Murphy v The State of New South Wales

1. [1]

   The plaintiff claims damages against the State of New South Wales for what are said to be two wrongful arrests resulting in his false imprisonment and malicious prosecution. The arrests and the prosecutions arose out of two sexual encounters the plaintiff had with two separate women; SH in June 2015 and AC in August 2015.

2. [2]

   The charges against the plaintiff were dismissed on 20 June 2018 after a contested committal hearing.

3. [3]

   The plaintiff claims that the arrests and the bringing of the charges caused psychiatric problems and resulted in him losing his employment.

4. [4]

   The State of New South Wales is sued pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) and ss 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) in respect of the actions of three police officers. The plaintiff was arrested on the first occasion by plain-clothes constable Giselle Scantlebury at the direction of Sergeant Garren Hamilton, and on the second occasion by plains-clothes constable Tom Stillwell.

Background

1. [5]

   The plaintiff’s arrest and charging arises out of the activities of persons interested in BDSM (Bondage, Domination/Discipline and Sadomasochism). The two complainants, AC and SH, along with the plaintiff and a number of other persons involved, were subscribers to a blog called FetLife, a blog for people interested in BDSM, which published profiles of members of the group that outlined personal details and their fetishes. The subscribers to the blog used names other than their own name to conceal their identities.

2. [6]

   The plaintiff joined FetLife in 2014 and used the name “the Wolf”.

3. [7]

   His first arrest and set of charges related to AC. He first started communicating with AC on 4 March 2015. The usual practice appears to have been that the persons communicated through the FetLife website and then moved their communications to SMS or WhatsApp.

4. [8]

   The plaintiff had a number of casual sexual encounters with a number of women whom he met through FetLife, including the complainants AC and SH, as well as other people including LNP and GBC. Most of the encounters occurred at hotels or motels; most of the encounters involved consensual acts of BDSM including consensual acts of both sex and violence, with the plaintiff as the dominant person and the women as the submissive persons.

5. [9]

   The evidence disclosed that persons who engage in BDSM frequently have what are called safe words to indicate when they do not wish matters to proceed any further in the way they are occurring. A frequently used word in that regard is “red”. The plaintiff gave evidence that he understood that if someone said “’red’ or anything else that sounds unusual and could be a safe word, all activities should stop immediately”.

6. [10]

   Although the first set of charges involved AC, the incident which led to the charges, occurred in August 2015. That post-dated the incident which led to the charge involving SH. The incident involving SH took place in June 2015. AC made her complaint on 24 March 2016, whereas SH did not complain until 27 October 2016, two days after the plaintiff was arrested in relation to AC. It is convenient, nevertheless, to set out the detailed facts generally in chronological order.

7. [11]

   The relevant police officers who investigated, arrested and charged the plaintiff were (at the time) plain-clothes constable Tom Stillwell (both the AC and SH charges), plain-clothes constable Giselle Scantlebury (the AC charges), and Sergeant Garren Hamilton (officer in charge of both investigations). Neither Sergeant Hamilton nor Constable Scantlebury remains in the police force, but I will refer to them as Sergeant Hamilton and PCC Scantlebury respectively. Constable Stillwell is now Detective Senior Constable but I will refer to him as PCC Stillwell.

8. [12]

   A number of issues at the trial concerned messages between the plaintiff on the one hand, and AC and SH on the other. There appeared to be three separate ways the parties messaged each other; by SMS, by WhatsApp, or by means of the FetLife website which appeared to involve what is known as a chatroom. In some cases, it was not clear by what means the messages had been transmitted. There was the further difficulty, left unresolved, that a Cellebrite analysis of AC’s phone produced a number of messages between AC and the plaintiff, whereas other documents of transcribed downloads (for example, Ex E) contained not only those messages but additional ones throughout the same period as the Cellebrite analysis. No-one seemed able to explain how that could occur, but no expert evidence about those matters was called at the trial. The issue was of some importance in relation to the charges involving both AC and SH.

Events involving SH

1. [13]

   The plaintiff first spoke to SH online on 23 March 2015, and they first met for sex on 4 May 2015. The plaintiff had sex with her on five other occasions, the last being on 28 August 2015. On the fourth occasion, 2 June 2015, the plaintiff suggested they have a threesome with another woman. SH agreed. The other woman was GBC, whom the plaintiff had met online a short time before 2 June 2015,

2. [14]

   The statement of SH of 18 December 2016 sets out what she claims happened on 2 June 2015:

3. [15]

   As is apparent, there was another person involved in those events, GBC. GBC was a person whom the plaintiff had met through FetLife and with whom he had previously had a number of sexual liaisons.

4. [16]

   Her statement about what occurred with SH on 2 June 2015 dated 25 May 2017 relevantly says this:

5. [17]

   SH first made complaint to PCC Scantlebury at Kings Cross police station when she attended at about 7.30pm on 27 October 2016 with a person known as JD as a support person.

6. [18]

   On 6 November 2016, SH appears to have provided to the police a copy of one WhatsApp conversation between herself and the plaintiff. Subsequently, on 13 May 2017 she provided to the police screenshots of other WhatsApp conversations between herself and the plaintiff. These conversations commenced on 26 July 2015 and went until 22 November 2015. I note in passing at this point that one of the issues in these proceedings concerns the absence of the messages prior to 26 July 2015.

7. [19]

   Subsequently, the messages predating 26 July 2015 were provided. Relevantly, those messages were these (where “P-q” is the plaintiff):

Events involving AC

1. [20]

   As mentioned earlier, the first arrest and set of charges arose as a result of a complaint by AC. The plaintiff first spoke to AC online on 4 March 2015, and they first met in person on 20 March 2015. They had casual sex on six occasions.

2. [21]

   AC and the plaintiff had not agreed on a safe word, but they both knew the safe word “red”.

3. [22]

   Initially the encounters involved light BDSM sex including spanking, hair pulling and light choking. However, AC asked the plaintiff to make it more intense.

4. [23]

   At one of the encounters between the plaintiff and AC in early August 2015, a photographer had taken artistic pictures of the two of them whilst they engaged in their activities. This was referred to in the proceedings as the “fetish photo-shoot”. This event was of some significance because of messages passing between the plaintiff and AC after the occasion which led to the charges

5. [24]

   On the penultimate occasion when the plaintiff had sex with AC, AC asked the plaintiff to “scare her”. The plaintiff choked her very hard, put a plastic bag over her head, and hit her very hard with his belt. She afterwards complained that she was not really scared.

6. [25]

   On 22 August 2015, the plaintiff and AC exchanged messages. On the face of the transcript of these messages (which became Ex E), they appear to be exchanged through a chatroom, presumably on the FetLife website, but Mr Sheller of Senior Counsel for the plaintiff asserted that they were SMS messages. The relevance of that will be made clear later, but it concerns the extent of the messages the police had obtained by the Cellebrite analysis. In the messages which follow, “e” is the plaintiff and the phone number ending in 677 is AC.

