El-Wasfi v State of New South Wales; Kassas v State of New South Wales

1. [1]

   LEEMING JA: These two appeals and cross-appeal, which were heard concurrently, arise out of a series of unsuccessful prosecutions for murder, followed by a series of generally unsuccessful claims for wrongful arrest and malicious prosecution. The principal issues in this Court were whether the primary judge erred (a) in failing to find malice on the part of the prosecutors, (b) in the case of three of the appellants, in failing to find an absence of reasonable and probable cause for the prosecutions, and (c) in finding that one of the appellants was wrongly arrested in August 2002 when he was charged with concealing evidence.

2. [2]

   The murder occurred nearly 20 years ago, and almost all of the events in question happened more than a decade ago. The background is lengthy and complex, especially in relation to the various criminal prosecutions. The civil proceedings occupied 14 days, and the reasons of the primary judge are lengthy. Before turning, as is unavoidable, to the factual and procedural details, it may assist at the outset to provide the following overview.

Overview

1. [3]

   Mr Robert McPherson was attacked on the evening of 27 January 1998 in Castlereagh Lane in Redfern. He died the following day. The cause of death was a stab wound through his left chest. However, there were also significant head injuries and many other less serious injuries. It was not suggested that he identified his attackers before he died (other than as “the Lebs” or “the Lebanese”). With him when he was attacked was Mr Leonard Mazzeo, who survived with relatively minor injuries. He was unable to identify the attackers clearly. Shortly thereafter, police installed a listening device in premises occupied by the Saad family nearby, and sound recordings of two conversations, made on 30 January 1998 and 2 February 1998, assumed considerable prominence in the prosecutions and civil proceedings which ensued.

2. [4]

   It will be necessary in due course to elaborate on the procedural details. At the outset, it will suffice to say that Messrs James El-Wasfi, Sam Kassas, Andrew Pound and Danny Saad were all charged in 2002 or 2003 with Mr McPherson’s murder. Mr Ashley Saad was charged with concealing a serious indictable offence (Crimes Act 1900 (NSW), s 316(1)). Mr Fred Saad was charged as an accessory after the fact of murder. Mr El-Wasfi was arrested and charged with concealing a serious indictable offence in August 2002, and later charged with murder in November 2002.

3. [5]

   Three of the men, Messrs Pound, Kassas and Danny Saad, had previously been charged with Mr McPherson’s murder in 1998. At that time, Mr Pound was committed to stand trial by the Children’s Court. Mr Gary Roth, who had been a lodger in the Saad premises, was the only witness who gave evidence at the committal. He said that Mr Pound had confessed to him to breaking a baseball bat over Mr McPherson’s head. The magistrate said that Mr Roth was “clearly a rogue” but that she had found him to be “believable and credible”. However, Mr Roth refused to give evidence at the committal of Mr Kassas and Mr Danny Saad, leading to the termination of the committal proceedings and the discontinuance of the proceedings against Mr Pound.

4. [6]

   The police investigation resumed in 2002 leading to the six men being charged. Proceedings against Mr Ashley Saad were severed in around September 2003, on the basis that, as it was put by his solicitor, “in the event that there was a murder conviction recorded in relation to any of the other offenders he would admit that conviction in respect of any trial against him in terms of concealing a serious offence – murder”. The prosecution of the remaining five accused resulted in a directed acquittal on the murder charge in the case of Mr El-Wasfi on 27 October 2004, verdicts of not guilty in the cases of Messrs Pound, Kassas and Fred Saad, and a hung jury in the case of Mr Danny Saad. Mr Danny Saad was not retried, and proceedings were subsequently withdrawn against Mr Ashley Saad. On 10 January 2005 the Director of Public Prosecutions (the DPP) directed that there be no further proceedings against Mr El-Wasfi on the concealment charge.

5. [7]

   The failure of the prosecutions led to civil proceedings being commenced in 2007 by five of the men, and in 2008 by Mr Ashley Saad. Both proceedings were heard together. The principal cause of action was malicious prosecution. The claims made by Messrs Fred and Danny Saad were settled prior to the trial, which had originally been listed for seven weeks in early 2014, following a lengthy procedural history, one aspect of which is relevant to the State’s cross-appeal. In somewhat unusual circumstances described in Saad v State of NSW (No 3) [2014] NSWSC 214, the hearing was vacated. The claims brought by the remaining four plaintiffs were eventually heard by the primary judge in February and March 2015 over 14 days, and resulted in a lengthy judgment of 503 paragraphs delivered on 12 September 2016: Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247.

6. [8]

   By way of overview, the primary judge found that there was no reasonable and probable cause for Mr El-Wasfi to have been charged on 23 August 2002 with concealing a serious indictable offence contrary to s 316 of the Crimes Act 1900 (NSW), nor for being charged with murder on 6 November 2002, and that the lack of reasonable and probable cause continued until he was acquitted: at [363]-[367]. In contrast, the primary judge found that there was reasonable and probable cause for the prosecutions against the remaining three men. However, in relation to all four plaintiffs, the primary judge found that neither the police officer, Sergeant McLennan, who was in charge of the police investigation, nor the three Crown prosecutors, Mr Roger Kimble, Mr Wayne Roser and Mr Terry Thorpe, who had carriage of the prosecution at various times, had been motivated by malice. It followed that all claims for malicious prosecution were dismissed.

7. [9]

   Messrs El-Wasfi and Pound had also sued for “wrongful arrest”. The primary judge found that the arrest of Mr El-Wasfi on 23 August 2002 when he was charged with concealment of a serious indictable offence was wrongful: at [466], but dismissed the claim brought by Mr Pound: at [469]. Other causes of action were abandoned or dismissed.

8. [10]

   The result was a judgment in favour of Mr El-Wasfi in the sum of $2,000 with the balance of both proceedings being dismissed. The primary judge gave reasons for that award at [470]-[488]. It was common ground at trial that compensatory damages were to reflect the period from the arrest until Mr El-Wasfi came before a magistrate on 24 August 2002: at [486]. In awarding $2,000, the primary judge had regard to the fact that Mr El-Wasfi “had previously been convicted in the period 1995 to 23 August 2002 of something over 30 offences ranging from offensive language to breaking, entering and stealing”, many of which would have resulted in his arrest, and that on 30 July 2002 he had been charged with supplying drugs on an ongoing basis, for which he was sentenced to imprisonment for 2 years and 3 months including a non-parole period of 14 months: at [484]. Claims for aggravated and exemplary damages were rejected: at [489]-[492].

9. [11]

   After a further hearing, his Honour gave a reserved judgment as to costs, and made special costs orders the detail of which need not be repeated here: Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales (No 2) [2016] NSWSC 1482.

10. [12]

    Passing over some procedural irregularities, two appeals have now been brought from those orders. In the first, Mr El-Wasfi challenges the failure to find malice, and the quantum of damages awarded for his wrongful arrest. In the second, Messrs Pound, Kassas and Saad challenge not only the failure to find malice, but also the findings of probable and reasonable cause. Mr Pound also challenges the dismissal of his claim for wrongful arrest.

11. [13]

    For its part, the State sought leave to cross-appeal against the judgment based on wrongful arrest in favour of Mr El-Wasfi, as well as challenging the costs orders. The State did not challenge by way of notice of contention the finding of an absence of reasonable and probable cause in relation to the prosecution of Mr El-Wasfi. It was common ground that if any aspect of either appeal or cross-appeal succeeded, then the discretion as to costs would need to be re-exercised.

12. [14]

    Accordingly, the principal issues arising in this Court are:

    1. (1)

       Whether there was appellable error in the primary judge failing to find malice in relation to the prosecution of all four men;

    2. (2)

       Whether the primary judge erred in finding that there was reasonable and probable cause to prosecute Messrs Pound, Kassas and Ashley Saad, and

    3. (3)

       Whether the arrest of Mr El-Wasfi on 23 August 2002 was lawful.

13. [15]

    Depending on the resolution of those issues, there are further issues relating to quantum and costs.

14. [16]

    It is necessary to clarify some names. The spelling of Mr El-Wasfi’s name varies in the documents. In what follows, the form used in his notice of appeal and evidentiary statements has been followed, and the different spelling used by the primary judge and in some of the transcript has been corrected throughout. Mr El-Wasfi was also known as “Camel” and sometimes “Kamil”.

15. [17]

    Mr Pound was a youth at the time of the murder, and was referred to as “AH” throughout the criminal proceedings, in accordance with the Children (Criminal Proceedings) Act 1987 (NSW) and an order made by Sully J on 13 September 2004. The primary judge recorded that with the consent of all parties he revoked that order, and referred to him as Mr Pound. These reasons follow the same course, although some documents refer to him as Andrew Hoogwerf and he was sometimes known as “Shorty”.

16. [18]

    The paragraph numbering in the version certified by the primary judge’s Associate and that published on Caselaw diverges. References in what follow are to the paragraphs as published on Caselaw.

Circumstances surrounding the murder

1. [19]

   Shortly before 10pm on 27 January 1998, Mr McPherson and Mr Mazzeo were attacked by a group of men in James Street, Redfern, at or near its corner with Castlereagh Lane. The contemporaneous evidence was set out in detail by the primary judge at [36]-[84]; what follows is a summary of that evidence.

2. [20]

   At the time of the murder, the Saad family, including Messrs Danny and Fred Saad, lived at 262 Chalmers Street. Those premises extended to Castlereagh Lane. Prior to 27 January 1998, one or other of the Saad family had leased a garage at the rear of 60 Great Buckingham Street. That garage faced onto Castlereagh Lane opposite the rear of 262 Chalmers Street. It was not in dispute that members of the family and friends and acquaintances often gathered in and adjacent to the garage.

3. [21]

   Mr Mazzeo described the events of 27 January 1998 as follows. Mr McPherson and Mr Mazzeo had been drinking. They walked down Castlereagh Lane into James Street to buy some whisky at a nearby hotel. In James Street, a red utility accelerated hard and just missed them. Mr McPherson called out, “Take it easy you idiot” and offered to take on both its occupants. The utility sped off. While Mr McPherson and Mr Mazzeo were walking back along James Street near Castlereagh Lane, the red utility and a “blue XB Ford” pulled up in front of them and about six people alighted from the vehicles. Mr Mazzeo was grabbed and hit with a stick. He broke free and ran to 234 Chalmers Street calling out for help for Mr McPherson. Returning almost immediately he saw four persons get off Mr McPherson who stood up and said that he had been stabbed.

4. [22]

   Mr McPherson died the following day. The report of the post-mortem examination indicated that Mr McPherson had suffered from one stab wound, significant head injuries and many other less serious injuries, including lacerations or abrasions across the deceased’s back and shoulders that could well have been inflicted by a chain.

