Edwards v State of New South Wales

HIS HONOUR: By a further amended statement of claim filed on 3 May 2017 (“FASOC”), Mr Matthew Edwards (“the plaintiff”) claimed damages for false imprisonment and malicious prosecution. His claim arose out of his arrest on 25 February 2011, and subsequent prosecution, for causing grievous bodily harm to Mr Daniel Fing (“Mr Fing”) with intent to murder. On 18 February 2013, the plaintiff’s trial commenced. On 26 February 2013, a jury returned a verdict of not guilty.

The plaintiff sued the State of New South Wales (“the State”) as being vicariously liable for the actions of (the then) Detective Senior Constable Jason Gill (“DSC Gill”) and the employees, agents and officers of the Office of the Director of Public Prosecutions (“ODPP”). DSC Gill was the Officer-in-Charge of the investigation into the shooting of Mr Fing.

The State admitted that it would be vicariously liable for torts committed by DSC Gill or prosecutors within the ODPP, but denied any such alleged torts were committed.

The FASOC was lengthy with the pleadings and particulars extending to 33 paragraphs which, with sub-paragraphs, expanded the pleadings and particulars over about 16 pages. Counsel for the plaintiff also filed a written submission dated 17 September 2019, extending over 68 paragraphs (“the plaintiff’s written submissions”).

Based upon the combination of those pleadings and submissions, the case for the plaintiff on liability, in broad terms, ultimately consisted of the following:

The plaintiff seeks the following relief:

The tort of malicious prosecution is committed when a person wrongfully and with malice institutes or maintains legal proceedings against another. At the heart of the tort is the notion that the institution of proceedings for an improper purpose is a “perversion of the machinery of justice”: Mohamed Amin v Jogendra Bannerjee [1947] AC 322.

The constituent elements of the tort were stated by the plurality of the High Court in an extensive decision on the topic in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A v NSW”) at [1] (per Gleeson CJ, Gummow, Kirby Hayne, Heydon and Crennan JJ). These were succinctly reformulated by the High Court in Beckett v New South Wales (2013) 248 CLR 432; [2013] HCA 17 (“Beckett”) at [4], as follows:

In these proceedings, issues arise as to the third and fourth step.

The conduct on which the tort focuses is the taking of an “active step” by the relevant prosecutor. A mere omission to act is not an active step. Nor is a state of affairs.

The principles and authorities were summarised by the Court of Appeal in State of New South Wales v Landini [2010] NSWCA 157 (“Landini”) at [52]-[59] (per Macfarlan JA, with Tobias JA agreeing at [1], Sackville AJA agreeing at [119]). There, the Court of Appeal said:

In the context of the tort of malicious prosecution, a prosecution is not initiated by an arrest. Rather, it is not initiated until the process of a court is invoked. As the Victorian Court of Appeal held in Mutton v Baker [2014] VSCA 43 at [37]:

The tort has what the High Court has described as a “temporal dimension”: A v NSW at [59]. The High Court said:

Thus, what is relevant, however, is what the plaintiff proves about the material that the prosecutor had available for consideration, first when deciding whether to commence the proceedings, and thereafter from time-to-time during the maintenance of the prosecution, as opposed to any material that may have come to light subsequently: see also, A v NSW at [58].

The “temporal dimension” of the tort makes it critically important to identify the time at which each active step of initiation or maintenance occurred. It is at that time that the issue of malice and the issue of absence of reasonable and probable cause are to be assessed.

The High Court reinforced this temporal dimension in Beckett at [4]. There, the High Court said:

In Wood v State of New South Wales [2018] NSWSC 1247 (“Wood”), Fullerton J said (at [246]):

This Court has repeatedly emphasised the importance of the temporal dimension: see, eg, Bailey v Director General of Natural Resources [2014] NSWSC 1012 (“Bailey”) at [307] and [346] (per Fullerton J); Hamod v State of NSW [2007] NSWSC 600 at [19] (per Simpson J); Clyne v State of New South Wales (No 1) [2011] NSWSC 629 at [56] (per Fullerton J).

The onus of establishing absence of reasonable and probable cause is on the plaintiff, and that typically gives rise to forensic difficulties. As the High Court said in A v NSW at [60]:

The High Court dealt with the test for absence of reasonable and probable cause throughout A v NSW. However, the following propositions from A v NSW warrant particular notice. At [77], the High Court stated:

The plaintiff bears the onus of proving a negative with respect to absence of reasonable and probable cause. That onus is normally met, at least in part, by the tender of the brief of evidence: Hamod v State of New South Wales [2011] NSWCA 375 at [33]; State of NSW v Hathaway [2010] NSWCA 184 (“Hathaway”) at [180] (per Tobias, McColl and Macfarlan JJA). Thus, if the plaintiff presses on the Court some analytical approach to the evidence available in aid of a submission that there was an objective deficiency, then the plaintiff would normally tender all of the material available to the prosecutor.

It may also be noted that during closing submissions, in reply to the contents of the State as to the appropriate test to be applied, counsel for the plaintiff submitted:

Notwithstanding that clarification of position, the plaintiff submitted “in any event objectively the material would not amount to reasonable and probable cause”.

The plaintiff did not, however, identify with any certainty how that contention was advanced, or tender, the brief of evidence from the criminal proceedings in this civil action. An index to the prosecution brief of evidence was tendered by the plaintiff in his case.

The State correctly submitted that it is readily apparent that the material otherwise tendered is not the same as that included in that index. As a consequence of this failure, it was contended, again with some force, there is an inference that the plaintiff is not able to demonstrate absence of reasonable and probable cause, at least objectively.

As an example, during the cross-examination of DSC Gill, the following exchange occurred on 27 August 2019:

While it was suggested by counsel for the plaintiff that DSC Gill never asked for information from Telstra, relevant parts of the brief of evidence were not before the Court referable to that issue and, in particular, DSC Gill’s evidence as to an “original” iASK request. It was not established that initial request was not in the brief of evidence.

As to the standard of proof, s 140(1) of the Evidence Act 1995 (NSW) states that the case must be proved on the balance of probabilities. However, under s 140(2), the Court is to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The allegations now made against DSC Gill are grave within the meaning of s 140(2) and of the utmost seriousness having regard to the statements of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 362 (per Dixon J). This is particularly so given that, at para 20 of the plaintiff’s written submissions, the plaintiff submitted that the shortfalls in DSC Gill’s investigation were intentional, rather than a product of incompetence. If proved, they would constitute, among other things:

The burden of proof on the plaintiff is, therefore, an onerous one because of the allegations of impropriety that the actions entail: Landini v State of New South Wales [2008] NSWSC 1280 at [45] (per Hall J) (it may be noted the relevant passage was not disturbed on appeal), referring to Dixon J’s judgment in Briginshaw; see also Hathaway at [259]-[273]. That is, in order for the plaintiff to make good his case against DSC Gill, clear and cogent evidence is required: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171; Briginshaw at 361-362 (proof to the state of reasonable satisfaction cannot be produced by “inexact proofs, indefinite testimony, or indirect inferences”, where the nature and consequences of the facts to be proved are grave and inherently unlikely).

In Commonwealth of Australia v Fernando (2012) 200 FCR 1; [2012] FCAFC 18 (“Fernando”), the Federal Court at [129]-[130] held:

In Wood at [30]-[31], Fullerton J did not accept the Court’s observations in Fernando as being authority for the proposition that the plaintiff must exclude any hypothesis available or open on the evidence before finding an unfavourable hypothesis proved. Rather, her Honour noted:

The onus is on the plaintiff in respect of each element is particularly important when a solely inferential case is mounted. Where a case relies on inferences, the onus of proof is discharged only if the circumstances “do more than give rise to conflicting inferences of equal degrees of probability”: Luxton v Vines (1952) 85 CLR 352 at 358 (per Dixon, Fullagar and Kitto JJ).

Particulars play an important role in a malicious prosecution case. Allegations of malice and absence of reasonable and probable cause are serious allegations and there is a special need for distinct pleading and clear proof. This is no more than an application of the general principle that an opposite party should always be fairly apprised of the nature of the of the case he is called upon to meet: R v The Associated Northern Collieries (1910) 11 CLR 738 at 740-741 (per Isaacs J).

These general principles are fortified by rr 15.3 and 15.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 15.3 states: “A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies”.

Rule 15.4 states:

The effect of these rules, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given.

As regards absence of reasonable and probable cause, the High Court’s decision in A v NSW described the content of the “absence of reasonable and probable cause” element.

The Court identified two ways in which absence of reasonable and probable cause might be established, which are commonly described as “subjective” and “objective” aspects of the element. Those two aspects appear in [58] of the judgment, where their Honours said:

The High Court returned to these two aspects at [70]-[71] of the judgment, where their Honours stated:

At [80], the High Court identified two negative conditions for this element of the tort, the first of which relates to the subjective aspect of this element and the second of which relates to the objective aspect. Their Honour said:

As to malice, it is well-established that the malicious purpose must be the sole or dominant purpose of the prosecutor. In A v NSW at [91], the High Court said:

The High Court continued at [93]:

The plaintiff must therefore prove – not just raise conjecture or suspicion – that the sole or dominant purpose of DSC Gill at the time of the taking of each active step was some purpose other than the proper invocation of the criminal law.

The plaintiff contended DSC Gill as the only prosecutor for the purposes of the tort of malicious prosecution. This is notwithstanding his pleading that “the Office of the DPP” conducted and maintained the prosecution and the parties’ prior agreement that, on Wednesday, 2 March 2011, the DPP took over the conduct of the prosecution.

As to the latter consideration, an agreed fact in these proceedings, as set out in the Joint Memorandum of Agreed Facts and Issues in Dispute filed 3 October 2018, dealt directly with the issue of the real prosecutor as follows (at para 3(d)(xii)):

I pause to record that I accept the submission by the State that, in light of the reformulation of the plaintiff’s case, any reference in the FASOC to the DPP (including Mr Pincott, Crown Prosecutor), or any other police officer (including DSC Selkirk) conducting, maintaining or otherwise having any responsibility for the conduct or maintenance of the prosecution ought to be struck out.

Mr Jonathan Cohen of counsel for the plaintiff contended that DSC Gill remained the prosecutor after 2 March 2011 based upon the following:

During oral submissions, the plaintiff further submitted:

As Fullerton J in Wood observed, citing Bailey and A v NSW, it is important for the plaintiff to establish the identity of a prosecutor against whom it is said he was prosecuted maliciously.

The identity of the prosecutor is significant because it is that individual’s state of mind, and conduct, that is relevant for determining whether the tort of malicious prosecution is made out. In Wood at [580], Fullerton J remarked on the importance of properly identifying the prosecutor:

Her Honour in Wood also noted at [146]:

As this Court recently observed Ea v Diaconu [2019] NSWSC 795 (“Diaconu”) at [60] (per R A Hulme), citing Clark v State of New South Wales [2016] NSWSC 808 at [59], even where the State is alleged to be vicariously liable for the tort of a prosecutor in a public prosecution, it remains necessary to identify the individual who is alleged to have committed the tort.

The Court, in Diaconu, summarily dismissed the plaintiff’s statement of claim, which alleged the torts of misfeasance in public office and malicious prosecution. That decision was the subject of an application for leave to appeal: Ea v Diaconu [2020] NSWCA 127. I note that the applicant ultimately did not press the appeal insofar as it related to malicious prosecution. That is, the application proceeded on the basis of misfeasance in public office alone and the appeal was allowed against the first and third respondents.

It is well-established that the inquiry as to the prosecutor is one of substance. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ said that the law “looks beyond legal theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor”.

The inquiry is therefore into the person or persons who, at each time, are instrumental in prosecuting the accused.

It follows that the pleadings and the agreed statement of fact cannot be determinative of the question raised by the parties, namely, was DSC Gill the prosecutor or a prosecutor after 2 March 2011?

The New South Wales Court of Appeal has recently cautioned against assuming that the officer-in-charge of an investigation is ipso facto a prosecutor. In HD v State of New South Wales [2016] NSWCA 85 (“HD”), the Court of Appeal observed (at [74]-[76]):

Section 9 of the Director of Public Prosecutions Act 1986 (NSW) (“DPP Act”) at the relevant time provided:

Section 10 provides for the Director to give notice when he or she takes over a matter under s 9. The effect of s 9(4)(a) is to deem the DPP to be the prosecutor (not a prosecutor) in connection with the prosecution. There does not appear to be evidence as to such notice.

In light of those principles, an inquiry which should properly be made concerning whether, on the evidence, DSC Gill had some decision-making responsibility in relation to the prosecution, such as whether it should proceed or be terminated; what evidence and what charges it might be based upon; or what case theory might be pursued: Diaconu at [81].

In my view, when based on that analysis and what follows below, the evidence reveals that DSC Gill did not take active steps in maintaining the prosecution from 2 March 2011. In fact, his own view was that the DPP had complete carriage of the matter: T391.43-44.

