the status of prosecutor for the purposes of the tort of malicious prosecution.

6. [147]

   Reference should be made to s 15A of the Director of Public Prosecutions Act 1986 (NSW) which provides as follows:

7. [148]

   DS Felgate was the police officer responsible for initiating the proceedings. He became the OIC as the investigation progressed. It must be that he had a duty to disclose to the Director all relevant information, documents and other things obtained during the investigation that might reasonably have been expected to assist the case for the prosecution or the case for the accused person. That duty continued until such time as the prosecution was terminated. The duty remained continuous. As noted in Potier v The Queen [2015] NSWCCA 130 at [552]:

8. [149]

   Although the CDPP became the prosecutor once it assumed conduct of the prosecution, DS Felgate continued to play a significant role in the maintenance of the proceedings. In my view, having regard to his continuing obligations and the role he played, he remained a prosecutor for the period during which it can be said that he played a role in maintaining the proceedings.

Has the plaintiff established his case against DS Felgate?

1. [150]

   A claim based on maintenance of the proceedings requires some positive action on the part of the police officer in the absence of a reasonable and probable cause: see State of New South Wales v Landini [2010] NSWCA 157 at [52]-[59] per Macfarlan JA (Tobias JA and Sackville AJA agreeing); State of New South Wales v Abed [2014] NSWCA 419 at [191]-[201] per Gleeson JA (Bathurst CJ and Macfarlan JA agreeing).

2. [151]

   In Hathaway v State of New South Wales [2009] NSWSC 116, Simpson J observed at [118]:

3. [152]

   In A v State of NSW at [61], the Court (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) observed that:

4. [153]

   In this matter the plaintiff seeks to establish the case against DS Felgate by inference and through cross-examination.

5. [154]

   In Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, Jordan CJ referred to the need for five conditions to be met should a police officer have a reasonable and probable cause (at 469):

6. [155]

   As observed in A v State of NSW at [64], to succeed on the issue of reasonable and probable cause in a malicious prosecution case, the plaintiff must establish that one or more of the conditions referred to by Jordan CJ did not exist.

7. [156]

   The conduct of DS Felgate must be assessed at different times.

8. [157]

   He initiated the proceedings against the plaintiff but there is no evidence that at the time of initiating the proceedings he did so with malice or without reasonable and probable cause. He said he did so based on the information provided by SC Keneally and having regard to important safety considerations. He considered that, having regard to SC Keneally’s statement, there was a proper basis for charging the plaintiff with sequence 1 and sequence 2, and having regard to his website, sequence 3.

9. [158]

   However, it is DS Felgate’s conduct after he received the Cellebrite report that gives rise to the plaintiff’s complaint. The outcome of the plaintiff’s complaint in respect of DS Felgate very much depends on a consideration of DS Felgate’s conduct throughout that period.

10. [159]

    DS Felgate was cross-examined extensively on the tasks that he performed before and after he listened to the recording on the plaintiff’s phone. He agreed that he had prepared a statement on 1 April 2021 that had not mentioned that he had spoken with SC Keneally seeking to confirm the content of his conversation with the plaintiff prior to that time.

11. [160]

    He agreed that he had spoken with SC Keneally on 17 March 2021 to find out what his recollection of the conversation was because he had listened to the recording and knew that what SC Keneally said in his statement did not match what was in the Cellebrite.

12. [161]

    He admitted that what SC Keneally said in his statement was not contained in the recorded conversation. He denied that he was covering anything up when not referring to his later conversation with SC Keneally in his statement, but again he accepted that there was nothing in his statement about reviewing the Cellebrite.

13. [162]

    He rejected the proposition that he knew by that time that the Cellebrite recording put an end to his prosecution on sequences 1 and 2. He rejected the proposition that he had contacted SC Keneally to try and work out a solution.

14. [163]

    Curiously, he said he did not obtain a further statement from SC Keneally at that time because he had no reason to doubt his version of events. I take this to mean that he believed that SC Keneally believed that he heard something albeit there was nothing on the recording to that effect.

15. [164]

    In the end, DS Felgate was unwilling to accept that the recording proved that the conversation referred to by SC Keneally could not have occurred. However, it is plain that DS Felgate had a considerable doubt as to whether it occurred.

16. [165]

    He agreed that despite the content of the recording he did not seek any assistance or advice from any superior officer at least until June 2021. He thought that the CDPP was handling it. However, he maintained that he spoke to Sgt Comer about the recording.

17. [166]

    He agreed that his reference in the email of “we may have an issue” was a reference to the absence of any threat on the recording and maintained that he spoke for approximately five to ten minutes with Sgt Comer. He suggested he was seeking guidance from her that the matter could still proceed having regard to the difference between the recording and SC Keneally’s statement. He agreed however, that he did not send the recordings through to her and she did not ask for it.

18. [167]

    He was pressed as to the terms of the conversation with Sgt Comer. In the following exchange, he said:

19. [168]

    He agreed that he did not make a note of the conversation and did not put a note in a duty book as to what was said, he did not confirm anything by email, nor did he cause a transcript to be made of the content of the recording. He maintained he did not do so because once the CDPP took over, he was working at their guidance and it was not requested.

20. [169]

    DS Felgate was also taken to the statement he made after the charges were dropped in June 2021 in response to the plaintiff making applications and possibly seeking some compensation. He agreed that he included in his statement the following matters:

21. [170]

    He agreed that he said in the statement made following the charges being dropped that he believed that SC Keneally had mistakenly heard threats to the other detective. He also agreed that this explanation was different from the explanation he provided in his written statements prepared for these proceedings.

22. [171]

    The point being that his earlier suggestion that the words allegedly spoken by the plaintiff were not clearly audible, could not have been correct.

23. [172]

    It is difficult to understand the differences in approach adopted by DS Felgate in his preparation of documents before and after the charges were dropped.

24. [173]

    His initial approach was to accept that the conversation might still have taken place because SC Keneally told him it did despite the absence of any such statements on the recording. His later approach was to support SC Keneally by suggesting that he must have been mistaken but he was still acting in good faith. His initial approach was also to suggest that the recording tended to drop out (thereby leaving room for the possibility that the words were spoken) but he conceded this point during cross-examination.

25. [174]

    In any event, DS Felgate agreed that on 7 June 2021 sequences 1 and 2 were withdrawn and that had occurred after consultation with him. Then on 17 June 2021 he received an email from Sgt Comer about the plaintiff’s motion for a permanent stay in the proceedings. He forwarded the motion and affidavit to Mr Kisch at the CDPP.

26. [175]

    He accepted that on 25 June 2021 sequence 3 was withdrawn leaving the plaintiff only facing the charge relating to the damaged clock.

27. [176]

    DS Felgate was also cross-examined about his suggested failure to speak to Sgt Taleski having regard to what he then knew about the recording. His response was to suggest that he was relying on guidance from the CDPP and they already had a statement from SC Keneally who had been involved in the conversation.

28. [177]

    He also said that the first thing he did was to speak to the prosecutor (Sgt Comer). He gave the following evidence:

29. [178]

    DS Felgate was further extensively cross-examined about matters such as the way he conducted the original police interview, the emails he sent to various proposed witnesses and the steps he took or did not take to inform others about the content of the recording. He was cross-examined about the document he had prepared following the withdrawal of the charges at the time the plaintiff filed the motion seeking a stay of the proceedings in respect of sequence 3 as well as raising the prospect of him recovering compensation.

30. [179]

    He was cross-examined about his suggestion that he believed that SC Keneally had mistakenly heard something, and he believed SC Keneally was acting in good faith.

31. [180]

    The cross-examiner repeatedly returned to the same theme to the effect that DS Felgate knew that there was no basis for the charges but was determined to keep the charges going whilst he tried to find some other evidence.

32. [181]

    The effect of DS Felgate’s evidence was that he provided the information to Sgt Comer as the prosecutor and was assured that it would not be an issue. As the OIC he then continued to investigate and gather evidence having informed the prosecutor about the weakness in the case.

33. [182]

    I am unable to accept DS Felgate’s evidence as to what he told Sgt Comer and unable to accept his explanation as to why he did not do more to ensure that the charges were dismissed at an earlier stage.