5. [23]

   There was no doubt that Mr McPherson had been murdered. There was no doubt that the stab wound was the cause of his death. At issue was whether the appellants and other members of the Saad family were part of that group.

6. [24]

   Two neighbours described the attackers as all, or mostly, Lebanese. Another resident, whose premises backed onto Castlereagh Lane, said that at about 5.30pm he saw six males go into what would seem to have been the Saad garage, four of these males being “Aussies, whiter than me”. In a statement of 2 February 1998, Mr Rupert Olivera, who attended on Mr McPherson prior to the police or ambulance officers, said that he asked the deceased who did it and the deceased replied, “The Lebs, when I come back from the bottle shop”. Shortly afterwards, Mr Olivera saw a utility he described as “orange” going around the corner from Castlereagh Lane into James Street and Danny Saad running down towards the garage opposite his place. Another witness, Mr Woodings, who saw the deceased staggering down Chalmers Street after the attack, also recounted hearing the deceased say, “Lebanese”.

7. [25]

   In a later statement made on 9 July 2002 Mr Olivera recorded that on the night of the murder he had seen Danny Saad in the laneway but had not mentioned this in his earlier statement because he was scared and did not want to become involved. In the later statement, he also said that some days later, Danny Saad said to him, “What happened, happened. We got away with it.”

8. [26]

   Another witness, Mr Aron Ezzy, made two statements dated 28 January and 4 March 1998. He said he heard Mr Mazzeo call out that Mr McPherson was in a fight and that he and others then ran to the location. He said that he saw nine Lebanese males standing next to a red utility, throwing bottles at Mr McPherson and Mr Mazzeo, one of the males being Danny Saad. A further witness, Mr Craig Spicer, said in a statement dated 5 July 2002 that he saw the front of a utility sticking out of Castlereagh Lane into James Street that was either a ZF or XD model Ford. Other statements corroborated Mr Mazzeo’s account of the presence of two vehicles.

9. [27]

   There was evidence that Mr Danny Saad was suffering from injuries to his right leg on 29 January 1998, and received treatment from a Dr Duggin on that day. Dr Duggin did not think the injuries were consistent with Danny Saad’s description that he had fallen onto some rocks on the beach.

10. [28]

    There was evidence that Mr Danny Saad owned a red Holden utility. On 2 February 1998 the red utility was found by police near Botany Drive in the Eastlakes area in “pristine” condition. The vehicle was photographed and examined; a presumptive test (presumably for blood) to a small mark on the driver’s seat gave a positive result but there was no evidence as to what happened to the swab.

11. [29]

    There was evidence that Mr Fred Saad owned a grey or blue Ford Falcon. During the night of 28 January, the Falcon was deliberately burnt in a street in Surry Hills.

12. [30]

    In his statement of 1 April 1998, Mr Roth said that the day after the murder Danny referred to having had a heated argument and a fight during which the bloke “bit me on the leg”, and that Fred Saad told him that he had burnt his Ford sedan. Mr Roth also referred to Eddie (another person said to have been in the laneway) and “Shorty” [Mr Pound] burning the broken handle of a baseball bat, and to Danny saying that he had to get rid of the ute and talking to someone about going over the whole car from top to bottom with “Armorall” to get rid of fingerprints (the significance of the reference to the brand will be returned to below). In his statement of 16 April 1998, Mr Roth said that on the morning “after the killing” he asked Fred, “Where’s the Ford” to which Fred replied, “We burnt it to get rid of our fingerprints.”

13. [31]

    Mr Roth also said in that first statement that he heard persons calling to him from the laneway on the night of the murder. Soon after the fight, he said that:

14. [32]

    On 30 January 1998, the police conducted searches of 262 Chalmers Street and the garage behind. Nothing indicating the involvement of the appellants in the murder of Mr McPherson was found.

15. [33]

    On 2 April 1998, the police conducted another search of the premises and a chain attached to a piece of wood with U-bolts through its links was located in the garage. The chain appeared to be consistent with the marks found on Mr McPherson’s back. Mr Roth’s statement of 1 April 1998 stated that he had seen a chain of similar description picked up and thrown down by Danny Saad in the laneway some weeks after Mr McPherson’s murder and that he had seen it sometime later in the garage. When questioned by police, Danny Saad denied having seen the instrument.

16. [34]

    There was considerable difficulty in identifying the men that took part in the attack. On 18 February 1998, Mr Mazzeo was unable to identify any of the accused in the three videotapes shown to him by Detective Moubarak. In a videotaped walk-around on 10 May 2002, Mr Mazzeo identified two of the attackers as Mr Danny Saad and Mr Kassas, although at the time of the attack in 1998 he did not know their names. Redfern police officers deposed to knowing the identity and voices of the speakers in the Listening Device records. Constable McDonald, in a statement of 27 October 2003, referred to the area around 262 Chalmers Street as being a crime “hot spot” and said he had had extensive dealings with Danny, Fred and Donna Saad, Sam Kassas, James El-Wasfi, Andrew Hoogwerf [Mr Pound] and Garry Roth over a period of 2½ years.

Criminal proceedings up to 2002

1. [35]

   On 2 April 1998 Messrs Danny Saad, Sam Kassas and Andrew Pound were arrested and charged with murder.

2. [36]

   On 14 July 1998 Mr Pound was committed to stand trial for murder before Magistrate Gilmour at the Bidura Children’s Court. Mr Roth gave evidence at the committal hearing.

3. [37]

   On 27 October 1998 committal proceedings against Mr Danny Saad and Mr Kassas were withdrawn after Mr Roth refused to give evidence. Subsequently, on 19 January 1999, the DPP presented a no‑bill in relation to Mr Pound. There the matter seems to have rested until 2002.

The roles of Sergeant McLennan and the DPP officers

1. [38]

   The police investigation into Mr McPherson’s death was re-opened on 1 May 2002. It was styled “Taskforce Gatton”. Sergeant McLennan was appointed to head that investigation.

2. [39]

   Sergeant McLennan drafted the operational orders which led to the arrest of Mr Kassas and Messrs Danny, Fred and Ashley Saad on 9 August 2002. He was the informant for the charging of Mr El-Wasfi on 23 August 2002.

3. [40]

   It was common ground that the prosecutions were “taken over” and carried on by the Director of Public Prosecutions, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW), very shortly after charges were laid (although the notices required by s 10 to this effect were not in evidence). There was a committal hearing in late 2002 and early 2003 before Magistrate Orchiston. A trial before Newman AJ and a jury commenced in August 2004, but the jury was discharged before verdict. A second trial, before Sully J, commenced on 13 September 2004. Mr Kimble represented the Crown in the committal proceedings before Orchiston LCM, Mr Roser was Deputy Senior Crown Prosecutor who appeared in the hearing and trial before Newman AJ, and Mr Thorpe appeared as Crown Prosecutor in the trial before Sully J.

The 2002 arrests and prosecutions

1. [41]

   Pursuant to a controlled operation, an undercover operative made one purchase of heroin from Mr Danny Saad and four from Mr El-Wasfi. Sergeant McLennan then arranged for Mr El-Wasfi to be examined before the New South Wales Crime Commission. Sergeant McLennan gave evidence that he had hoped this would result in incriminatory calls on phones that had been intercepted.

2. [42]

   On 30 July 2002 Mr El-Wasfi was interviewed by the NSW Crime Commission. He denied any knowledge in relation to Mr McPherson’s murder. He said that in 1998 he had been in a fight with Mr Roth, and that he (El-Wasfi) had been armed first with a knife, and then with a metal pipe. The Crime Commission notes record that “He offers this fight as an explanation of the LD [Listening Device] transcript that he remembers having seen”.

3. [43]

   On 6 August 2002, Ms Michelle and Mr Jeffrey Holland made incriminatory statements. Mrs and Mr Holland were acquaintances of the Saad family and had been to their house in Chalmers Street. Mr Holland bought heroin from the Saads and had been in a relationship with their sister, Caroline Saad. Both statements claimed that Danny Saad had confessed to killing Mr McPherson. Ms Holland’s statement claimed that he had told her that he had “stabbed the black bastard” in the presence of Ashley Saad, Carlie, Shorty, Jeffrey and Braydon, who were laughing about it.

4. [44]

   Both statements, insofar as they concern Mr El-Wasfi, are peculiar. In Ms Holland’s statement, Mr El-Wasfi is mentioned only in the last two paragraphs:

5. [45]

   Mr Jeffrey Holland’s statement claimed that James “Camel” El-Wasfi used to hang out at the Saad premises, and that:

6. [46]

   Mr Holland’s statement, particularly the reference to the unnamed “old bloke”, does not have the appearance of having been carefully checked.

7. [47]

   Mr Roth made two additional statements on 7 July 2002 and 7 August 2002. One stated that he was now willing to give evidence again. The other confirmed that he had had a fight with a person he knew only as Camel around one month before Mr McPherson was killed.

8. [48]

   On 9 August 2002, Mr Kassas was arrested and charged with the murder of Mr McPherson and assault of Mr Mazzeo occasioning actual bodily harm (at the time Mr Kassas was in custody for unrelated offences). Mr Ashley Saad was arrested and charged with concealing a serious offence (as well as further unrelated crimes). Mr Danny Saad was arrested and charged with the murder of Mr McPherson. Mr Fred Saad was arrested and charged with being an accessory after the fact to murder.

9. [49]

   On 23 August 2002 Mr El-Wasfi was arrested and charged with concealing a serious offence. Later in these reasons is set out the contemporaneous documents and testimonial evidence relating to that arrest, which was found by the primary judge to be unlawful, and which was the subject of the State’s cross-appeal.

10. [50]

    On 4 November 2002 committal proceedings before Magistrate Orchiston commenced against Messrs Danny, Fred and Ashley Saad, Kassas and El-Wasfi.

11. [51]

    Also on this date, Ms Holland gave an additional statement. She said that she recalled Mr El-Wasfi coming to her home in Dolls Point a few days after Mr McPherson’s murder, and that he had said:

12. [52]

    Her statement recorded that “Camel” had also been present when, according to her earlier statement, Mr Danny Saad had admitted that he had stabbed Mr McPherson. It said:

13. [53]

    On 6 November 2002 Mr El-Wasfi was charged with murder. On 27 March 2003, all five men were committed to stand trial. On 11 April 2003 Mr Pound was arrested and charged with murder.

14. [54]

    On 2 May 2003 the DPP presented an indictment charging Mr Danny Saad, Mr Kassas, Mr El-Wasfi and Mr Pound with murder, Mr Fred Saad with being an accessory after the fact and Mr Ashley Saad with concealing a serious offence. Each accused pleaded not guilty. (The DPP and Mr Ashley Saad agreed in around September 2003 that the charge against him should be severed from the indictment.)