Given the DPP’s role pursuant to s 9, after 2 March 2011, DSC Gill had no further decision-making role as to composition or formulation of the charges to be presented against the plaintiff, nor was he able to cause the charges to be withdrawn. That is, he ceased to be a prosecutor as and from that date. This is because he was not responsible for, and took no active steps in, maintaining the prosecution. This may be contrasted to the plaintiff’s case predicated on DSC Gill’s omissions or failures in the course of his investigation during this period. The situation can be contrasted with that which was before the Court of Appeal in Landini.

Mr Landini was arrested and charged with supplying heroin. He pleaded guilty to those charges and then received a sentence of 15 years’ imprisonment. During a Royal Commission into the New South Wales Police Service, evidence was given by one of Mr Landini’s arresting officer (Mr Knox) that the evidence in support of Mr Landini’s charge was fabricated in that the heroin was planted in Mr Landini’s vehicle.

During the prosecution of Mr Landini, Mr Knox prepared, and handed up to Court, a “Facts and Antecedents” document headed “Facts in relation to Henry Charles Landini charged supply heroin”. The document described the arrest, including that Mr Landini was found in possession of heroin. The Court of Appeal found that this, amongst other conduct, was conduct which constituted “maintaining” the prosecution for the purposes of the tort. Macfarlan JA, with whom Tobias JA and Sackville AJA agreed, held (at [67]-[69]):

The Court of Appeal has since observed that, with respect to maintaining a prosecution, the common feature in the authorities is the “defendant take some positive conduct to maintain the prosecution, such as giving evidence in support of the prosecution, which was known to be false”: Shahade v Bischoff [2015] NSWCA 418 at [121] (per Gleeson JA, with whom Basten JA and Beech-Jones J agreed).

The plaintiff tendered in his case, without limitation, a number of contemporaneous statements made by various police officers, including DSC Gill. Taking that evidence, and DSC Gill’s evidence in cross-examination into consideration, the evidence (and my impression of DSC Gill’s evidence) does not support a conclusion that he was acting on the basis of any animosity towards the plaintiff, or through some partiality towards Mr Fing. The evidence does not reveal DSC Gill having taken any active steps (in the Landini sense) in the prosecution. Rather, it shows that DSC Gill did little more than banal tasks of collation and following up experts (which largely corresponded to the extent of any claim by the plaintiff as to DSC Gill’s involvement). As the State put it, the factual investigation was front loaded given the events of the night in question. This might be contrasted with Detective Jacob in Wood, who was far more actively involved in that prosecution, but was still found not to be a prosecutor for the purposes of the tort.

I reject the submission that a Jones v Dunkel inference may be drawn regarding the State’s “failure” to call evidence of DSC Gill’s interaction with the DPP. The difficulty with the contention is the onus borne by the plaintiff and a failure by counsel for the plaintiff to raise such issues in his cross-examination of DSC Gill or the Crown Prosecutor. As Mr Adrian Williams, counsel for the State, submitted, “it would be an astonishing finding… [for there to be] some inference against the defendant about a matter entirely unexplored and where … you would assume [the communications] to be privileged”.

The State was under no onus to prove the identity of the prosecutor for the purposes of the tort, and no adverse inference ought to be drawn in this regard. In any event, the plaintiff’s case against the DPP was not directed at any individual and had no content. The plaintiff did not identify the content of the inference he invites the Court to draw.

As to Mr Pincott being bound to run the prosecution, the evidence was merely hypothetical. He was not asked specifically about the trial or the plaintiff and whether any such issue arose at or before the trial. His evidence was to the effect that there was processes to be gone through and “By the time I receive [a] brief all of those processes are generally gone through” (T345).

On the view that DSC Gill ceased being a prosecutor on about 2 March 2011, then all that falls for assessment on the plaintiff’s case is whether DSC Gill acted with an absence of reasonable and probable cause, and with malice, in initiating the prosecution. This is because the plaintiff’s contention that DSC Gill was the prosecutor for the purposes of maintaining the prosecution is wrong at law. I shall nonetheless later deal with reasonable and probable cause as if maintenance were an active consideration both under the heading “Factual Background and Issues in Dispute” and “Reasonable and Probable Cause”.

A false imprisonment is an intentional, total and direct restraint on a person’s liberty. There is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140] (per Kirby J, in dissent but not on this principle).

Mr Cohen of counsel who appeared on the plaintiff was correct to submit false imprisonment is the unlawful arrest or detaining of any person: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714. A significant difference between false imprisonment and malicious prosecution is that with false imprisonment, if the detaining or arrest was unlawful, the tort is established. The intent of the person doing the detaining is not relevant. See Ruddock v Taylor at [140].

Counsel for the plaintiff was also correct to submit that in Watson v Marshall (1971) 124 CLR 621; [1971] HCA 33 the concept of imprisonment was given a broad meaning to include circumstances where a person is led to believe that if a person attempts for example to leave, they would be compelled by force to remain.

The power to arrest is given by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), which provides:

The High Court considered s 99(1)(a) in New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46 (“Robinson”). In Robinson, the High Court emphasised that the relevant standard was suspicion. It observed (at [55]):

The suspicion referred to in s 99(1)(a) must be held “on reasonable grounds”. That is a familiar criterion in the exercise of statutory powers and attracts well-understood principles.

Reference may be made in this context to the judgment of the Court of Appeal in in Hyder v The Commonwealth (2012) 217 A Crim R 571; [2012] NSWCA 336 (“Hyder”). The facts in Hyder concerned Mr Christopher Gaggin, a Federal Police Agent, whom arrested the applicant without a warrant to do so acting pursuant to the discretion to so act provided by s 3W(1)(a) of the Crimes Act 1914 (Cth). Sub-section (1)(a) of s 3W relevantly provided that “[a] constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence ...”. At [15]-[19], as to the requirement of reasonable grounds, McColl JA (Hoeben JA agreeing at [90]) stated the following:

The Court of Criminal Appeal in R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540 discussed the notion of a reasonable suspicion as follows (at [52]-[53]):

In Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 (“Hamilton”), Campbell J described the test of suspicion on reasonable grounds under s 99(2) as a “relatively undemanding test”: at [154].

The assessment of whether any suspicion was held on reasonable grounds is be judged from the “standpoint” of the officer “at the time of his decision to arrest or not in the circumstances then actually pertaining. The Court’s evaluation is not to be made retrospectively”: Hamilton at [155].

The state of mind referred to in s 99(1)(b) is satisfaction. The subject of the satisfaction is that the arrest be “reasonably necessary” (not “necessary”) or one of the identified purposes (contra the form of LEPRA considered in Robinson was decided at [43]).

There is a well-established body of law dealing with the validity of the exercise of powers conditioned on the holding of a satisfaction. The satisfaction “must be formed reasonably and on a current understanding of the law” (see, eg, Wilkie v The Commonwealth (2017) 263 CLR 487; [2017] HCA 40 at [109] (per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)). However, the ultimate criterion is that there be a satisfaction, lawfully formed, at the time the power was exercised; and error is not established merely because the Court itself would not have reached that satisfaction.

In order to be lawful, at the time of arrest, the arresting officer must intend to charge the arrested person: Robinson at [62]-[63] (per Bell, Gageler, Gordon and Edelman JJ).

In these proceedings, the plaintiff tendered a number of contemporaneous records, including police witness statements, without limitation. The majority of the documents tendered by the plaintiff were originally prepared for and/or were tendered as evidence in the trial of the plaintiff before the District Court in 2013 (“the District Court trial”).

As to the material that was admitted into evidence without limitation, the State contended it was thereby admitted “for all purposes, including the truth of their contents”: Evidence Act, s 60; The Queen v Falzon (2018) 264 CLR 361; [2018] HCA 29 at [46], citing Mulcahy v The Queen [2012] ACTCA 3 at [82]. In light of that authority, the State submitted there is no reason for the Court not to accept that the statements of witnesses and police officers, including two from DSC Gill dated 3 August 2011 and 7 December 2012, were not an honest attempt by them to accurately set out matters. I accept that submission. It was not suggested to DSC Gill in cross-examination that those statements were other than honest attempts to accurately set out the matters contained therein. I will say more about DSC Gill’s evidence below.

During the course of the proceedings, several documents tendered by the plaintiff were marked provisionally relevant. For the purposes of this judgment, they have been found to be relevant.

A Joint Memorandum of Agreed Facts and Issues in Dispute was filed on 3 October 2018.

Prior to turning to the factual background, as several of the issues in dispute relate to factual findings to be made by this Court, it is convenient at this juncture to outline the agreed issues in dispute:

As to the first category of issues, counsel for the plaintiff conceded that the “initial arrest” of the plaintiff by the arresting officer was lawful. The plaintiff’s primary case against the defendant is that a malicious prosecution was maintained by DSC Gill. The prosecution of the plaintiff was unlawful, it was contended, from 8.16am at the completion of the electronically recorded interview of the plaintiff (“the ERISP”) on 25 February 2011.

As to the second category of issue, notwithstanding a pleading of false imprisonment, counsel for the plaintiff advanced the following submission during closing submissions:

Notwithstanding that submission, the plaintiff submitted the false imprisonment claim is that DSC Gill charged the plaintiff at the time when there was insufficient evidence.

As to the third category of issues, insofar as the investigation was concerned, counsel for the plaintiff conceded that “this is not a case where the investigation was incompetent”. Further, the plaintiff acknowledged the intelligence and technical skill of DSC Gill, the officer-in-charge, an experienced police officer (who has since retired from the police). However, it was against that background of experience, that the plaintiff contended “that given the amount of shortfalls in the investigation it [was] far more likely these deficiencies were in fact intentional, most likely on the basis [DSC] Gill had specific personal knowledge (possibly only known to himself) the plaintiff was innocent”. The plaintiff submitted that “when the evidence gathered by the police was objectively scrutinised the offence taking place in the manner alleged by the prosecution was impossible and there continued to be absence of reasonable and probable cause”.

The circumstances surrounding the alleged “shortfalls” and “deficiencies” of the investigation are contentious and will be dealt with in the context of the factual background and following after a description of the relevant parties.

An outline of the relevant parties, together with reference to any statements tendered in these proceedings, follows.

The plaintiff was 39 years of age at the time of his arrest. That arrest arose from a complaint made by Mr Fing, who reported that he had been shot by the plaintiff (set out below). Both Mr Fing and the plaintiff were known to each other prior to the shooting.

The evidentiary statement of the plaintiff dated 21 November 2016 was marked Ex 2 in these proceedings. However, as a result of rulings made as to largely form objections, the plaintiff was granted leave to lead further evidence-in-chief. In the result, much of the plaintiff’s evidence was adduced during the course of his examination-in-chief at the hearing.

The ERISP of the plaintiff was also in evidence (Ex 33).

The plaintiff was required for cross-examination. (In listing the evidence below, I shall only refer to cross-examination, if the person was required for cross-examination).

Mr Fing was 27 years of age at the time of the shooting. He was at his home in Belmont North at the time (“the Belmont North property”). He lived with his mother, Lynette Fing, and brother, Jacob Fing. Mr Fing had a criminal history.

The following evidence, with respect to the Fing family, was before the Court, tendered by the plaintiff without objection:

Joshua Uicich was a friend of Mr Fing. He was at the Belmont North property at the time of the shooting.

The plaintiff tendered the following evidence:

Tugba Zabun was at one stage in an intimate relationship with the plaintiff and, subsequently, Mr Fing. Both relationships were described as “on and off”. At the hearing, the plaintiff described the status of their relationship as “on and off”. Mr Fing had known the plaintiff and Ms Zabun for approximately 18 months as at March 2011.

The following evidence was before the Court on the plaintiff’s case:

Ms Zabun was required for cross-examination.

Two persons from the neighbouring properties provided statements to the police about what they heard from within their respective properties:

The following evidence was before the Court without objection:

Renay Wood is another lay witness that observed the arrest of the plaintiff.

The following evidence was before the Court without objection:

Two ambulance officers attended the Belmont North property and conveyed Mr Fing to the hospital:

The statement of Paula Stitt dated 24 February 2012 was before the Court, tendered without objection.

DSC Gill was the Officer-in-Charge for the investigation into the shooting of Mr Fing.

The following evidence of DSC Gill was admitted without objection:

DSC Gill was required for cross-examination.

Detective Senior Constable Scott Selkirk (“DSC Selkirk”) was the Second Officer-in-Charge.

The following evidence of DSC Selkirk was admitted without objection:

During the hearing, the State also tendered a further statement of DSC Selkirk dated 27 February 2018, together with an extract of transcript, which was read subject to one sentence.

DSC Selkirk was required for cross-examination.

The following is a list of the police officers involved in either the arrest and charging of the plaintiff and/or investigation into the shooting of Mr Fing.

Officers that attended the Belmont North property:

Each of the officers that attended the Belmont North property prepared a police statement in 2011 that was tendered without limitation in these proceedings (marked Ex 15, 6, 7 and 25, respectively).

Officers involved in crime scene examination:

Both officers involved in the Crime Scene Examination produced a police statement in 2011, which were admitted into evidence without limitation (marked Ex 8 and 29, respectively).