7. [26]

   The messages read:

8. [27]

   It was the encounter between the plaintiff and AC on 24 August 2015 that led to his arrest and charges. The encounter took place at the Mercure Hotel in Potts Point. The arrangements appear in a further exchange of messages on 23 and 24 August via the same medium:

9. [28]

   In her statement made on 24 March 2016, AC described what happened on 24 August 2015 in this way:

10. [29]

    After AC made that statement, she was asked by PCC Scantelbury to make a further statement to clear up some matters. The further statement, dated 3 April 2016, relevantly said this:

11. [30]

    The date in par 12 is obviously wrong. It should be read as 24 April 2015.

12. [31]

    On 25 August 2015 AC and the plaintiff exchanged the following message:

13. [32]

    On 27 August 2015 AC and the plaintiff exchanged the following message:

14. [33]

    On about 28 August 2015, AC flew to Perth to see a person, QD, with whom she had been in a non-monogamous relationship since about June 2015. QD, who subsequently made a statement for the criminal proceedings, said that around this time also AC sent photographs to QD of the injuries she said she had suffered at the plaintiff’s hands on 24 August 2015. Those photographs were never made available to the police nor were they available in the present proceedings.

15. [34]

    The plaintiff and AC continued to message each other, using the same medium, on 29 August, 14 September, 3, 4, 22, 23, 25, and 28 October 2015. Some of these exchanges were initiated by AC and some by the plaintiff.

16. [35]

    In about October 2015, LNP, another woman on FetLife with whom the plaintiff had had sexual encounters, posted a blog entitled “The Footballer” on FetLife. As a result of the blog, LNP was contacted by AC on about 22 October 2015. She asked LNP if she was writing about any specific person. LNP said that the blog was about the plaintiff. LNP and AC agreed to meet up on 24 October 2015.

17. [36]

    On the day the blog was posted, QD said in his statement that he rang AC and asked if she had anything like what was described in the blog happen to her with the plaintiff. She said that she had not. The next day AC sent an SMS to QD saying that she needed to talk to him, but she wanted to speak to LNP first.

18. [37]

    In a statement which LNP subsequently provided to PCC Scantlebury on 11 August 2016, LNP said this about the meeting with AC on 24 October 2015:

19. [38]

    The evidence pointed to this meeting being the first time that AC had made a complaint to anyone about what happened on 24 August 2015.

20. [39]

    On 5 December 2015, the plaintiff and AC exchanged the following messages:

21. [40]

    In March of 2016, AC first made a complaint to the police and gave a statement to Constable Lockyear at Redfern Police Station.

22. [41]

    On 11 August 2016, LNP gave a statement to PCC Scantlebury.

23. [42]

    On 16 August 2016, QD made a statement to PCC Scantlebury. He related what I have set out earlier (at [33] to [37]), and then said that he received a phone call from AC later on the day she met LNP. His statement then records:

24. [43]

    Following this conversation, on the next day, 9 May 2016 AC posted a blog on the FetLife website entitled “It’s all fun and games until someone gets hurt”. In that blog she said (relevantly):

25. [44]

    At the end of the blog, this appeared, (presumably added later):

26. [45]

    On 25 August 2016, PCC Stillwell completed an analysis of the messages from the Cellebrite of AC’s phone. Of the messages set out at [27] and [32] above, only those portions in italics and underlined appeared in the Cellebrite. None of the exchanges set out at [39] appeared in the Cellebrite. No-one was able to explain why the remainder of the messages did not appear.

The first arrest – 25 October 2016

1. [46]

   The police determined to arrest the plaintiff after he left his house. He was driving along Bunnerong Road in Little Bay. PCC Scantlebury, who was driving the police car, activated her warning lights and siren, and pulled the plaintiff over.

2. [47]

   When the vehicles had stopped PCC Scantlebury showed her warrant card. The plaintiff handed his driver’s licence to her.

3. [48]

   PCC Scantlebury had a conversation with the plaintiff at 7.50am as follows:

4. [49]

   PCC Scantlebury says that as the plaintiff got out of his car she realised that he had his child in the car. The child was very upset.

5. [50]

   The arrangement that was made was that Sergeant Hamilton would travel with the plaintiff in his car to drop his daughter off at child care in Kent Street, Sydney.

6. [51]

   After that was done, at 8:55am, PCC Scantlebury had a further conversation with the plaintiff as follows:

7. [52]

   PCC Scantlebury then drove Sergeant Hamilton and the plaintiff to Kings Cross Police Station where they arrived at 9:08am.

8. [53]

   At about 10:15am the plaintiff’s ERISP commenced. Sergeant Hamilton said:

9. [54]

   During the ERISP, the following exchanges occurred:

10. [55]

    It is agreed that where “CONSTABLE SCANTLEBURY” occurs above Q 45, that should be a reference to Sergeant Hamilton.

11. [56]

    Mr Sheller SC drew attention to the portions underlined above, and to what he described as a promise by the interviewer not to ask questions about the night in question (in bold). He submitted that it was inappropriate for the police to have persisted with the questioning, and particularly in relation to the night in question, when the plaintiff had indicated that he wanted to get a lawyer and not answer any more questions.

12. [57]

    The ERISP concluded at 10.41am. PCC Scantlebury then took the plaintiff back into the custody area of the police station and a forensic procedure was carried out.

13. [58]

    At the conclusion of the forensic procedure the plaintiff was taken back to the interview room. At about 12.15pm, Sergeant Hamilton said:

14. [59]

    PCC Scantlebury then commenced charge proceedings against the plaintiff. The plaintiff was charged with two counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW), one count of attempted aggravated sexual assault, and one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

15. [60]

    The plaintiff was subsequently released on bail at 3.20pm.

16. [61]

    On 26 October 2016, the DPP took carriage of the prosecution of the offences charged on 25 October 2016.

17. [62]

    On 28 October 2016, the plaintiff met with a woman called Sarah Vissaritis, with whom he had been friends for about four and a half years. They were also linked through FetLife. The plaintiff handed to Ms Vissaritis a black USB. He said that it contained every text message between him and AC. He said the messages proved her to be a liar. He asked Ms Vissaritis to give it to the press if “it all goes pear shaped”.

18. [63]

    Ms Vissaritis subsequently on 28 December 2016, gave it to Sergeant Hamilton and PCC Scantlebury.

19. [64]

    Between 11 and 14 November 2016, the plaintiff said that he attempted suicide on four occasions. The last such attempt resulted in serious damage to one of his wrists where he had cut them.

20. [65]

    In the meantime, on 27 October 2016, SH made her complaint to Kings Cross police.

The second arrest – 8 June 2017

1. [66]

   Arrangements were made by the police either with his solicitor (as Sergeant Hamilton said) or with Charles Waterstreet SC (as the plaintiff said), for the plaintiff to attend at Kings Cross police station on 8 June 2017 in relation to another charge. When the plaintiff attended, he was approached by Sergeant Hamilton and PCC Stillwell in the foyer at 11.40am. The following conversation occurred:

2. [67]

   The plaintiff was then taken to the charge room where a forensic procedure was carried out.

3. [68]

   At 1.07pm PCC Stillwell approached the plaintiff and the following conversation occurred.

4. [69]

   Thereafter, the plaintiff was asked if he wished to participate in an interview or make a statement, and he declined. He was then charged with having sexual intercourse without consent contrary to s 61J(1) of the Crimes Act. At 2.27pm he was refused bail by the police. At 6.15pm the plaintiff was transferred to Surry Hills Court Cell Complex. The following day he was granted conditional bail at Central Local Court.