15. [55]

    On 3 October 2003 a further indictment charged Messrs Danny Saad, Kassas, El-Wasfi and Pound with murder and Mr Fred Saad with being an accessory after the fact.

16. [56]

    On 13 October 2003 a voir dire before Newman AJ commenced on the admissibility of evidence in the trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound. Judgment was delivered on 21 November 2003 (R v Andrew John Hoogwerf (aka Pound); R v Sam Kassas; R v James El-Wasfi; R v Fred Saad; R v Danny Saad, unreported, Supreme Court of New South Wales). His Honour rejected a submission that the listening device material be rejected under s 137 of the Evidence Act: at [46]-[48].

17. [57]

    On 16 August 2004 the first trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound commenced. The trial terminated on 30 August 2004. The primary judge recorded at [30] that this occurred after Mr Roth had volunteered in the presence of the jury that some of the accused men were selling heroin.

18. [58]

    The second trial of Messrs Danny and Fred Saad, Kassas, El-Wasfi and Pound before Sully J commenced with a series of pre-trial applications on 13 September 2004, including a challenge to the listening device material. On 15 September, the Crown advised that:

19. [59]

    Justice Sully declined to admit the listening device material into evidence (R v Sam Kassas; R v Andrew Hoogwerf (aka Pound) – [A.H]; R v Danny Saad; R v Fred Saad; R v James El-Wasfi, unreported,16 September 2004, Supreme Court of New South Wales). His Honour’s reasons for doing so were that the quality of the recording “is almost indecipherable to the untrained ear”, and that there were gaps such that “the transcripts, viewed fairly, overall comprise disconnected passages, and sometimes sentences, interspersed with passages of matter which are simply indecipherable”. His Honour’s reasons do not address any particular recording. Instead he ruled that considerations of practical justice and fairness meant that they had to be excluded in their entirety. That global approach may reflect the way the argument was run on that occasion.

20. [60]

    On 29 September 2004 an indictment was presented to the Supreme Court before Justice Sully charging Messrs Danny Saad, Kassas, El-Wasfi and Pound with murder and Mr Fred Saad with being an accessory after the fact; each accused pleaded not guilty.

21. [61]

    On 14 October 2004, during the course of the trial, the Crown applied to cross-examine Ms Holland pursuant to s 38 of the Evidence Act, on the ground that it was likely that she would give evidence contrary to two statements she had earlier made. Sully J refused leave. He did so on the basis that the statements only amounted to proof that Ms Holland had made prior inconsistent statements. A similar ruling was made in the case of Mr Holland. The Crown elected not to call either of those persons. At the end of the Crown case, it was conceded that there was no case against Mr El-Wasfi, in light of the decision not to call the Hollands. Sully J then directed the jury to find Mr El-Wasfi not guilty.

22. [62]

    The jury retired on 8 November 2004 and on or after 18 November the jury returned verdicts that Fred Saad, Sam Kassas and Andrew Pound were not guilty. The jury could not reach agreement on Danny Saad.

23. [63]

    On 10 January 2005 the DPP advised that no further proceedings would be brought against Danny Saad. The outstanding charges against Messrs Ashley Saad, El-Wasfi and Kassas were withdrawn by 18 January 2005.

Problems with the evidence

1. [64]

   A number of listening devices were installed in the Saad premises on around 30 January 1998. The one that mattered was installed in the garage. The primary judge observed at [139]:

2. [65]

   There is a considerable amount of evidence referring to what was heard. What follows is directed to two recordings, known as Listening Device tapes “4bjl” and “57bjl”, and the transcripts which were made of them in 1998, upon which the civil litigation, both before the primary judge and on appeal, was focussed. The transcripts were themselves repeated in the documents in the renewed investigation in 2002, and plainly enough were relied on by Sergeant McLennan and the DPP officers at the time. However, it is important to bear in mind, especially in relation to the criticisms made as to the identification of the voices on those tapes, that there was a vast quantity of material to which little or no attention was given during the appeal. Some of that material was entirely unincriminating, but nevertheless would have been apt to affect the reliability of voice identification, especially where a particular speaker identified himself in terms. And some was (subject to the submissions as to the importance of context and the need to identify the speakers) incriminating. For example, a transcript of a recording made on 13 February 1998 includes Mr Pound saying “It doesn’t matter see, if I got done for murder I’ll still go to Reiby, you know what I mean”. (To be clear, I have not listened to that recording, nor relied on it for the purposes of this judgment; my purpose is to emphasise the limitations flowing from the selective reference to a large body of material in the way this appeal was run.)

3. [66]

   As at July 1998 there were difficulties with the quality of the Listening Device tapes. The solicitors then acting for Mr Pound advised on that date that the 12 cassette tapes were “unintelligible”.

4. [67]

   Handwritten records, which bear the appearance of being made at the same time the voices were heard, were in evidence. Their nature varied. Some purported to record actual conversations, while others were more descriptive. Many purported to identify some of the voices, although the reliability of the identification is difficult to assess.

5. [68]

   It seems likely that the following two pages of handwritten records relate to Listening Device tapes 4 bjl and 57 bjl. The first was dated around 12.37 on 30 January 2008 and is as follows:

6. [69]

   A different hand recorded the following at 22.16 on 2 February 1998, shortly after an annotation “Change tape to No 57”:

7. [70]

   The transcript included the following (emphasis added):

8. [71]

   The transcript included the following:

9. [72]

   As mentioned above, three judicial officers have heard argument as to their admissibility. Newman AJ received them into evidence at the first criminal trial, Sully J rejected them in their entirety at the second criminal trial, and the primary judge (who said he had listed to the recordings around 20 times) said that some were audible and others were not.

10. [73]

    Senior counsel for Messrs Kassas, Pound and Saad, who had not appeared before the primary judge, in a document supplied on the second day of the appeal in purported and belated compliance with UCPR r 51.36(2), which requires identification of any challenges to findings of fact, submitted that the court should listen to the recordings so as to assess whether the primary judge’s opinions as to their audibility were correct. Nothing had been said in counsel’s written submissions as to this. One of the criticisms expressed in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [32] and [116] was the failure to articulate the matters sought to be derived from viewing a recording (in that case, a video recording of the complainant’s evidence) over and above what emerged from the transcript.

11. [74]

    Nevertheless, in the absence of any opposition from the State, and given that the recordings were brief and central to the submissions advanced on the appeal, the appellants were permitted to rely on the document. It is best to deal with this discrete aspect of the appeal immediately.

12. [75]

    The particular passage of the reasons of the primary judge to which challenge was made was [423]:

13. [76]

    I have listened, twice, to both recordings, and repeatedly to particular aspects of them. I have disregarded Mr Cranitch SC’s submission that I should do so without regard to the transcripts. I am quite conscious that the transcripts may be suggestive and are often provided only as an aide memoire. On the other hand, I am also conscious of the submissions which were made, both as to the words which were said, and as to the identification of the different voices, and it is impossible to evaluate them without comparing the recording with the transcript. Further, and consistently with the stance adopted at trial, but contrary to Mr Cranitch’s submission, I consider that it is appropriate to have regard to the transcripts, in order to assess the strength of the inferential case against Sergeant McLennan and the DPP officers, all of whom had in their possession the transcripts.

14. [77]

    Mr Cranitch’s submission was also contrary to the way the case was run below (to which the Court was not referred when the submission was made). This issue was debated on 2 March 2015 where the submission was initially made that the primary judge should listen to the tapes unassisted by the transcript, but then (T 195.21) counsel for the plaintiffs stated:

15. [78]

    Listening Device tape 57bjl is quite clear, such that essentially all of the words transcribed can be heard. Listening Device tape 4bjl is much less clear, in part because of the background noise of a chirping bird, in part because of an aircraft overhead, in part because the voices move around in the room. Some of the conversation is in another language, perhaps Arabic. The first and third paragraphs attributed to Sam Kassas are audible, however the fourth is much less so. Like the primary judge, I have not been able to identify the words, “They can almost can see we’ve done it” although I can discern the words preceding and following those words, and hear that something was said at that point in the conversation.

16. [79]

    The difficulties with the Crown case were not confined to the Listening Device tapes and transcripts. There were also problems with the most important Crown witnesses, Mr Roth and Mr and Ms Holland. The Court was directed to a very large quantity of evidence relating to this, which need not be summarised. It suffices to note (a) the fluctuating content of the witness statements, and fluctuating willingness to give evidence on the part of Mr Roth and Ms Holland mentioned above, (b) Mr Roth had a lengthy criminal history including offences of violence; (c) Ms Holland had serious psychiatric conditions, so much so that she was, when making her statements in August and November 2002, residing in a psychiatric hospital, and (d) Ms Holland said that she and Mr Holland used to go to the Saad’s place to buy heroin for Jeffrey and to buy and sell stolen items.

17. [80]

    The Crown also relied on evidence from Mr Darren Byrne which suffered from similar defects. He too had a lengthy criminal record, including offences of supplying prohibited drugs, making false instruments, larceny and breaking and entering. The primary judge noted at [243] that “The offence in August was one of breaking, entering and stealing committed on 11 August 2003 and was in the midst of the interviews he was having with police in order to make his statements.” It will not be necessary, in order to resolve these appeals, to summarise in any more detail the evidence proposed to be led from Mr Byrne.

The failure to find malice

1. [81]

   Grounds 1, 1A and 2 of Mr El-Wasfi’s appeal were reformulated, without objection, by a further amended notice of appeal supplied at the commencement of the appeal. Those grounds were as follows:

2. [82]

   These three grounds overlap. Grounds 1 and 2 recognise the limitations of the appellate process and the markedly different burdens faced by the appellants’ challenges to the failure to find malice (a) on the part of Sergeant McLennan, and (b) on the part of the DPP officers. The former was cross-examined extensively; none of the DPP officers gave evidence.

3. [83]

   Ground 1 is confined to the DPP officers, and is a challenge to the primary judge’s process of inferential reasoning. Ground 2 extends to Sergeant McLennan, but is much more limited. Recognising the difficulties of challenging a nuanced finding which was inevitably based in part upon his Honour’s assessment of Sergeant McLennan in the witness box, ground 2 much more narrowly focusses attention on the distinction between negligence and malice. However, Ground 1A, which combines challenges to the failure to find malice and his status as a prosecutor, is not so limited.