Officers present at the arrest:

The police statements of SC Graham, SC Nixon and Constable Worth made in 2011, were admitted without limitation (marked Ex 20, 9 and 24, respectively). A further statement of SC Graham dated 25 December 2017, together with an extract of transcript (Ex E), was tendered by the State, which was admitted without objection.

Custody Managers at Newcastle Police Station:

The Custody Management Record dated 25 February 2011, was admitted without objection or limitation (Ex 10). The Caution and Summary dated 25 February 2011, was also admitted without objection or limitation (Ex 11).

Other Officers:

[REDACTED]

[REDACTED]

Maxim Pincott was the Crown Prosecutor at the time of the plaintiff’s trial in 2013. His statement dated 10 May 2018 was admitted without objection (marked Ex C).

Mr Pincott was required for cross-examination.

Jodie O’Connor was a further lay witness called to give evidence in these proceedings by the plaintiff. She was not connected to the investigation into the shooting of Mr Fing.

An affidavit of Ms O’Connor sworn 26 April 2018 was in evidence (marked Ex 3), para 10 was not read.

Ms O’Connor was required for cross-examination.

The following reports and/or expert certificates were also tendered without objection or limitation:

DSC Gill was cross-examined with respect to the evidence of all three experts.

As mentioned above, in addition to the plaintiff, both Ms Zabun and Ms O’Connor were required for cross-examination. The State called the following witnesses: DSC Gill, DSC Selkirk, Mr Pincott and DSC Dominish. It may be noted that an objection was made to the calling of DSC Gill, a ruling was made in transcript allowing the witness to be called.

The following summary of the factual background is derived from the agreed facts, as well as the evidence in these proceedings which was relevant having regard to the foregoing principles and the issues in dispute.

On 25 February 2011, at about 2.50am, a call was made by Mr Fing to the triple-0 service maintained by Telstra (“the triple-0 call”). The triple-0 call was directed to the NSW Police and included a complaint as to a shooting. The triple-0 call was played at the hearing.

During the triple-0 call, Mr Fing reported that he had “just been shot… in the arm” outside the Belmont North property. He indicated he thought the weapon used was “a small handgun”.

Mr Fing also confirmed that he required an ambulance. He told the operator: “the bullet’s still in me, so it’s gonna have to be removed”. He also advised that he had put a “patch” and “pressure bandage” on his wound as it was bleeding. During the playing of the triple-0 call, Mr Fing was heard asking someone “to get a mop”. In his statement to the police dated 9 March 2011, Mr Fing deposed: “I told Jacob to get a mop and to clean the blood up”.

An extract of the triple-0 call appears below:

The other person, referred to in the above extract, was Mr Uicich. Immediately prior to the shooting, Mr Fing had been watching television in his lounge room with Mr Uicich. In a statement to the police, Mr Uicich stated that shortly before 3am, the two men had observed bright headlights from a car that had driven into Mr Fing’s driveway, shining through the front window. A similar description was provided by Mr Fing.

Mr Fing had opened the front door to inspect the situation. Shortly after stepping outside, there was a loud bang; Mr Fing was shot in his left arm. Mr Fing returned inside. Three further bangs were then heard.

Immediately following the shooting, Mr Fing said the following occurred:

Prior to the arrival of police, blood was mopped from the crime scene. During cross-examination, DSC Gill gave evidence that the mopped-up blood did not create suspicion in his mind and that such action was “not unusual”. An extract of the cross-examination that followed that evidence appears below:

I will return to the controversy with respect to blood at the crime scene at a separate juncture, in the context of the forensic examination conducted at the scene.

Following the three bangs, Mr Uicich stated he observed the car reverse out of the driveway, the headlights were receding, as it was driving away he went outside to get the number plate of the vehicle. He took note of the vehicle’s registration on a piece of paper, which information was provided to the triple-0 operator during the triple-0 call.

The note that Mr Uicich wrote on was never retrieved. DSC Selkirk gave the following evidence as to that fact:

Ms Hartney, a neighbour living in the same street as Mr Fing, made the following observation: “Before 3.00am I heard a car. I heard a bang. Then I heard about three consecutive pops. It sounded like a loud fire cracker”.

Mr Reid, a resident in Marian Place Belmont North, woke to the sound of a “loud bang or crack type noise” at around 2.50am. He heard two or three other similar noises. His statement did not include a reference to a car.

Neither witness mentioned a car driving away.

The plaintiff contended that on an objective analysis of the evidence of Mr Uicich and the neighbours would support a finding of an absence of reasonable and probable cause that that the plaintiff was guilty on the case put forward by the prosecution (albeit when considered collectively in light of all reasons advanced at para 21 of the plaintiff’s written submissions).

In support of that contention, the plaintiff advanced the following submissions (see at para 21(o)-(q)):

In reply to the above contentions, the State submitted:

The submissions advanced by the plaintiff, in this respect, cannot be sustained for the following reasons:

At 3.08am, ambulance officers, Ms Stitt and Mr Williams, arrived at the Belmont North property. Ms Stitt stated: “FING was walking around with a bandage on his left bicep when we arrived. FING told me he had been shot from a distance”.

Ms Stitt examined and treated Mr Fing’s wounds, which she described as “a puncture wound to the left arm and an exit wound at the back of his left arm”. Ms Stitt completed a Patient Health Record of the treatment. No record was made that Mr Fing identified the weapon used.

At 3.29am, the ambulance officers conveyed Mr Fing to John Hunter Hospital.

As to the conduct of Mr Fing in the ambulance, Ms Stitt gave the following evidence:

During cross-examination of DSC Gill, counsel for the plaintiff suggested that the act of Mr Fing “telling where to place a canula” combined with his addiction to heroin was a basis for a staged shooting:

The plaintiff contended that such evidence contributes to the absence of reasonable cause to initiate or maintain prosecution against the plaintiff. However, in the absence of developed submissions, with respect to the relevance and the contended impropriety on the part of DSC Gill, in that respect, the evidence can, in and of itself, attract little weight in these proceedings.

At about 4.20am, Dr Mark Hossain examined Mr Fing in the Emergency Department at John Hunter Hospital. On 26 August 2011, Dr Hossain prepared a statement with the aid of his hospital notes made at the time of Mr Fing’s presentation. Dr Hossain recorded that “Daniel Fing reported that his condition was a result of: Gunshot wound fired from approximately 10m away from 22” shotgun”. It is not clear when this statement was made available to DSC Gill.

Following the examination at the hospital, it was confirmed no bullet remained in Mr Fing’s arm. As to the time at which that bullet was discovered missing (i.e. not lodged within the arm of Mr Fing), DSC Gill gave the following evidence in cross-examination: “some days later, certainly not at the time at the hospital. They hadn't even X-rayed him at that point in time”.

At around 3am, a message was broadcasted via police radio in relation to shots having been fired at the Belmont North property, with someone possibly injured.

At about 3:08am, Leading SC Symington attended the scene where Mr Fing was shot.

SC Larson also responded to the broadcast, together with his partner Constable Donahue, and attended the property, arriving after Leading SC Symington. Upon arrival, SC Larson observed other police officers, including Leading SC Symington, already on site, together with ambulance. Inspector Bruce McGregor was also in attendance.

SC Larson went to several neighbouring properties, with Leading SC Symington, and knocked on doors in an attempt to identify witnesses. Constable Donohue guarded the crime scene.

SC Larson also observed “a couple of spent shells” at the top of the driveway of the Belmont North property.

At or about 3.30am that morning, some information relating to the shooting at the Belmont North property was communicated to DSC Gill by Inspector McGregor. DSC Gill then made his way to Charlestown Police Station.

At or about 4.30am, DSC Gill, together with DSC Selkirk, attended the Belmont North property. Both Inspector McGregor and Leading SC Symington were at the scene. Leading SC Symington, a general duties police officer, and one of the first officers to arrive at the property, relayed to them what she had been told by Mr Fing and witnesses. The details of that communication were not included in the officer’s statement. However, Leading SC Symington did record details of her conversations in her Duty Book (which appeared together with her statement marked Ex 6).

As to Mr Fing, described as the “victim”, and the witnesses at the Belmont North property, Leading SC Symington recorded:

Leading SC Symington also included notes of her conversations with the neighbours on pages 49 and 50 of her Duty Book, which included accounts of “popping noises” and a “loud bang”. The shortness of the recordings does not properly attract any criticism, particularly given their inclusion within a Duty Book entry as opposed to a formal police statement from a witness.

In a statement dated 27 February 2018, DSC Selkirk stated that:

DSC Selkirk said that “I took that information into account in my assessment of the scene”. He concluded “there was nothing that appeared out of the ordinary”. In making that assessment, he conceded, his assessment was made “at a distance”.

As about 4.50am, following conversations with police officers at the scene, DSC Gill and DSC Selkirk left the scene. On the evidence of Leading SC Symington, which was not challenged as to its truth, I find the officer conveyed information as to the accounts of Mr Fing and the witnesses, including the accounts of neighbours, to the detectives.

At about 5.30am, on the account of SC Larson, only SC Larson and Constable Donohue remained on guard at the scene. All other police and ambulance officers had left. The two officers remained on guard until they were relieved by a truck crew from Belmont Police Station.

At or around 5am, DSC Gill attended John Hunter Hospital, Accident and Emergency. DSC Gill spoke with Mr Fing at the hospital. In his statement dated 3 August 2011, DSC Gill recorded: “FING told me something”. No further detail of any conversation was included in his statement.

DSC Gill’s Duty Book also recorded the visit. During cross-examination, DSC Gill confirmed that his duty book did not record his conversation with Mr Fing.

Counsel for the plaintiff contended that a Jones v Dunkel inference is available because “clearly whatever [Mr] Fing said to them could not have been of any great significance”, that submission was supported by the absence of detail as to the shooting in the ERISP. For reasons set out below with respect to the contents of the ERISP, I do not find that is a basis for an unfavourable inference to be drawn. Further, at no stage in cross-examination was DSC Gill (or DSC Selkirk) asked to recall what was discussed at the hospital.

It may be noted the first formal statement of Mr Fing, with respect to the shooting, was taken on 9 March 2011.

At about 6.50am, SC Dunn attended the Belmont North property at the request of CSO Craft. Upon arrival, she observed two officers guarding the scene, namely, Senior Constable Sierota and Probationary Constable Hamilton. The crime scene was examined and investigated by crime scene officers from the Newcastle Crime Scene Section, and not by, or under the direction of, detectives.

Prior to attending the Belmont North property, SC Dunn had a conversation with DSC Gill. The details of that conversation were not recorded in SC Dunn’s statement (nor was DSC Gill questioned about the same). In her statement, SC Dunn recorded: “as a result of that conversation [with DSC Gill] I conducted an examination”.

SC Dunn conducted an examination of the crime scene. The following is an extract from Senior Constable Dunn’s statement dated 29 August 2011:

Both DSC Gill and DSC Selkirk were questioned about the crime scene examination conducted by SC Dunn. Both detectives confirmed they did not direct the actions of forensic officers.

During cross-examination, DSC Gill was questioned about the absence of photographs of the inside of the Belmont North property. He denied any involvement with the photographs taken:

The plaintiff raised several contentions concerning the evidence obtained and the examination conducted at crime scene. Those contentions fall into three broad categories:

It was contended that an objective analysis of the available evidence would support a finding of an absence of reasonable and probable cause that that the plaintiff was guilty on the case put forward by the prosecution (albeit when considered collectively in light of all reasons advanced at para 21 of the plaintiff’s written submissions).

As to the evidence of blood at the crime scene, the plaintiff submitted (at para 21(e), (i), (k), (l) and (m)):

In reply, the State submitted:

The submissions advanced by the plaintiff appear to traverse two issues, albeit without clear delineation, namely, either the objective evidence at the crime scene was not supported by the account of Mr Fing, supporting an absence of reasonable or probable cause to continue the prosecution against the plaintiff, or the objective evidence suggests improper steps were taken by investigators without cause, which impropriety, for the purposes of tort, must be attributed to DSC Gill.

As to the first issue, clarity is required as to the particular account of Mr Fing being relied upon. On 25 February 2011, as at the time of the crime scene examination, the only account available was the triple-0 call, which information was broadcasted to officers. DSC Gill would subsequently speak with Mr Fing at the Hospital at around 5am, however, that account was not recorded.

As to that initial account, the State correctly identified that the crime scene was consistent with the account provided by Mr Fing during the triple-0 call, including the fact of blood being mopped up. In any event, as to any discrepancies between the account of Mr Fing, including his subsequent police statements, and the objective evidence at the crime scene, having regard to the context of each, was properly a matter for a jury.

As to the second issue, which will be returned to throughout this judgment, I accept that the crime scene officers conducted an examination of the crime scene and that they did not act under the direction of DSC Gill. This is supported by the following:

Whilst aspects of the crime scene examination may be the subject of criticism, no aspect of the investigation with respect to the examination of blood at the scene sustains a finding that improper steps were taken, nor has the plaintiff established a basis upon which the steps taken by crime scene officers during the examination or processing of the scene may be attributed to DSC Gill.