5. [70]

   On 13 June 2017, the DPP took carriage of the prosecution of the charge laid on 8 June 2017.

6. [71]

   The occasions where the plaintiff was alleged to have filmed SH preceded the date on which it was alleged the plaintiff had sexually assaulted SH. The charges concerning the filming did not go ahead because it was ascertained that they were statute-barred.

Committal proceedings

1. [72]

   All of the charges were heard at committal proceedings on 19 and 20 March 2018 and 14 May 2018. On 20 May 2018, Magistrate Halburd dismissed all of the charges against the plaintiff.

2. [73]

   In relation to the charges concerning AC, the Magistrate reached the following conclusions:

3. [74]

   In concluding that she did not believe there was a reasonable prospect that a reasonable jury properly instructed would accept beyond reasonable doubt that the complainant did not consent to sexual intercourse at the time of the incident, the Magistrate said:

4. [75]

   In relation to SH, the magistrate concluded as follows:

5. [76]

   The Magistrate concluded that a jury would conclude that what SH seemed to be saying was that she did not like the bisexual aspect of the encounter but there was no mention of withdrawal of consent. The Magistrate concluded also that there was significant differences between SH’s account and the account given by GCB, and she accepted a submission that the descriptions given by them were totally ambiguous as to the withdrawal of consent.

6. [77]

   The reasons given by the Magistrate for dismissal of the charges do not, of themselves, provide the basis for findings in these civil proceedings about the justificiation for the arrests of the plaintiff or about whether the proceedings were instituted or maintained maliciously. The enquiry is a different one, but those reasons have been set out to provide a more complete understanding of the present proceedings and the disposition of them.

Legislation

1. [78]

   Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides:

2. [79]

   Section 202 of LEPRA relevantly provides:

The arrests

1. [80]

   The issues in relation to the arrests were said to be:

2. [81]

   It should be noted that the statement of claim did not in terms identify issues in relation to s 99(1)(a), with the pleadings’ focus being on the terms of s 202(1)(c). However, Mr Sheller SC had made clear at an early time that similar issues arose in relation to suspicion on reasonable grounds required under s 99(1)(a) as had to be considered in respect of the fourth element of the tort of malicious prosecution.

3. [82]

   The plaintiff’s complaint about his arrest in this matter is based on two matters. First, the plaintiff says that s 202(1)(c) of LEPRA was not complied with. Secondly, the plaintiff says that the arresting officer did not have reasonable grounds for suspecting that he had committed an offence as is required by s 99(1)(a) of LEPRA.

4. [83]

   What was said at the time of the plaintiff’s arrest is set out at [48] and [51] above. The particular complaint is that on both occasions PCC Scantlebury did not provide the reason for the exercise of the power because no reference was made to the person against whom the plaintiff was supposed to have offended, nor were any other details of when or where the offending occurred supplied to him. It is not contended that s 99(1)(b) was not satisfied.

5. [84]

   The burden of proving that the plaintiff’s arrest was lawful lay on the State.

6. [85]

   The particulars of the lawfulness of the arrest were pleaded as follows:

7. [86]

   In Christie v Leachinsky [1947] AC 573 Lord Simonds said (at 593):

8. [87]

   In State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303, Ipp JA, having set out what Lord Simonds said above, went on to say:

9. [88]

   In State of New South Wales v Abed [2014] NSWCA 419 the plaintiff was told when being arrested that she was under arrest for assault but no further explanation was given to her at that time. The police had effected the arrest because the second wife of the former husband of the plaintiff had made a telephone call to the triple-0 operator reporting that a woman had broken into and entered her house and was armed with a knife. When told she was being arrested for assault she asked the arresting officers “Why?” on a number of occasions, but she was told that the matter would be explained to her when they got back to the police station.

10. [89]

    In the Court of Appeal, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) upheld the finding of the trial judge that the arresting officer had not told the plaintiff the “true reason” for her arrest, and that the first explanation of that was given some hours later at the police station.

11. [90]

    Justice Gleeson said:

12. [91]

    In Hyder v The Commonwealth [2012] NSWCA 336; (2012) 217 A Crim R 571, McColl JA (Hoeben JA agreeing) said:

13. [92]

    In my opinion, merely telling the plaintiff that he was being arrested for sexual assault did not satisfy the requirement in s 202(1)(c) of LEPRA. The plaintiff was entitled to know what the facts were that were said to constitute the crime for which he was told he was being arrested. That was particularly the case when, to the knowledge of the arresting officer, the plaintiff had been involved in sexual and other activities with a number of women through the Fetlife website. That was clearly the case from the statements that the officer had from AC, LNP and QD. Any of the women with whom the plaintiff had been involved might have made an allegation of sexual assault against him. Moreover, the police officer knew that the particular complainant AC had engaged in sexual and other activity with the plaintiff on a number of occasions prior to the incident at the Mecure Hotel on 24 August 2015 for which he was being arrested.

14. [93]

    There was a faint suggestion by counsel for the State that it was not practicable for the arresting officer to have provided the facts to the plaintiff because of the presence of his daughter in the car. There are a number of answers to that suggestion. First, his daughter was three years old, and if she heard anything it would have been that her father was being arrested for sexual assault where, if she had overheard what ought to have been said, it would have been that he was being arrested as a result of an incident with AC at a hotel on a particular date. Secondly, the notion that the daughter was the reason for the limited information is put to rest by the fact that after the daughter had been delivered to childcare, PCC Scantlebury effectively rearrested the plaintiff using the same words as she had earlier. It was not explained why at least on that occasion she could not have provided the reason for his arrest by identifying the complainant, the date and perhaps the location of the alleged offending.

15. [94]

    Thirdly, Sergeant Hamilton agreed that there was no reason that PCC Scantlebury could not have told the plaintiff “who, where and when in terms of the victim”. He also agreed that the real reason for the arrest was not provided to the plaintiff either when first arrested in Bunnerong Road, or later at Kent St in the city.

16. [95]

    The arrest was not carried out in accordance with s 202(1)(c) and was unlawful. The plaintiff was subject to a period of false imprisonment as a result.

17. [96]

    The State contends, however, that it is necessary to consider the materiality principle when examining the breach of a statutory power, as identified in decisions such as Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [27]-[29] and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441. In the latter case, the joint judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ said:

18. [97]

    It may be doubted that the power contained in s 202 of LEPRA is one to which the principle discussed in Hossain and MZAPC is relevant, where s 202 and associated sections constitute a statutory re-enactment of the common law: State of New South Wales v Randall [2017] NSWCA 88 at [12].

19. [98]

    Nevertheless, on the assumption that this principle operates in relation to s 202 of LEPRA, I do not consider that a failure to provide the sort of information which cases such as Christie v Leachinsky, Delly and Abed say ought to be provided, can be said to be immaterial. The liberty of the subject from arbitrary arrest has always been jealously protected, so that any failure to comply with s 202 (which largely mirrored the common law), would have to be very minor. Indeed, in Randall, Basten JA suggested at [32] that a failure by the arresting officer to give his name or station might be one that would not invalidate the power. However, the failure in the present instance was one of substance (State of New South Wales v Smith [2017] NSWCA 194 at [143]), and if the non-compliance was effectively waived by some reliance on materiality, it would tend to undermine the whole of the requirement in s 202(1)(c).