4. [84]

   The grounds in the appeal brought by Messrs Kassas, Pound and Ashley Saad addressing malice were grounds 4 and 5:

5. [85]

   The reason for confining these grounds to errors of law in an appeal by way of rehearing pursuant to s 101 of the Supreme Court Act 1970 (NSW) is not apparent to me. Both grounds amount in substance to ground 2 of Mr El-Wasfi’s appeal, and are directed to the failure to find malice in relation to Sergeant McLennan (ground 4) and the DPP officers (ground 5) in respect of the prosecutions of Messrs Kassas, Pound and Ashley Saad.

6. [86]

   There were two threshold issues relating to the listening device tapes: their intelligibility, and identification of the speakers.

7. [87]

   Sergeant McLennan gave evidence that he had not, prior to being allocated to Operation Gatton, had dealings with the Saad family. However, the evidence available to Sergeant McLennan summarised by the primary judge at [171]-[180] included the following:

   1. (1)

      In a statement dated 10 July 1998 a police officer said that on 6 July 1998 he listened to ten audio cassette tapes and recognised certain voices whilst listening. His Honour gave by way of examples:

   2. (2)

      and

   3. (3)

      A statement of a detective who said:

   4. (4)

      A third police officer’s statement indicated that he had monitored conversations on 2 days and recognised the voice of a number of persons, although that statement referred to production of the logs and tapes but did not in terms identify the speakers.

   5. (5)

      Those three officers referred to in (1), (2) and (3) above were cross-examined extensively before Magistrate Orchiston and later before Newman AJ, from which it emerged that there were no transcripts at the time Constable McDonald made his voice identification. According to Detective Rudens, in the preparation of the transcripts, ‘numerous’ other police officers including Constable Schott purported to identify one or other of the speakers.

   6. (6)

      Further statements were then prepared. A fourth officer made a statement on 12 September 2002 that he had listened to the two CDs and read the corresponding transcripts which he said were accurate. He said that he recognised the voices of, inter alia, Fred, Donna, Caroline and Ashley Saad, Sam Kassas, James El-Wasfi and Gary Roth having previously spoken to them. He said that “during the period November 1996 to March 1999 he had extensive dealings with, inter alia, Danny, Fred and Donna Saad, Sam Kassas, James El-Wasfi, Andrew Hoogwerf and Gary Roth and recalled arresting most of them”.

   7. (7)

      The primary judge referred to a statement made by a fifth officer in November 2003 in which he said he was familiar with the voices of most of the Plaintiffs, having spoken to each of Danny and Fred Saad, Sam Kassas and James El-Wasfi on at least forty occasions and to Andrew Hoogwerf on no more than twenty occasions.

   8. (8)

      Finally, his Honour referred to the contemporaneous notes made by police in Listening Device Logs in some of which they purported to identify persons present or speaking. His Honour said that “those logs add something but not much to the identification evidence to which I have referred”.

8. [88]

   His Honour then concluded at [181]-[182]:

9. [89]

   That aspect of his Honour’s analysis was not directly challenged in either appeal.

10. [90]

    The primary judge saw Sergeant McLennan give evidence on the 5th, 6th, 7th, 8th, 9th and 10th days of the trial. Most of his evidence was about events which had occurred more than a decade earlier, and, plainly, there were some matters which he could not explain. The primary judge addressed the question of Sergeant McLennan’s state of mind extensively, at [390]-[444]. The result was a calibrated rejection of malice, which included the following points.

11. [91]

    First, at [392], his Honour referred to:

12. [92]

    Secondly at [396], his Honour accepted Sergeant McLennan’s evidence that “he had never dealt with the Saads before. He added that he had no reason to approach the case with other than an open mind”.

13. [93]

    Thirdly at [396], and expressly independently of that finding, his Honour said that:

14. [94]

    Fourthly, his Honour noted at [398] that possibly the strongest aspects of the attack on Sergeant McLennan concerned his reliance on witnesses of doubtful credibility, particularly Mr Roth, Ms Holland and Mr Byrne, and what was submitted to have been his failure promptly to produce information adverse to their credibility. His Honour criticised the way in which Sergeant McLennan disclosed a further statement from Mr Roth dated 5 November 2002 dealing with much of his past including psychiatric treatment, drinking problems and medication, although his Honour noted that because of Mr Roth’s association with most of the appellants, it was “an almost inevitable inference that, without being told anything by the police or DPP, they would have had some significant knowledge of Mr Roth’s past”: at [407]. His Honour also criticised the failure fully to disclose Mr and Ms Holland’s credibility difficulties, especially Ms Holland’s psychiatric treatment. There was a particular aspect of his Honour’s reasoning at [417] which warrants reproducing:

15. [95]

    Fifthly, in relation to the Listening Device tapes, the primary judge addressed these at [419]-[423], and concluded that:

16. [96]

    Sixthly, his Honour collected at some length aspects of Sergeant McLennan’s evidence at [424] which he regarded as “less than satisfactory”. His Honour said at [440] that he could see no adequate explanation for some of the deficiencies, and added:

17. [97]

    At the end of a lengthy analysis, his Honour’s dispositive finding as to malice on the part of Sergeant McLennan were at [442]-[444]:

18. [98]

    The primary judge dealt with this more concisely, at [445]-[463]. Of course, there was much less to say, because none of the DPP officers gave evidence.

19. [99]

    His Honour observed at [445] that each plaintiff acknowledged that, aside from the prosecutions for the murder of Mr McPherson, none of the DPP officers had had any contact with any of them.

20. [100]

    In the case of Mr Kimble, his Honour referred to:

    1. (1)

       the rapid charging of Mr El-Wasfi without due consideration of the material, particularly the November statement from Ms Holland;

    2. (2)

       the failure to give due attention to Ms Holland’s mental state (including her bipolar disorder and the need for corroboration);

    3. (3)

       the failure to confer with Sergeant McLennan concerning Ms Holland’s demeanour when she made her statements; and

    4. (4)

       the fact that the Crown could not establish that the contents of her statements of 6 August and 4 November were reliable.

21. [101]

    Mr Kimble had made documents in April 2003 (a recommendation and a post committal summary and checklist) which did not refer to those matters, or to deficiencies in the Listening Device evidence and attribution, or to the possibility and evidence that Listening Device tape 57bjl referred to events other than the attack on Mr McPherson, or to matters impinging on the evidence of Mr Roth. Of the latter, his Honour said at [448]:

22. [102]

    However, his Honour concluded at [452] that:

23. [103]

    The primary judge said of the other two DPP officers at [454] that:

24. [104]

    The primary judge also recorded submissions based on Mr Roser’s written submissions, on his recommendation for an ex officio indictment against Fred Saad for murder, of the fact that Mr Roth’s evidence before Newman AJ (including that which led to the termination of the trial) “would have persuaded any honest prosecutor to abandon use of him to establish that any of Messrs Kassas, El-Wasfi or Pound was guilty of murder”, with much the same submissions being made in respect of Mr El-Wasfi insofar as his prosecution for murder depended upon the evidence of Ms Holland. His Honour rejected the submission insofar as it was based upon Mr Roth, in light of the Listening Device evidence. His Honour regarded the evidence of Ms Holland differently, saying at [460]:

25. [105]

    The dispositive paragraphs in relation to all three DPP officers were at [461]-[462]:

26. [106]

    The references in ground 2 of Mr El-Wasfi’s appeal and grounds 4 and 5 of the other appeal to R v Baden-Clay turned on the propositions that there was a binary choice to be made between findings of malice as opposed to incompetence, and because the State had “disavowed” (as it was repeatedly said) incompetence, there was appellable error in failing to find malice.

27. [107]

    The submission was advanced by reference to A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [88]-[91]:

28. [108]

    Particular emphasis was placed on the emphasised words from [90] reproduced above. Although acknowledging that they fell short of mandating a finding of malice, Mr EI-Wasfi urged, repeatedly, that if malice was not to be inferred in a case so (it was said) glaringly misconceived as that brought against Mr El-Wasfi, then the passage was an empty vessel.

29. [109]

    Thus, the submission was advanced orally as follows:

30. [110]

    These submissions cannot be accepted, for a number of reasons.

31. [111]

    The starting point is the pleadings and the way the case was run. The statement of claim alleged malice on the part of Sergeant McLennan and the DPP officers:

32. [112]

    The allegation of itself is problematic, for there is nothing improper about commencing and maintaining a murder prosecution for the purpose of achieving a conviction. The particulars clarified that the essence of the allegation was that Sergeant McLennan and the DPP officers were “motivated with achieving a prosecution against the plaintiffs at any cost”, and it was in that sense that submissions were advanced on appeal.

33. [113]

    The allegation of malice was denied by the State. That left it to the plaintiffs to establish malice. Mr El-Wasfi acknowledged, correctly, that given the seriousness of the impropriety, s 140 of the Evidence Act 1995 (NSW) reflecting the considerations in Briginshaw v Briginshaw attended the finding he asked this Court to make.

34. [114]

    Consistently with the way malice had been particularised, the case was opened to the primary judge as follows:

35. [115]

    Throughout the trial, including from two pages of the transcript after the extract from the plaintiffs’ opening reproduced above, the primary judge made it clear that another possible inference was incompetence:

36. [116]

    In closing address, the primary judge reiterated the same concern (“Why shouldn’t one draw the conclusion [the prosecutor] was just incompetent?”). In response to a statement that the primary judge never ceased to be amazed that “things have happened which I find inexplicable”, counsel submitted:

37. [117]

    In closing submissions from the State, senior counsel responded to the repeated criticisms expressed by the primary judge, saying that the judge “was entitled to say that it is the common experience of judges of this Court that some Crown Prosecutors sometimes display a deal less than decent competence”. However, he immediately added “of course you couldn’t properly say that with respect to any of the individuals who have been mentioned in this case”. This was the “disavowal” of which much was made. But context matters. Senior counsel immediately added:

38. [118]

    He added:

39. [119]

    Thus it was that the “disavowal” of negligence was confined to the failure to plead a positive case, and a single statement in closing submissions which was more directed to the difference between taking judicial notice of the characteristics of the class of Crown prosecutors as opposed to the impropriety of taking judicial notice of the characteristics of three individual Crown prosecutors.

40. [120]

    The principal submission on appeal was to the effect that if negligence or incompetence were excluded, it was wrong for the primary judge not to find malice. That is just not so.

41. [121]

    The plaintiffs had undertaken the difficult forensic task of demonstrating malice on the part of a police officer and three DPP officers in prosecutions more than a decade previously. Senior counsel who appeared for the plaintiffs at trial was evidently conscious of the heaviness of the burden. But it was open to the Court not to reach a state of satisfaction that any of the men were motivated by malice.