The plaintiff submitted the evidence concerning bullets and casings (also referred to as cartridges) supports a finding of an absence of reasonable or probable cause that the plaintiff was guilty (at para 21(a)-(d), (f)-(g), (j) and (u)):

The above evidence does not sustain the conclusion sought by the plaintiff for the following reasons:

Notwithstanding the above consideration, it must be emphasised that any final conclusion as to the absence of reasonable or probable cause will need to be considered in light of the totality of all available evidence and submissions advanced by the parties.

The plaintiff further contended that had DSC Gill been conducting a proper investigation, free from malice, he would have made inquiries about Mr Fing’s shirt.

DSC Gill was cross-examined at length about the potential significance of obtaining Mr Fing’s t-shirt from the night of the shooting. DSC Gill gave the following evidence:

The plaintiff subsequently challenged the honesty of DSC Gill with respect to his evidence as to the forensic value of the shirt:

Further, the plaintiff contended DSC Gill suggested there was no point collecting the shirt from Mr Fing and “contradicted himself shortly afterwards by admitting there may have been GSR on the shirt whereas prior to that stating there couldn’t be GSR on the shirt as bullets contain GSR”. The relevant passages of transcript are extracted below (with some repetition of the earlier extract for completeness):

The following extract of DSC Gill’s cross-examination is also relevant to the contentions of the plaintiff:

I do not accept the plaintiff’s criticism of DSC Gill’s credit based upon his evidence as to the forensic value of Mr Fing’s shirt and GSR for the following reasons:

The plaintiff also submitted that it is doubtful whether it was possible for such a shot to have been possible. It was submitted that DSC Gill intentionally did not obtain photographs at the crime scene “that directly photograph the relevant angle to enable it to be determined whether or not such a shot would have been possible”, as such evidence would not forward the prosecution case.

That contention may not be sustained as making out that it was impossible for Mr Fing to be shot in the arm, for the following reasons:

As mentioned, I have addressed and made adverse findings with respect to the factors relied upon by the plaintiff to show impossibility throughout this judgment. This part deals, objectively, with one discrete element.

Following the triple-0 call, at about 3.15am, a further message was broadcasted via VKG police radio in relation to an alleged shooting at a Belmont address, asking a Newcastle City caged truck to patrol past two addresses: Morgan Street, Merewether and Beaumont Street, Hamilton. Police were requested to see if a motor vehicle bearing NSW plates “BI-20-TN” (“the vehicle”) was at one of those locations. The vehicle was described as a “dark coloured late model Ford Falcon Sedan”.

SC Graham was rostered to perform general duties at Newcastle Police Station. He responded to the 3.15am broadcast and drove to Morgan Street, Merewether. Constables Poyner and Worth also responded to the broadcast and drove to the Hamilton address.

An account of what occurred upon arrival is set out in the Statement of SC Graham and is extracted below:

Following the police pursuit, the plaintiff was arrested by officers of NSW Police at or about 4am at Berkshire Avenue, Merewether. The arresting officer was SC Graham. As mentioned at the outset, the plaintiff does not challenge the lawfulness of the arrest carried out by SC Graham.

The following account is based upon the statements of SC Graham and Constable Worth. After both vehicles had pulled over, the following occurred (with slight repetition of the account extracted above):

Following the arrest, Constables Poyner and Worth conveyed the plaintiff to Newcastle Police Station where he was introduced to the custody manager and placed in custody.

On 14 February 2013, Ms Wood provided the police a statement of what she heard and saw on 25 February 2011. She observed the plaintiff exit the vehicle, open the boot of the car and witnessed a female climb out of the boot of the car. She deposed that “I initially thought the female may have been abducted and feared for her safety”. Ms Wood also recalled that she heard the plaintiff say “take the bag and go” to the female, who then proceed to run up the street with a bag. Ms Wood then recalled observing the arrest of the plaintiff. Ms Wood called triple-0 and alerted the police to the “female with a bag” that had exited the vehicle.

SC Graham remained at the scene of the arrest. Following the arrival of a further police officer, DSC Abbott, both officers placed gloves on and searched the vehicle for any weapons. The officers found the following:

A number of police officers then conducted a search of the area for “the female” and if any weapons had been disposed of in nearby bushes and gardens. A Police Dog was called. SC Graham sat with vehicle until the Police Dog arrived and a search of the area was conducted.

The subsequent steps taken by DSC Gill, with respect to the laptop, in the context of the investigation were the subject of controversy and will be returned to below.

The Custody Management Record dated 25 February 2011, provided a record of the plaintiff’s time in custody following his arrest and detainment at the Newcastle Police Station. It included the following, inter alia, information:

At some stage following the plaintiff’s introduction to the Sergeant Newman, DSC Abbott entered the custody room in which the plaintiff was being held, with two brown paper police exhibit bags and exhibit tape. DSC Abbott had a conversation with the plaintiff, following which he placed the bags over the plaintiff’s hands and sealed them with the tape.

After bagging the plaintiff’s hands, DSC Abbott left the custody room and, before retuning to other duties, had a conversation with DSC Gill.

At 6am on 25 February 2011, CSO Craft attended Newcastle Police Station to carry out a request for photographs and GSR stubs to be taken as part of a forensic procedure conducted on the plaintiff. DSC Selkirk provided a statement that at around 6.20am, the plaintiff consented to a forensic procedure being “hand swabs”.

At the request of DSC Selkirk, CSO Craft collected the following from the plaintiff and sealed each in an appropriately labelled exhibit bag:

The examination was completed at 6.30am.

The caution and summary pursuant to Pt 9 of LEPRA was marked Ex 17 in these proceedings. The caution was read by the plaintiff at or around 4.50am on 25 February 2011. As the plaintiff’s hands were “bagged at time of reading”, as noted on the caution, the plaintiff did not sign the document until 6.45am. Following his hands be unbagged, Sergeant Scott provided the plaintiff a further opportunity to re-read the caution, which the plaintiff signed at 6.45am on 25 February 2011.

At 9.33am on 25 February 2011, the plaintiff consented to a buccal swab being taken. This consent is evident by a signed “Forensic Procedure Consent Form”. The consent was obtained by DSC Selkirk.

At about 5.35am, DSC Gill attended Newcastle Police Station. DSC Gill approached the plaintiff in the charge room and inquired if he wanted to participate in an electronically recorded interview. The plaintiff advised that he was waiting for legal advice prior to making any decision. At that point, DSC Gill left the charge room without interviewing the plaintiff.

At about 7am, DSC Gill returned to the charge room and inquired if the plaintiff wanted to participate in an interview. The plaintiff agreed and was escorted from the charge room to the interview room.

At 7.16am on 25 February 2011, DSC Gill, together with DSC Selkirk conducted an electronically record interview with the plaintiff. The ERISP was conducted at Newcastle Police Station. The duration of the interview was 1 hour, with the interview being finished at 8.16am. The transcript of the ERISP was 37 pages and was certified on 10 April 2011 by DSC Gill. An outline of the ERISP follows, with passages relevant to issues in dispute extracted.

At the outset of the interview, the plaintiff expressed doubts about wanting to participate in the interview. He inquired what would happen if he declined to participate:

The plaintiff contended that the statement “I’m probably going to charge you” indicates that DSC Gill “intended to charge him” from the outset of the interview and provides evidence of malice. However, as evidenced by the above extract, that statement was not made by DSC Gill (the closest aspect of the extract is “You probably will be, yeah”) and, in any event, must be considered in context of the whole of this extract from the ERISP. DSC Gill provides an answer to a specific enquiry by the plaintiff as to whether he would be charged if no interview took place. By stating “you probably will be” is not a statement of malice, but rather, indicative of the fact that DSC Gill was of the view there was a prima facie basis to charge the plaintiff prior to the ERISP. However, as he soon after advised the plaintiff, the decision to charge would be based upon the material available at the time and that any participation in an interview would contribute to the assessment of “the evidence that we’ve got”. I do not find the above extract as indicative of a malice.

During the interview, the plaintiff gave evidence that he had spent the night at his house with Ms Zabun and that in the hours before his arrest, they had been “in the bedroom, on the internet”. He told the detectives that “there were some concerns that somebody was coming to get me” and that Ms Zabun “received a call, to get out of the house and, and, and go”. He said:

During cross-examination, DSC Gill gave the following evidence with respect the plaintiff’s “alibi” at the time of the shooting:

Returning to the ERISP, the plaintiff also confirmed that he brought an axe and laptop with him in the vehicle. He said: “I put an axe in the car because I didn’t, from what I understand these people are, you know, pretty brutal when they grab people and, and I was trying to, the only thing I could have like that that’s there to try and defend myself with”.

During the interview, the plaintiff also gave the following answers:

The next series of questions concerned the following topics:

During cross-examination, DSC Gill accepted that over the course of the interview only five questions referenced the actual shooting itself (Q4, Q58, Q112, Q291 and Q292).

As mentioned above, the ERISP concluded at 8.16am.

At the conclusion of the ERISP, DSC Gill charged the plaintiff (charge number H 43835038). DSC Gill charged the plaintiff with an offence contrary to s 27 of the Crimes Act (“the offence”). He also drafted a facts sheet in relation to the offence. (It may be noted that DSC Selkirk stated he had no involvement in the drafting of the facts sheet).

The details of the charges were as follows:

The plaintiff was thereafter detained by police until he was brought before a magistrate on 25 February 2011.

As to the charging of the plaintiff, DSC Selkirk said:

At the hearing, DSC Gill gave evidence that no stage did his view about the propriety of the charges against the plaintiff change.

The plaintiff contended that as at 8.16am on 25 February 2011, DSC Gill was seized of information that would have warranted the discontinuance of the arrest of the plaintiff or that was incompatible with any decision to charge the plaintiff. In support of that contention, the plaintiff advanced the following submissions:

As to the first submission, the evidence before the Court does not sustain the conclusion that the decision to charge was based solely or primarily upon DSC Gill being “told the plaintiff is responsible for the shooting”. As at the completion of the ERISP, the following evidence was available to DSC Gill:

Further, whilst it is true that DSC Gill only questioned the plaintiff five times about the shooting itself, the balance of the hour-long interview is not thereby rendered irrelevant to the investigation. The ERISP is an important piece of evidence. It must be considered in its entirety, including observations as to the countenance of the plaintiff, together with the evidence available to DSC Gill at the time of his decision to charge the plaintiff. On the material before the Court, I find no basis to conclude that DSC Gill acted in an unfair or impartial manner or based his decision to charge the plaintiff solely upon the basis, as contended by the plaintiff, of being “told the plaintiff is responsible for the shooting”.

As to the second submission, the admission made by DSC Gill with respect to the search warrant is extracted below:

The plaintiff submitted that the fact that DSC Gill did not seek a search warrant of the plaintiff’s premises was “telling”. The plaintiff contended that DSC Gill’s lack of cause is demonstrated by his evidence that “he hadn’t obtained a search warrant on the plaintiff’s premises (on the day he was charged) [because] there was insufficient evidence to obtain a search warrant from a ‘magistrate’”. If there was sufficient evidence to charge the plaintiff with attempted murder (involving shooting a firearm) it would follow there would be sufficient evidence to obtain a search warrant.

In addition to supporting the contention as to the unreasonable basis for the charge, which I have earlier rejected, the plaintiff contended that the fact DSC Gill did not have enough evidence to obtain a search warrant supports the following conclusions:

During cross-examination, DSC Gill’s explanation for not obtaining the search warrant was that the shooting didn’t happen at the plaintiff’s residence so a search warrant would be of little value. It was contended that this Court should also find the explanation to be “implausible dishonest, significantly impacting on his credit”. I will later find DSC Gill to be a witness of credit, I make no adverse findings with respect to the evidence of DSC Gill in this respect.

The State submitted that the plaintiff’s argument rests on a non-sequitur. The plaintiff contended: “if [DSC] Gill formed the belief there was insufficient evidence for a search warrant, it follows he must have known there was insufficient evidence to charge the plaintiff”, whereas, on the contrary, “this demonstrates that DSC Gill was cautious and proper in his investigation”. I accept that submission.

Section 47(1) of the LEPRA provides police officers the power to apply for search warrants. It provides:

Section 48 of LEPRA empowers an “eligible issuing officer” to whom an application under s 47 is made to issue a search warrant if satisfied that there are reasonable grounds for doing so.

Under s 46 of LEPRA, an eligible issuing officer includes an “authorised officer” which, by reason of s 3 of LEPRA, includes a Magistrate or a registrar of the Local Court.

When determining whether there are reasonable grounds to issue a warrant, s 62(3) requires the Magistrate or registrar to consider (but not be limited to considering), the following:

The explanation provided by DSC Gill (extracted above), provides a reasonable explanation as to why he did not apply for a search warrant of the plaintiff’s premises before charging him, which included, inter alia:

In those circumstances, the State submitted, DSC Gill’s remark “That’s ridiculous” in response to the suggestion that he was not telling the truth was fair and reasonable. Whilst that answer reveals the frustration of the witness given the nature of his questioning, it does not, nor do the preceding answers, overall warrant any adverse credit finding.