20. [99]

    The State submitted that, if the arrest was initially unlawful by reason of a breach of s 202(1), it became lawful at the time the plaintiff was informed that the charges concerned AC and the encounter on 24 August 2015 at the Mercure Hotel. I accept that submission.

21. [100]

    In Michaels v The Queen (1995) 184 CLR 117, the High Court said (at 125-126):

22. [101]

    When the plaintiff was informed at 10.15 am on 25 October 2016 of the reason for his arrest (see at [53] above), he was effectively re-arrested. Alternatively, his prior unlawful arrest(s) became lawful: see also Randall at [93].

23. [102]

    The position is, therefore, that the plaintiff was wrongfully arrested and subjected to false imprisonment from 7.50am to 10.15am on 25 October 2016.

24. [103]

    Although, as noted earlier, criticism was made of the police for having persisted with questioning the plaintiff when he had indicated that he did not want to answer further questions, by the time of the ERISP he was being lawfully detained. That behaviour on the part of the police, although unsatisfactory, does not impact on the damages for wrongful imprisonment.

25. [104]

    There are, of course, two aspects to what is contained in s 99(1)(a) of LEPRA. The first aspect is the subjective aspect, that the police officer had the suspicion that the plaintiff had committed the offences. Mr Sheller said that it was not possible for him to submit that the police officers did not have the suspicion which they said they had. On the evidence in the present matter, that concession was correctly made, particularly given what Basten JA said in Randall at [13]:

26. [105]

    I accept the evidence of PCC Scantelbury and Sergeant Hamilton that they held that suspicion.

27. [106]

    It is the second aspect of the test which the plaintiff challenged, namely, that the suspicion was held on reasonable grounds. The plaintiff submitted that, in relation to the offences involving AC, there could not have been a suspicion held, let alone one on reasonable grounds, that the plaintiff had committed any offences against AC given that:

28. [107]

    No complaint was made by the plaintiff with respect to the decision to invoke s 99(1)(b) in the circumstances.

29. [108]

    In relation to the words “suspects on reasonable grounds”, in R v Rondo [2001] NSWCCA 540 Smart AJ (with whom Spigelman CJ and Simpson J agreed) said:

30. [109]

    On 22 October 2016, Sergeant Hamilton prepared what is called an Investigator’s Note which set out the basis for his decision to arrest the plaintiff. It relevantly said:

31. [110]

    In my opinion the police officers’ suspicion that the plaintiff had committed the offences was held on reasonable grounds. There was more than the possibility that the offences had been committed, albeit they were committed in unusual circumstances. Both of the statements of AC made clear that consensual activities had taken place up to a certain point. They also made clear that the consent was effectively withdrawn at a certain point. The police officers did not make a distinction between the consent to the acts of violence and the consent in relation to the sexual activity. That distinction was put to them whilst they were cross-examined, but their evidence demonstrated that they considered that the two matters were inextricably linked. In terms of what was taking place between the parties, that conclusion was not an unreasonable one. The fact that the magistrate hearing the committal proceedings had a different opinion does not make the officers’ approach unreasonable.

32. [111]

    In the first statement by AC on 24 March 2016, AC related that the plaintiff had struck her very hard with a cord, as a result of which she screamed at him, “Liam, don’t hit me! Please don’t hit me again! Please don’t touch me! Stop! Red!” She said that she was crying and whimpering, and he hit her again. She said that he then pulled her towards him and forced himself on top of her. She said:

33. [112]

    In her second statement of 3 April 2016 she said that she was desperately trying to end the scene after he had hit her. She physically tried to get away and curl up. She said that when he hit her a further two times she eventually just gave up and lay there. She said:

34. [113]

    The police officers’ belief that AC had withdrawn her consent both to the violence and the sex was, in those circumstances, a reasonable suspicion.

35. [114]

    In addition, the police officers had the complaint evidence from LNP, although what was said there did not contain the detail that was in AC’s statements.

36. [115]

    The police officers also had the statement from QD which had annexed to it the blog posted by AC entitled, “It’s all fun and games until someone gets hurt”. That blog set out in greater detail than had been told to LNP what occurred on 24 August 2015. It also contained what was said to be the withdrawal of consent to what was occurring followed by the acts of sexual intercourse.

37. [116]

    It was submitted for the plaintiff that AC did not, in her blog or in LNP’s account of what AC said, say that she used the word “Red”. However, in her blog she said, as she had said in her second statement that she had used the plaintiff’s real name when asking him to stop. In her second statement she said that she had never previously used his name before in other “scenes”. That is some indication that she did try to convey to him that “stop” meant stop. The fact that she did not use the word “Red” in the account given to LNP does not detract from her overall complaint. It is clear from LNP’s statement that more was told to her than is set out in her statement. LNP’s conclusion was that by the way AC said “No”, anyone would have known that AC was not consenting

38. [117]

    It is not without significance that at the conclusion of that blog, the following appeared:

39. [118]

    The police had the Cellebrite record from AC’s phone. As set out earlier, this did not contain the full extent of the messaging between AC and the plaintiff. However, it did have a message at 21:07 hours on 24 August 2015 from the plaintiff to AC saying “Great to see you”, to which AC responded, “Yes likewise”.

40. [119]

    Mr Hamilton gave evidence that he did not remember whether he saw those messages or not – he simply could not recall. He was taken to the further messages on 27 August where AC and the plaintiff spoke about the Fetlife photoshoot. He disagreed that those exchanges were completely inconsistent with any sexual assault having occurred a few days earlier, and when asked why not he said that he did not know what a consistent exchange between a victim and an offender would like.

41. [120]

    I accept that evidence from Mr Hamilton because it has now come to be accepted as received wisdom that victims of sexual assault do not behave in any consistent way after the assault, particularly when interacting with the person allegedly their offender. Indeed, juries in sexual assault matters now are often given directions concerning that sort of thing.

42. [121]

    The plaintiff relied on the terms of the messages between AC and the plaintiff which post-dated the encounter with AC on 24 August 2015, particularly the exchanges on 5 December 2015 (at [39] above). The police did not have these messages at the time the plaintiff was arrested in relation to the matters concerning AC. These messages came from a USB which was given to the police on 28 December 2016 by Ms Vissaritis, a friend of the plaintiff. The plaintiff had given that USB to Ms Vissaritis on 28 October 2016. That was three days after his arrest in respect of AC. He said to Ms Vissaritis at the time:

43. [122]

    The plaintiff did not give evidence about this, and no explanation was provided for why the plaintiff did not give the USB to the police, rather than to Ms Vissaritis, especially if he thought that all the messages were not then available to the police.

44. [123]

    As noted earlier (at [12]), a Cellebrite analysis of AC’s phone produced some of the messages passing between AC and the plaintiff, but not all of them, and no explanation was provided about how that was possible. In particular, exchanges on 25 August 2015 ([31] above) and 27 August 2015 ([32] above except the underlined statement), and the exchanges on 5 December 2015 (set out at [39] above) were not on the Cellebrite download. The significant matter is, in contrast to the position in the SH matter, that nobody seemed to be aware that specific messages were missing from the Cellebrite analysis. The highest the matter was put was the plaintiff saying, during his ERISP, that he had “full documented evidence of text messages” saying that AC enjoyed what occurred and asked him to do it again and again.