42. [122]

    It was of course necessary, in order for the appellants to have succeeded on this issue, for the primary judge to have applied s 140 of the Evidence Act and the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34:

43. [123]

    In Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [205], Gleeson JA said, with the agreement of Beazley P and Barrett JA, that:

44. [124]

    See also the analysis of statements as to the judicial officer feeling “an affirmative conclusion”, or “a definite conclusion”, or “an actual persuasion”, in the manner considered by this Court in Morley v Australian Securities and Investments Commission [2010] NSWCA 331; 274 ALR 205 at [735]-[753] (an appeal was allowed, but no exception was taken to this aspect of the analysis).

45. [125]

    It is plain from the detailed reasons given by the primary judge that his Honour was alive to these matters.

46. [126]

    Further, the conduct which was said to have been actuated by an improper purpose was conduct in 2002-2004. All took place more than a decade before the trial before the primary judge. It may readily be accepted, as the appellants submitted, that the contemporaneous documents were the most reliable indicator of what occurred, given the passage of time. But that does not go so far as is required in order to impute malice. In particular, insofar as criticism was made for Sergeant McLennan being unable to explain why he did, and failed to do, particular things in a large police investigation, there is the obvious consideration that no one could be expected to have a clear recollection of the particular steps taken or not taken a decade or more ago.

47. [127]

    The appellants’ submission was said to be supported by a passage from A v State of New South Wales at [90]. But it is a mis-reading of the passage to submit that:

48. [128]

    The passage from A v State of New South Wales means what it says. The paragraph is focussing upon the distinction between the elements of the tort of malice and absence of reasonable and proper cause, and the difficulties in reducing the relationship between those elements to an aphorism. The sentence in [90] upon which much reliance was placed says nothing more than that the same evidence (namely, a patently weak prosecution case) can enable a court to conclude that both elements have been made out. It certainly does not support a proposition that such an inference must be drawn.

49. [129]

    The task in this Court is one of appellate review of the nuanced decision of the primary judge to decline to find malice. That review bore two quite different characters. Insofar as Mr El-Wasfi contended there was error in failing to find that Sergeant McLennan was motivated by an improper purpose, Mr El-Wasfi carried the large burden of overcoming findings based on an extensive cross-examination of the officer: see Anderson v Anderson [2017] NSWCA 131 at [35]-[39]. There was simply no attempt to grapple with the evidently demeanour-based and in some respects quite critical findings made against Sergeant McLennan.

50. [130]

    In relation to the DPP officers, who did not give evidence, the appellants challenge does not encounter that particular obstacle. Nevertheless, I see no error in the primary judge concluding that he was unable to be satisfied that the three men who conducted the prosecution of Mr El-Wasfi until the directed acquittal were doing so for a foreign purpose which satisfied the element of malice.

51. [131]

    Insofar as the same issue arises in relation to the prosecutions of Mr Kassas, Mr Pound and Mr Ashley Saad, the reasoning above applies, to which may be added the following matters, both of which make the inference required in order to make out this element of the tort all the harder to draw.

    1. (1)

       First, unlike Mr El-Wasfi, who obtained the benefit of a directed verdict, the trials of each of the three other men completed and went to the jury. There is nothing to which the Court was taken to suggest that the cases against those other three men were so deficient as to be amenable to a directed verdict.

    2. (2)

       Secondly, Mr Pound was committed to stand trial after a hearing in which Mr Roth gave evidence. That hearing made it plain that, for all the difficulties in Mr Roth’s evidence, he was capable of giving evidence which a magistrate regarded as sufficiently credible to be put before a jury (see at [5] above).

Ground 1A

1. [132]

   Ground 1A was not developed orally. Because it was new, it was not developed in terms in the parties’ written submissions. To the extent that it deals with the challenge to the failure to find malice on the part of Sergeant McLennan, it has been addressed above. To the extent that it seeks a finding that Sergeant McLennan was the prosecutor for the whole of the prosecution of the appellants, nothing turns on it. I do not consider that it is appropriate to analyse any further a ground which was so devoid of development in the parties’ written or oral submissions, on which nothing can turn.

Absence of reasonable and probable cause

1. [133]

   This issue was confined to the appeal brought by Messrs Kassas, Pound and Ashley Saad. Grounds 1, 2 and 3 challenged the finding of reasonable and probable cause in relation to the prosecutions of Messrs Kassas and Pound. There was no notice of contention by the State in relation to the finding that there was at no time reasonable or probable cause to charge and prosecute Mr El-Wasfi for concealing evidence in August 2002 or, after November 2002, for murder.

2. [134]

   These submissions were scarcely developed orally. I have considered whether it is appropriate to resolve what was said in writing, in light of the fact that they will make no difference to the outcome of the appeal. (The rejection of the challenge to malice means that the judgment will stand, and even if written submissions as to one element of a tort are made out, there would be no reason for costs not otherwise to follow the event, especially in circumstances where the success on that issue took no time in the hearing.) In light of the importance to the parties and to the men involved in the prosecution of the appellants, I think it is appropriate at least to address the gravamen of it. However, in light of the brevity of oral submissions, I shall be relatively brief.

3. [135]

   The written submissions focussed on the words attributed to Mr Kassas “they can almost see we’ve done it” in Listening Device tape 4bjl. The submissions noted that his Honour said that those words were unintelligible, yet nevertheless relied on the tape as corroborating Mr Roth’s evidence in respect of Mr Kassas. The written submissions complained “Nevertheless, his Honour at [355] relied on Listening Device tape 4bjl as corroborating the unreliable evidence of Mr Roth in respect of Mr Kassas even without the critical words”.

4. [136]

   In relation to Listening Device tape 57bjl, the written submissions emphasised (a) what was said to be the “woefully inadequate method of voice identification”, (b) the fact that the listening device was, at some stage, discovered, while his Honour never considered the possibility that words were spoken in the knowledge that they were being recorded, and (c) maintained that there were “two errors of principle” in finding that the tapes could corroborate the evidence of Mr Roth. In relation to Mr Kassas, it was said that “Mr Kassas’ alleged inculpatory words were inaudible, rendering the evidence no higher than accessorial knowledge”, and that Sergeant McLennan accepted that there was no material which corroborated Mr Roth’s claim of a confession having been made by Mr Kassas. In relation to Mr Pound, it was submitted that there was error by the primary judge in reasoning that Listening Device tape 57bjl was capable of corroborating the unreliable evidence of Mr Roth that Mr Pound had confessed to being present at the murder.

5. [137]

   These submissions must be rejected. I deal first with Mr Kassas, and then Mr Pound. In relation to Listening Device tape 4bjl, the submissions appear to proceed on the basis that the only incriminatory statement attributed to Mr Kassas was the words “They can almost see we’ve done it”. But the earlier words attributed to him – identifying the men whose finger prints were on the car, and the need to ensure that it could not be examined for fingerprints, is evidence not merely of knowledge after the fact, but of participation in the attack on Mr McPherson. In relation to Listening Device tape 57bjl, there are the clearly audible words of a person identified as “KASSIS” saying “I had a knife, thus cunt launches at me, I’m wrestling him with the knife, he just body slams me”. There is a pause in the tape between the discussion attributed to Mr El-Wasfi and Mr Pound (which is said to be about a fight with Mr Roth) before the voice attributed as “KASSIS” speaks about the fight with a knife.

6. [138]

   Consistently with the foregoing, the primary judge said at [356]:

7. [139]

   In relation to Mr Pound, the primary judge placed qualified reliance on Listening Device tape 57bjl, saying at [376] that at the time of Mr Pound’s arrest and charging in 2003, there were five pieces of evidence bearing on Mr Pound’s guilt, of which one was “(Possibly)” Listening Device Tape 57bjl. There is no error in that reasoning. The issue is whether Mr Roth’s statement that Mr Pound told him that he hit Mr McPherson over the head with a baseball bat was corroborated by the tape. Part of the tape has a voice identified as that of Mr Pound (in the transcript, labelled as “HOOGWERF”) saying “That’s even fucking more reason to go for the fucking head” and then a voice identified as KASSIS talking, seemingly in the presence of Mr Pound, about a fight with a knife.

8. [140]

   The written submissions identified what was said to be a third error of principle, insofar as the primary judge found there to be reasonable and probable cause after Sully J had rejected the admission of the Listening Device tapes. This focussed upon the reasoning at [387]:

9. [141]

   That conclusion turned upon his Honour’s finding that there remained the evidence of Mr Danny Saad’s involvement with the murder, and that Messrs Kassas and Pound were associates with him.

10. [142]

    In response, the State accused the appellants of “a mediaeval attitude to and appreciation of mental illness”. Its point was that although there were issues with Mr Roth’s evidence, providing fertile areas for cross-examination, it could not be excluded as a whole merely because of those matters. After all, his evidence was accepted by one committing magistrate. The State relied upon the vigorous testing of the evidence before two committing magistrates and before Newman AJ, all of whom admitted the listening device evidence, and, in the case of the committing magistrates, were satisfied that the evidence was capable of satisfying a properly instructed jury as to the guilt of the accuseds.

11. [143]

    There is a difficulty in this Court taking this aspect of this ground any further. On the one hand, Messrs Kassas and Pound invite this Court to conclude that since the primary judge found this issue finely balanced, and, according to them, there were matters contributing to the finding of reasonable and probable cause upon which his Honour should not have relied, this Court should find favourably to them. On the other hand, the State points to the scope for reliance upon Mr Roth’s evidence.

12. [144]

    A finding that the conclusion of the second trial for murder proceeded with an absence of reasonable and probable cause, after Sully J excluded the Listening Device tapes, is sufficiently serious to attract the principles stated in Briginshaw v Briginshaw and found in s 140 of the Evidence Act. This Court does not have available to it the full record of the trial. In particular, it is not clear whether counsel appearing for Messrs Kassas and Pound made an unsuccessful application for a directed verdict on behalf of their clients. Further, the submissions in this Court have confined some of the issues for determination. In particular, I have in mind the acceptance on the part of the primary judge that reliance could not be placed upon the evidence of Ms Holland. It is far from clear to me that that is necessarily so, bearing in mind the psychiatric evidence which favoured her November 2002 statement. Further, a Facts Sheet which appears to have been created in late August 2002 in connection with the arrest and charging of Mr El-Wasfi records:

13. [145]

    Accepting that quite limited weight should be given to statements made following a bail hearing, what precisely was said by Wood J does not, so far as I can see, otherwise appear from the documents in this Court.

14. [146]

    Of course, although the State has accepted that it is vicariously liable for any tortious conduct on the part of the DPP prosecutors, its interests and theirs are not identical and, in some respects, are apt to be opposed.

15. [147]

    When those matters are added to the substantial absence of oral submissions on this issue, on which nothing turns for the purposes of resolving this appeal, I have concluded that it is inappropriate finally to determine this aspect of the issue on the limited materials and submissions available to this Court.