34. [183]

    It seems unlikely that, if DS Felgate had provided detailed information to Sgt Comer and Sgt Comer had told him in effect not to worry about it, he would not have made some note of that. Instead, the only note he made was of actually speaking to Sgt Comer. The content of that conversation remains in dispute having regard to different evidence given by DS Felgate and Sgt Comer.

35. [184]

    In this regard, I prefer the evidence of Sgt Comer. I do not accept that she would have informed the Court that it was a strong prosecution case, if she was aware of the true position. I do not accept that she would have opposed bail if she had known that there was a recording which simply did not support the charges at all.

36. [185]

    DS Felgate might have spoken to Sgt Comer, but I do not accept that he provided such information to her that would have caused her to form the view that there was no basis for the charges. It remains possible that, although he told her about the recording, he might also have told her that parts of what was said were not audible and also that SC Keneally had confirmed the content of the conversation with him.

37. [186]

    I do not accept that as the OIC of the investigation he was simply relying on the CDPP as to what should happen. At least leading up to the second bail application in March 2021, DS Felgate should have known that the proceedings against the plaintiff (that is sequences 1 and 2) lacked reasonable and probable cause. This is because he knew that the sole basis of the charge was something said by the plaintiff to SC Keneally. He knew that the conversation was recorded, and no such statement was made by the plaintiff.

38. [187]

    He may have been seeking to maintain the proceedings whilst he looked further into the plaintiff’s conduct and the matters set out in his website. He may have had concerns for the safety of the Detective.

39. [188]

    However, if he had really thought it likely that the words being spoken by the plaintiff were not actually recorded, he would have initiated some testing of the recording or had others listening to it to trying to reconcile what SC Keneally was telling him with the recording. He would have referred to it in the statement that he originally prepared on 1 April 2021.

40. [189]

    He plainly had concerns about the safety of the Detective having regard to the content of the website and might have genuinely considered that there was a safety issue involved, but he must have known at least at the time of the second bail application that sequences 1 and 2 lacked reasonable and probable cause.

41. [190]

    His failure to take steps to have the charges withdrawn at an earlier time thus suggests that he was acting for an improper purpose, that is, was seeking to hold on to the charges whilst he further investigated the plaintiff.

42. [191]

    I accept that for the period between DS Felgate becoming aware of the content of the recording and the withdrawal of sequences 1 and 2 he was acting without a reasonable and probable cause and was acting maliciously. The time period is a matter of three months.

43. [192]

    Fortunately, the plaintiff was released from prison despite the opposition of Sgt Comer. DS Felgate’s conduct thus did not cause the plaintiff to remain in prison. However, it must be that the ultimate withdrawal of the charges was delayed because of DS Felgate’s failure to take appropriate steps prior to the second bail application. I will come to the consequences of that later in this judgment.

The case against Sgt Comer

1. [193]

   Sgt Comer was the police prosecutor who appeared on the second bail application, which took place on 19 March 2021 in Nowra Local Court. She had some involvement subsequently in response to a motion filed by the plaintiff for a stay of proceedings in respect of sequence 3 after sequences 1 and 2 had been withdrawn but her subsequent involvement is not causally relevant to any loss suffered by the plaintiff.

2. [194]

   The plaintiff pleads that Sgt Comer:

3. [195]

   It is asserted that she deliberately misled the Court in an attempt to continue to have the plaintiff wrongfully imprisoned.

4. [196]

   The plaintiff pleads a number of particulars of malice including:

5. [197]

   Further, the plaintiff pleads that in opposing the bail application, Sgt Comer was intending to cause harm to the plaintiff.

6. [198]

   In my view there is no merit in any of these allegations. The plaintiff has not proved that Sgt Comer acted with malice in anything she did.

7. [199]

   Sgt Comer became a prosecutor with the NSW Police Force in June 2008. She left the Force in November 2023. At the relevant time, she was a team Leader and Sergeant of the South Coast Police Department. She was the police prosecutor in charge of three other prosecutors, three courts and five police stations. As she said, it was not unusual for her to appear as a police prosecutor in up to 10 bail applications per day.

8. [200]

   As emerged during her oral evidence, she has little memory of the events in February to March 2021 or even of what she might have done at various times. She refreshed her memory from the documentation. She did have some recollection of observing someone she thought may have been the plaintiff in the cells but does not know whether that was at the time of the first application on 26 February 2021 (when she did not appear) or the second application on 19 March 2021 when she did appear.

9. [201]

   She does recall the person acting aggressively and she recalls learning that the plaintiff smashed the clock over his head, although she did not witness that incident.

10. [202]

    On 4 March 2021 she received an email from Jon Kisch, the solicitor with the CDPP, requesting that a police prosecutor appear on behalf of the CDPP at the mention on 8 March 2021 at Nowra Local Court. She was instructed to seek brief service orders. She confirmed that a police prosecutor would appear.

11. [203]

    On 9 March 2021 she appointed herself as the prosecutor in respect of the plaintiff’s case.

12. [204]

    On 15 March 2021 her office received an email from the Nowra Local Court advising the matter had been listed on 19 March 2021 for bail review.

13. [205]

    On 18 March 2021 she sent an email to the CDPP advising Mr Kisch that it was so listed and seeking instructions as to whether she should appear.

14. [206]

    On 19 March 2021 she appeared on the bail application before Magistrate Viney and opposed bail.

15. [207]

    In her statement dated 18 February 2025, she said she was very concerned about specific threats contained in the Facts Sheet and the Witness Statement of SC Keneally. She was concerned about community safety because of these allegations.

16. [208]

    On 28 October 2021 she prepared a Failed Prosecution Report in respect of the destroy or damage property charge arising out of the clock incident which was withdrawn on the first day of the hearing on 27 October 2021.

17. [209]

    Leaving aside the suggestion that Sgt Comer had been informed at some time prior to the bail application that there was a recording of the conversation involving the plaintiff and that nothing was said which would support sequences 1 and 2, Sgt Comer’s discharge of her duties appears to have been completely orthodox and conventional.

18. [210]

    The case against her was approached with hindsight and based on assumptions which were never established. Indeed, in circumstances in which her primary role was to appear on a bail application and bail was granted despite her opposition, it remains difficult to understand the point of the plaintiff’s pursuit of Sgt Comer. She was clearly distressed by the allegations against her and indeed the direct propositions put to her in cross-examination.

19. [211]

    During cross-examination Sgt Comer initially pointed out that she dealt with a large number of matters and that there would have been nothing that stood out in this matter. However, she subsequently accepted that the matter was very serious and indeed there would have been reasons for her appointing herself as the prosecutor. This might suggest that her recollection of the matter might have been greater than she maintained but there was nothing else about her evidence or presentation which caused me to suspect that she was not telling the truth.

20. [212]

    She acknowledged that the email dated 11 March 2021 from DS Felgate was sent to her, but she had no recollection of any such discussion. There is nothing in any workbook, diary or police notebook from her which may suggest that the discussion took place or to provide any context. Certainly, DS Felgate maintains there was such a discussion but I accept that Sgt Comer does not now recall it. That may be unsurprising bearing in mind the number of matters which she was dealing with and the time between any such conversation and the bail application. The context of any such conversation might have been overlooked.

21. [213]

    The thrust of the plaintiff’s cross-examination of Sgt Comer was really to highlight the serious nature of the charges against the plaintiff, the fact that she was concerned that it might generate media attention, that she appointed herself the prosecutor, and that if, as the plaintiff maintains, she was informed by DS Felgate about the recording, she would have known at the time that there was no merit in the prosecution case, and despite this said that circumstances had not changed and opposed bail.

22. [214]

    The plaintiff did not identify why Sgt Comer would have deliberately misled the Court except that she would have been keen to keep the plaintiff in custody irrespective of the truth of the allegations against him. Why Sgt Comer would have been so keen to wrongly keep a person with whom she had no dealings in prison is not known.

23. [215]

    There is an inkling of the plaintiff’s general views about police prosecution in his case against Sgt Comer. The cross-examination of her established little despite the attempt at impugning her credibility.