45. [124]

    I do not consider that the police did not have reasonable grounds for their suspicion that the plaintiff had committed the offences against AC having regard to the material which they had, and had considered, and in circumstances where they were not aware of other material which later became available without neglect on their part, even though that material cast a different light on the matter.

46. [125]

    The circumstances of the second arrest of the plaintiff are set out at [66]-[71]. What occurred in terms of what was said by the police at the time of the arrest did not differ in substance from what was said at the time of the arrest in relation to AC. No explanation of any sort was put forward on behalf of the defendant to explain why, during the course of an arranged arrest which did not have any of the practical problems associated with the earlier arrest, the details of the offending were not disclosed to the plaintiff. PCC Stillwell could not recall why he did not tell the plaintiff the name of the name of the complainant, the date of the offending, or where the filming was supposed to have taken place.

47. [126]

    The matter is made worse by the evidence of the plaintiff (not objected to despite its hearsay nature) that at the time Sergeant Hamilton rang Mr Waterstreet SC to tell him that the plaintiff needed to attend at Kings Cross Police Station to accept another charge, he said, “He won’t see this coming”. If that was Sergeant Hamilton’s view, it was the more incumbent upon him to inform the plaintiff of the reason for his arrest so that the plaintiff could make an appropriate response to it if he sought to do so.

48. [127]

    There was evidence from Sergeant Hamilton, contained in the Investigator’s Note relating to the decision to arrest the plaintiff for the offences concerning SH, which read as follows:

49. [128]

    Those two accounts are not necessarily inconsistent, but the issue was not taken up by either counsel at the trial if any inconsistency was perceived. Nor did Sergeant Hamilton deny saying what was attributed to him by Mr Waterstreet. Given that the onus is on the State to proves the lawfulness of the arrest, I accept the unchallenged evidence of the plaintiff that Sergeant Hamilton said those words.

50. [129]

    I cannot accept that the plaintiff was any the wiser about the incident or incidents for which he was being arrested by being told that it involved ten counts of filming a person engaged in a private act. That is particularly the case when the plaintiff and AC had previously been involved in the fetish film shoot, and it was common for those who used the Fetlife website to post intimate pictures of themselves and others.

51. [130]

    In my opinion, the arrest was carried out contrary to the requirements of s 202 of LEPRA, and was unlawful.

52. [131]

    However, subject to what follows, and for the reasons given in relation to the arrest concerning AC, the arrest did not remain unlawful from 1.07pm on 8 June 2017 (when Constable Stillwell informed the plaintiff of the reason for his arrest (set out at [68] above)), by reason of the earlier breach of s 202.

53. [132]

    The fact that this was the second occasion on which the plaintiff had been wrongly arrested by reason of the same breach of s 202 is a matter which impacts upon the damages to which the plaintiff is entitled.

54. [133]

    Unlike the investigator’s note in relation to AC which set out a number of matters leading to the conclusion that the plaintiff should be arrested, the investigator’s note in relation to the proposed arrest in relation to SH said only this:

55. [134]

    What the police had was a statement from SH which asserted that, within the context of an encounter involving consensual sex and violence with SH and another woman GBC, the plaintiff had had sexual intercourse with SH after she had withdrawn her consent. The police also had a statement from GBC which, in general terms but not as to the detail, supported SH’s assertion that sexual intercourse without consent took place with SH.

56. [135]

    It was clear, however, from SH’s statement that the encounter took place after a number of earlier encounters between her and the plaintiff, and that SH met the plaintiff on a number of subsequent occasions. Further, the statement made clear that there were WhatsApp messages between SH and the plaintiff around the time of 2 June 2015 and afterwards. However, the only WhatsApp messages attached to SH’s statement commenced on 26 July 2015.

57. [136]

    The evidence of PCC Stillwell was that he had arranged for SH’s two mobile phones to be taken SEEB for analysis. He said that the phones were not able to be examined, and he obtained that information from Laurence Mayer at SEEB. He agreed that there was no statement in the prosecution brief from Mr Mayer. Even at the hearing of these present proceedings, there was no statement from Mr Mayer or anyone else providing information about why SH’s phones were unable to be accessed. PCC Stillwell did not believe that there was any such statement.

58. [137]

    Mr Mayer made a statement on 20 June 2017 in which he recorded that he had been asked by PCC Scantlebury and PCC Stillwell to examine a number of exhibits identified in the statement. PCC Stillwell said in his evidence that all of the devices listed by Mr Mayer were electronic devices seized from the plaintiff’s house at the execution of the search warrant. He confirmed that none of the devices listed was a phone belonging to SH. He insisted, despite the absence of any statement or report from Mr Mayer, and the absence of any paper trail in relation to SH’s phones, that he had provided Mr Mayer with SH’s phones. Whilst I accept that PCC Stillwell was giving his evidence honestly, either he is mistaken about the matter, or there was some systemic failure at SEEB which did not result in any evidence from them in relation to SH’s phones.

59. [138]

    PCC Stillwell gave evidence that he did not make any request of Mr Mayer or others at SEEB to provide a statement about SEEB’s review of the plaintiff’s electronic devices. All that was available was the statement of Mr Mayer of 20 June 2017 which did not disclose what the content was of the files located by him on the devices.

60. [139]

    PCC Stillwell agreed that contemporaneous messages were important evidence, and that he wanted to see those messages. He did not recall having any discussion with SH about those contemporaneous messages, or where they were to be found.

61. [140]

    The matter was not without considerable significance because of what appeared in the messages subsequently produced, dating from 2 June to 11 June 2015 (at [19] above). What appears in those messages tends to put a different perspective on what SH had said in her statement. At the very least, it is apparent that the police would have been required to ask questions of SH and obtain an explanation for what appears in those messages and her willingness to see the plaintiff again, as subsequently occurred.

62. [141]

    The position in relation to the absence of messages in the SH matter differs from the absence of messages in the AC matter. In the AC matter, the existence of the missing messages, and the fact that there were any missing messages, did not become apparent until Ms Vissaritis provided the USB to the police on 28 December 2016. In the SH matter it was clear that other WhatsApp messages existed because SH referred to them in her statement.

63. [142]

    In circumstances where the onus of proof is on the State to demonstrate that the arrest was properly effected because the police officer suspected on reasonable grounds that the offence had been committed, the lack of any proper explanation for the failure of the police to access the WhatsApp messages at and after 2 June 2015, and the failure to identify at the time what evidence was actually relied on to justify the arrest, means that the State has failed to prove that the suspicion of the police officers was held on reasonable grounds.

64. [143]

    If, as PCC Stillwell appeared to assert in cross-examination, the basis for the arrest was simply the statements of SH and GBC, then the suspicion was not held on reasonable grounds. That was principally because he knew from SH’s statement that she had subsequent consensual sexual encounters with the plaintiff, and he considered the missing messages important. As McColl JA (Leeming JA and Sackville AJA agreeing) said in State of New South Wales v Smith [2017] NSWCA 194 at [119]:

65. [144]

    Nor is it without significance that in relation to AC, further relevant messages had come to light since the plaintiff’s arrest in that matter, and before his arrest in the SH matter, and those messages tended to show the relationship between AC and the plaintiff in a different light from what had first seemed to be the case; in particular, the message where AC said, “God I don’t think you’re a rapist”. The fact that those messages subsequently became available, and on their face provided some support for what the plaintiff had said in his ERISP, highlighted the unreasonableness of the suspicion that the plaintiff had committed the offence of sexually assaulting SH, when the police knew that there were missing contemporaneous messages passing between SH and the plaintiff.