Wrongful arrest – Mr El-Wasfi

1. [148]

   On 23 August 2002, Mr El-Wasfi was arrested. He was charged later that day under s 316 of the Crimes Act 1900 (NSW). At that time, s 352(2) of the Crimes Act provided that “any Constable may without warrant apprehend … any person whom he, with reasonable cause, suspects of having committed an offence.” (That provision resembles its successor, s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which had not been enacted in August 2002.)

2. [149]

   The State accepted that it was vicariously liable for any tortious conduct of the police officers. It became common ground when the appeal was heard that the “wrongful arrest” which had been pleaded amounted to the torts of trespass to the person and false imprisonment, in respect of which the State bore the onus of establishing a defence of lawful authority. It did not suggest there was any basis for the arrest on 23 August 2002 aside from a suspicion that Mr El-Wasfi had committed the offence with which he was charged.

3. [150]

   Section 316(1) of the Crimes Act provided:

4. [151]

   Section 316 was inserted into the Crimes Act 1900 by the Crimes (Public Justice) Amendment Act 1990 (NSW) in 1990. At the same time, the common law offences of misprision of felony, and compounding a felony, were abolished (see s 341).

5. [152]

   In Crofts v R (CCA 60706 of 1994, unreported, Gleeson CJ, Meagher JA, Simpson J, 10 March 1995), Meagher JA observed, in a sentence appeal following a guilty plea to the offence under s 316, that this was “the first case, so far as one knows, which has been brought under” the section, which his Honour described as having “many potential difficulties, the chief of which is the meaning of the words ‘without reasonable excuse’”. Gleeson CJ agreed that those words could be an “extremely difficult” exercise. Simpson J agreed.

6. [153]

   It will not be necessary in order to resolve these appeals to address in detail the difficulties presented by s 316. It will be seen below that at the forefront of the submissions on the State’s cross-appeal were issues relating to onus and the way in which the claim for wrongful arrest had been pleaded. Regrettably, that makes it necessary to descend to the detail of the pleadings, evidence and course of the trial in order to resolve the cross-appeal.

7. [154]

   The pleadings were starkly at variance with the ultimately undisputed facts (to be clear, counsel retained to appear before the primary judge and in this Court seem to have had no involvement in the litigation prior to 2014).

8. [155]

   Mr El-Wasfi’s pleading (the third amended statement of claim), filed in 2012, alleged that he was charged on 9 August 2002 with concealing a serious offence, with murder on 6 November 2002 on which date bail was refused, and that he remained in custody until 21 January 2003 (paragraph 11). The State’s defence alleged that he was arrested at Campbelltown police station on 23 August 2002 (he was at the station reporting pursuant to bail conditions for a supply prohibited drugs charge), charged on that day, and granted bail on 24 August 2002. Although a reply was filed in December 2012, Mr El-Wasfi did not respond to that paragraph of the defence. As will be seen, the State’s defence was correct and Mr El-Wasfi’s statement of claim was erroneous.

9. [156]

   In fact the pleading is replete with serious difficulties. It is 60 pages long, most of which are occupied by detailed factual allegations directed to malice, absence of reasonable and probable cause (96 subparagraphs) and 24 subparagraphs of “Details of insufficient information, materials and evidence to charge the plaintiff’s [sic]”, none of which mentioned Mr El-Wasfi as an individual or gave any details of the quite different manner in which he came to be arrested. There was sustained disregard of the elementary rules of pleading – to be “as brief as the nature of the case allows” and to “contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved”: UCPR rr 14.7 and 14.8. The pleading was purportedly verified by the plaintiffs’ (and appellants’) solicitor. The pleading states that he swore, before a witness, on 31 October 2012 that “I believe that the allegations of fact in the statement of claim are true”. No part of the pleading was certified by any of the plaintiffs. Verification in a case such as this is to be made by the party, and there was in any event no attempt to set out the facts which might qualify the solicitor to make the affidavit: UCPR r 35.3(1) and (4).

10. [157]

    Despite its prolixity, the third amended statement of claim failed to make any allegation that the arrest of Mr El-Wasfi was wrongful. It was alleged in paragraph 15 that:

11. [158]

    It will be seen that paragraph does not mention the third plaintiff, Mr El-Wasfi. Ironically, the only plaintiff who obtained a judgment in his favour at trial was the only plaintiff who did not plead a case of wrongful arrest. To be fair, paragraph 15 is in a section of the pleading headed “Wrongful arrest and false imprisonment of the first, second, third, fourth and fifth plaintiffs”, and it appeared after an (incorrect) allegation that Mr El-Wasfi had been arrested on 9 August.

12. [159]

    The final form of the pleading reflected what Garling J described as a “very long and thoroughly unsatisfactory history in this Court”: Saad v State of New South Wales [2012] NSWSC 940 at [17]. His Honour observed that although the pleading was styled the “Third Further Amended Statement of Claim”, it was in fact “the ninth version of a statement of claim, prepared by the plaintiff over a four and a half year period”: at [32].

13. [160]

    The State’s defence responded to the pleading in terms. It denied that the police officers who arrested the first, second, fourth and fifth plaintiffs did not possess a reasonable suspicion that they had committed a criminal offence, and denied that the arrests were wrongful (paragraphs 15(a) and (b)).

14. [161]

    There is one remaining matter of importance arising from the pleading. The deficiencies in the third amended statement of claim, and in particular, the failure to make an allegation directed to the wrongful arrest of Mr El-Wasfi, directly bore upon the evidence adduced by Sergeant McLennan. His statement dated 10 September 2013 took the following form. After summarising his service history, he stated his recollections of “Strike Force Gatton” (paragraphs 18-42), and then dealt with Mr Gary Roth (paragraphs 43-46) and Mr Geoffrey and Ms Michelle Holland (paragraphs 47-56). When dealing with Strike Force Gatton, he described the preparation of detailed fact sheets in relation to Messrs Fred, Ashley and Danny Saad, Mr El-Wasfi and Mr Kassas, and operation orders for the coordinated arrests of Messrs Fred, Ashley and Danny Saad and Mr Kassas. He annexed three documents: separate facts sheets for Mr Fred Saad and Mr Ashley Saad, and a further document which was in a different form from the other two, but which was described in the body of his affidavit as a detailed facts sheet in relation to “Mr Danny Saad, Mr James El-Wasfi and Mr Sam Kassas which canvassed the evidence available in support of the charges to be proffered against each of them”. The document included reference to the recently obtained statements from Mr and Ms Holland.

15. [162]

    Sergeant McLennan said at paragraph 31:

16. [163]

    The last five paragraphs of Sergeant McLennan’s 10 September 2013 statement responded to specific paragraphs of the pleadings in each of the two proceedings. In those paragraphs, Sergeant McLennan stated positively in response to particular allegations in the statement of claim that, for example, he “held the view that based on the evidence available, there was sufficient cause to commence and maintain the prosecutions” and that he denied that “I was actuated by any improper purpose in the commencement and continuation of any of the prosecutions against the plaintiffs.”

17. [164]

    There was no occasion for Sergeant McLennan to address a specific allegation of absence of reasonable suspicion in relation to the arrest of Mr El-Wasfi on 23 August 2002 by reference to any paragraph of the pleading or the particulars, because no such allegation had been made.

18. [165]

    Given the prominence given to questions of onus in Mr El-Wasfi’s response to the cross-appeal, this is of some significance.

19. [166]

    Sergeant McLennan, by statement made on 10 September 2013, recorded at paragraph 40 that he had made a statement in relation to the charging of Mr El-Wasfi on 23 August 2002 on 5 September 2002. He attached the statement he had made more than a decade earlier to the statement filed in the proceedings, and stated that “I have no other recollection of the circumstances of Mr James El-Wasfi’s arrest and charge”.

20. [167]

    The statement made on 5 September 2002, about the charging of Mr El-Wasfi, concerned a conversation between the men, in which Mr El-Wasfi refused to give any information about the murder of Mr McPherson. The conversation took place at a time after Mr El-Wasfi had been arrested. The conversation included Sergeant McLennan asking “have you been threatened by anyone about this” and Mr El-Wasfi saying “No, they are my friends”.

21. [168]

    It is utterly unremarkable that Sergeant McLennan maintained, in 2013, that he had no independent recollection of his state of mind at the time, more than a decade earlier, when Mr El-Wasfi was arrested. It would be remarkable if that were not the case. Evidence of suspicion sufficient to satisfy s 352(2)(a) need not be derived from direct testimonial evidence of the arresting officer, especially when the issue arises many years later. As all appellants submitted in these appeals, the most reliable evidence may be found in the contemporaneous documentary records of the police investigation and prosecution.

22. [169]

    So far as I can see, Sergeant McLennan was not cross-examined about his statement made on 5 September 2002. That statement, particularly the question whether Mr El-Wasfi had been threatened, suggests an awareness, on the day the arrest was affected, of the possibility that Mr El-Wasfi might have good reason not to answer questions about the murder. In circumstances such as the present, very little evidence is required in order to draw the inference necessary.

23. [170]

    The “second amended statement of particulars” appears to be drafted by the same hand as, and does not correct the errors in, the statement of claim. So far as may be seen from the appeal books, the court file, and JusticeLink records, no further amended pleading was filed in 2013 or 2014 or 2015, and it was identified to the primary judge as the most recent pleadings. However, the appeal books also contain “Revised Particulars” which are undated and which are said to have been dated 23 February 2015, which was the first day of the trial. (In fact, the Court’s records disclose that an earlier version of that document was supplied to the Associate to Garling J under cover of letter dated 9 February 2015 (it is found in the seventh box of the documents comprising the file).) Their clarity contrasts with that the obscurities of the pleadings. Both versions of the document make it plain that Mr El-Wasfi alleged “wrongful arrest and unlawful detention from 23 August 2002 to 24 August 2002” (the earlier version of the document also relied on the period from 6 November 2000 to 21 February 2003, but that was not pressed in the version in the appeal books).

24. [171]

    Conventionally, particulars cannot be inconsistent with pleadings, nor can they contain causes of action not found in the pleadings. This was no ordinary case. The pleading was manifestly deficient. No point appears to have been taken at trial as to the way in which the belated particulars cured at least some of the defects in the pleading.

25. [172]

    Despite the way in which Mr El-Wasfi’s case was advanced, it became common ground during the hearing of the appeal that the cause of action for “wrongful arrest” was, strictly, a species of trespass to the person. In the case of Mr El-Wasfi, the arrest was purportedly effected by laying hands upon him. As an interference to El-Wasfi’s person, Sergeant McLennan had prima facie committed a trespass upon him, actionable without proof of damage, which required justification. The only relevant justification was his exercise of a power of arrest as a police officer. The onus therefore lay upon the State, which accepted it was vicariously liable for any tortious conduct of Sergeant McLennan, to establish that on 23 August 2002 he had reasonable cause for suspecting that Mr El-Wasfi had committed the offence of concealing.

26. [173]

    The belatedly supplied particulars made an allegation of wrongful arrest, and correctly identified the time and duration. It is necessary, in light of the submissions made on appeal, to turn to how it was said, in those particulars, that the arrest was wrongful.

27. [174]

    Paragraph 7 of the document states:

28. [175]

    There was no mention in the document of a failure to have a reasonable suspicion that Mr El-Wasfi had a good reason to refuse to provide information to the police. When the document turned to the way in which malice was sought to be inferred, it stated (paragraph 21(a)) that the prosecutors “failed to assess whether the evidence available was capable of being reasonable grounds upon which to form a suspicion that the plaintiff was guilty of the offence of concealing a serious indictable offence for which he was charged and arrested on 23 August 2002”. The document later asserted that the case was weak, and the Fact Sheet provided to the magistrate the following day, contained misstatements, insofar as (a) the listening device evidence had not been adequately tested, and (b) could easily have been about a fight between Mr El-Wasfi and Mr Roth, as Mr El-Wasfi had said on oath to the Crime Commission a few weeks earlier.

29. [176]

    The contemporaneous documents pertaining to Mr El-Wasfi’s arrest on 23 August 2002 include the following.

30. [177]

    The Crime Commission interview, conducted on 30 July 2002, commenced with a summary which included:

31. [178]

    The Duty Book entry of Detective Senior Constable David Donohue records that at 12.45 he travelled with McTiernan and Detective Sergeant McLennan to Campbelltown Police Station and there saw Mr El-Wasfi in the dock. The Duty Book entry states that he recorded the conversation in his notebook, and the part of the notebook reproduced records him arriving at Campbelltown Police Station at 1.20pm in company with McLennan and McTiernan and then states:

32. [179]

    The charge sheet records Mr El-Wasfi being charged at 14.48 and that the informant was Sergeant McLennan. The same document records that Mr El-Wasfi was apprehended at 11.35 on 23 August 2002 by Constables Kitley and Driver. The same time of charge and identity of the arresting officers is found on the refusal of bail by Senior Constable Lantry at around 5.30pm on 23 August 2002.

33. [180]

    The case was opened on the basis of the latter version of the revised particulars. In opening the case, Mr El-Wasfi made it clear that he accepted the timing of the arrest and the release on bail, and that the claim for wrongful arrest was confined to that approximately 24 hour period. No mention was made of an absence of reasonable excuse.

34. [181]

    Mr El-Wasfi was called in the plaintiffs’ case, and gave no evidence that he had a reasonable excuse to fail to disclose information to the police in August 2002 concerning Mr McPherson’s murder.

35. [182]

    After the plaintiffs’ cases had closed, the State opened its case briefly. It confirmed that it accepted that it was vicariously liable for any torts committed by Sergeant McLennan, and that he was responsible for the arrest of Mr El-Wasfi on 23 August 2002.

36. [183]

    Sergeant McLennan’s statement was tendered without objection shortly after the commencement of the defence case. He was asked in chief a series of questions as to the charging of the defendants, including

37. [184]

    Sergeant McLennan denied that he was in a position to instruct the DPP officers as to the conduct of the prosecutions after they had been taken over.

38. [185]

    Sergeant McLennan was cross-examined lengthily, over more than three days. At no stage does he appear to have been confronted with paragraph 31 of his statement. At one stage he was asked:

39. [186]

    He was also asked, following extensive questioning on the methodology for identification of the voices recorded, the following questions:

40. [187]

    It will be seen that those passages of cross-examination were framed so as to be directed to the two contentious elements of the tort of malicious prosecution, malice and absence of reasonable and probable cause, rather than the reasonably held suspicion which was essential for the arrest to have been lawful.

41. [188]

    In written closing submissions, one paragraph was devoted to reasonable suspicion for the purposes of s 352 in its application to the arrest of Mr El-Wasfi. It was put that Sergeant McLennan “used charging El-Wasfi in an attempt to force him to ‘roll over’”. But nowhere was it said that the arrest was unlawful because of an absence of a reasonable suspicion that he had a reasonable excuse.

42. [189]

    The same was seen in oral addresses. A complaint was made that Mr El-Wasfi was charged for an improper purpose:

43. [190]

    As was put by Mr Temby QC in written and oral submissions, the only reference in closing oral submissions at trial to “reasonable excuse” was in relation to a submission made in the context of the charge against Mr Ashley Saad.

44. [191]

    Despite the length of the primary judge’s reasons, and reflecting its relative insignificance during the trial, the analysis of the claim of “wrongful arrest” advanced by Mr El-Wasfi was very concise. Indeed, it was expressly conflated with the finding that, at the time he was charged, there was no reasonable and probable cause for his prosecution. As will be seen below, this was wrong.

45. [192]

    At [360]-[367], the primary judge analysed the evidence which was available at the time Mr El-Wasfi was arrested and charged with concealment on 23 August 2002. His Honour identified Listening Device tape 4 bjl and “(possibly)” tape 57 bjl. To that he added evidence of Mr Danny Saad’s involvement in the murder and Mr El-Wasfi’s association with him the garage. The primary judge considered that when Mr El-Wasfi was asked in effect what he knew about the murder, and when he declined to provide information, there was, in light of the foregoing, evidence of his concealing a serious offence. His Honour then turned to s 316 and said (at [363]-[364]):

46. [193]

    At [365] and [366], the primary judge addressed Mr El-Wasfi’s arrest and charging with murder on 6 November 2002. At that time, the additional evidence was Ms Holland’s statement of 4 November 2002, which his Honour considered provided no reasonable basis to bring a murder charge. For that reason, his Honour concluded that there was an absence of reasonable and probable cause in respect of both charges which continued until Mr El-Wasfi was acquitted. The evidence relating to the reliability of Ms Holland was not one-sided (for example, a treating psychiatrist who conducted three interviews with her in late 2002 and early 2003 advised that it was “highly probable that Ms Holland had an abnormal state of mind on 6/8/02” but also that “it was probable that the evidence she gave [on 4 November 2002] would be less affected by her abnormal state of mind and may be more reliable”. However, no challenge was made by the State (which would have required a notice of contention) to that finding.

47. [194]

    That portion of his Honour’s reasons addressed an element of malicious prosecution. The entirety of his Honour’s reasoning on wrongful arrest was at [465]-[466]:

48. [195]

    The State maintained that the decision of the primary judge had been procedurally unfair, ordering judgment against it on a basis that had not been pleaded, nor particularised, nor opened, nor put to Sergeant McLennan, nor the subject of submissions.

49. [196]

    The State also said that the finding was plainly wrong as a matter of law.

50. [197]

    The result of a finding of failure to accord procedural fairness, without more, is ordinarily a retrial. The State made it plain that it wished to avoid that outcome. While there is force in the submission, given that it is quite clear that the reasons which were in fact given disclose error, it is convenient to pass directly to the latter matter.

51. [198]

    The first of the dispositive paragraphs, [465], correctly stated the test under (former) s 352 of the Crimes Act 1900. The second, [466], applied the finding made in connection with an element of Mr El-Wasfi’s claim for malicious prosecution as dispositive of the test. That is wrong. It is one thing for there to be an absence of reasonable and probable cause to commence or maintain the prosecution. It is another thing entirely for a police officer exercising a power of arrest to have suspected, with reasonable cause, someone of having committed a crime. As Mr Temby submitted:

52. [199]

    The distinction is familiar. A unanimous High Court said in George v Rockett (1991) 170 CLR 104 at 115; [1990] HCA 26:

53. [200]

    Mr Wheelhouse SC maintained that the primary judge applied the correct test, but had “just made a typographical error” (Transcript, 16 November 2017, p 108). On behalf of Mr El-Wasfi all that could be said in support of the reasons of the primary judge was said (p 109):

54. [201]

    It is very much to be doubted this is a mere “typographical” error. The change of language from suspicion in [464], and the repetition of the correct test at [468] in connection with Mr Pound’s claim for wrongful arrest, contrasts with the repeated language of “concluded” in the dispositive paragraph [465]. Moreover, the primary judge was expressly incorporating by reference his reasoning process in relation to malicious prosecution in order to resolve this separate cause of action advanced by Mr El-Wasfi, and that earlier reasoning had, entirely correctly, been framed at the level of conclusion rather than a suspicion. If his Honour meant what he said, then it is clear error. If, alternatively, there was some “typographical” error at [465], then his Honour’s reasons disclose no explanation of why Sergeant McLennan lacked a reasonably held suspicion that Mr El-Wasfi was concealing evidence of murder.

55. [202]

    It follows that his Honour’s finding that the arrest was unlawful was made on an incorrect basis. It falls to this Court, if it can, to make a primary finding of fact, as is authorised by s 75A(10) of the Supreme Court Act 1970 (NSW), as to whether there was a reasonable suspicion that Mr El-Wasfi had committed an offence.

56. [203]

    The balance of the State’s submissions on appeal were essentially twofold. First, they complained that there had been a denial of procedural fairness in a finding based on the absence of a reasonable and probable basis for the absence of any reasonable excuse. The State submitted that:

57. [204]

    The State’s submissions added that the case could not have been conducted on the basis of Mr El-Wasfi’s evidence, because his case was that he knew nothing about the murder that he had not disclosed in his interview with the Crime Commission. Orally, Mr Temby submitted that:

58. [205]

    Secondly, the State submitted that the absence of “reasonable excuse” was not an element of the offence. Rather it was a defence available to the accused, as to which the accused bore the onus. It submitted that the burden of proof of a reasonable excuse lay upon the accused, on the balance of probabilities: Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449. Further, even if the Crown bore the onus, if no excuse were proffered, then the element would be made out: Phipps v State Rail Authority of New South Wales (1986) 4 NSWLR 444 at 447-8. And in any event, there was a difference between the proof required on a prosecution of the offence, as opposed to the suspicion which was sufficient to make the arrest lawful.

59. [206]

    Mr El-Wasfi accepted that in a prosecution for the offence created by s 316, there would have been an evidentiary onus upon him to raise an issue that he had reasonable cause not to disclose what he knew. However, he insisted that, when called upon to justify the lawfulness of an arrest, based on a reasonable suspicion of his having committed that offence, it was necessary for the arresting officer to demonstrate a suspicion that Mr El-Wasfi did not have reasonable cause not to disclose the information. It was said that the onus lay on the arresting officer to justify the arrest, that it was necessary for the arresting officer to suspect that each element of the offence had been committed, and that the absence of reasonable cause was an element.

60. [207]

    It was said on behalf of Mr El-Wasfi that, contrary to the State’s submission, this point had been raised before the primary judge:

61. [208]

    It was then said:

62. [209]

    Finally, it was said that counsel had deliberately not cross-examined Sergeant McLennan about his reasonable suspicion.

63. [210]

    The State submitted that the reference to Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 was in an entirely different context. It was put thus:

64. [211]

    The State is correct to submit that the point now sought to be relied upon cannot, in accordance with Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, be taken on appeal.

65. [212]

    It is true that very substantial efforts were taken in the days and weeks prior to the trial, when new counsel had been briefed, to salvage the plaintiff’s position from the position which emerged from the pleadings – where the arrest was alleged to have occurred on the wrong date, the detention on the wrong dates, and there was a failure to allege that Mr El-Wasfi’s arrest was wrongful. The revised particulars cured those factual errors, and unambiguously advanced a new case, namely, that Mr El-Wasfi’s detention was confined to 23 and 24 August 2002, and his arrest was wrongful because of an absence of evidence to sustain a reasonable suspicion of his having committed the offence of concealing evidence.

66. [213]

    The case was opened on that basis, and Sergeant McLennan was cross-examined on that basis. It would be unfair in the extreme to make a finding now in 2017 to the effect that Sergeant McLennan believed that Mr El-Wasfi was entitled not to speak, in the circumstances of this case, or did not have a reasonable suspicion that El-Wasfi was not entitled to remain silent lest he incriminate himself. It was not merely that the issue had never been pleaded. The issues debated at trial were determined by reference to the particulars supplied in February 2015. The case there advanced was that the evidence of El-Wasfi’s knowledge of the murder was so weak that it did not suffice to give rise to a suspicion. Sergeant McLennan was cross-examined on that basis. But it is now said that the reason there could be no reasonable suspicion that Mr El-Wasfi was concealing evidence was that there was strong evidence that he had been involved in the murder.

67. [214]

    The references to Petty and the criticisms of the use of s 316 by police were directed, expressly, to the inferential case of malice which Mr El-Wasfi sought to advance.

68. [215]

    Mr El-Wasfi cannot now be permitted to run an unpleaded and unparticularised case which not only is different from that which was run at trial but which in fact is inconsistent with the way the case was run at trial.

69. [216]

    Further, this Court can comfortably find that the arrest was lawful. Sergeant McLennan had without objection been permitted to give evidence that he had a reasonable suspicion that each of the men arrested and charged had committed the offence with which they were charged. He had also made it plain that his recollection of events more than a decade before was diminished.

70. [217]

    In the absence of any cross-examination on that paragraph, and notwithstanding the criticisms made by the primary judge of Sergeant McLennan, it would be unfair not to find in accordance with that evidence, consistent as it is with the material available to him at the time (notably, the transcripts purporting to have Mr El-Wasfi discussing the assault, the belief on the part of the Crime Commission that Mr El-Wasfi was very well prepared for his interview, and his question as to whether he was being threatened). The consequence is that the arrest was lawful.

71. [218]

    That is sufficient to resolve this ground of the cross-appeal. That said, there appear to be sound reasons to doubt the legal submissions advanced by Mr El-Wasfi.

72. [219]

    The first way in which the submission relied upon by Mr El-Wasfi may be seen to be wrong is the inconsistency which arises. It seems, to say the least, unlikely that in a criminal prosecution, the accused bears an evidentiary onus in the absence of which there will be no issue as to reasonable cause, but in civil proceedings, the defendant bears an onus to demonstrate a reasonable suspicion of a negative, namely, the absence of reasonable excuse.

73. [220]

    The position adopted by El-Wasfi, if accepted, would mean that any police officer contemplating an arrest for an offence against s 316 would be obliged to hypothesize or anticipate any potential or possible excuse that the suspect may subsequently advance for non-disclosure. The proposition seems implausible.

74. [221]

    Further, it seems unlikely that it is necessary for an arresting officer to have a suspicion that a person does not have a reasonable excuse for not conveying the information. The power is conferred upon police officers, who will be making decisions based on material available to them, not all of which may ultimately be held to be admissible; such considerations were considered by Simpson JA in Polley v Johnson [2015] NSWCA 256; 253 A Crim R 521 at [44]-[51]. And the question is whether there is a suspicion that an offence has been committed, not whether the person might have (and might seek) to discharge an evidentiary burden of raising reasonable excuse. The matter may be tested this way: it may be that the arresting officer has no information, one way or the other, as to whether there was a reasonable excuse for withholding information. It seems unlikely, to say the least, that that would render an arrest unlawful.

75. [222]

    No submissions were made as to the common law offence which was supplanted by s 316. No submissions were made as to the elements of the offence, or the question of onus, in other jurisdictions. Indeed, no reference was even made by any party to the fact that this Court had, in Crofts, flagged difficulties of this nature. Crofts is unreported, but is readily found in various annotated services to the Crimes Act. In an appeal in which nothing turns on the point, and in which the focus of the parties’ attention was elsewhere, I would prefer to follow the approach in Crofts and decline to express a concluded view on the construction of s 316.

Remaining grounds

1. [223]

   Ground 3 of Mr El-Wasfi’s appeal, challenging the award of compensatory damages, was not pressed.

2. [224]

   Ground 4 maintained that there was appellable error in the failure to award exemplary damages for Mr El-Wasfi’s wrongful arrest. This ground does not arise. In theory, it would be possible to consider whether, on the findings made by the primary judge, there was appellable error in failing to order exemplary damages. I find it very difficult to see how, having failed to establish malice on the part of Sergeant McLennan, there could be the requisite conscious and contumelious disregard of Mr El-Wasfi’s rights as explained in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [7] and State of New South Wales v Zreika [2012] NSWCA 37 at [61]-[62]. The written submissions of Mr El-Wasfi on this ground (which were adopted by the other appellants) occupied less than two pages, and there were no oral submissions.

3. [225]

   Ground 6 of the other appellants’ appeal maintained that the primary judge erred in finding (at [469]) that Mr Pound’s arrest on suspicion of murder on 11 April 2003 was lawful, because it was wrong in principle to find that the Listening Device evidence was capable of corroborating Mr Roth’s statement of 1 April 1998. For the reasons given at [136], [137] and [139] above, this submission must be rejected. Further, in finding at [468] that there was reasonable cause for Sergeant McLennan to suspect Mr Pound of having committed murder, the primary judge also relied on Ms Holland’s statement of 6 August 2002. No error has been demonstrated.

4. [226]

   There is no occasion to consider the elaborately framed grounds 2-6 of the State’s cross-appeal, which were directed to costs, and which were not addressed orally. The success of ground 1 of the cross-appeal means that the costs discretion will have to be re-exercised.

Orders

1. [227]

   For those reasons, the appeals should be dismissed, the State’s cross-appeal allowed, and the judgment obtained by Mr El-Wasfi set aside, in lieu of which there should be judgment for the State.

2. [228]

   Although it is ordinarily desirable for this Court to hear submissions on all issues, including costs, so that a further hearing is unnecessary, the State submitted that the preferable course was for there to be an opportunity to be heard as to costs following the resolution of all other grounds. There was no opposition to that course from any of the appellants.

3. [229]

   Accordingly, I propose the following formal orders, whose effect is for both proceedings at first instance to be dismissed, and to make provision for the parties to be heard further as to the costs at first instance and on appeal:

4. [230]

   SIMPSON JA: I agree with the orders proposed by Leeming JA for the reasons given by him. I also agree with the additional observations of Payne JA.

5. [231]

   PAYNE JA: I have had the privilege of reading the decision of Leeming JA in draft. I agree with his Honour’s reasons and with the orders his Honour proposes. I wish only to add a few additional observations.

6. [232]

   On the subject of malice, the appellants’ submissions misunderstand the effect of A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [88]-[95]. In paragraph [90], which was heavily relied upon by the appellants, the High Court was explaining that no little difficulty arises if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. Judicial attempts to reduce that relationship to an aphorism may very well mislead. Proof of particular facts may supply evidence of both elements. A prosecution launched on obviously insufficient material may support an inference of malice but no universal rule relating to proof of the separate elements can or should be stated.

7. [233]

   Consideration of the evidence in this case, which Leeming JA has set out at length, does not lead to a conclusion that any of the prosecutors acted for a purpose other than the proper invocation of the criminal law. Far less does that evidence compel such a conclusion. As Leeming JA demonstrates, the appellant’s attack on Sergeant McLennan’s evidence failed to address the detailed and quite nuanced findings made by the primary judge. The primary judge was correct to reject the suggestion of malice made about Sergeant McLennan. In relation to Messrs Kimble, Roser and Thorpe, the appellants’ submission that the primary judge should have inferred malice is wholly based on an assertion that the prosecution case here was so weak that it must be concluded that the prosecutors acted for a purpose other than the proper invocation of the criminal law – being an illegitimate and oblique motive.

8. [234]

   I do not regard the case against Messrs Kassas and Pound as weak at all. The listening device evidence, which I have also listened to, makes this case one far removed from one so weak that it should be concluded that the prosecutors acted for a purpose other than the proper invocation of the criminal law. Even after the rejection of that evidence, a matter reasonable judicial minds may differ about, the case against each man was objectively sufficient to be left to the jury. The primary judge was correct to reject the conclusion that the prosecutors acted for a purpose other than the proper invocation of the criminal law. In relation to Ashley Saad, the prosecution case was perhaps less strong, although the listening device evidence relating to Ashley Saad was compelling. Further, in the absence of any evidence from Ashley Saad of his reasonable excuse for failing to provide information about the murder, I do not regard the case against him so weak that an inference should be drawn that any of the prosecutors acted for a purpose other than the proper invocation of the criminal law. The case against Mr El-Wasfi was weaker, particularly after the evidential rulings by Sully J, however it seems to me to be a case where an inference should not be drawn that any of the prosecutors acted for an illegitimate and oblique motive. There was no error shown in the conclusion of the primary judge that he was not satisfied to the high standard required of the existence of malice.

9. [235]

   I would be reluctant to find an absence of reasonable and probable cause in the case of Messrs Kassas and Pound in circumstances where the case against each man was objectively sufficient to be left to the jury. I agree, however, with Leeming JA that it is unnecessary to determine this issue here.

10. [236]

    I also agree with Leeming JA that as Mr El-Wasfi failed to raise any potential or possible excuse at the trial, the State of NSW was not required to negative any possible excuse he may have for non-disclosure. Mr El-Wasfi cannot now be permitted to advance on appeal an unpleaded and unparticularised case which is wholly inconsistent with the way the case was run at trial. The cross-appeal must be upheld.