24. [216]

    Allegations of malice and deliberate wrongful conduct on the part of a prosecutor appearing on a bail application should not be made lightly. Alas, in this case there is little to support the allegations against Sgt Comer.

25. [217]

    Further, Sgt Comer was not a prosecutor no matter how broadly that term might be considered. Her involvement was limited to appearing on a bail application. Certainly, she was described as a prosecutor for the purposes of performing her role at the various local courts on the South Coast. However, she did not institute the proceedings and had no role in maintaining them. She had no role in determining whether to commence or continue with the proceedings against the plaintiff.

26. [218]

    The fact that she was described as a prosecutor for the purposes of performing her various duties on the South Coast of New South Wales and appearing on behalf of the prosecution on bail applications means little in the context of a claim based on malicious prosecution.

27. [219]

    Sgt Comer’s role was not to even consider whether proceedings should be maintained. It was limited to advancing the prosecution position on the bail application. She is not a person who either initiated or maintained the proceedings for an improper purpose.

28. [220]

    Further, I am unable to understand how anything Sgt Comer did could have caused the plaintiff’s loss other than a brief uncertainty as to whether he would be released on the day of the second bail application. Despite Sgt Comer’s opposition to the plaintiff being released, he was released. Nothing Sgt Comer said led either to the continuation or discontinuance of the proceedings and nothing Sgt Comer did caused the plaintiff to remain in custody any longer or the proceedings to be continued for any period greater than they might have been.

29. [221]

    In my view, the plaintiff’s case against the defendant based on the conduct of Sgt Comer fails at every level.

30. [222]

    I accept Sgt Comer’s evidence. There is no contemporaneous document evidencing what DS Felgate said to her. Part of the flaw in the plaintiff’s case against Sgt Comer is that it is based on the assumption that DS Felgate told Sgt Comer directly and specifically that the statements attributed to the plaintiff never happened.

31. [223]

    Other than DS Felgate’s somewhat vague and inconsistent evidence about the terms of the conversation, there is no evidence that he did so.

32. [224]

    Whatever the conversation between DS Felgate and Sgt Comer, I do not accept that at the time that she opposed bail she was aware that the proceedings lacked reasonable and probable cause.

33. [225]

    Further, when the plaintiff was unable to make headway with Sgt Comer in cross-examination because she would not accept the propositions stating she did not recall or did not know, the plaintiff took to asking her to assume matters which the plaintiff sought to prove, that is, to assume that she was told certain things. However, without acceptance of the basic facts providing the foundation of the questions, her responses are of little relevance.

34. [226]

    The case against the defendant based on Sgt Comer’s conduct is dependent in part upon establishing that Sgt Comer acted maliciously in the things that she did. Plainly, she was not acting maliciously in appointing herself prosecutor or appearing on a bail application. Fundamental to the case is the allegation that she deliberately misled the Court knowing what she said was not true. I do not accept this. It is an allegation without substance. The case against Sgt Comer was a complete overreach.

Conclusion on liability

1. [227]

   The defendant accepts that it is liable for the conduct of SC Keneally and that the elements of the tort of malicious prosecution have been established in respect of his conduct. The plaintiff has also established that in maintaining the proceedings for an additional few weeks between the second bail application and the withdrawal of sequences 1 and 2, DS Felgate was guilty of malicious prosecution for which the defendant is also liable. The plaintiff has failed in his case arising out of the conduct of Sgt Comer.

2. [228]

   The plaintiff agreed that the alternative tortious action in misfeasance in public office afforded him no better remedy. It is unnecessary that I consider it further.

Damages

1. [229]

   The plaintiff is currently 38 years old. He claims that he developed a significant psychiatric injury as a result of the events which happened in 2021. He claims that he has effectively been unable to work since being arrested. He has been in receipt of the disability pension.

2. [230]

   He says that he lives with his partner but suffers ongoing symptoms of anxiety, depression and symptoms which have led to a diagnosis of PTSD. He maintains that his conditions are chronic, that they are caused by the events of 2021 and that they are likely to impact upon him on a long-term basis. He says he gets angry and is frustrated all the time. He had been a habitual cannabis user, though this is something he appears to have put behind him. He is preoccupied with what happened to him and says that he cannot concentrate on other tasks.

3. [231]

   His partner Ms Greene says that he is different now to how he was previously. She says that prior to the incident he was strong and stable but now he does not have that same drive. She says that he hardly uses his computer anymore and that he used to study but his attention span is now more limited.

4. [232]

   His mother, Mrs Moore, says that his arrest has had a significant impact on the plaintiff and his family. She said that he was previously passionate about pursuing a career in the law and providing for his family and that he had already made contact with lawyers in this regard. She says that he now feels hopeless as he cannot provide for his family. It is interesting to contrast her views about the plaintiff with the statements she made to Dr Allnutt in 2015 about the effects of his head injury. I will return to this later.

5. [233]

   On his case he should recover damages for loss of earning capacity in the order of $1,500,000 and allowances for damages for personal injury and loss of reputation, aggravated damages and exemplary damages should be approaching or approximate to the amounts awarded in Spedding. He submits that his suffering should be considered as analogous to that of Mr Spedding. He refers to adverse media coverage including being labelled a cop killer, although no extracts of media reporting such as newspaper articles were provided.

6. [234]

   Having regard to the plaintiff’s written and oral submissions, the plaintiff says that he should be entitled to a sum in excess of $3,000,000 arising from the conduct of the officers for whom the defendant is vicariously liable. The defendant accepts that the plaintiff should be awarded damages but submits that he should receive only a fraction of that amount.

7. [235]

   For the reasons which I will set out, I do not accept that the amounts sought by the plaintiff could possibly be justified, having regard to the evidence in these proceedings. The plaintiff’s claims and submissions in support do not accurately reflect the nature and extent of the plaintiff’s pre-existing mental health problems, his poor work record and the opinions expressed by the medical experts.

8. [236]

   The plaintiff has provided differing histories at differing times. His minimisation of the effects of his earlier head injury is at odds with statements made to Dr Allnutt back in 2015 for other purposes. He said different things to the two expert psychiatrists, which has impacted upon their opinions. He disowns the statements that he made to Justice Health within days of being placed in custody in February 2021 about the state of his mental health, meaning, in the period before being arrested.

9. [237]

   He asks the Court to accept a level of symptomology which he reports for the purposes of these proceedings, which he did not report to the psychologist who he saw from time to time, paid for by Victims Services.

10. [238]

    He asks the Court to accept that the absence of treatment or treatment records for his mental health problems in the three years prior to February 2021, should be taken as corroborating his assertions as to the absence of any mental health problems, but suggests his limited treatment since June 2021 (particularly in the next 9 months), should not be taken as an indication or reflection of any diminution in his problems.

11. [239]

    He relies on the expert psychiatric opinion that his condition is chronic as supporting his claims for long-term loss of earning capacity but ignores the joint opinion that the chronic conditions included those from which he was suffering prior to February 2021.

12. [240]

    Having said that, he was already preoccupied or obsessed with police conduct and injustice towards him. He had been diagnosed with bipolar disorder or mania.

13. [241]

    He presented as vulnerable to the events which befell him. The impact of being in prison for something that he did not do cannot be understated. He is entitled to be compensated for that which happened to him in February and March 2021 and any ongoing consequences thereto. As I will discuss later, I accept his evidence as to how he felt whilst in custody and his concerns and anxiety as to what might happen to him.

14. [242]

    There are many aspects to the plaintiff’s claim for damages but his claim is based on the suffering of psychological injury and a claim for loss of reputation. There is no suggestion of any physical injury.

15. [243]

    There is a conflict in approach as to who bore the onus on some issues and whether the other party necessarily discharged the onus which they bore. It is always the case that the plaintiff, being the party who seeks damages, must prove the loss which he claims. The plaintiff thus bears the primary onus of establishing the injuries and disabilities from which he suffered, including any loss of reputation from which he suffers and the extent to which he should be compensated for those injuries, disabilities and losses (Todorovic v Waller (1980) 150 CLR 402; [1981] HCA 72 at 412).