During cross-examination, DSC Gill accepted that he was aware of Mr Fing’s criminal history at the time of the ERISP.

It was also contended that an objective analysis of the available evidence as to the criminal history of Mr Fing would support a finding of an absence of reasonable and probable cause that that the plaintiff was guilty on the case put forward by the prosecution.

As to that submission, the plaintiff relied upon the following evidence (at para 21(r), (w) and (x):

In light of that evidence, it was also submitted, DSC Gill “was aware in [Mr] Fing he was not dealing with an ordinary complainant but an atypical complainant”. Thus, DSC Gill “must have known the complaint was not genuine”.

In reply, the State submitted:

I accept the submission of the State in this respect, noting that I will later return to the authority supportive of that conclusion.

At 10.31am on 25 February 2011, DSC Gill produced the Court Attendance Notices (“the CANs”) under charge number, H 43835038, setting out the defendant details, prosecutor details, details of offences and annexed the police fact sheet.

The prosecutor details on the CANs were the same and are extracted below:

The charges were listed before Newcastle Local Court on Friday, 25 February 2011 at 12pm.

The CAN was served on the plaintiff in person at 11.06am on 25 February 2011 at Newcastle Police Station.

The NSW Police Facts Sheet, relating to the charges, is extracted below:

As to the Police Facts Sheet, the plaintiff submitted:

During cross-examination, DSC Gill was questioned as to that fact of Mr Fing’s identification and the corresponding inclusion in the Police Facts Sheet:

DSC Selkirk, gave the following evidence in his statement of 27 February 2018:

To the extent that the plaintiff seeks an adverse inference be drawn against DSC Gill based upon the content of the Police Facts Sheet, such a finding is not available. First, counsel for the plaintiff neglected to put the document to the witness, notwithstanding the fact that DSC Gill confirmed he could not recall what he put in the facts sheet. Second, counsel for the plaintiff did not establish when DSC Gill first came to know that Mr Fing’s identification was based upon an interpretation of “silhouette”. Whilst DSC Gill accepts that such a description is included in Mr Fing’s formal statement, that statement was obtained approximately 2-weeks following the drafting of the Police Facts Sheet.

The alleged identification of the plaintiff vis-à-vis the shooter’s “silhouette”, first appears in Mr Fing’s formal statement of 9 March 2011. As at the time of the drafting of the Police Facts Sheet, DSC Gill did not have the benefit of a formal statement from Mr Fing.

On 25 February 2011, the plaintiff was brought before a magistrate in the Local Court on the charges. He was refused bail. Following the refusal of bail, the plaintiff was transferred to Cessnock Correctional Centre.

Upon arrival at the Cessnock Correctional Centre, a placement/threat assessment was conducted by Cessnock Corrective Services with respect to the plaintiff (“the CCC record”). The Assessing Officer assigned was Assistant Superintendent McCaig.

The record of inmate interview recorded:

The following factors were identified as specific vulnerability to the plaintiff: drugs, first time in custody, and terrified.

The proximity of the threat was identified as “within area” and “within centre”. The likelihood of a threat occurring was categorised as “Low (Might Occur) level threat”, namely, information suggested that a risk existed and a threat might occur but the threat is not real or immediate at the time of the assessment. An overall threat rating of “High” was nominated by the Assessing Officer. A rating of that level indicates that protective custody is recommended.

The recommended protective custody regime was Special Management Area Placement (“SMAP”) due to “threats made to get him inside”.

On 25 February 2011, the Assessing Officer informed the plaintiff of the recommendation, to which the plaintiff agreed. On or around 2 March 2011, Assistant General Mai Tiederman approved the placement recommendation.

The State advanced several submissions as to the significance of the CCC record, which are extracted below:

During oral submissions, the plaintiff contended that the Court should reject the submissions advanced by the State as to the significance of the CCC record. Reliance, in that respect, was placed upon the decision of The State of Beckett v State of New South Wales [2015] NSWSC 1017 (“Beckett v NSW”), which “makes it abundantly clear that the plaintiff's innocence is not in issue”. As the plaintiff was ultimately acquitted of the charge of murder, it is improper for the State to “cast some kind of dispersion on one hearsay document”.

It is true the CCC record may not be used as a device to cast doubt upon the innocence of the plaintiff. That is not the purpose of these proceedings. It is a Corrective Services record, that included an account attributed to the plaintiff. I have not been directed to any evidence the record was fabricated and make no such finding. As to the extent the State relies upon the document as relevant to damages, it need not receive any further attention at this juncture.

As noted at the outset of this judgment, the plaintiff did not contend this is a case where the investigation was incompetent. Rather, in support of a claim of malicious prosecution, the plaintiff relied upon the several instances of alleged “inaction” by DSC Gill and/or particular “deficiencies” within the investigation, at the hand of DSC Gill, which occurred following the charging of the plaintiff. They will be addressed, where relevant, within the following summary of the investigation. In light of the plaintiff’s concession, it is unnecessary to set out every step taken.

Between 28 February and 17 March 2011, DSC Gill transferred certain exhibits between Newcastle and Charlestown Police Stations and booked them into Newcastle Crime Scene Section for examination. DSC Gill provided an outline of his steps taken in the investigation between that period in his statement of 3 August 2011, which is extracted below:

On 9 March 2011, SC Chesworth received from DSC Gill “exhibit D853664”, being 1 x Nokia mobile phone model X5-01. Exhibit D853664 was the mobile telephone DSC Gill had collected from Ms Zabun on 6 March 2011. SC Chesworth extracted and copied the data from that phone and the SIM card in that phone the same day. The results of that examination were annexed to the statement of SC Chesworth dated 6 November 2012 (Ex 12).

On 16 August 2011, DSC Gill provided “exhibit D853659” to Facial Identification Unit for examination. Exhibit D853659 was the mobile telephone belonging to the plaintiff.

On 12 September 2011, SC Chesworth sent an email communication to DSC Gill, with an update as to her examination of the plaintiff’s mobile phone (see Ex 13). She advised:

DSC Gill referred to the impact of the absence of the PIN in para 5 of his statement dated 7 December 2012, which is extracted below:

On 28 March 2011, the plaintiff was granted conditional bail. However, he was not released from custody until about 5 May 2011.

A summary of the events that occurrent between 28 March and 5 May 2011, with respect to the grant of bail, appear below.

The Governor of Cessnock Correctional Centre provided the Registrar of the Newcastle Local Court a “Form 13 – Notice by Custodian Concerning Persons In Custody after Grant of Bail”, dated 1 April 2011. By that form, the Governor advised that the plaintiff “remains in my custody, stating he cannot comply with the following conditions of bail”.

The bail conditions incorporated the following:

The following “reasons” were provided on the form, which represented conditions which the plaintiff had identified could not be met:

In the plaintiff’s evidentiary statement dated 21 November 2016, he deposed:

On 11 April 2011, Hidden J varied the plaintiff’s conditions of bail as follows:

On 4 May 2011, Latham J varied the plaintiff’s conditions of bail as follows:

On 5 May 2011, the applicant was released from custody upon conditional bail.

On or about 31 March 2012, while on bail for the charges, the plaintiff pleaded guilty to Commonwealth fraud offences (which need not be set out in this judgment). The plaintiff was sentenced to a period of imprisonment of 4 years and 3 months’ imprisonment, with a non-parole period of 2 years and 2 months.

On 29 May 2014, the plaintiff was released from prison after serving approximately 26 months for fraud offences.

DSC Gill was on extended leave from work from 28 March to 1 August 2011.

As earlier mentioned, two reports were obtained in the course of the investigation, namely, the first and second ballistics reports prepared by Mr van der Walt on 4 October 2011 and 6 February 2012, respectively.

By the first ballistics report, the expert opined that the four .22 calibre fired cartridge cases and four .22 calibre fired bullets contained insufficient detail to determine whether they were discharged from the same firearm.

By the second ballistics report, following the receipt of an enquiry by DSC Gill as to the wounding capability of the bullet in question, the expert opined that the bullet discharged at a distance of 15 metres would have the capacity to cause a perforating wound to a bicep.

During cross-examination, DSC Gill was questioned about the first and second ballistics reports. As to the first ballistics report, he gave the following evidence:

As to the second ballistics report, he gave the following evidence:

That was the extent of cross-examination with respect to the ballistics reports.

In DSC Gill’s statement of 7 December 2013, reference was made to a search warrant conducted at the Belmont North property for “unrelated matters” and the discovery that firearms were stored on the premises and registered to Damien Fing. That evidence is extracted below:

During cross-examination, in addition to confirming what appears in his statement, DSC Gill gave the following evidence with respect to the rifles (T391):

In written submissions, the plaintiff relied upon the above evidence as corroborating the account of the plaintiff that DSC Gill “told him the police were looking for the weapon that was used (by the Fings) to shoot Daniel Fing (T72 line 1-5)”. It was submitted:

In closing submissions, as to the evidence of DSC Gill in his second police statement, counsel for the plaintiff submitted:

By the plaintiff’s submission at para 50 (extracted above), it is suggested that DSC Gill contradicted himself in relation to the capabilities of an air rifle and that he nevertheless had it tested for relevance to the investigation. However, that is an incorrect characterisation of the evidence. In my view, the State correctly submitted that the detective’s evidence, with respect to the rifles, reveals that DSC Gill knew what an air rifle was, that it could not fire a .22 calibre bullet, and that he was diligent in his investigation.

The State also contended that “[t]o the extent any contradiction in DSC Gill’s evidence appears, the Court might draw an inference that the contradiction arises only because the questions asked of DSC Gill were insufficiently clear causing DSC Gill not to know what was being spoken”. I accept that submission.

As earlier mentioned, the GSR report was produced on 7 December 2011. That report set out the results of the analysis conducted by Dr Bojko for the purposes of detecting GSR. The following summary is based upon the contents of that report.

On or about 10 November 2011, following testing of the sample, GSR was found on:

GSR was also found on the bullet casings recovered from the Belmont North property.

Dr Bojok opined that the GSR particle found on the plaintiff’s t-shirt and the vehicle were “not consistent” with the GSR particles found on the bullet casings recovered from the scene of the shooting.

As to the inconsistencies in the GSR evidence, DSC Selkirk stated:

The Crown prosecutor briefed in the matter at trial deposed that the inconsistencies, in his view, “did not detract from the strength of the Crown case”.

During cross-examination, DSC Gill was questioned with respect to the GSR evidence, namely:

The evidence and submissions with respect to (1), (2) and (4) have been dealt with earlier in this judgment.

The plaintiff relied upon DSC Gill’s statement that “the absence o[r] presence of GSR is not necessarily an indicator of anything” as evidence adversely impacting upon the reasonable cause and impacting upon the prosecution’s case theory.

In reply, the State submitted:

The State correctly, in my view, submitted that the personal opinion of DSC Gill as to the reliability of GSR carries little weight, in this context, upon the assessment of reasonable or probable cause. The fact is that forensic testing confirmed GSR was located on both the plaintiff’s person and vehicle, albeit different to that found on the casings. The significance of any evidence of GSR, together with any expert analysis of the same, was a matter for a jury to consider in conjunction with all other material available.

In support of a claim of malicious prosecution, the plaintiff also relied upon the failure of DSC Gill to arrange for the GSR testing of the fence/gate at the Belmont North property. During cross-examination, as to the absence of GSR testing of the fence, DSC Gill gave the following evidence:

As I have earlier found, the DSC Gill did not direct the forensic examination of the crime scene. This “short fall” in the investigation has not be established as attributable to DSC Gill.

On 7 December 2012, DSC Gill spoke with Bruce Edwards, the plaintiff’s father, who said he would not be providing a statement in relation to a hire car (which the plaintiff was driving on the morning in question): Exhibit 78 at para 23.

During cross-examination, DSC Gill gave evidence that he could not recall speaking or meeting with the plaintiff’s parents at the District Court trial in 2013. He denied telling the plaintiff’s parents: “Don't worry, everything will be fine”. Given the extent of the evidence on the question, and my findings as to DSC Gill’s credit, I accept the evidence.

As mentioned above, the plaintiff contended that DSC Gill failed to make any attempts to conduct a location search of the plaintiff’s phone or computer internet connection until August 2011, despite the plaintiff immediately offering an alibi during the ERISP. The objective evidence also points to the fact, it was contended by the plaintiff, that DSC Gill’s attempts in August 2011 to obtain records from Telstra were disingenuous.

In the broad, the plaintiff contended that evidence relating to text messages stored on his mobile telephone (as well as Ms Zabun’s) and evidence relating to his laptop (and modem), including inquiries with Telstra, were critically relevant to the plaintiff’s alibi and confirming his innocence. However, as a result of the “improper conduct” by DSC Gill, it was submitted, a prosecution was wrongfully maintained against the plaintiff.

The plaintiff submitted that the following evidence is demonstrative of the intentional deficiencies and shortfalls relating to the investigation into his alibi (see at para 21(t), (y), (z) and (aa) of the plaintiff’s written submissions):

The first two submissions concern the investigation into the text messages stored on the mobile devices of Ms Zabun and the plaintiff. The second two submissions concern the investigation into the laptop retrieved from the plaintiff’s car. I will address the two discrete aspects of the investigation in turn.