66. [145]

    In the absence of locating the missing WhatsApp messages between SH and the plaintiff, the arrest should not have occurred.

67. [146]

    Much was made by the plaintiff of the reliance by the police on persons in the fetish community who had ranged themselves against the plaintiff. These persons were chiefly JD, LNP, GBC and QD. The suggestion was that they were influencing or manipulating AC and SH to make and pursue their complaints. A number of these people, including SH, were said to be living together in some sort of polyamorous arrangement in what was known as the House of Cadifor. It was submitted that the police should have been wary about accepting what these people said, and that they should have informed the plaintiff of the living arrangements of those persons, because of the risk of contamination of evidence.

68. [147]

    Mr Sheller SC asked Sergeant Hamilton a number of questions about any concerns he had about collusion between witnesses and contamination of evidence arising from the persons who were members of the House of Cadifor. He accepted that contamination of evidence is always a real possibility, but his knowledge that some of the witnesses were members of that house did not raise his concerns to any higher level. I accept his evidence in that regard, and I do not consider that it was an unreasonable view to hold.

69. [148]

    I do not consider that the police acted improperly in the way they dealt with those persons, nor that there was any obligation on the part of the police to provide any information about their living arrangements to the plaintiff. The evidence suggests that the plaintiff was aware that these people were not at all supportive of him. In my opinion, the police made the decisions they did with regard to charging the plaintiff on the material which I have identified in each case of AC and SH. That material necessarily involved GBC in the case of SH because she was present at the time of the alleged offending, and involved LNP in the case of AC, because LNP was the first person to whom AC made complaint.

70. [149]

    It was no surprise that QD had a particular view of the plaintiff; he was seeing AC at the time she was involved with the plaintiff, and QD and AC ultimately commenced a monogamous relationship. QD was also a person AC saw and spoke to shortly after the events of 24 August 2015 when AC travelled to Perth within a few days to see QD. JD attended at Kings Cross Police Station with SH on 27 October 2016 as her support person. SC Scantlebury, in a statement of 1 June 2017, refers to JD’s presence on that occasion, but does not record that he said anything at all. There is no other evidence of JD’s involvement with the police, other than when police went to the premises where he was living, when they were enquiring about the welfare of GBC.

71. [150]

    Issues arising from witnesses living together, or being in a sexual relationship, or having a grudge against the plaintiff, were properly matters to be dealt with at trial or, if it was permitted, at the committal hearing under Div 6 of Chapter 3 of the Criminal Procedure Act 1986 (NSW), as in fact occurred with some witnesses at the plaintiff’s committal hearing. I do not consider that those matters impacted the reasonableness of the suspicion held by the police in respect of either AC or SH.

72. [151]

    The State submitted that, in respect of false imprisonment, the period is from the time of the unlawful arrest to the time when bail is granted or refused.

73. [152]

    In Nye v State of New South Wales [2003] NSWSC 1212 O’Keefe J said:

74. [153]

    Nothing in Nye suggests that a bail decision other than one by a judicial officer is relevant to ascertaining a period of detention. The plaintiff had been refused by bail by a police officer on the day of his arrest in relation to SH. The plaintiff’s continued detention occurred by a decision of the police. Where the plaintiff’s claim is for false imprisonment brought about by a wrongful arrest by the police, a refusal of bail by the police does not bring an end to that wrongful imprisonment.

75. [154]

    As noted above (at [69]), the plaintiff was granted bail at Central Local Court on 9 June 2017. The period of his wrongful detention was approximately 24 hours.

Malicious prosecution

1. [155]

   In A v New South Wales (2007) 230 CLR 500; [2007] HCA 10, the High Court said at [1]:

2. [156]

   The Court also said at [2]:

3. [157]

   The authorities have at times interchanged the third and fourth elements. When I refer to the elements by number I am following what was said in A. In relation to the fourth element, there are two aspects to the matter. The first is subjective (“What did the prosecutor make of the material available?”). The second is an objective test (“What should the prosecutor have made of it?”): A at [58].

4. [158]

   In Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318 Basten JA (Gleeson and Leeming JJA agreeing) said:

5. [159]

   There can be no doubt about the first two elements of the tort in relation to either AC or SH.

6. [160]

   The fourth element is that in initiating or maintain the proceedings the police acted without reasonable and probable cause.

7. [161]

   The amended statement of claim was ultimately filed on the fifth day of hearing, at the conclusion of the evidence. However, the form of the statement of claim had been provided at an earlier time. It contained 28 particulars of the absence of reasonable and proper cause, but during Mr Sheller SC’s final address these were reduced to eight.

8. [162]

   Mr Sheller SC accepted that if the State satisfied the onus that there was a reasonable and honest suspicion for the arrest, then, absent anything happening in between arrest and charge, the plaintiff would probably not satisfy his onus on proving absence of reasonable and proper cause. I have determined that the State has satisfied its onus in that regard concerning AC. Nevertheless, I will consider the particulars the plaintiff relies on to show there was no reasonable and proper cause.

9. [163]

   The plaintiff pressed the following four particulars in relation to AC:

10. [164]

    I have already determined that that the relevant police officers (PCC Scantelbury and Sergeant Hamilton) suspected on reasonable grounds that the plaintiff had committed the offences of sexual assault. The test that makes up the fourth element of malicious prosecution is similar but not identical to that test. It asks the question whether there was reasonable and proper cause for instituting or maintaining the proceedings. The onus in this regard is on the plaintiff to show “the absence of a belief by the prosecutor that the person charged ‘was probably guilty of the crime imputed’”: Bailey at [12]. It is nevertheless significant that the State has demonstrated, (proof of the justification for the arrest being on the State) that the police officers did suspect on reasonable grounds that the offences had been committed. What the plaintiff appears to be suggesting is that, even if the arrest was justified, no charges should have been laid until the factual matters contained in these particulars had been satisfactorily resolved, and that, in the absence of such a resolution, the plaintiff demonstrated an absence of reasonable and proper cause in addition to malice.

11. [165]

    The first three of the particulars can be dealt with together, as they all involve allegations that the police officers did not clarify differences between AC’s statements and the blog she posted entitled “It’s all Fun and Games”.

12. [166]

    While the description of what occurred in the blog is shorter and contains less detail than what appears in AC’s statements, the narratives are largely consistent. Certainly, the blog does not mention anything about AC’s use of the safe word “Red”. Whilst that is certainly an inconsistency, it is not something which detracts from the remainder of the account contained in AC’s statements. I made reference to this earlier at [116]. The police officers had seen this blog at the time of the plaintiff’s arrest; it was not something that later came to their notice in a way that cast doubt on the reasonable suspicion they had at the time of the arrest.

13. [167]

    Any inconsistencies were matters that would need explanation at some point, even as late as when AC was being cross-examined at the trial, but in themselves they do not show that the police lacked a belief that the plaintiff was probably guilty of the crimes alleged. It will frequently be the case that contemporaneous messages or other contemporaneous material will contain inconsistencies from what a complainant says in a statement and/or evidence in chief at a trial. The mere existence of such inconsistent material does not mean that the police do not have reasonable and proper cause for charging a person with a crime. Nor can it be overlooked also that the plaintiff was charged with assault occasioning actual bodily harm, and there was little doubt on the basis of the statements and the blog that that offence had occurred.

14. [168]

    It is difficult to understand the significance of particular 19.7 and, indeed, even what it is asserting. The particular originally read:

15. [169]

    In his final address, Mr Sheller SC said that he was no longer asserting what was contained in the underlined words. He said that the particular concerned the co-habitation issue (which was discussed at [146]-[150] above). For the reasons I there gave, this issue did not impact on the reasonableness of the suspicion the police then had at the time of the arrest of SH, nor does it impact on the reasonable belief which the police had at and after the time the plaintiff was charged with the offences concerning AC. At best, it raises an issue that can properly only be determined at any trial or, possibly, at a committal hearing, as outlined at [150] above.

16. [170]

    In my opinion, the plaintiff does not show that the police did not have reasonable and probable cause to charge him with the offences.

17. [171]

    The particulars ultimately relied upon in respect to SH were these:

18. [172]

    I have already determined that the police did not have reasonable grounds for holding any suspicion that the plaintiff had committed the offence against SH. There were two bases for that conclusion. The first was the failure to identify what evidence was relied upon to hold the suspicion and thereby justify the arrest. The second was the absence of the WhatsApp messages prior to 26 July 2015, in circumstances where PCC Stillwell knew that the plaintiff and SH subsequently had consensual sex and he knew that the missing messages were important.

19. [173]

    Although the onus is on the plaintiff to demonstrate an absence of reasonable and probable cause (whereas the onus is on the state to prove a suspicion on reasonable grounds for the arrest), it follows from my earlier determination in this matter (the two matters are not necessarily linked in all matters) that the plaintiff shows an absence of reasonable and probable cause. PCC Stillwell’s belief in the guilt of the plaintiff (which was not challenged) was not one held on reasonable grounds because of the absence of the evidence of the messages which he knew to be important, and his knowledge of a continuing sexual relationship with SH. As noted, the messages discovered after the plaintiff’s arrest in relation to AC threw a different light on that complaint. It was not reasonable for him to have charged the plaintiff with the sexual assault of SH until those messages of hers had been tracked down, and further enquiries made of SH in the light of them. In reaching this conclusion, I do not overlook what the High Court said in A at [86] about further enquiries which could have been made.

20. [174]

    I do not accept, as particulars 19.18 and 19.19 assert that PCC Stillwell wilfully took active steps to prevent highly probative evidence from being examined forensically or that he knew the messages were in fact highly probative.

21. [175]

    No submissions were made about particular 19.20.

22. [176]

    For reasons I gave when considering the plaintiff’s arrest for offending against SH, the knowledge the police had about the House of Cadifor did not provide any basis to show an absence of reasonable and proper cause.

23. [177]

    It may be accepted that, if no reasonable and proper cause is shown, that would assist the plaintiff in showing an improper motive: Bailey at [20]. The obverse is also true; where the evidence demonstrates that the police acted with reasonable and proper cause, it will be more difficult for the plaintiff to establish an improper motive or purpose. However, these elements are not coterminous, and they must be addressed separately.

24. [178]

    It is apparent from the particulars of malice for both AC and SH that the plaintiff relies on largely the same behaviour that was said to show the absence of a reasonable and probable cause.

25. [179]

    The particulars of malice are these

26. [180]

    Mr Sheller SC accepted that there was no evidence of malice as it concerned ill will. He did not point to any improper purpose to demonstrate malice. He submitted that the other basis on which malice could be established was to show knowledge by the police of the absence of reasonable and probable cause. He said the highest that he could put the submission was the proposition that he had put to Sergeant Hamilton as follows:

27. [181]

    Sergeant Hamilton denied that proposition. I accept his denial in relation to his approach in this matter. Whilst some things could have been explored in greater depth, and the failure to access the missing WhatsApp messages in relation to SH was a good example, that was not any indication that there was any improper purpose. Nor did it show a knowledge of the absence of reasonable and proper cause in charging the plaintiff.

28. [182]

    I accept that PCC Stillwell had an honest belief that an offence had been committed by the plaintiff against SH based on the statements he had from SH and GBC, and from the other evidence that at least corroborated where the offending took place. There is no evidence to show that he knew that he had no reasonable basis for charging the plaintiff in relation to the offence against SH.

29. [183]

    Accordingly, the element of malice is not made out in respect of either AC or SH. The plaintiff’s claim for malicious prosecution fails.

Damages

1. [184]

   The plaintiff is entitled to damages only for two arrests carried out contrary to the requirements of s 99(1)(a) of LEPRA (in the case of SH), and the requirements of s 202(1)(c) of LEPRA (in the case of both SH and AC).

2. [185]

   In the case of AC the plaintiff was falsely imprisoned for two hours and 25 minutes. In the case of SH, because the arrest was also carried out contrary to the provisions of s 99(1)(a), the plaintiff was falsely imprisoned for 24 hours which included being held overnight in a police cell.

3. [186]

   The plaintiff is entitled to compensatory damages for his wrongful arrest and detention. Although there was no satisfactory reason offered for the failure on two occasions to comply with the requirements of s 202, I do not consider that the behaviour of the police amounted to contumelious behaviour, to justify an award of exemplary damages: Lamb v Cotogno (1987) 164 CLR 1 at 13; Randall at [52].

4. [187]

   There was nothing about the circumstances of the arrest to justify an award of aggravated damages. Apart from the failure to state the reason for the arrest, the arrest was otherwise justified, and the subsequent charging of the plaintiff did not constitute a malicious prosecution.

5. [188]

   Nevertheless, in Lule v State of New South Wales [2018] NSWCA 125 Macfarlan JA (with whom Beazley P and Barrett AJA agreed) said at [62]:

6. [189]

   In Ruddock v Taylor (2003) 58 NSWLR 269; [2003] NSWCA 262 Spigelman CJ said at [49]:

7. [190]

   In my opinion, the plaintiff should receive compensatory damages in the sum of $10,000 for his wrongful arrest and false imprisonment.

8. [191]

   The wrongful arrest and period of false imprisonment in respect of SH was in a more serious category. Not only did PCC Stillwell fail to comply with his obligations under s 202(1) in circumstances where the arrest was pre-arranged and carried out at leisure in the police station, his suspicion of the commission of an offence by the plaintiff was not reasonably held at that time. Further, as has been noted earlier, the fact that other messages had subsequently become available in respect of the offences charged in relation to AC before he arrested the plaintiff for the SH offence, only highlighted the extent of the unreasonableness of his suspicion, especially when he wanted to obtain access to the contemporaneous messages relating to SH.

9. [192]

   The measure of damages is only confined to a 24-hour period for the false imprisonment, not because of any steps PCC Stillwell took in relation to the investigation, but because a judicial officer granted the plaintiff bail.

10. [193]

    In State of New South Wales v Smith, McColl JA said at [103]:

11. [194]

    While the circumstances of the arrest made that experience less confronting than what had occurred on Bunnerong Road relating to AC, the plaintiff should not have had to undergo that experience, and may never have been charged with the SH offence if PCC Stillwell and Sergeant Hamilton had considered the evidence carefully, and diligently sought what they knew was missing. This is not, however, a claim in negligence, but those matters inform the measure of damages in circumstances where the plaintiff was falsely imprisoned for 24 hours.

12. [195]

    In my opinion, the plaintiff should be awarded compensatory damages in the sum of $20,000 for the second wrongful arrest and false imprisonment.

Interest

1. [196]

   In addition, the plaintiff is entitled to interest at court rates on $10,000 from 25 October 2016 and on $20,000 from 8 June 2017.

Other damages

1. [197]

   Although I have held that the plaintiff fails in his claims for malicious prosecution, I should say something briefly about what damages he might have been entitled to, lest I am held to be in error in my determination of those claims.

2. [198]

   It is not really possible to separate the two sets of criminal proceedings and to attribute damage to one rather the other. However, it is certainly the case, because of the time between the arrest and charges relating to AC on the one hand, and the arrest and charge for SH on the other, that much of the damage was done arising from the first set of charges. The plaintiff claimed that he lost his job, his marriage broke up, and his mental health declined to the point where he attempted suicide a number of times within one months of the first arrest.

3. [199]

   Although the plaintiff was diagnosed as having major depression as a result of the criminal charges by both Dr Lewin who examined him for the State and Dr Matthew Jones who examined him for the plaintiff’s solicitors, it became clear that that depression was not the first time the plaintiff had suffered from the condition. Indeed, Dr Lewin described it as Recurrent Unipolar Major Depression and said that it was a recurrence of a pre-existing psychiatric condition.

4. [200]

   The evidence disclosed that the plaintiff had first suffered depressive symptoms in 2010 at the time of his father’s death. Thereafter, he had a second depressive episode at and after the birth of his daughter. The plaintiff actually described that episode as post-natal depression. It lasted for about a two year’ period, and he undertook some consultations with a psychologist and a psychiatrist but did not find the treatment helpful. He described depressive feelings, feelings of guilt and low self esteem, a lack of engagement with his daughter, and concerns that he would be “a terrible parent”. He described loss of energy and sustained low mood, harsh self-critical ruminations and feelings of hopelessness.

5. [201]

   The plaintiff said that he and his wife drifted apart in the first 12 to 18 months after the child was born. The plaintiff felt that his wife focused exclusively on the needs of the baby, and he felt neglected and undervalued in the relationship. He and his wife began to live separate lives, were not communicating, and felt estranged from one another.

6. [202]

   A report from a psychologist, Suzanne De Bakker, of 7 March 2016 provide some indication of the plaintiff’s position earlier in the year he was first arrested. The plaintiff presented to Ms De Bakker on 29 February 2016. The report relevantly reads:

7. [203]

   By the time the plaintiff came to be examined by Dr Matthew Jones in March 2020 and Dr Lewin in August 2020, both psychiatrists considered that he was no longer suffering from a psychiatric disorder, with Dr Lewin noting normal functioning in the previous 12 months. Both psychiatrists accepted that the cause of the depression in 2016 was the plaintiff’s arrest and charging.

8. [204]

   The position is, therefore, that, although the arrest and charging triggered a further depressive episode, the plaintiff had experienced similar problems in the past and was seemingly prone to suffer from mental health issues. Further, although his marriage finally came to an end as a result of the arrest and charging, there had been significant problems in it for some years prior. The plaintiff agreed, for example, that it wasn’t his arrest in October 2016 that caused his wife to want to divorce him; it was the fact that she found out about the life he was pursuing through Fetlife.

9. [205]

   The depressive episode suffered by the plaintiff as a result of the arrest and charging was nevertheless a significant one. Despite the challenge made by the State, I accept that the plaintiff did attempt suicide in a serious way on a number of occasions at the end of 2016.

10. [206]

    If I had found that the plaintiff had been maliciously prosecuted in respect of the offences charged, I would have assessed general damages in the sum sought of $50,000.00. In addition I would have awarded legal costs of defending the proceedings of $68,000 as claimed.

Economic loss

1. [207]

   The plaintiff confined his claim for economic loss to past economic loss.

2. [208]

   The plaintiff relied on tax assessments to show his taxable income for the years before the charges were brought and up to the present time. The evidence was otherwise somewhat unsatisfactory about the details of the plaintiff’s employers and when he commenced and left its employment.

3. [209]

   Nevertheless, the evidence did indicate that the plaintiff had had a chequered employment history. He had started a business called Scout Brand Research with a friend in around 2013, although he continued to engage in other employment at the same time. Scout ceased to operate a few years later. The plaintiff said that his partner wanted to pursue other avenues, but the business does not appear to have been very successful. The plaintiff was retrenched from, or was made redundant by, Bacardi in 2015.

4. [210]

   The plaintiff’s tax assessments show his taxable income and tax payable, so that his net income can be calculated. Those assessments show the following:

5. [211]

   It can be seen that, in the five tax years preceding the plaintiff’s first arrest, in all but one, his net income was well below what would be regarded as an average income, and in three of those years was below the poverty line.

6. [212]

   Taxable income was identified for the years ending June 2020, June 2021 and June 2022 in the amounts of $84,691.00, $105,803.00 and $135,268.00 respectively, but no assessments were provided for those figures.

7. [213]

   On 5 August 2016 the plaintiff received an offer of employment with Max Brenner Australia. The position was National Marketing Manager on a salary of $100,000 plus 9.5% superannuation. His salary was to be reviewed after 8 months dependant on performance. The plaintiff accepted that offer and commenced with Max Brenner.

8. [214]

   On 16 November 2016 the plaintiff received a letter from Max Brenner terminating his employment. The letter relevantly read:

9. [215]

   The State submitted that the letter showed that the plaintiff was dismissed for matters other than his arrest and charging, but I accept the plaintiff’s evidence that he had received positive feedback for his performance, and that the true reason for his dismissal was the arrest and the charges. I also accept the plaintiff’s evidence that he was unable to get further employment within the industries he had worked because of the notoriety of the charges. In any event, the psychiatric and psychological evidence tends to show that he had limited capacity to work until after the charges were dismissed.

10. [216]

    The plaintiff subsequently, in January 2019, obtained a job as a beer representative with Phoenix Beers. In December 2019 he was promoted to National Account Manager. His taxable income for 2021 ($105,803) is comparable to what he was to earn at Max Brenner, albeit five years earlier. It seems likely, although there was no direct evidence of the matter, that his taxable income for 2022 ($135,268) means that by the time of trial he was earning approximately what he would have been earning, had the arrest and charges not intervened.

11. [217]

    I would have awarded past economic loss based on his net income from Max Brenner from August 2016 with increments up to his taxable income actually earned in the June 2022 tax year.

Conclusion

1. [218]

   The plaintiff should bring in Short Minutes to reflect these reasons and to indicate an agreed interest calculation. Since the result is mixed one for each party, I will hear the parties on costs