16. [244]

    The defendant is not required to prove that the plaintiff did not suffer injury. Having said that, to the extent that the defendant seeks to maintain that any ongoing problems are the consequence of causally unrelated factors, such as other events, accidents or pre-existing problems, then the defendant bears that onus (Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 at 163-164).

17. [245]

    It is necessary to carefully consider the medical and related evidence in order to form a view as to the nature and the extent of the plaintiff’s psychological problems and how they impact on his claims, such as his claim for loss of earning capacity.

The medical evidence

1. [246]

   The medical evidence falls into two categories being:

   1. (1)

      Contemporaneous records; and

   2. (2)

      Expert psychiatric evidence obtained for the purpose of these proceedings.

2. [247]

   Both parties relied on expert psychiatrists retained for the purpose of these proceedings. The plaintiff retained Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist, who prepared four reports at the request of his solicitors dated 6 November 2022, 5 January 2025, 10 April 2025 and 23 April 2025. Dr Allnutt had previously seen the plaintiff at the request of solicitors who formerly acted for him in 2015. Dr Allnutt’s report of 8 January 2015 was also admitted.

3. [248]

   The defendant retained Dr Alex Apler, Forensic Psychiatrist, to prepare a report dated 26 August 2023.

4. [249]

   The experts met in conclave on 11 April 2025 and prepared a joint report thereafter.

5. [250]

   In fact, the experts prepared two joint reports. The second joint report made reference to the report of a Neuropsychologist, Dr Louise Parry, having regard to neuropsychological testing undertaken of the plaintiff in March 2025. This report was obtained without the leave of the Court and served on the defendant without any indication that it was coming shortly before the hearing. The defendant could not obtain a report in response without the proceedings being adjourned. I rejected the tender of Dr Parry’s report and thus the second conclave report was rendered irrelevant and inadmissible.

6. [251]

   The plaintiff also relied on notes and records of Dr Anthony Pignataro, a Consultant Clinical Psychologist, who the plaintiff has been seeing through Victims Services as well as the notes and records of earlier general practitioners and other pre-2021 treating doctors.

7. [252]

   The defendant tendered an additional bundle of medical records including notes and records relating to the plaintiff’s pre-2021 mental health problems and Justice Health records relating to the days after he was taken into custody in February 2021.

8. [253]

   Dr Allnutt first examined the plaintiff for the purposes of this case via audio-visual link (“AVL”) on 28 October 2022. Dr Allnut did not have the contemporaneous medical records at the time. It also seems that he did not have regard to his 2015 report or anything said by the plaintiff at that time.

9. [254]

   The plaintiff said that in the period prior to the events of February 2021, he was working and had no mental health problems and that he maintained that “life was great” (which would be quite contrary to what he told Justice Health shortly after being taken into custody). He said that he was studying law and had set up a website to assist people who had been harassed by the police.

10. [255]

    The plaintiff informed Dr Allnutt that, subsequent to being in gaol, he lost his work due to poor attendance and that he has remained unemployed since. He had not returned to work since because he felt mentally unable to do so. He complained that the media had been calling him a cop killer. He said he did not feel as if he was able to continue with his website and this had stopped. He said he answered the phone to help people get representation, but he could no longer listen to their stories. Dr Allnutt considered that the plaintiff manifested a constellation of depressive and post-traumatic stress symptoms. The post-traumatic stress symptoms were characterised by episodes of re-experiencing the index injury (that is, his arrest in February 2021). He had reduced enjoyment in life, endorsed a degree of irritability, problems with concentration and sleep difficulties. The depressive symptoms were characterised by depressed mood, disturbed sleep and other symptoms.

11. [256]

    Dr Allnutt noted that the symptoms of post-dramatic stress disorder and depressive disorder can overlap. He noted some improvement, but the prognosis remained guarded for the foreseeable future. He recommended continued treatment by a psychologist and felt psychiatric treatment was also required. He would envisage four to six weekly consultations over a six to 12 month period.

12. [257]

    He said he would regard him as partially incapacitated for work.

13. [258]

    The plaintiff presented with similar symptoms when again examined by Dr Allnutt by AVL on 17 December 2024. Dr Allnutt reiterated many of his earlier findings. The plaintiff said that he had not had any mental health problems since 2015, which is plainly wrong. The plaintiff also stated that whilst originally concerned he might have had a prior head injury, he did not believe he suffered an injury. This is also wrong.

14. [259]

    Dr Allnutt considered that his pre-existing history of depression and potentially some mild brain damage was relevant, but the index injury made a substantial contribution to his mental state. His prognosis remained guarded, though Dr Allnutt believed there had been some mild improvement.

15. [260]

    Dr Allnutt prepared a further report dated 10 April 2025. He undertook review of the documentation and again interviewed the plaintiff through an AVL on 8 April 2025. Most of this report comprises a review of all the pre-existing history as evidenced by earlier medical records. It also included a review of the Justice Health records. The fact that Dr Allnut had not previously had access to the contemporaneous medical records diminishes the value of his earlier opinions. Further, his earlier opinions are affected by inaccuracies in the information provided by the plaintiff.

16. [261]

    Having reviewed the contemporaneous documents Dr Allnutt concluded:

17. [262]

    Dr Allnutt was then provided with Dr Apler’s report for review. He prepared a further report dated 23 April 2025. He further examined the plaintiff. He remained of the view that the index injury triggered the onset of depressive symptoms, and those symptoms persisted, coupled with symptoms of PTSD.

18. [263]

    Dr Allnutt originally examined the plaintiff on 8 January 2015 in connection with the criminal proceedings against him. It is notable that on this examination (unlike when being examined for these proceedings) he was provided with quite detailed information about an earlier head injury. He said he had suffered a head injury in 2008 when on his 21st birthday party he had done a backflip and hit his head on the floor, with loss of consciousness.

19. [264]

    The plaintiff’s mother informed Dr Allnutt that she noticed that within two or three weeks a decline in his mental state, with cognitive disfunction. He was admitted to the hospital for about 2 to 3 weeks. There is reference to him having depression before he banged his head.

20. [265]

    Over this period, he was complaining of depressive symptoms, and he was anxious around people. He said he was hearing internal voices and was using cannabis about twice a week and had been doing so for a few years prior to the injury.

21. [266]

    He said later in 2008 he was involved in a motor vehicle accident and spent three days in hospital. He said there was a brief period of loss of consciousness. He said at the time of the offending (this is a reference to the charges he was facing at that time), he was having episodes where he would lose memory for periods of time. People would tell him things and he would have no recollection of them.

22. [267]

    When Dr Allnutt saw him in January 2015, he was not doing well. He was stressed, his mood was fluctuating and he was generally depressed. His sleep was poor and broken, he had poor appetite with ongoing weight loss. He continued to have episodes where he forgot where he was. Dr Allnutt reviewed earlier medical records, noting that he had been diagnosed with hypomania and was also considered to possibly have a psychotic illness.

23. [268]

    It is notable that for the purposes of the 2015 examination the significance of the head injury loomed large, as did other issues such as the earlier diagnosis of hypomania. There is ample evidence of the plaintiff being diagnosed with bipolar disorder prior to February 2021, which would be inconsistent with the plaintiff maintaining that he suffered from no mood disorders in the three years prior to February 2021.

24. [269]

    Dr Apler examined the plaintiff by AVL on 4 July 2023. Unlike when Dr Allnutt first examined the plaintiff, he had the contemporaneous records.

25. [270]

    Some of the information provided to Dr Apler by the plaintiff was incorrect. For example, he said he had been working all his life other than when on bail for the fraud offence. This is not so. He denied being manic outside of “maybe” in relation to the conduct leading to the fraud charges. There are contemporaneous records to the contrary. He provided incorrect information about how well (or poorly) he did in his law course after being released from the prison in 2021.

26. [271]

    He did not provide an accurate history of his pre-existing condition.

27. [272]

    Dr Apler concluded that the plaintiff remained affected by the illness that he had before the incident on 24 February 2021 which started to manifest in about 2008. It is characterised by manic and depressive symptoms, mixed affective states and probable paranoid delusions. He thought it unlikely that the events of February 2021 contributed to his ongoing state. He felt that the family history of depression, his brain injury and use of cannabis could have contributed to the development of his psychiatric symptoms.