The evidence of the plaintiff’s alibi was earlier extracted under the heading “Interview of the Plaintiff at Newcastle Police Station”. It is unnecessary to repeat.

As to DSC Gill’s investigation into the text messages, the following evidence is also relevant.

DSC Selkirk gave the following evidence as to how the ERISP impacted upon the investigation, including, inter alia, the plaintiff’s asserted alibi:

As earlier mentioned, an examination was conducted upon the mobile telephones of both Ms Zabun and the plaintiff. Turning first to the examination of Ms Zabun’s mobile phone, in summary, on Sunday 6 March, 2011, DSC Gill spoke to Ms Zabun. As a result of that conversation, DSC Gill collected a mobile telephone used by Ms Zabun. That mobile phone was processed at Charlestown Police Station and given an exhibit number “D 853664”. During cross-examination, DSC Gill confirmed a search was conducted of Ms Zabun’s phone. That evidence is extracted below:

In the absence of submissions developed as to the improper treatment of results of the examination of Ms Zabun’s mobile phone (and there was none), in my view, this evidence reveals that steps were taken to verify the accounts of Ms Zabun (and the plaintiff) by conducting an examination of Ms Zabun’s mobile telephone.

The plaintiff’s mobile telephone was also examined, however, as earlier mentioned, that examination was unable to be completed due to the inability of police to access the plaintiff’s PIN. In an email to DSC Gill dated 12 September 2011, SC Chesworth also confirmed the limitation of any iASK request to Telstra, with respect to information stored on the phone itself (as opposed to information stored on the SIM card), in the absence of the PIN code. Again, as mentioned earlier, she advised DSC GILL: “You would need to obtain the phone UNLOCK code from the owner themselves”. (The “UNLOCK code” being a reference to the “PIN” code).

During cross-examination, DSC Gill confirmed that he made contact with the plaintiff via email in an effort to obtain the PIN code on 8 February 2012. He described the communication as “a simple request”. He confirmed no caution was provided. That evidence is extracted below:

DSC Gill also accepted the contents of the plaintiff’s reply to that communication, as read by counsel for the plaintiff:

Counsel for the plaintiff challenged the propriety of the approach adopted by DSC Gill, in particular, his decision to seek information from the plaintiff without a caution and his characterisation of the plaintiff’s inability to recall the PIN as a refusal. That evidence is extracted below:

During cross-examination, DSC Gill confirmed that an expert cannot unlock a phone without the PIN. That evidence is extracted below:

I do not accept the submission by counsel for the plaintiff that an absence of a caution in DSC Gill’s email to the plaintiff on 8 February 2012 may sustain a conclusion that DSC Gill “was of the view the plaintiff was innocent”. That submission is unfounded. This is particularly so, in light of the evidence of SC Chesworth and DSC Gill, which indicated that the examination was unable to be completed in the absence of retrieving the PIN from the owner of the mobile phone. The action taken by DSC Gill was a logical step in the investigation, particularly in light of the limitations upon the capacity of the police to complete an investigation into the plaintiff’s alibi vis-à-vis an examination of his phone in the absence of access to the PIN code to the plaintiff’s phone.

In the light of the material before the Court, as set out above, I do not accept the plaintiff’s submission that DSC Gill’s approach to the investigation into the plaintiff’s alibi vis-à-vis the examination of either Ms Zabun’s mobile or the plaintiff’s mobile (noting the plaintiff placed particular emphasis upon deficiencies relating to the examination of the plaintiff’s mobile phone), was conducting an investigation for improper purposes or sustains a conclusion that the detective was disingenuous in his attempts to find exculpatory evidence of the plaintiff.

On 29 December 2011, DSC Selkirk arranged for the laptop retrieved from the vehicle on the night of the shooting to be forensically examined by SEEB. Between 15 March and 6 June 2012, Mr Moore conducted the examination and, as earlier mentioned, produced the laptop report. He examined the following:

The scope of Mr Moore’s examination “was to determine if there was any evidence of user activity around the time of the offence on 25th February 2011”.

In summary, Mr Moore found that:

Mr Moore also opined: “It was not possible to ascertain whether a user was logged into the computer at the exact time of the offence”.

During cross-examination, DSC Gill was asked about the significance of the report. That evidence is extracted below:

The plaintiff contended that the evidence of DSC Gill during cross-examination, with respect to the laptop report, supports the making of an adverse credit finding. It was submitted that DSC Gill “suggest[ed] the report by [Mr] Moore was not significant because it could not say where the download at 2.48am took place as the modem was portable”.

In reply, the State submitted:

The State further submitted:

As to the arguments advanced vis-à-vis DSC Gill and the laptop report, I accept the submissions of the State. In my view, an objective analysis of the laptop report indicates relevance to both the alibi alleged by the plaintiff and the case theory put forward by the prosecution. It does not establish a basis for my making a finding of an absence of reasonable cause. Further, the steps taken by DSC Gill with respect to investigating the laptop are consistent with a proper police investigation and do not sustain a conclusion that DSC Gill was not making a genuine attempt to determine the location of where the portable modem was being used. Rather, the steps taken by DSC Gill indicate the contrary proposition. This is further supported by my findings below with respect to the inquiries made via iASK to Telstra (and my earlier observations as to the absence of relevant parts of the brief of evidence concerning iASK).

I do not make an adverse finding as to the credibility of DSC Gill in light of his response to questioning as to the importance of the laptop report, in particular his answers as to “the value” of particular findings. The answers of DSC Gill were, in my view, honest and responsive to the questions put to him. I will return to my consideration of DSC Gill’s credit at a separate juncture.

The plaintiff also contended that DSC Gill intentionally delayed the service of the laptop report to the DPP. During cross-examination, DSC Gill denied the same:

To the extent the plaintiff relies upon the above evidence as relevant to the credit of DSC Gill, I find no adverse inference is available. First, as earlier mentioned, DSC Gill was answering questions with respect to the “brief” in the absence of access to the same. The inability of a police officer, since retired, to recall the specific time and date in which a particular document that was served within what would be assumed to be a large brief of evidence (in light of the index to the brief and voluminous nature of the court book in these proceedings, which does not represent the complete brief), does not support the drawing of any such adverse inference against DSC Gill. It does, however, again, coincide with my observations regarding the failure of the plaintiff to put the full brief of evidence before the Court.

I now turn to the factual controversy as to the timing of “the initial inquiries” with Telstra, made by DSC Gill via the iASK system, namely, the request relating to the timing of internet access and location of the laptop on 25 February 2011.

During cross-examination, DSC Gill confirmed that at the District Court trial he gave evidence that his “first inquiry of Telstra” would have been “during March 2011, not long after the arrest of the accused”. He confirmed that evidence was true. Counsel for the plaintiff sought to challenge that evidence and contended that DSC Gill deliberately delayed making Telstra inquiries, upon the basis that such evidence may weaken the prosecution case or otherwise prove the innocence of the plaintiff. Reliance in that respect, was placed upon the following documentation:

Reference was also made to a four-page extract from the iASK External Agency Information Request System, relating to an iASK request created by DSC Gill on 12 August 2011, with identifier “iASK 3876677”. That document was tendered on the State case and marked Ex I.

As each document was the subject of cross-examination, the relevant aspects of the documents are set out below:

During cross-examination, DSC Gill confirmed his familiarity with iASK and provided evidence as to how the system is utilised within a police investigation. He described it as “a system to obtain information from external providers for the New South Wales Police”. He also said: “It would be unlikely that I would put that [reference to iASK requests] in my statement”. As to that absence, he gave the following evidence:

Counsel for the plaintiff suggested that in light of Ex 94 and 95, that DSC Gill did not make an inquiry of Telstra in March 2011. That extract appears below (albeit with some repetition):

DSC Gill also gave evidence that the iASK request that appeared in Ex I did not include earlier requests submitted through iASK. He said:

When pressed further about the circumstances of the alleged delay, based upon the date of his email to SEEB, DSC Gill gave the following evidence:

By reference to email sent by DSC Gill to SEEB and the iASK request that appears in Ex I, counsel for the plaintiff suggested DSC Gill made deliberate errors to manufacture inaccurate results. First, it was suggested his request for “recent session times” did not relate to the relevant timing, namely, at the time of the alleged offence:

Secondly, counsel for the plaintiff suggested that DSC Gill intentionally limited the request period to “23 February 2011 to 25 February 2011”:

During cross-examination, DSC Gill was also questioned about the absence of a request via iASK concerning “triangulation”. It was suggested that this choice was made in an effort to either not actively seek or to suppress evidence that would lead to the acquittal of the plaintiff. DSC Gill gave the following evidence:

Whilst it was suggested by counsel for the plaintiff that DSC Gill never asked for information from Telstra in March 2011, as extracted above, it was never put to DSC Gill that “the initial” iASK or, as DSC Gill described it, “the original request”, was not in the brief of evidence. The State submitted, as a result, “[t]he Court is now left not knowing whether the iASK was in fact in the brief of evidence”. I have earlier dealt with the principles regarding onus and standard of proof. In the absence of clear and cogent evidence and, in particular, the absence of the relevant iASK request and the complete brief of evidence, the argument advanced by the plaintiff, in this respect, is not sustainable upon the material before the Court. Nor do I consider DSC Gill’s explanations in cross-examination to lack credibility.

Thus, on the objective evidence before the Court, I find that DSC Gill took appropriate steps in his conduct of the investigation with respect to organising the appropriate examination of both the plaintiff and Ms Zabun’s mobile telephones via the Technical Support Unit; and it may be inferred made multiple inquiries of Telstra via iASK. It may also be noted that on the request before the Court, DSC Gill specifically addresses the alleged alibi of the plaintiff within the request, namely, “the Accused in this matter states that he was connected to the internet at his home address at the time of the offence”. It may also be noted that DSC Selkirk, the Second Officer-in-Charge, arranged for the examination of the plaintiff’s laptop and modem to be examined by SEEB. I find no basis to conclude that DSC Gill made little or no attempt to investigate the plaintiff’s alibi stated in the ERISP and reject the contention that DSC Gill’s attempts to obtain records from Telstra were disingenuous.

By an indictment dated 18 February 2013, the DPP charged that the plaintiff:

As earlier mentioned, the Crown Prosecutor briefed in the matter was Mr Pincott. The trial in the matter known as R v Matthew Bruce William Edwards took place between 18 and 26 February 2013 before his Honour Judge Maiden SC and a jury in the District Court of NSW at Newcastle. As mentioned, the jury in the trial returned a verdict of not guilty for the offence charged by indictment.

In July 2014, DSC Gill left the police force.

In addition to reliance upon “the evidence of anomalies and deficiencies within the investigation”, which have been dealt with above, said to establish an absence of reasonable or probable cause, in support of its claim of malice, the plaintiff also relied upon:

I now turn to a summary of the evidence relevant to the claim of malice advanced by the plaintiff and the factual controversies therein. Whilst reference will be made to submissions advanced as to the credit of both the plaintiff and DSC Gill’s credibility, respectively, the parties’ ultimate submission, in that respect, will be returned to at a separate juncture under the heading, “Credit”.

As earlier mentioned, due to objections as to form with respect to the plaintiff’s evidentiary statement, counsel for the plaintiff was granted leave to lead evidence, through the plaintiff, as to alleged statements and dealings with the police from around 30 November 2011 through to the trial.

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

As to the evidence of DSC Dominish, the detective made plain that he had no involvement with the investigation into the shooting of Mr Fing and, further, that he did not believe the plaintiff’s complaint, albeit informal, with respect to the house fire. DSC Dominish did consider the plaintiff’s account believable. Thus, beyond confirming an investigation was conducting into a house fire at the plaintiff’s home in Merewether, that evidence attracts minimal weight in the assessment of the conduct of DSC Gill.

Returning to the statements attributed to DSC Gill, I find that the evidence said to corroborate the plaintiff’s evidence does not sustain a conclusion that DSC Gill said any of the statements attributed to him. That conclusion will be reinforced by my findings with respect to the credibility of the plaintiff, to which I now turn.

As earlier mentioned, the plaintiff called oral evidence from three lay witnesses: himself, Ms O’Connor, and Ms Zabun.

The plaintiff was an unimpressive witness whose evidence often strained credulity and was significantly self-interested. Other parts of his evidence were simply untrue (even if, as submitted by counsel for the State, the evidence was misguided as to proof of an absence of reasonable and probable cause or malice).

It is apparent that the plaintiff himself was involved in the preparation of the evidence of his witnesses to such a degree that would be less than reasonable for a party who was self-represented at the time he served that evidence (evidentiary statement of Ms Zabun (Ex 5) and affidavit of Ms O’Connor (Ex 4)). Again, this evidence was self-serving and, at least in respect of Ms Zabun, she did not come up to proof on certain matters. On his version, the plaintiff only helped Ms Zabun type her statement: T157.6-7. He had typed the statement in the presence of Ms Zabun which was purportedly based on a handwritten draft prepared and given to him by Ms Zabun: T157:21-22. Yet the plaintiff seemed to try to guess the answer as to whether Ms Zabun had, in fact, provided him with those drafts and then, when pressed, committed to the position that he was given drafts:

The plaintiff’s unreliability was manifest in that evidence.

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

[REDACTED]

The plaintiff exhibited a degree of dishonesty in relation to his history of drug use. In one instance, he told Mr Watson-Munro, psychologist, who prepared a report dated 12 March 2012 (Ex G) for the plaintiff on his sentence hearing, he had no involvement in drugs. However, in oral testimony, he admitted to having used cocaine, ecstasy, ice and marijuana. As Mr Williams counsel for the State put it, the plaintiff was a little too careful with his construction of “involvement in drugs” to state it was not inconsistent for him to say he had had “no involvement” despite having previously used illicit drugs: T146.9–T148.33.

The plaintiff has a history of dishonesty, including convictions of Commonwealth dishonesty offences (Ex H).

Further, the plaintiff’s counsel was granted leave to take evidence-in-chief from Ms Zabun from the witness box on her discussions with Mr Max Pincott whom, according to Ms Zabun’s statement (prior to rulings on admissibility), was the prosecutor. The transcript records:

The fact that Ms Zabun could not recall who Mr Pincott was or what a prosecutor was, despite her express reference to both in her evidentiary statement, tends to suggest she did not draft it.

One would have expected Ms Zabun to provide considerably more evidence if the plaintiff’s, and her account, were true. There was scant detail in relation to the alibi. Similarly, she was unable to give evidence as to when and what she told police and the DPP. Having regard to the manner in which Ms Zabun’s evidence was given, it was submitted by the State, the Court can find that she had insufficient input into the preparation of her evidentiary statement, resulting in a finding that the oral evidence in the plaintiff’s case was unreliable. I make that finding.

As for Ms O’Connor’s evidence, the plaintiff also typed her affidavit and derived the content from words written by Ms O’Connor, although the plaintiff could not recall in what format the writing was provided to him: T159:11-24. Conversely, Ms O’Connor provided the plaintiff with “a verbal of what exactly”. Moreover, on the plaintiff’s account, Ms O’Connor was not with the plaintiff when he typed up her affidavit: T159.49-50. Yet, in response to an otherwise benign question, Ms O’Connor offered a lengthy answer in which says she was with the plaintiff during part of the typing:

Ms O’Connor said the affidavit was sent to her by the plaintiff, she “then…looked at it [and] printed it off”. When noting the nature of the handwritten corrections on Ms O’Connor’s affidavit (which included corrections to her address, and the name of the Correctional Centre in which she had previously been in custody), the State submitted that the more probable result is that the plaintiff typed Ms O’Connor’s affidavit with little or no contribution from her. I agree.

It is a reasonable inference, in my view, that the plaintiff spoke to Ms O’Connor about the cross-examination he underwent. This is particularly so when having regard to Ms O’Connor’s demeanour when giving evidence. When asked simple and benign questions about whether she retained a copy of her affidavit, she offered unsolicited remarks that it contained her words. An extract of that evidence appears below:

Ms O’Connor has a history of dishonesty, having been in prison for most of 2012 on fraud offences: T167.43-47; T168.4-7. It was during this time that, according to her affidavit, DSC Gill and another police officer visited her in prison and DSC Gill said to her, “D [sic] worry, we hate EDWARDS more than we hate you”: Exhibit 4 at [9]. In her affidavit, Ms O’Connor could not specify in which month DSC Gill saw her in prison yet her oral testimony was that it was in June or July 2012.

Having regard to the general demeanour with which Ms O’Connor gave evidence, including the fact that she corrected matters in her affidavit that were of no consequence (e.g. her address and location of prison) but adopted the balance, the State submitted the Court should not accept her testimony as being reliable. I agree, particularly having regard to Ms O’Connor’s demeanour and obvious attempts to bolster the case for the plaintiff.

In written submissions, the plaintiff contended that the following matters adversely impacted upon the credit of DSC Gill (at para 56):

The plaintiff submitted that DSC Gill was “an unimpressive witness and his evidence should be rejected apart from any admissions made against his interests”.

During oral submissions, the plaintiff submitted:

I accept DSC Gill as a witness of credit having regard to my observations of him giving evidence and his general measured and frank responses to questions put to him in cross-examination, together with the particular observations I made of him. He did at times appear affronted in cross-examination, but this was generally limited and a reflection of the tone and content of the questions asked.

DSC Gill presented as a witness who was doing his best to tell the truth in circumstances where he had not worked for NSW Police for more than approximately 5 years. He was a disinterested witness, who was brought to court under subpoena, following numerous unsuccessful attempts by the State to obtain his cooperation without compulsion of court order.

On the whole, his evidence was undamaged in cross-examination and I accept him as a reliable witness. The confined nature of his evidence in chief does not give rise to any adverse inference against the State. Unlike the authorities relied upon by the plaintiff in support of that submission (see at para 56(f) of the plaintiff’s written submissions, extracted above), here, the State bore no onus on matters on which DSC Gill could have given evidence. Further, as mentioned, DSC Gill was not a party (or an employee of a party) to the proceedings. Given the way the plaintiff has chosen to run his case vis-à-vis the matters actually pleaded, and the circumstance in which the plaintiff came to give evidence, it was perfectly reasonable for DSC Gill to cover the field in a general way in examination in chief.

I will deal with some particular criticisms which I reject, some of which overlap with earlier findings.

The plaintiff’s attack on DSC Gill’s credit in written submissions at para 56 (extracted above) is, in my view, ineffective. Adopting the numbering used in para 56, my findings, noting that, as will be seen, the plaintiff has failed to provide the context in which DSC Gill’s evidence was given or where it can be found, are as follows:

[REDACTED]

[REDACTED]

[REDACTED]

It was submitted by the State, to the extent the evidence of DSC Selkirk and Mr Pincott remain relevant to these proceedings in light of the case now put (i.e. DSC Gill as being the only prosecutor: see Ea v Diaconu [2019] NSWSC 795 at [48]-[50], [82]), the Court should also find, as I do, that these witnesses were doing their best to assist the Court by giving truthful answers.

For the plaintiff to succeed in his action for malicious prosecution he must satisfy the test set out by the High Court in A v NSW at [1], namely:

The plaintiff satisfied the first 2 requirements. The elements to be proven, to the Briginshaw standard, are whether the identified prosecutor, DSC Gill, initiated the prosecution with malice and with an absence of reasonable and probable cause. I have earlier ruled DSC Gill was not the prosecutor after 2 March 2011, but I have nonetheless explored the facts and circumstances after 2 March 2011, as contested by the plaintiff, above as well as briefly further dealing with the maintenance issue below.

The following is a summary of the submissions were advanced by the plaintiff as to the “absence of reasonable and probable cause”, noting, in that respect, many of the plaintiff’s submissions were dealt with earlier in this judgment.

The plaintiff contended:

In oral submissions, the plaintiff submitted:

In order for a plaintiff to establish that a prosecutor acted with an absence of reasonable and probable cause in initiating (and/or maintaining) the proceedings the plaintiff must prove either:

I have earlier set out the relevant principles governing the considerations under this heading. However, some additional remarks should be made.

I agree with the submission of the State that in a case such as this, where the prosecutor did not have personal knowledge of the facts underlying the charge, but acted on information, the issue is not whether the plaintiff proved that the state of mind of the prosecutors fell short of a positive persuasion of guilt. Rather, it is whether the plaintiff proved that the prosecutors did not honestly form the view that there was a proper case for prosecution, or proved that the prosecutor formed that view on an insufficient basis. A v NSW at [118]; Gillies v State of New South Wales (No 2) [2014] NSWSC 1598 (“Gillies”) at [51].

The expression “proper case for prosecution” is not susceptible of exhaustive definition without obscuring the importance of the burden on a plaintiff of proving the absence of reasonable and probable cause in the variety of factual and forensic circumstances in which that question may arise: A v NSW at [81]; Wood at [240].

In determining whether the prosecutor had a sufficient basis to warrant the charges being laid or maintained, Gyles JA in Thomas v State of New South Wales (2008) 74 NSWLR 34 (“Thomas”) at [105], identified the following factors:

With the entirety of relevant principles in mind, I turn then to the question of reasonable and probable cause.

At the outset it may be noted that the plaintiff accepted that his initial arrest was lawful. In my view, and consistent with the submissions of the State, at the time DSC Gill charged the plaintiff, he clearly considered that there was “proper case for prosecution”. Reference, in that respect, may be made to the following elements of the factual background:

Further, and contrary to the plaintiff’s submission, DSC Gill’s evidence was that the identification of the shooter given by Mr Fing was not the sole basis for the charge. He took other matters into account.

The plaintiff submitted that, objectively, there could not be reasonable and probable cause shown without a statement from Mr Fing. Thatt submission may not be accepted in light of the discussion above.

Further, the plaintiff’s contention overlooks the fact that any doubts as to the account given by Mr Fing and others are matters properly left for the jury to determine. For example, any failure on the part of police to produce the notepaper on which Mr Uicich says he recorded the registration details of the vehicle, or whether the shooting itself was staged, are questions for the jury (noting that Mr Uicich identified the number plate of the car driven from the scene).

The proposition is, so far it is expressed in the broad terms relied upon by the plaintiff, contrary to law for the following reasons:

As mentioned, in written submissions at para 21, the plaintiff identified 27 reasons why “the offence taking place in the manner alleged by the prosecution was impossible” (emphasis added). In doing so, the plaintiff has assumed upon the prosecutor the role of fact finder and, in a sense, a responsibility to test every possible relevant fact before taking action (cf Herniman). Further, most of the matters raised, were of the kind that were properly left to the jury.

It is unnecessary to return to each of those contentions seriatim (as the State did in written submissions) because in substantial measure, I have earlier either rejected the subsidiary propositions said to substantiate the conclusions the plaintiff sought to be drawn or have not accepted the factual foundation upon which the plaintiff’s contentions were based.

I have found that DSC Gill was not the prosecutor for the purposes of the tort from 2 March 2011. In any event, as I have mentioned, I have rejected the factors relied upon by the plaintiff as to the absence of reasonable and probable cause (and malice) in the course of traversing chronologically the events after 2 March 2011, including, the issues regarding the first and second ballistics reports, the air rifles, the GSR report, and the investigation into the plaintiff’s alibi.

In order for malice to be made out, the plaintiff must prove the prosecutor, DSC Gill, was motivated to prosecute the plaintiff by an improper purpose.

The plaintiff advanced the following submissions in support of its case vis-à-vis malice:

In written submissions, the plaintiff further submitted:

It was contended that DSC Gill acted malicious in the following ways (see at para 58):

The plaintiff further submitted:

During oral submissions, the plaintiff submitted:

Counsel for the plaintiff also placed emphasis upon the statements attributed to DSC Gill by the plaintiff:

During oral submissions, as to the evidence of DSC Gill maintaining the prosecution, counsel for the plaintiff submitted “[h]e maintained the prosecution by taking steps”.

Reference, in that respect, was made to Landini, which cites Daniels v Telfer (1933) 34 SR (NSW) 99.

In my view, the matters relied upon by the plaintiff to establish malice by inference, particularly when seen in the light of my earlier factual analysis and findings therein, are insufficient to establish malice.

Further, the plaintiff has not clearly delineated the improper purpose relied upon to support his claim.

DSC Gill expressly denied any malice. I have found him to be a credible witness, I agree with that State that his affront at being asked somewhat presumptuous questions cannot now be taken as a substitute for malice.

Further, the evidence, including the numerous police witness statements tendered without restriction in the plaintiff’s case, reveals DSC Gill as being but one among many involved in the investigation, which was said to be competent.

The plaintiff sought to establish malice by inference by pointing to the prosecutor’s reliance upon Mr Fing’s evidence in the face of what he alleges is material that demonstrates his lack of credit, namely, that he was a heroin user with a criminal history. However, that does not prove the prosecution was motivated by malice. As RS Hulme AJ observed in Saad v State of New South Wales; Saad v State of New South Wales [2016] NSWSC 1247 (“Saad”) at [392]-[393]:

I have earlier rejected the plaintiff’s submissions regarding a failure to investigate an alibi. As to the matters raised in [487(5)] I have either found them unsubstantiated or explicable as part of the course of the investigation being undertaken by DSC Gill. Additionally, as to what the plaintiff says were DSC Gill’s omissions in his investigation, those matters were matters for crime scene officers. I have accepted DSC Gill’s evidence regarding his relevant and appropriate attempts to obtain information from Telstra (reference might also be made to the objective evidence which supports this: see Ex I).

As to other bases relied upon by the plaintiff, I shall approach them globally in light of my earlier findings.

The criticism that DSC Gill’s malice is demonstrated by the fact that he drafted a Facts Sheet that Mr Fing saw the plaintiff fire the shot is misplaced. This is because the Facts Sheet was prepared prior to obtaining Mr Fing’s statement and was based on the content of the triple-0 call in which a more robust identification was made.