28. [273]

    Both the experts concluded that it is probable that the plaintiff sustained a brain injury in 2008. However, they also suggested that, without further neuropsychological assessment, it was impossible to comment on the severity and chronicity of that brain injury.

29. [274]

    Thus, despite the content of Dr Allnutt’s 2015 report and the concerns about the effects of the brain injury as noted in that report, the plaintiff’s denial of any significant brain injury in these proceedings has led to an absence of any expert medical opinion of the issue.

30. [275]

    All that can really be found is that the plaintiff suffered some form of head injury in 2008 which, at least according to the history given to Dr Allnutt in 2015 and other records, loomed large in terms of behaviour and general wellbeing. As is evident from the plaintiff’s failure to even mention it in his statements, the plaintiff suggests that it is irrelevant even despite the content of Dr Allnut’s 2015 report and his own reference to it to Justice Health.

31. [276]

    The experts also agreed that:

32. [277]

    The experts disagreed on whether the plaintiff developed symptoms of PTSD subsequent to the events of February to March 2021. Dr Allnutt considered he did whilst Dr Apler suggested his symptoms were more consistent with psychosis or mania rather than PTSD.

33. [278]

    In terms of the development of each of the disorders or conditions from which the plaintiff suffered, the experts agreed that:

34. [279]

    Both experts also agreed that the plaintiff continued to report ongoing depressive symptoms with Dr Allnutt adding that there is an additional layer of post-traumatic symptoms. Both experts agreed that these conditions could fluctuate consistently with the natural course of any chronic mental condition.

35. [280]

    The experts also agreed that his family history of depression pre-disposed him to a psychiatric disorder, that exposure to the media was a stressful factor and his pre-occupation with the police persecution was also something that contributed to his symptoms. Further, they agreed that the history of alleged sexual abuse in gaol (that is, during his initial stint in gaol) could be contributors to post-traumatic stress. His pre-occupation with the incident in 2021 also contributed to his anger and low mood.

36. [281]

    Dr Apler accepted that, if he did develop post-traumatic stress symptoms, these factors contributed to that. Dr Allnutt described the arrest, incarceration and prosecution as materially contributing to an aggravation of his pre-existing recurrent mood disorder and psychotic decompensation, and possibly hypomanic symptoms.

37. [282]

    The major difference between the experts was that Dr Apler considered the plaintiff’s presentation since February 2021 was not significantly different to that which existed prior to February 2021. He pointed to indications of bipolar disorder long before 2021 and the similarities in his presentation since February 2021.

38. [283]

    On the other hand, Dr Allnutt suggested that there had been a deterioration in his condition since February 2021. He also said that he presents with a condition which is episodic, and his history is consistent with episodes of deterioration and improvement preceding the index injury. He said there was a period of significant deterioration immediately after incarceration, but there appears to have been an improvement thereafter. That view happens to be consistent with the plaintiff’s own self-reporting at the time, although inconsistent with his claims in this case.

39. [284]

    Both experts also agreed that the plaintiff has improved, although he is still depressed, angry and preoccupied with the injustice.

40. [285]

    They also agreed that prior to the events of February 2021, there were a number of events contributing to his psychiatric condition. His depression was part of his pre-existing recurring mood disorder. They could only say that the arrest, incarceration and prosecution contributed to his depression, but the extent of that contribution is uncertain. Dr Allnutt considered that the events led to an aggravation of his depression with onset of PTSD symptoms.

41. [286]

    The questioning of the doctors was limited to a small number of topics. In my view, what emerged from the questioning is as follows:

42. [287]

    Their views ultimately came to this:

43. [288]

    In the end, the result of the conclave and concurrent evidence is that the differences between the experts have narrowed. Both agreed that the plaintiff suffers from chronic episodic mental health problems (described as recurrent mood disorder). Contrary to the plaintiff’s submissions, the effect of the experts’ evidence is that the chronic mood disorder is something that he was suffering from well before the events of February 2021. It remains chronic and episodic.

44. [289]

    The real difference between the experts remains whether the events of February 2021 resulted in an aggravation of that condition and whether on top of that the plaintiff has developed PTSD consequent upon the events of February 2021.

45. [290]

    There are number of problems for the plaintiff in his approach to the medical evidence, including that the contemporaneous medical records are generally inconsistent with the history he has provided to Dr Allnutt and the case he pursues in these proceedings. There are number of examples.

46. [291]

    Firstly, the Justice Health records record the plaintiff informing the nurse at Justice Health shortly after his incarceration that:

    1. (1)

       He had a history of seizures from the age of 20 (said to be directly stated by the plaintiff);

    2. (2)

       He had an acquired brain injury (said to be as per other records);

    3. (3)

       The plaintiff stated that his last use of diazepam was three days ago but he was unable to indicate what dose;

    4. (4)

       Further, the nurse recorded that “patient states he has PTSD, depression, anxiety and ‘people think I’m crazy’”; and

    5. (5)

       There is also reference to the plaintiff speaking to his mother or partner and being given medication from his psychiatrist.

47. [292]

    In a Reception Screening Assessment completed on 26 February 2021 by a nurse the plaintiff confirms that in the last month he had had symptoms of anxiety and bipolar disorder or manic depression and further that he had been taking diazepam within the last month. The answers recorded by the nurse in this form could only have come from the plaintiff. In a further review of him undertaken on 2 March he is reported as having PTSD from his time in gaol. This could only be a reference to an earlier time in gaol.

48. [293]

    In final submissions the plaintiff urged me to have regard to all of the Justice Health records. I have done so. The plaintiff relies on them for some of the questions in the Screening Assessment (such as “have you ever been told or think you had…”) but some of the other questions are more specific such as a questions about anxiety and bipolar in the last month which the plaintiff answered in the affirmative. Further, the submission that the questions or answers could be interpreted as referring to the short period between his incarceration and the assessment cannot be accepted as the questions are specific in being directed at the four weeks prior to incarceration.

49. [294]

    The effect of the complete Justice Health records is that the plaintiff is recorded as saying that in the immediate period before his incarceration he was suffering from anxiety, bipolar and depression, that he was taking medication for this and that he had suffered PTSD as a result of his earlier time in custody.

50. [295]

    For the purposes of these proceedings the plaintiff seeks to disown those statements. It is difficult to understand why Justice Health would have recorded these statements as made by the plaintiff if they were not made. I reject the submission that there is some ambiguity about the questions or answers.

51. [296]

    Further, there is ample evidence that the plaintiff had been diagnosed with bipolar disorder and suffered from mania. This is hardly a condition that could completely disappear for a period of three years prior to February 2021.

52. [297]

    The plaintiff’s history recorded by Justice Health is quite different from that presented by the plaintiff in these proceedings. Having said that, there is no record of any consultation with a general practitioner between April 2018 and February 2021 in respect of mental health problems. Further the PBS records do not support the statement that he was taking diazepam shortly before his arrest. This is puzzling but even allowing for the possibility of some error (in his statement that he was taking the drug) this does not explain him confirming those other symptoms to which I have referred.

53. [298]

    He relies on the notes and records from two general practitioners, being one in Moruya and one in Nowra. The Moruya records do not suggest that he attended for treatment after 13 April 2018, albeit that the document admitted into evidence is printed on 6 August 2018. It remains puzzling that he told Justice Health that he had been taking diazepam in the period before his incarceration in circumstances in which there is no record of a general practitioner prescribing this.

54. [299]

    The plaintiff first attended the Nowra General Practice in May 2019. He has attended that practice regularly although it is notable that between June 2021 and January 2022 he did not attend the practice with any mental health problems. This is significant because again the contemporaneous records are inconsistent with the history provided by the plaintiff in these proceedings.

55. [300]

    It was a condition of the plaintiff’s bail in March 2021 that he attend treatment for his mental health problems. He did so. However, when he did so he did not maintain a level of symptomology which he maintains in these proceedings. Indeed, his own self-reporting is not indicative of mental health problems including self-reporting that led to the conclusion that he was not suffering from depression, that his anxiety was moderate but he suffered from significant stress. Dr Kelly Mitchell records a consultation on 30 March 2021. Her notes are relevantly as follows:

56. [301]

    He completed a questionnaire on 3 June 2021 suggesting that he was “ok” in terms of his overall sense of wellbeing. Indeed contrary to the plaintiff’s claims in these proceedings even the Justice Health records tend to suggest a gradual improvement in his mental state over the period that he was in prison. This would be consistent with his complaints in the immediate period after release.

57. [302]

    Indeed, he was discharged from Nowra Community Health on 15 April 2021 having regard to his lack of mental health problems.

58. [303]

    This may be another indication that the plaintiff is saying different things at different times for different purposes. He was either minimising symptoms to avoid ongoing bail conditions, that is, continuing a mental health treatment, or his self-reporting was accurate at the time. A psychology summary issued on 3 June 2021 similarly does not suggest the sort of high level symptoms of which the plaintiff now complains.

59. [304]

    There is no record of any ongoing treatment for mental health problems or even consultation with a doctor or mental health professional until January 2022. Yet, he says that during that period, that is throughout 2021, he continued to suffer, that he had difficulty in completing his law course and he lost interest in legal concepts making completion of his course difficult. The problem with that is that he did very well in his law course in the second half of 2021 obtaining a distinction and a credit. His asserted lack of interest in legal concepts is not reflected in his exam results.

60. [305]

    Further, when he attended on the general practitioner in January 2022, he informed them that he was suffering from PTSD. The source of that information is uncertain other than what he said to Justice Health in February 2021, that is a pre-existing condition. There is no record of anyone diagnosing him with PTSD referable to his time in prison in 2021 prior to January 2022.

61. [306]

    The plaintiff’s regular visits to the Nowra general practitioner only commenced on 4 May 2022.

62. [307]

    He first consulted Dr Pignataro whose treatment was arranged and paid for through Victims Services on 24 March 2022. At that time, he reported symptoms of low mood, anxiety, impaired concentration, social withdrawal and isolation, ruminative thinking, constant poor sleep, and few social engagements. Dr Pignataro thought that his symptoms were consistent with PTSD. He has continued to see Dr Pignataro at least until December 2024.

63. [308]

    Both expert psychiatrists were asked to review the notes of Dr Pignataro. Dr Apler did not consider that his notes and records supported the diagnosis of PTSD. When asked to comment on this, Dr Allnutt did not actually say that the notes and records were consistent with PTSD. He merely suggested that the notes were sparse and Dr Pignataro might have been focusing on therapy seemingly rather than accurately recording the plaintiff’s history.

64. [309]

    I do not accept this. There is no evidence that Dr Pignataro’s records were incomplete.

65. [310]

    I am unable to reconcile the history provided by the plaintiff with his own self-reporting in the period of March to June 2021, the absence of any treatment up until January 2022 and his apparent success in completing his law course in the second half of 2021. It may be that the plaintiff was continuing to suffer symptoms during that period which were significant (contrary to his own self-reporting), but the plaintiff relies on the absence of consultations pre-February 2021 to support his assertion that he was well.

66. [311]

    I am left with the impression that the plaintiff says different things at different times depending on his purposes.

67. [312]

    In a psychiatric injury case, the expert psychiatric evidence is very important. Having said that so too are contemporaneous records because they often provide a better indication of what was happening and what was being said at particular points in time. This is a case in which there are some deficiencies in the initial reports of both medical experts, albeit there was some narrowing of the differences between the experts and the issues as a result of the conclave and concurrent evidence. Yet, the contemporaneous records tend to support the final views of the experts, being that the plaintiff suffers and had suffered from prior to February 2021 a chronic mood disorder condition which is episodic in nature.

68. [313]

    Contrary to how the plaintiff asked the Court to interpret the medical evidence, the experts did not say that that chronic episodic condition arose from the events of February and March 2021. Rather, it was episodic and chronic prior to February 2021.

69. [314]

    As set out in s 3B(1) of the Civil Liability Act 2002 (NSW) (“CLA”) the provisions of the CLA do not apply in respect of civil liability for intentional torts except that ss 15B and 18(1) as well as Pts 7 and 2A continue to apply. None of those sections have any relevance to this matter.

70. [315]

    As such, damages must be assessed under the common law. The restrictions and limitations on the awarding of damages contained in the CLA do not apply. Damages assessments under the common law may be higher than assessments governed by the CLA as, for example, the 3% tables apply on assessing future loss and the restrictions on interest do not apply.

71. [316]

    Compensatory damages are intended to put the plaintiff back into the position that he would have been but for the conduct of the defendant.

72. [317]

    Aggravated damages are also a form of compensatory damages which might be awarded to a plaintiff for stress, anxiety and hurt feelings that he or she suffers, over and above for any injury sustained arising from the particularly egregious conduct of a defendant towards the plaintiff.

73. [318]

    Damages are rarely awarded for hurt feelings, distress or emotional issues without the suffering or development of a recognised psychiatric illness (State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“Ibbett”) at [21] per Spigelman CJ).

74. [319]

    The plaintiff’s claims for substantial damages are based on the proposition that as a result of the events of February 2021 he developed a significant psychological condition which has rendered him unfit for work since being released from police custody in March 2021 and which has resulted in him experiencing significant and ongoing symptoms ever since February 2021, which will continue into the future.

75. [320]

    The problem with the plaintiff’s claims is that they are not supported by the evidence other than statements he has made for the purposes of these proceedings and some evidence from his partner and mother. He relies heavily on the fact that he was not cross-examined directly on his level of symptomology and was not challenged on his assertions as to his unfitness for work.

76. [321]

    That may be so but his reliance on his own evidence as somehow entitling him to the significant sums he claims:

    1. (1)

       misunderstands the nature of defence pursued by the defendant;

    2. (2)

       tends to ignore the effect of the contemporaneous medical records;

    3. (3)

       misunderstands the effect of the expert psychiatric evidence; and

    4. (4)

       assumes that any statement he makes must be accepted even when it is inconsistent with other statements he has made and contrary to other evidence.

77. [322]

    As I understand the position adopted by the defendant, it was that any symptoms of which the plaintiff complains (to the extent they are accepted) were not caused by the events of February 2021 but rather are a reflection of his pre-existing and ongoing mental health problems, including his mania, bipolar and depression.

78. [323]

    As I have endeavoured to set out in some detail in my review of the medical evidence, the defendant gained some support for that position from Dr Apler and indeed by the end of the concurrent evidence of Dr Allnutt.

79. [324]

    It is clear that once Dr Allnutt had access to the contemporaneous medical records, he qualified his views referring in particular to the events of February 2021 as causing an aggravation of his pre-existing condition and ultimately concluding that the plaintiff suffered from a long-term episodic mood condition which would continue to affect him and impair his capacity to work.

80. [325]

    Dr Allnutt did continue to maintain that there is another layer of symptoms on top of that condition being the symptoms referrable to PTSD but as I have indicated and for the reasons set out, I prefer the view of Dr Apler on that issue.

81. [326]

    Further, Dr Allnutt referred to improvement and admitted that he was unable to say how long the aggravating effects of the events of February 2021 continued. Again, this is part of the problem in not providing an accurate history to medico-legal experts. When a more accurate picture is obtained, the opinion shifts somewhat.

82. [327]

    The plaintiff places significant reliance on the lack of cross-examination of the plaintiff about his level of symptoms as set out in his evidentiary statement and as referred to by his mother and partner. It is correct to say that whilst the defendant did challenge the plaintiff on a number of aspects relevant to damages, it was never put to the plaintiff specifically that he did not suffer from the symptoms referred to in his evidentiary statements.

83. [328]

    As I have already indicated, I assume that was because the defendant’s approach was to assert that, whatever the level of symptoms, they are not referrable to the incarceration in February 2021. The plaintiff submits that having regard to the absence of the challenge the Court should accept the plaintiff’s evidence as to his symptoms, having regard to the rule in Browne v Dunn (1893) 6 R 67.

84. [329]

    The rule in Browne v Dunn is a rule based on fairness. It is not inflexible. In some circumstances, particularly when it is plain from the evidence already served on the other party that there is a challenge to the plaintiff’s claims, it may not be necessary to simply put every contrary position to the other party.

85. [330]

    As was most recently said by the New South Wales Court of Appeal in Smith v Blanch [2025] NSWCA 188 at [95]:

86. [331]

    If the defendant sought to assert that the plaintiff was a fraud and suffered from no symptoms, it would have been necessary for the defendant to put that to the plaintiff. However, the defendant’s case was more nuanced relying on its own medical evidence and the contemporaneous records, which were in some ways inconsistent with the history provided to the medico-legal practitioners. Further the defendant’s real case is that whatever the level of symptoms they were not referable to the defendant’s conduct.

87. [332]

    The plaintiff did not object to the defendant relying on the opinion of Dr Apler or even tendering the contemporaneous records. The plaintiff did not object to the defendant putting the questions which it did to the medical experts during the concurrent evidence.

88. [333]

    The plaintiff must be taken to have been aware of how he did in his law course in 2021. He must be taken to have been aware of what he was saying to the mental health experts after being released from prison. He must be taken to have been aware when previously examined by Dr Allnutt that the consequences of his head injury loomed large already, albeit he sought to exclude it from consideration in this case. I do not accept that the absence of challenge to some of the plaintiff’s evidence compels a finding that he suffers from PTSD referable to his incarceration in February 2021. The question of whether he suffered from PTSD referable to his incarceration was clearly an issue raised in the proceedings.

89. [334]

    I will assess damages according to my findings. They are to the effect that the plaintiff suffered an aggravation of his episodic mood disorder consequent upon his incarceration in February and March 2021 but that he did not develop PTSD as an additional layer of symptoms.

90. [335]

    The period for which his symptoms such as they were continued because of the aggravation rather than the pre-existing condition is uncertain, but I accept the opinion of Dr Apler that well before the hearing the plaintiff’s symptoms were indicative of a recurrence of his episodic mood condition rather than the effects of his incarceration in February and March 2021.

91. [336]

    I thus do not accept that the plaintiff has developed or will continue to suffer from a long-term psychological condition as a result of his incarceration in February and March 2021.

92. [337]

    The plaintiff is entitled to be compensated for the significant effects and impact on him during his period of incarceration and for a period thereafter.

93. [338]

    As I have already indicated, he was already paranoid about police prosecution and presented as being vulnerable to this sort of conduct to which he was exposed in February and March 2021. What he said to Justice Health, shortly after being incarcerated, is probably an accurate reflection of what he thought about himself and his concerns about what the impact of being wrongly imprisoned would have on him.

94. [339]

    In his statement he refers to panicking the whole time he was imprisoned and having a fear that he would not be released. He was extremely concerned that the police might have destroyed the evidence or would destroy the evidence. I have no reason to doubt that he had that belief having regard to his paranoia about the police conduct. His period in gaol was difficult and distressing and made more difficult by his pre-existing paranoia, mania and other mental health problems.

95. [340]

    Certainly, as submitted by the plaintiff, the eggshell skull theory applies and the defendant must take plaintiff as it finds him (see Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [279]).

96. [341]

    His experience would have been more difficult and more distressing than perhaps other persons facing a similar situation. Having said that, his own self-reporting after being released from prison indicates whatever distressing feelings he might have been experiencing about never being released, panicking and being fearful for his own safety must have reduced significantly on being released.

97. [342]

    I do not accept that the plaintiff’s suffering should be equated with that of Mr Spedding. It is all very well to cite passages from Mr Spedding’s judgment both at first instance and in the Court of Appeal and suggest they are applicable to the plaintiff but on any view, Mr Spedding’s ordeal was much more lengthy, much more public and much more significant.

98. [343]

    Further, I accept the general proposition (as Basten JA said in Capar v SPG Investments Ltd t/as Lidcombe Power Centre [2020] NSWCA 354 at [186]) that the absence of medical records for some years prior to a tortious event may support the proposition that the plaintiff was not suffering from psychological problems in that period. However, that observation can only go so far in a case in which within days of the tortious event, the plaintiff was himself informing Justice Health of his psychological problems and there is ample evidence that the plaintiff was suffering from conditions, such as bipolar, which is of course a form of mood disorder.

99. [344]

    Further, in my view the defendant has disentangled the prior conditions from any disability consequent on the tortious conduct in the sense that, through the opinions of Dr Apler and then Dr Allnutt the defendant has established that any ongoing problems result from the plaintiff’s pre-existing condition rather than the effects of the tortious conduct in 2021.

100. [345]

     The fact that the plaintiff was vulnerable and more likely to suffer as a result of being wrongfully imprisoned is a matter that I have taken into account in assessing general damages. The fact that he had a worse time in prison in February and March 2021 because of his vulnerable state is also a matter I have taken into account in assessing general damages.

101. [346]

     I assess general damages in the sum of $200,000. Included in that amount is the amount of $1,500 per day for each day that the plaintiff spent in prison. He spent 22 days in prison.

102. [347]

     In terms of reputational damage, I accept that the plaintiff is entitled to an additional sum. I award the sum of $50,000. I accept that he suffered some reputational damage as a result of his wrongful incarceration and the allegations against him, but unlike in Spedding (with whom the plaintiff compares himself) the plaintiff was not wrongly accused of kidnapping and killing a child or having previously been engaged in child sex offences.

103. [348]

     Further, the plaintiff’s period of incarceration was limited and the charges against him were dropped very shortly thereafter. There was no allegation that the plaintiff harmed anyone and the plaintiff did not tender any media reports on which I could further consider his claim for loss of reputation. The content of his website and his earlier dishonesty must also be considered in assessing any allowance for loss of reputation.

104. [349]

     The applicant submits that:

105. [350]

     In his closing submissions he suggested that his claim for loss of earnings as a solicitor should be assessed as a buffer rather than some specific weekly sum. This must be reflective of the evidence which casts some doubt as to whether he would have been admitted as a solicitor. I will deal with that issue firstly.

106. [351]

     The plaintiff bears the onus of establishing his loss. I could only award damages for the loss of the chance to be admitted as a solicitor if I am satisfied that there is a basis on which the plaintiff might have been admitted as a solicitor, that is, that he lost the opportunity to be so admitted and to earn income as a solicitor because of the tortious conduct of the defendant (the loss of a chance).

107. [352]

     The plaintiff is not entitled to a buffer for loss of earning capacity merely because he says he would have liked to work as a solicitor. Of course, in this case he was studying law at the time of the relevant events.

108. [353]

     As it turns out, he successfully completed his law degree in the months after the relevant events. Further, he has completed his PLT online. He has all the qualifications necessary to be a solicitor, but he has chosen not to apply to be a solicitor. That is not merely inadvertent. It is his deliberate decision.

109. [354]

     On his case, this is because he now suffers from a psychiatric illness which would preclude him from working altogether. Whether that be so does not matter. The defendant asserts that he would be ineligible for admission in any event.

110. [355]

     In order to be admitted, it would be necessary for him to establish that he is a fit and proper person to be admitted (see Legal Profession Uniform Admission Rules 2015 (NSW), r 10). Having regard to the evidence in these proceedings, I am not satisfied that he has any prospect of being admitted. I say this for the following reasons:

111. [356]

     I thus do not accept that he had any realistic prospect of being admitted as a solicitor. The matters to which I have referred are not short-term or transient issues which might be resolved to the satisfaction of the admitting authority.

112. [357]

     I am assessing his prospects of being admitted as a solicitor on the evidence before me. I do not accept that there was any realistic prospect. This is not a case involving a loss of a chance. There was no realistic chance. In the circumstances, his claim for a buffer based on the loss of a chance of being admitted fails. Further, his claim for a buffer also fails because any ongoing incapacity is not related to the defendant’s tortious conduct.

113. [358]

     The task of assessing loss of earning capacity is to compare the plaintiff’s pre-February 2021 earning capacity with his earning capacity since that time and into the future (Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 (“Husher”)).

114. [359]

     As the Court said in Husher, the past is often a guide but is not determinative (Husher at [8], [14]). His work record prior to 2019 was limited and spasmodic. He commenced work as a wardsman in 2019. Between that time and February 2021 he worked as a wardsman on a part time basis earning approximately $800 per week net. I accept that he lost his job because he was incarcerated. He would have continued to work if not incarcerated, although his current absence from work is not related to his incarceration.

115. [360]

     The proper approach to assess loss of earning capacity is to give the plaintiff the benefit of the doubt and accept that his condition was aggravated as a result of the events of February 2021. I accept that aggravation continued at least for a period. As Dr Apler said, any continuing symptoms were not caused by the events of February 2021.

116. [361]

     I would allow the plaintiff his full loss of income as a wardsman for two years, being $83,200. That would include the initial 9 months when, according to his own reporting, he was suffering from limited symptoms and he was able to complete and do very well in his law course (in other words that is a generous assessment).

117. [362]

     As the plaintiff has not established that any ongoing psychological problems are caused by the incarceration in February and March 2021, he is not entitled to any additional sum on account of loss of earning capacity.

118. [363]

     Further, I do not accept that he lost the chance of becoming a solicitor because of his incarceration in February and March 2021. He was unlikely to be admitted as a solicitor in any event.

119. [364]

     The plaintiff’s claim for out of pocket expenses is unclear and unsubstantiated. His treatment from his psychologist has been paid by Victims Services. He makes a claim for medication and general practitioner expenses, but his Medicare records suggest expenditure of only a few hundred. During closing submissions, I asked to be taken to the evidence of expenditure on Seroquel as there did not seem to be any. I did not receive a satisfactory response. Nevertheless, I will give the plaintiff the benefit of any doubt and will allow the sum of $1000. His claim of $100,000 for the future is ridiculous. He is not entitled to any allowance for the future.

120. [365]

     It is unclear whether he is pursuing a claim for domestic assistance or care (I did not receive a schedule). For completeness, he would not be entitled to any allowance. The extent of his symptoms post release was never sufficient to suggest that he could not perform personal and domestic tasks.

121. [366]

     I accept that the plaintiff is entitled to aggravated damages having regard to the tortious conduct of SC Keneally and DS Felgate.

122. [367]

     The plaintiff submits that he should be entitled to aggravated damages in part because the injury suffered by him was caused by the conduct of three (I found two) police officers. They continued to deny and maintain that their actions were justified and because the defendant in defending the matter did not make relevant admissions when it should have and continued to maintain a defence at least on behalf of DS Felgate.

123. [368]

     Aggravated damages are compensatory. To the extent that the plaintiff may suffer additional loss, such as hurt feelings, stress and anxiety caused by the conduct of the defendant both during and after the event, aggravated damages may be awarded.

124. [369]

     Aggravated damages may be awarded in a case of malicious prosecution or other intentional torts having regard to the way in which the defendant conducts the defence (see Nye v State of New South Wales [2003] NSWSC 1212 at [249]-[250]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [381]-[382]).

125. [370]

     Having said that, in circumstances in which the police officer, SC Keneally, maintained his innocence and was defending the charge against him, the defendant could hardly admit liability, responsibility or tortious conduct on the part of SC Keneally. He was entitled to maintain his innocence if he wished to and the denial of liability in the original defence filed by the defendant in these particular circumstances does not lead to any extra sum on account of aggravated damages.

126. [371]

     Similarly, the case against DS Felgate, that is the defendant’s case, was plainly arguable and turned on findings as to DS Felgate’s conduct over a very limited period.

127. [372]

     I reject the proposition that the plaintiff was entitled to some additional sum on account of aggravated damages because the defendant denied liability on behalf of DS Felgate in both its original and amended defence.

128. [373]

     Aggravated damages are not awarded just because a party files a defence denying liability in a case involving contentious issues of fact and when the primary tortfeasor (SC Keneally) was continuing to maintain his innocence in criminal proceedings against him.

129. [374]

     Having said that, in this case the defendant through its servants and agents, was aware in the initial period after the plaintiff was incarcerated, that there were really no grounds to prosecute him in respect of the allegation of threatening to kill a police officer. It must have been well aware that he was therefore wrongfully incarcerated. Whilst the defendant consented to the dismissal of the charges, there was no acknowledgment that it was wrong or expression of any sort of remorse or regret for wrongfully imprisoning the plaintiff. The plaintiff thus had to fight to recover damages and to establish a liability on the part of the defendant.

130. [375]

     Having regard to the plaintiff’s general obsession and paranoia about the police, this must have added stress, aggravation and hurt feelings. He is entitled to some allowance for aggravated damages, and I award the sum of $50,000.

131. [376]

     Exemplary damages are intended to punish the defendant and serve other purposes, such as retribution or deterrence (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 at 149).

132. [377]

     Unlike aggravated damages, exemplary damages are not compensatory in nature. As observed in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [12], exemplary damages are awarded rarely. The principles applicable to a claim for exemplary damages in a case such as this were set out by the New South Wales Court of Appeal in Spedding at [314]-[318] and include:

     1. (1)

        The purpose and award of exemplary damages is to punish and deter the wrongdoer rather than compensating the injured person (Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 at 8-9 per Mason CJ, Brennan, Deane, Dawson, and Gordon JJ);

     2. (2)

        Exemplary damages are particularly significant where public officials have been involved in the commission of the torts (see Ibbett at [39]). This is so because the use of public power for proper purposes may have significant consequences in the administration of justice and other public institutions.

     3. (3)

        An award of exemplary damages serves to deter future actions and indicate that the Court would not tolerate such conduct (see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149 and Ibbett at [40]).

133. [378]

     In Spedding an award was made for exemplary damages but that was in circumstances in which the Court said at [317]:

134. [379]

     I reject the plaintiff’s attempt to cast himself as being comparable to Mr Spedding. The plaintiff was in custody for a limited period after which the charges against him were withdrawn. There was no national exposure of the plaintiff, he was not paraded in front of the TV cameras. He was not alleged to have killed anyone or to have been involved in earlier sex offending.

135. [380]

     Further, as the defendant admits, it is liable because of the conduct of its police officers. SC Keneally has already been convicted and punished. There can be no greater punishment than that. It is generally inappropriate to award exemplary damages when the wrongdoer has already been punished for his conduct. I have made findings about the conduct of DS Felgate, but those findings relate to a very limited period during which the plaintiff remained in prison when DS Felgate should have been aware that the case against the plaintiff had no merits.

136. [381]

     I do not consider this to be a particularly strong case for exemplary damages. I award the sum of $40,000.

137. [382]

     The power to award interest on damages up to judgment is governed by s 100 of the Civil Procedure Act 2005 (NSW).

138. [383]

     The plaintiff is not entitled to interest as of right (State of New South Wales v Loh Min Choo [2012] NSWCA 275 at [54] per Macfarlan JA, McColl and Campbell JJA agreeing). An award of interest is in the discretion of the Court. The purpose of awarding interest is “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period” (MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 (“MBP”) at 663 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

139. [384]

     I will award interest on general damages (all of which are for the past) calculated as follows: 2.5% x $200,000 x 4.5 years = $22,500.

140. [385]

     The plaintiff is entitled to interest on past loss of earning capacity. I award interest from 24 February 2021 until 12 September 2025 at the rate of 2.5%. This amounts to $9,460.

141. [386]

     I assess damages as follows:

     1. (1)

        General damages: $200,000;

     2. (2)

        Reputational damage: $50,000;

     3. (3)

        Past loss of income: $83,200;

     4. (4)

        Out of pocket expenses: $1,000;

     5. (5)

        Aggravated damages: $50,000;

     6. (6)

        Exemplary damages: $40,000;

     7. (7)

        Interest on general damages: $22,500; and

     8. (8)

        Interest on past loss of earning capacity: $9,460.

Orders

1. [387]

   I make the following orders:

   1. (1)

      Judgment for the plaintiff in the sum of $456,160.

   2. (2)

      The defendant is to pay the plaintiff’s costs.

2. [388]

   I remind the parties that should any party seek a variation of these orders, an application must be made within 14 days.