[REDACTED]

I have earlier found that I do not accept Ms O’Conner’s evidence. In any event, her evidence does not establish malice.

I have earlier dealt with the issue of the search warrant. I accept the submission of the State that there is a conflation between failing to obtain a search warrant and an admission of malice is tenuous. The evidence in relation to DSC Gill applying (or not applying) for a search warrant demonstrates the overall circumspection involved in his investigation.

I have earlier discussed the issue of whether, as the plaintiff contended, DSC Gill maintained the prosecution against him.

Finally, as to the contention that DSC Gill was somehow responsible for the timing of the service of the laptop report, there is no evidence as to why that report, which was dated July 2012, was only served in February 2013. It may have only been provided to the DPP in February 2013. Further, I accept the submission of the State that, even if DSC Gill is mistaken, poor practice does not equate to malice.

For the reasons outlined above, the plaintiff’s claim in malicious prosecution should fail.

In written submissions, the plaintiff submitted:

In oral submissions, the plaintiff submitted:

The plaintiff’s case for false imprisonment is not based on the initial arrest being unlawful, but rather proceeds on the notion that from 8.16am on 25 February 2011, DSC Gill was armed with information which justified the withdrawal of the plaintiff’s arrest. That is, the plaintiff was falsely imprisoned from 8:16am to the time the plaintiff was brought before a magistrate. It cannot properly be contended that the plaintiff was unlawfully imprisoned after the magistrate denied him bail.

The plaintiff does not specifically identify what is said to justify the withdrawal of his arrest or how or when the arrest ought to have been withdrawn. In any event, I am satisfied, on the evidence before the Court, that the continued arrest of the plaintiff to the time he was brought before a magistrate was lawful.

Section 105 of LEPRA, as at 25 February 2011, provided:

As a preliminary step, some legal principles should be mentioned:

The person whom the plaintiff contends ought to have withdrawn the plaintiff’s arrest was DSC Gill. He gave evidence that it was proper that the plaintiff had been arrested, and that his view as to propriety of charges did not change. That evidence, coupled with the objective evidence such as the triple-0 call, which was admitted without limitation, provides ample justification for the continuation of the arrest in the period in question. It may be observed in that respect that the magistrate refused bail.

The State pointed to the converse of the position maintained by the plaintiff. If the plaintiff’s arrest were withdrawn, he then may have had a claim for false imprisonment if he could establish there was never an intention to charge him: see e.g. Robinson v State of New South Wales [2018] NSWCA 231 (“Robinson”). In Robinson, the appellant was arrested in circumstances where there was no intent to lay charges until further information was obtained from him in a police interview. Following the interview, he was released. This period of detention, the Court found, amounted to false imprisonment.

The arrest, being the precursor to criminal proceedings, was deemed unlawful because it was made at a time when a decision whether to charge the appellant had not been made and thus was not for the purpose of commencing the criminal process. The judgment of the Court of Criminal Appeal was affirmed in the State of New South Wales v Robinson (2019) 266 CLR 619; [2019] HCA 46. Here, there can be no doubt that the arrest was for the purpose of commencing the criminal process.

In these circumstances, the plaintiff has not made out a claim for false imprisonment. The police involved would properly have been criticised had they discontinued the arrest of the plaintiff in this matter after his ERISP and without bringing him before a magistrate. The magistrate, unsurprisingly, remanded the plaintiff in custody.

This aspect of my judgment deals with damages in the event that my determination as to the failure of the plaintiff’s claim in malicious prosecution and false imprisonment is considered erroneous.

For the plaintiff to recover damage, it must fall within one of the categories identified in Savile v Roberts (1698) 19 ER 1147, namely:

Proof of damage is a further requirement as malicious prosecution is an action on the case: Landini at [20].

Aggravated and exemplary damages are also recoverable, although not obligatory: State of New South Wales v Zreika [2012] NSWCA 37 at [60] per Sackville AJA (Macfarlan and Whealy JA agreeing).

It is an established principle that a plaintiff will not be deprived of an award of damages merely because of a difficulty in proving the quantum of those damages: Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 at 183 per the court; Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135]-[137] per Beazley JA. However, this principle is applicable to explaining why a court can award damages where computationally and evidentiarily there is a difficulty.

Where damages can readily be determined via evidence, a court will resolve against the party who could have (and should have) adduced the evidence: Ho v Powell (2001) 51 NSWLR 572 at [15]-[16] per Hodgson JA (Beazley JA agreeing); Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 at [66] per Hodgson JA.

Further, damages will not be awarded if the available evidence does not enable the Court to rise above mere speculation or guesswork: see the summary of principles in McCrohon v Harith [2010] NSWCA 67 at [118]-[126] per McColl JA (Campbell JA and Handley AJA agreeing).

In the FASOC, the plaintiff claims damages totalling $3,147,200, plus exemplary damages, interest and costs, which comprises:

The origins and basis of these claimed figures is entirely unclear.

The State correctly contended that the plaintiff makes no attempt in his written submission (see section headed “Damages”) to identify the amounts he claimed for damages. In particular, no submission is made supporting a claim for damage to reputation, or exemplary damages. Little or no evidence supporting such claims was adduced.

In written submissions, the plaintiff submitted (see at paras 65-68):

As to aggravated damages, counsel for the plaintiff contended in oral submissions the following bases for the amount:

The plaintiff maintains, it would appear, a claim for injury to person and loss of liberty.

The plaintiff accepts he was lawfully arrested and detained, but claims that from 8.12am on 25 February 2011, his detention became unlawful: see FASOC at paras 9-18. That being the case, any claim for loss of liberty can only commence from about 8.12am. The plaintiff was brought before a magistrate that morning and bail was refused.

As stated above, the plaintiff was granted conditional bail on or about 28 March 2011 but was not released until about 5 May 2011, after variations to surety arrangements.

The plaintiff remained on bail until 30 March 2012, when he was imprisoned for tax and dishonesty offences. He was released on 29 May 2014: Exhibit 72; T105.6, 48-9. His sentence for the Commonwealth offences was being served at the time the plaintiff’s criminal trial was heard in February 2013.

Any claim for loss of liberty is limited to the period 25 February 2011 at 8:12am to 5 May 2011, being a period of 69 days.

In Beckett v NSW, Harrison J recognised at [670] that “there is no authoritative guideline on how to calculate damages in wrongful imprisonment or malicious prosecution cases by reference to the period of time the plaintiff was detained. There is no clear arithmetical symmetry”. Ordinarily, applying a daily rate for each day in detention is not appropriate.

In that decision, Harrison J departed from the previously widely held view that the initial period of custody was worth more as it was more shocking than the end of a longer sentence: Beckett v NSW at [806]. The State submitted that, on this view, awards of damages for comparatively short periods of loss of liberty are lower than would formerly have been the case. With this in mind, and adopting a comparative approach by reference to the cases referred to in Beckett v NSW at [672]-[690], the State submitted that the plaintiff, if successful, would be entitled to no more than $40,000 for deprivation of liberty.

I consider that the apportioning amount to be $60,000. However, this assessment is premised on the assumption the plaintiff succeeded in establishing that the initiation of the prosecution was malicious, which I have rejected. It may be further observed that if the plaintiff established a claim for maintenance, he would not be entitled to any damages at all for deprivation of liberty because by the time that conduct took place either (a) he was already out on bail, or (b) he was serving his sentence for tax offences.

I agree with the submissions of the State that the evidence of the plaintiff is deficient so far as it seem to prove very significant emotional trauma. This may be illustrated by the plaintiff’s evidence below:

Further, the plaintiff’s Record Inmate Interview at Cessnock Correctional Centre, as recorded in the CCC record, does cast doubt as to the extent the plaintiff was in fact experiencing emotional distress.

It is also relevant that the plaintiff does not challenge the legality of his arrest. Thus, to the extent the plaintiff does suffer psychological sequelae, it is at least in part attributable to lawful conduct. For example, at para 76 of Exhibit 2, the plaintiff says that “still to this day [he has] clear flash backs of been [sic] cable tied and arrested”.

Although the plaintiff had served expert medical evidence in these proceedings (see paras 57–59 of the plaintiff’s Statement of Particulars), he did not to tender any such material.

For this reason, my findings would be restricted to findings made with respect to effect the plaintiff’s time in custody (25 February 2011 – 5 May 2011) had on him. Without expert evidence, the Court cannot be satisfied that the injuries and losses set out at paras 10–43 and 46–49 of the plaintiff’s Statement of Particulars were, in any event, caused by the alleged malicious prosecution.

The plaintiff led no evidence, and made no submissions, as to reputational loss. No amount is allowed in that respect.

At para 44 of the Statement of Particulars, the plaintiff claims as out-of-pocket expenses, the costs for legal representation. The plaintiff makes no submission with respect to the claim. In any event, there is no evidence of legal costs, or a liability for reimbursement of legal costs, having been incurred by the plaintiff. There has certainly been no attempt to quantify that amount.

I would have rejected the claim.

The plaintiff submitted he “should also receive a lump sum cushion for economic loss”. In my view, the State is correct to submit that the plaintiff should not receive any award for economic loss in light of the insufficient proof offered to the Court on that question.

The plaintiff did not tender any notice of assessments issued to him by the Australian Taxation Office, despite having purportedly lodged returns over the years. In his oral testimony on the topic, he referred back to a summary prepared by his then accountant, Mr Edward Dixon. Mr Dixon was not called to give evidence and the tender of his summary (which initially appeared at p 49 of Ex 88) was not pressed: T218.13; T219.47-220.4. That being the case, the extent of the evidence is those tax returns which appear within Ex 88 and the plaintiff’s oral evidence on the topic: T104-6.

I place limited weight on the plaintiff’s evidence of past earnings. Further, there is no objective evidence with which the Court can satisfy itself of the accuracy of either the information contained within the returns that form part of Ex 88, or the plaintiff’s oral testimony.

There was evidence that the plaintiff was bankrupt from 2007 to 2010. It may be inferred that the plaintiff’s earnings for the years immediately following his discharge were modest.

In any event, the evidence (T141.11-T143.50) reveals that:

Unlike with his electrical license, the plaintiff has made no attempt to have his security license reinstated. The evidence rather suggests that the plaintiff would have, and indeed wished to, pursue a career requiring an electrical license and that any difficulty he is experiencing obtaining that license is solely attributable to his tax conviction. As the State submitted, contrary to FASOC para 33, the plaintiff’s inability to return to gainful employment is not caused by anything done or not done by DSC Gill.

In the circumstances, the plaintiff has not proved any economic loss. I would not have awarded any amount for economic loss.

Aggravated damages are compensatory in nature and are awarded where the harm done by a wrongful act is “aggravated by the manner in which the act was done”: Uren v John Fairfax & Sons (1966) 117 CLR 118 at 149. The award of aggravated damages particularly recognises any acute insult or humiliation over and above what might ordinarily be expected to occur: Fernando v Commonwealth of Australia (No 4) [2010] FCA 1475 at [3]-[4]. A plaintiff who succeeds in an action for an intentional tort will not necessarily receive either aggravated or exemplary damages. When assessing the plaintiff’s damage it is necessary to ensure that no element is compensated more than once: State of New South Wales v Zreika at [60]-[64].

Where a plaintiff has been detained by police but has not been maltreated, or has been dealt with in a polite and courteous manner, it is unlikely aggravated damages will be available: see e.g. New South Wales v Delly [2007] NSWCA 303 (police wrongfully arrested a plaintiff for non-payment of fines, but at all times treated her in a polite and courteous manner); Zaravinos v New South Wales (2004) 62 NSWLR 58 (plaintiff detained at police station after attending for an interview, but he was not maltreated).

The plaintiff’s claim for aggravated damages seems to be based on the notion that DSC Gill knew the plaintiff was innocent and that the plaintiff led the plaintiff to believe the charge would be dropped. I have rejected such contentions. Nonetheless, evidence does not properly permit of an award of aggravated damages because the plaintiff has not demonstrated there aggravating features which give rise to a claim for aggravated damages.

Exemplary damages are punitive in nature and focus upon the conduct of the defendant, rather than the harm caused to the plaintiff. Typically an award would only be made in circumstances where the defendant’s conduct showed “a conscious and contumelious disregard” for the rights of the plaintiff: XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1985) 155 CLR 448 at 471; New South Wales v Cuthbertson [2018] NSWCA 320 at [124], [150].

There is no evidence that DSC Gill acted in bad faith or otherwise than in accordance with what he considered was appropriate in the circumstances. There is no evidence anyone acted with a conscious and contumelious disregard for the plaintiff’s rights.

In these circumstances, the plaintiff has not made out a case for aggravated or exemplary damages.

Any false imprisonment claim can only be for a period of less than 4 hours. The plaintiff says the arrest should have been withdrawn by 8.16am and he was brought before a magistrate that morning. In those circumstances, if any such claim is made out, an award of no more than $10,000 would be justified.

If I had ruled upon the issue of damages, I would have made provision for damages for person or liberty and false imprisonment, but otherwise rejected the claim for damages for the reasons given above.

The plaintiff’s claim should be dismissed, with costs.

The Court makes the following orders: