State of New South Wales v Spedding

The State of New South Wales (the Appellant or the State) appeals from a judgment (the primary judgment or PJ) of Justice Harrison (the primary judge) in which William Harrie Spedding (the Respondent or Mr Spedding) successfully sued in tort for malicious prosecution, misfeasance in public office and collateral abuse of process and was awarded damages of $1,484,292 plus interest and costs (PJ at [323]). The judgment sum plus interest was later quantified at $1,797,181 (Spedding v State of New South Wales [2023] NSWSC 34). The damages awarded comprised components of general damages for non-economic loss, for reputational damage, aggravated and exemplary damages, legal costs, future treatment expenses and interest.

In respect of each of the torts, the State was held to be vicariously liable for the conduct of Inspector Gary Jubelin (Jubelin), Detective Sergeant Moynihan (Moynihan) and Detective Senior Constable Brennan (Brennan) (collectively the Police Officers). The State was also held to be vicariously liable for the conduct of the Office of the Director of Public Prosecutions (ODPP) who the primary judge also held liable for the tort of malicious prosecution.

Mr Spedding did not, however contend that the Director of Public Prosecutions (the DPP) committed the torts of misfeasance in public office or collateral abuse of process.

By Further Amended Notice of Appeal dated 13 June 2023, the State appeals from the whole of the primary judgment, attacking both the findings on liability and the assessment of damages. Mr Spedding filed a Notice of Contention.

The case arises out of the disappearance of a 3 year old boy, William Tyrrell, from a house in Kendall, NSW, on 12 September 2014. Kendall is a relatively small town approximately 35 kilometres from Port Macquarie. Mr Spedding was, for a period of time, a person of interest and indeed a prime suspect in that disappearance.

From February 2015, Jubelin had been the Supervising Officer of the William Tyrrell Investigation, referred to as Strike Force Rosann, and worked very closely with Moynihan and Brennan including speaking with them on a daily basis. Moynihan was referred to in various documents as the Officer in Charge but it is plain from the evidence of both Jubelin and Brennan that Brennan also had this status, from early April 2015. There were regular briefings. Brennan and Moynihan had carriage of the investigation under Jubelin’s direct supervision. Brennan and Jubelin attended Mr Spedding’s bail application in June 2015 and his ultimate trial. Brennan remained in contact with the DPP or delegates of the DPP right up until the trial in his capacity as detective in charge of the investigation.

Notwithstanding Jubelin’s early identification of Mr Spedding as the prime suspect in William Tyrrell’s disappearance, by 15 June 2015, Jubelin, in a Strike Force Investigation Progress Report, noted that “[h]aving assessed all the evidence gathered as of this point in time [10 June 2015] investigators are of the view there is a likelihood Spedding is not responsible for the abduction of William Tyrell. The strategies implemented have been complex and aggressive and have not resulted in any additional inculpating evidence” (emphasis added).

One of the aggressive strategies that had been implemented by that time and, critically, as part of the William Tyrell investigation process, was the arrest and charging of Mr Spedding in relation to various and serious counts of alleged child sexual assault dating back to 1987. In the course of the hearing before the primary judge, documents were produced by the State that disclosed that Mr Spedding’s arrest and the laying of charges in relation to the historical child sexual assault allegations formed an important part of a written strategy authored by Jubelin and implemented by each of Jubelin, Moynihan and Brennan to further the investigation into the disappearance of William Tyrell in various ways that will be explained in detail later in these reasons.

On 22 April 2015, in the full glare of a media pack which the primary judge held, in a finding not challenged by the State, had been tipped off by Jubelin or someone operating on his instructions, Mr Spedding was arrested and charged in relation to the alleged historical sexual assaults from 1987. Mr Spedding had not been charged in relation to those alleged sexual assaults at the time they were alleged to have occurred or when the allegations had first been made. Further, as shall be seen, in a judgment delivered on 17 May 1987 which was available to the Police Officers at the time of Mr Spedding’s arrest in 2015, Justice Gee of the Family Court of Australia had found that the allegations against Mr Spedding were the product of coaching from his former wife, Cathryn, and her sister, Christine.

It should be noted at the outset that Mr Spedding was found not guilty of these offences on 5 March 2018 when they eventually came on for trial. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (PJ at [20]) in relation to his prosecution for those alleged offences. It was the prosecution in respect of those charges that Mr Spedding alleged was malicious, and also amounted to misfeasance in public office by the Police Officers and the tort of collateral abuse of process.

In essence, Mr Spedding’s case before the primary judge was that his arrest and the charges of historical sexual offending which were laid against him with some urgency during the investigation into William Tyrrell’s disappearance were done so for an improper purpose, namely to further the investigation into the disappearance of William Tyrrell and involved his malicious prosecution, misfeasance in public office and the commission of the tort of collateral abuse of process by the Police Officers.

To understand the attacks on the primary judge’s reasons, it is first desirable to identify the elements of the three torts which the primary judge held had been committed and to identify the authorities relating to some of the particular legal issues that arose on appeal.

The elements of the tort of malicious prosecution were summarised by the High Court of Australia in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 (A v NSW) as follows:

Although the first element of the tort appears relatively straightforward, one key aspect of any claim for malicious prosecution is the identification of the “prosecutor” or “prosecutors” at any given time.

The person who initiates a prosecution may differ from the person who maintains it. Moreover, identification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the “prosecutor” on Court process and, as Mr Free SC, who appeared in the appeal for the State, accepted, there may be multiple prosecutors.

These propositions all flow from the fact that, in Davis v Gell (1924) 35 CLR 275 at 282-283; [1924] HCA 56 (Davis), Isaacs ACJ said, in an important passage, that for the purposes of this tort (with emphasis added):

In the present case, the primary judge’s conclusion that each of the Police Officers was a prosecutor for the purposes of the tort of malicious prosecution at the commencement of the criminal proceedings on 22 April 2015 was not challenged although whether each (or indeed any) of the Police Officers continued to hold that status so as to have maintained the prosecution after the ODPP formally took over the carriage of the prosecution which, in the current case, occurred by the end of April 2015, was a point vigorously contested on appeal. In this context, pursuant to s 9(4)(a) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act), the Director of Public Prosecutions is deemed to be the prosecutor in connection with the prosecution of proceeding concerned once the ODPP takes over the carriage of the proceedings. That formal statutory position does not, however, mean that those responsible for initiating proceedings as prosecutor may not continue to hold that status for the purposes of the tort.

A number of other sections of the DPP Act should be noted at this stage, and their relevance will become apparent in the course of these reasons.

Section 15A of the DPP Act provides:

In Gillett v State of New South Wales [2009] NSWSC 421 at [29], Schmidt J pointed out that the purpose of s 15A was to ensure a fair trial with the statutory obligation cast upon the police designed to facilitate prosecutorial disclosure obligations. Schmidt J went on to observe:

A prosecutor’s disclosure obligation leading to trial is continuous: Potier v R [2015] NSWCCA 130 at [552]; Cooley v The State of Western Australia (2005) 155 A Crim R 528; [2005] WASCA 160 at [57]. In the former case, Ward JA (as the President then was) observed that:

Once the relevant material has been disclosed by the police to the Director of Public Prosecutions (as required by s 15A(1) of the DPP Act), the relevant prosecutor is obliged to disclose it to the defence. Those obligations are contained in the guidelines furnished by the Director of Public Prosecutions to Crown Prosecutors pursuant to s 13(1) of the DPP Act. Section 15(2) of the DPP Act provides that persons to whom the guidelines are furnished are “subject to the guidelines.” Between the charging of Mr Spedding and his acquittal, the relevant guideline, concerning disclosure, provided (in part):

The decision of this Court in New South Wales v Landini [2010] NSWCA 157 (Landini) illustrates the important point made by Isaacs ACJ in Davis and the fact that the prosecutor for the purposes of the tort need not be the formal prosecutor of the criminal proceedings or the deemed prosecutor.

Landini arose out of the Royal Commission into the New South Wales Police Service (often called the Wood Royal Commission after the Royal Commissioner) (the Royal Commission) and involved allegedly tortious acts by police officers. It must also be understood in the context of legislative reform that had occurred between the laying of criminal charges and the claim in malicious prosecution.

Mr Landini had been arrested in January 1980 and charged with supplying a prohibited drug and, after pleading guilty, had been sentenced to 15 years’ imprisonment in June 1984. One of the Police officers involved subsequently gave evidence to the Royal Commission that the evidence in support of the charge had been fabricated. The Court of Criminal Appeal set aside Mr Landini’s conviction, and he thereafter commenced an action in malicious prosecution.

In order to render the State vicariously liable for the actions of the Police Officers involved, it was necessary to identify tortious acts that had occurred after 28 October 1983, the date on which the Law Reform (Vicarious Liability) Act 1983, which had the effect of making the Crown vicariously liable for the tortious acts of Police officers, commenced. In practical terms, because his prosecution had been instituted prior to 28 October 1983, Mr Landini needed to identify aspects of the maintenance, as opposed to the institution, of the criminal proceedings against him that could be said to be tortious.

Macfarlan JA, with whom Tobias JA and Sackville AJA agreed, identified various acts of “maintenance” of the criminal proceedings that were sufficient to engage this element of the tort. They included:

With respect to the second act of maintenance, in holding that such an act constituted “maintenance” of the proceeding, Macfarlan JA observed at [68]:

Macfarlan JA also noted that suppression of evidence is a relevant consideration (at [69]):

It should be noted, however, that these findings were not unqualified. Macfarlan JA held that a plaintiff had to show “active steps” taken by a putative prosecutor, and that it was “too broad” (at [76]) to suggest that a “failure to disclose” was a sufficient basis to find maintenance of the prosecution. In Landini, where a failure to disclose was combined with support (including tacit support) for a knowingly false version of events, however, Macfarlan JA considered that Mr Knox could be liable as a prosecutor.

In reaching this conclusion, Macfarlan JA made extensive reference to Daniels v Telfer (1933) 34 SR (NSW) 99 (Daniels). In that case, the plaintiff alleged that shortly after the defendants procured the issue of a warrant for the arrest of the plaintiff on a charge of larceny, the defendants became aware that the plaintiff was innocent of that charge, and thereby committed malicious prosecution. The plaintiff’s Declaration filed in those proceedings alleged that the defendants “falsely and maliciously and without reasonable and probable cause refrained from taking any steps to prevent the execution of the said warrant and to prevent the plaintiff from being arrested thereunder” (Daniels at 99); no malicious act was alleged, merely omissions. On demurrer, the Court held that the Declaration was defective for that reason.

Harvey ACJ pointed out that malicious prosecution requires “an active step actuated by malice” (at 102) but noted that such an “active step” could take many forms (at 102):

To that, Halse Rogers J added that procuring an adjournment of the proceedings was a sufficient “active step” in that it “suppressed from the magistrate [the defendants’] knowledge of the innocence of the plaintiff” (at 103).

Macfarlan JA in Landini also relied on Coleman v Buckingham’s Ltd (1963) 63 SR (NSW) 171; [1964] NSWR 363 (Coleman) which itself followed Daniels. In that case, Herron CJ and Walsh J (writing jointly) considered what constituted an “active step” in the proceeding. At 178, their Honours noted:

Reference should also be made to the decision of the House of Lords in Martin v Watson [1996] AC 74, in which Lord Keith of Kinkel (with whom the other Law Lords agreed) allowed a complainant in a criminal matter to be sued in malicious prosecution, on the basis that the complainant had “in substance procured the prosecution” (at 89) by making a knowingly false complaint. In so doing, his Lordship adopted the views of McMullin J in Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 (Lamont) at 207-208, in which his Honour said:

In relation to the third element of the tort, namely that the defendant must have acted maliciously in initiating or maintaining the prosecution, the High Court observed in A v NSW at [55] that “it suffices to describe malice as acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word ‘malice’.” Later in the judgment, the plurality observed that malice may be inferred including where the dominant purpose underpinning the bringing of proceedings was one “other than the proper invocation of the criminal law”: at [93]. This will include where the proceedings are actuated by “an illegitimate or oblique motive”: at [91], citing Gibbs v Rea [1998] AC 786 at 804.

Landini has been relevantly applied in Edwards v New South Wales [2021] NSWSC 181 at [11] and [62]-[64]; Hrdavec v New South Wales [2021] NSWSC 560 at [39]; Edwards v New South Wales [2022] NSWCA 187 at [98]; Flowers v New South Wales (No 5) [2021] NSWSC 887 at [205]; Ea v Diaconu [2019] NSWSC 795 at [57]; HD v New South Wales [2016] NSWCA 85 at [75]; Sahade v Bischoff [2015] NSWCA 418 at [121]; New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [191]; and Vatarescu v Commonwealth (2012) 263 FLR 301; [2012] ACTSC 96 at [132]-[133].

It was properly accepted in the course of argument on appeal that the institution of proceedings to advance an unrelated investigation was not a proper purpose and Jubelin accepted as much in cross-examination: see [184] below.

The existence or satisfaction of the element of malice, however, is insufficient. It must also be demonstrated that the prosecutor, in instituting or maintaining the proceedings, acted “without reasonable and probable cause”. In A v NSW at [58], it was observed that:

Earlier, the Court had also referred to the “available material” and what the prosecutor "made" or "should have made" of it: at [55]. The absence of reasonable and probable cause entails both subjective and objective elements: A v NSW at [61].

The plurality endorsed as a valuable means of assessing the absence of a reasonable and probable cause what had been said by Jordan CJ in Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 at 469. The Chief Justice said that one or more of the following five conditions must be shown not to have existed:

The following passage from A v NSW (at [59]) is also important for the State’s appeal. It was there said that:

Finally, as was observed in A v NSW at [96]:

Although it has been observed that “[n]otoriously, the elements of the tort of misfeasance in public office were, and are, unsettled” (Obeid v Lockley (2018) 98 NSWLR 258; [2018] NSWCA 71 at [225]), controversy centres around the ambit of the requirement that the impugned act requires an exercise of public power: see, for example, Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 (Ea). No issue in relation to that element of the tort arose in the present case as the acts said to involve the misfeasance in public office were the arrest and charging of Mr Spedding on 22 April 2015.

The power to arrest (without a warrant) was conferred by s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the power to charge was conferred by s 48 of the Criminal Procedure Act 1986 (NSW).

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

Section 48 of the Criminal Procedure Act 1986 relevantly provides:

Putting aside controversy relating to the requirement for the exercise of a public power, the elements of the tort of misfeasance in public office may be stated as follows per Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65, citing Lord Diplock in Dunlop v Woollahra Municipal Council [1982] AC 158 at 172:

This tort was described by Lord Denning in Goldsmith v Sperrings [1977] 1 WLR 478 at 489 as follows:

In McKechnie v Campbell (1996) 17 WAR 62 at 74, Owen J observed that:

It is not to the point that the impugned proceedings involve a valid cause of action if their predominant purpose is collateral to the vindication of rights or the enforcement of just claims: Williams v Spautz (1992) 174 CLR 509 at 522–3; [1992] HCA 34 (Spautz); Grainger v Hill (1838) 4 Bing (N.C.) 212; 132 ER 769 at 773-774 (Grainger).

The elements of the tort of collateral abuse of process were identified in Burton v Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245 (Burton) at [42], namely:

For an account of the history of the tort and an extended discussion of its elements, see E Hynard and A Lerch, “The Tort of Collateral Abuse of Process” (2021) 44(2) UNSW Law Journal 714. The authors give as examples of improper purposes for the purposes of the tort an intention to use a legal process to affect negotiations to take control of a company (QIW v Felview [1989] 2 Qd R 245 at 258–9); to put pressure on an opposing party to settle a different dispute (Hamer-Mathew v Gulabrai (1994) 35 NSWLR 92 at 94); to prevent a bank taking possession of property (NAB v McFarlane [2005] VSC 438 at [61]); to interfere with, embarrass and hinder a police officer from carrying out his duties to investigate corruption in the poker machine industry (Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 96–7); to induce a university to secure the defendant’s reinstatement (Spautz at 516); to delay or defer the time for payment of an obligation (White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at 239–40; [1998] FCA 806); to vex a criminal defendant (Burton at 736); and to prevent a former employee from obtaining a certificate from the Fair Work Commission which he required to litigate his claims in the Federal Court of Australia (Martin v Norton Rose Fulbright Australia (No 11) [2020] FCA 1641 at [376]–[403]).

Unlike the tort of misfeasance in public office, it is no part of the tort of collateral abuse of process that there be demonstrated an intention to cause harm. So much was accepted in argument on the appeal (tp 49).

In Emanuele v Hedley (1998) 179 FCR 290; [1998] FCA 709 at [41] (Emanuele), the Full Court of the Federal Court adopted the explanation of the tort given in Prosser and Keaton on the Law of Torts (5th ed., 1984, West Group), which was also adopted by Priestley JA in this Court in Spautz v Gibbs (1990) 21 NSWLR 230:

This Court, in Leerdam v Noori (2009) 255 ALR 553; [2009] NSWCA 90 (Leerdam), confirmed that the tort of collateral abuse of process may only be committed by a party to proceedings although it did not call into question the qualification in the final sentence in Emanuele quoted in the previous paragraph: see at [30]-[38]; see also at [46], [66], [126]. Indeed, Spigelman CJ referred to “the true moving party in litigation”: at [43].

This raises the question as to who is or are the parties to criminal proceedings commenced by a Court Attendance Notice (CAN) and in the period before the presentment of an indictment on behalf of the Crown.

The relevant sections of the Criminal Procedure Act 1986 (NSW) are as follows:

In the plurality judgment in Spautz at 523, it was said that “central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers”. An example of this is supplied by the foundation case of Grainger where the plaintiff used the threat of arrest of the defendants in proceedings for recovery of a debt to achieve the ulterior purpose of obtaining possession of a certain ship’s register. Tindal CJ said that the process of the law had been abused “to effect an object not within the scope of the process” (at 221; 132 ER at 773). So, too, in Varawa v Howard Smith Co Ltd (1912) 13 CLR 35; [1911] HCA 46 at 91, Isaacs J said that the term “abuse of process” in the context of the claim in tort connoted that the process is employed for some purpose other than the attainment of the claim in the action. He continued:

As noted above, in the context of the discussion of the tort of malicious prosecution, it was properly accepted in the course of argument on appeal that the institution of proceedings to advance an unrelated investigation was not a proper purpose.

Before turning to the primary judgment and the grounds of appeal, it is necessary to set out the extensive factual material which was before the primary judge and upon which his decision was based.

The key facts divide into three broad periods: those in relation to the alleged historical sexual assaults and the family law proceedings between Mr and Mrs Kearns in which allegations against Mr Spedding were made; those relating to the investigation into the disappearance of William Tyrrell leading up until and involving Mr Spedding’s arrest and his being charged with the 1987 alleged sexual assaults; and finally those relating to the maintenance of the criminal proceedings against Mr Spedding subsequent to his arrest and the ultimate dismissal of those charges in 2018.

Without intending any disrespect, it is convenient to refer to various persons below by their first names so as to more easily distinguish between them. It is also necessary to anonymise the names of various persons who were minors at the time of the events in question.

The relevant events commence in 1981. By that time, Mr Spedding’s first marriage had broken down. There were three children of that marriage (PJ at [22]).

In November 1981, Mr Spedding began living with Ms Cathryn Hillsley (Cathryn), who herself had two children from a previous marriage: RT and JT (PJ at [22]). Mr Spedding and Cathryn married in 1982 and they had one daughter, LS, in 1983. In 1984, Mr Spedding adopted RT and JT (PJ at [22]). At this time, Mr Spedding, Cathryn, RT, JT and LS resided in Victoria (PJ at [23]).

It should also be noted that Cathryn’s brother is Jeffrey Hillsley (Jeffrey), who had been convicted of murder and has an extensive criminal record involving the sexual assault of children, as set out in R v Hillsley [2005] NSWSC 652. It will be necessary to refer later in these reasons to evidence that he had sexually assaulted JT and LS whilst on parole in early 1987.

While residing in Victoria, Mr Spedding and Cathryn socialised with another couple, Daniel Kearns (Daniel) and Irene Kearns (Irene), and their children, NK, TK and DK (together, the Kearns children) (PJ at [24]).

In mid-December 1986, Cathryn informed Mr Spedding that their marriage was over and took RT, JT and LS to her parents’ house in Dundas, New South Wales. Very shortly thereafter, Daniel informed Irene that their marriage was also over, and took his children to Cathryn’s parents’ house in Dundas in order to reside with Cathryn (PJ at [23]-[24]).

At this point, Irene commenced custody proceedings in the Ballarat Magistrates’ Court which, on 29 January 1987, were resolved in her favour. Consent orders were made in the Family Court in Melbourne which granted her sole custody of the Kearns children with some access afforded to Daniel.

After this occurred, on 24 February 1987, the Community Services Child Protection Department in Victoria received a notification about the Kearns children being allegedly sexually abused by Irene and began an investigation. In March 1987, that investigation was terminated on the basis that the allegations of abuse were unsubstantiated (PJ at [25]).

Separately, Mr Spedding and Cathryn were engaged in custody proceedings in relation to their own children. On 4 March 1987, the Family Court at Parramatta ordered that Mr Spedding have access to RT, JT and LS every second weekend, commencing on 11 April 1987 (PJ at [25]). Mr Spedding was at the time living in a caravan on a property owned by a friend of his in Campbelltown, NSW.

On 11-12 April 1987, RT, JT and LS stayed with Mr Spedding in the caravan. The four of them slept together in the caravan. It was in respect of this visit that the allegations of sexual misconduct against Mr Spedding arose and to which the criminal proceedings in which Mr Spedding was charged some 28 years later on 22 April 2015 related.

Around 22 April 1987, Cathryn rang Mr Spedding and accused him of molesting “the kids”. On 29 April, Cathryn took LS and JT to Westmead Children’s Hospital where they spoke with a social worker, Julienne Scott (Ms Scott). LS, then aged 3, said she had been sexually assaulted by Mr Spedding. At this point, JT denied she had been sexually assaulted, and did so, in the language of Ms Scott’s contemporaneous note, “vehemently” (PJ at [28], [69]).

On 1 May 1987, LS returned to Westmead where she was examined by Dr Tanya Dus (Dr Dus). LS is recorded as having described how “Bill” “put his body” in her “back” and “front”, and used dolls to demonstrate vaginal and penile penetration. Dr Dus found some evidence of sexual assault (bruising of the labia minor and a widened vaginal opening). Ms Scott was present during this examination. Ms Scott later spoke to JT who again did not disclose any sexual assault of either herself of her younger sister.

Of some significance, between 1 May and 5 May, JT allegedly disclosed a sexual assault by Mr Spedding to Christine Guthrie (Christine), her aunt (the sister of Cathryn) (see PJ [29]). The circumstances of this disclosure were canvassed by the primary judge, who indicated that it was likely that Christine had “coaxed” this allegation from JT: PJ at [70]. So much was indicated by an affidavit in the Family Court proceedings between Mr Spedding and Cathryn which was sworn on 26 May 1987. Christine’s affidavit purported to recall a conversation with JT, which the primary judge described as “contain[ing] evidence that that allegation [of sexual abuse] by Mr Spedding had been “coaxed” by her [Christine]” (at [70]). In essence, Christine deposed that she had a conversation with JT that if Bill had “touched [JT] with his diddle” then it was possible JT would have AIDS and would therefore die, and that this conversation caused JT to disclose sexual abuse by Bill.

On 5 May 1987, JT was interviewed by Ms Scott and examined by a Dr Newton. On this occasion, despite her earlier vehement denials, JT alleged she was sexually assaulted by “Bill” and indicated she had been vaginally and anally assaulted, both digitally and penilely. Dr Newton recorded some evidence of hymenal damage consistent with penetration.

Also on 5 May 1987, Ms Wilson, a District Officer of the Merrylands Community Welfare Centre rang Ballarat Police. A transcript of her file note is as follows:

Later on 5 May 1987, Ms Wilson made a note that she had told Cathryn that she would like to talk to RT “as to whether he had observed anything at all regarding the allegations – particularly when the children were in the caravan.” To recapitulate, RT is the brother of JT and LS who also stayed in the caravan with his sisters and Mr Spedding on the weekend of 11-12 April 1987. The notes continued that “Cathy said that Julienne Scott had spoken to [RT] and he hadn’t revealed any knowledge of the events”.

On 20 May 1987, Mr Spedding was interviewed by Detective Roderick Dayment (Detective Dayment). In that interview, Mr Spedding freely admitted to having slept in the caravan with RT, JT and LS, on the weekend of 11 April 1987 (it was the only accommodation he had at the time) but denied having any sexual contact with them. By 1 June 1987, Detective Dayment had completed a Police Incident Report in which he noted that, due to the age of the children, Cathryn had been spoken to and had declined to allow the children to give evidence. The Police thus declined to take further action (PJ at [31]).

Of some importance for the events that were to follow was that, on 26 May 1987, Cathryn and Christine both swore affidavits to be filed in the Spedding v Spedding Family Court proceedings. Christine’s affidavit has already been referred to: see [75] above. Cathryn’s affidavit contained allegations that when the children returned from their visit to Mr Spedding on 11-12 April, they had looked unwell (PJ at [180]-[181]). The affidavit recalled that LS had been vomiting, and began to slightly wet her pants, and complained of pain in her genital region when urinating. It also recounted that Cathryn and her mother had then looked at LS’s vagina, a week after the alleged sexual assault, and saw bruising “inside her labias (sic)”, the area around which was “very red and sore”. The Spedding Family Court proceedings were later resolved by consent.

The next time these allegations came to prominence was in the Kearns v Kearns Family Court proceedings, which were heard in October 1988 and April-May 1989 before Justice Gee of the Family Court of Australia. In those proceedings, Daniel Kearns (supported by Cathryn, with whom he was in a relationship and was to marry) alleged that his former wife, Irene, and Mr Spedding were in a relationship, and that whenever Irene had access to NK, DK and TK, she and Mr Spedding sexually assaulted them (PJ at [32]). Allegations were also made in these proceedings that Mr Spedding had separately sexually assaulted JT and LS. All of these allegations, including that Mr Spedding was in a relationship with Irene and that they had jointly and separately assaulted the various children, were rejected by Gee J.

His Honour, in a lengthy judgment delivered on 17 May 1989 and reproduced in some detail in the primary judgment (at [38]), was scathing of the credibility of both Christine and Cathryn. Cathryn had, by the time of the judgment, married Daniel. His Honour observed that Cathryn’s evidence was replete with internal inconsistencies “so numerous” to be able to detail, referred to her “capacity to invent”, described her conduct as “obsessive”, “compulsive” and “bizarre”, and said that she and her sister Christine had tutored all of the children to believe that Mr Spedding and Irene were in a relationship together and that he was a dangerous man, and that there had in turn been cross-fertilisation of memories and beliefs amongst the children in what his Honour described as a “hot house of suspicion”.

Justice Gee, who observed all the key witnesses give evidence, went beyond a mere suggestion that the sisters, Christine and Cathryn, tutored the children. He spoke of the “programming” of the children:

Justice Gee found that neither Irene Kearns nor Mr Spedding sexually abused the children. He also rejected the allegation advanced by Daniel Kearns and Cathryn that Irene Kearns and Mr Spedding were in a sexual or de facto relationship with each other. As to the children who were said to have been the subject of the alleged sexual assaults, Gee J referred to “the constant inculcation and adjustment of their memories and their thinking and of their actions”, characterising it as amounting to “emotional abuse of the children”.

The primary judge summarised Gee J’s findings at PJ [33]:

As shall be seen, the existence of this judgment (and the Police’s possession of it at the time Mr Spedding came to be arrested and charged on 22 April 2015) was and is of great significance to the present case.

The allegations set out above did not attract any further legal attention until the events of 2014-2015, set out below. It was these events which directly gave rise to Mr Spedding’s tortious claims and the award of substantial damages to him by the primary judge.

As noted at the outset of these reasons, on 12 September 2014, William Tyrrell, a three-year-old boy, disappeared from his foster grandmother’s house in Kendall. At the time, Mr Spedding was living in Bonny Hills, roughly 20 minutes’ drive from Kendall, with his wife, Margaret Spedding (Margaret) and her four grandchildren, aged between nine and fifteen years old. Mr Spedding also had business premises in Laurieton.

On the morning of 6 September 2014, Mr Spedding, who was self-employed as a refrigeration mechanic and general white goods repairman, had received a phone call from William Tyrrell’s foster grandmother, who was in need of a washing machine repairman. He arranged to attend upon her house on 9 September 2014 at 11am. He did so, for around 45 minutes.

On 12 September 2014, the day of the disappearance of William Tyrrell, as Mr Spedding later told police, he and his wife went to his grandchildren’s school assembly, from around 10am until 12pm and he spoke to several people, watched one grandchild receive an award and viewed a play at the school, before returning to work.

On 18 September 2014, Mr Spedding returned to the home of William Tyrrell’s foster grandmother to complete the repairs to her washing machine.

On 19 September 2014, he attended Port Macquarie Police Station at the request of Police who were investigating the disappearance of William Tyrrell. He gave Police permission to download his mobile phone and allowed them to copy his message book and diary. He also made a statement. He did not hear anything further from the Police until 20 January 2015 (PJ at [3]).

On 19 January 2015, the Police obtained search warrants in respect of Mr Spedding’s home and business premises. These were executed on 20 January 2015, including at his home at 7am on that day. This was extensively covered by the media, evidence of which was before the primary judge at trial. Mr Spedding was conveyed to Port Macquarie Police Station where an ERISP was conducted by Moynihan and Constable Stephen King (King). Margaret Spedding was also conveyed to Port Macquarie Police Station for an interview (PJ at [4]-[7]).

The primary judge recorded the nature of Mr Spedding’s ERISP and surrounding events (PJ at [6]-[9]):

Importantly, in the search that was conducted that day on Mr Spedding’s business premises in Laurieton, the Police seized several documents. These included a copy of the judgment of Gee J in Kearns v Kearns (PJ at [36]).

On 21 January 2015, Mr Spedding recalled that he had attended the Buzz Café in Laurieton prior to attending the school assembly on 12 September 2014 and had bank records that demonstrated as much. He called Moynihan to tell him so. Moynihan said: “I’m tired of your bullshit and lies. Don’t speak to me again.” Mr Spedding’s grandchildren were also removed from his and Margaret’s care on this day (PJ at [10]-[12]). He subsequently produced for police a receipt for the purchase of two cups of coffee from a café near the school at 9.46am on 12 September 2014. As was later accepted by the Police, this provided the Respondent with a firm alibi as to any hypothesised involvement in the disappearance of William Tyrrell (PJ at [10]).

On 9 February 2015, Jubelin completed Strike Force Progress Report No. 4. That report is of significance as it dates the Police’s awareness of the historic sexual assault allegations against Mr Spedding to no later than 23 December 2014, and possibly as early as 17 September 2014. In that respect, the Report references “an Intelligence Report … submitted on the 17 September 2014 five days after William’s disappearance nominating Spedding as a suspect”.

On 26 February 2015, Jubelin attended Mr Spedding’s home and requested that he and Margaret participate in a “walk-through” interview to demonstrate their movements on the morning of 12 September 2014 (PJ at [13]). This walk through was filmed by Brennan.

On 10 March 2015, Jubelin prepared Strike Force Progress Report No. 5 for the period ending 10 March 2015. It relevantly stated:

On 1 April 2015, JT made a statement to Police, in which she alleged that Mr Spedding had repeatedly sexually assaulted her (including when she was younger than two years old), and in particular made allegations that he had digitally assaulted her in the caravan, at some point “after Christmas, [in] early 1987”. She also said she did not see what happened to LS but remembered her crying and screaming. This statement also recorded that JT and LS’s older brother, RT, was also in the caravan at the time of the alleged assaults.

On 11 April 2015, Jubelin created a document entitled “Strike Force Rosann Proposed Operational Phase”. This document, which was Exhibit E at trial and which was only produced late in the trial, after Brennan, for example, had given his evidence, sets out the underlying actions needed to achieve what were described as the seven “phases” of the investigation. It was extracted in full at [44] of the primary judgment and was a document that assumed great significance in the trial. The document begins by stating its purpose:

Steps (ii) and (iii) of PHASE 1 were as follows:

Step (xvii) of PHASE 1 was as follows:

Step (xx) of PHASE 1 was as follows:

PHASE 5 provided (with added emphasis):

In cross-examination of Jubelin, the following exchange occurred:

Phases 6 and 7 provided:

Exhibit E concluded with the following notation:

Exhibit E was emailed to Brennan and Moynihan and various other police officers on the Strike Force on 13 April 2015.

One notable feature of Exhibit E is that it not only contemplates the arrest of Mr Spedding but nominates a date (22 April 2015) on which this was to occur. It is significant that, as at the date of Exhibit E’s creation (11 April 2015), LS’s police statement had not even been made, and when it was made, it made no reference to any incident in a caravan that formed the basis for five of the seven counts in relation to which Mr Spedding was to be arrested. In addition, RT, who Police knew to have also been in the caravan at the time of the alleged assaults in 1987, had not been contacted, let alone interviewed. Furthermore, the “three other definite victims” referred to at the end of Phase 7 were the Kearns children. None of them had been interviewed or apparently contacted. As shall be seen, when they were, in early May 2015, all of them denied ever having been sexually assaulted by Mr Spedding.

The primary judge described Exhibit E as revealing that “the arresting and charging of Mr Spedding on unrelated matters was to take place as part of the plan to further the investigation of the disappearance of William Tyrrell, even though there was no basis to arrest Mr Spedding with respect to the disappearance” (at PJ [59]). This finding was not challenged on appeal.

The Task Force met at 2.00pm on 13 April 2015 during which the tasks in Phase 1 of Exhibit E were assigned to various officers. Steps (ii), (iii) and (xvii) were assigned to Brennan and Moynihan.

Also on 13 April 2015, two detectives obtained records from the Department of Communities and Justice, formerly Families and Community Services (FACS), a department of the State Government. The FACS file contained a number of significant pieces of information including that JT, when initially questioned by Ms Scott, had vehemently denied any sexual interference by Mr Spedding, and had repeated that denial and that RT had said that nothing had occurred in the caravan. It also disclosed the matters referred to at [76]-[77] above.

On 15 April 2015, Jubelin signed an “Operation Summary” contained within Strike Force Progress Report No. 6. That report contains information as to the Police investigation for the month ending 13 April 2015. The document records that the Police, by this point, were “targeting” Mr Spedding and were making overt inquiries in relation to Mr Spedding’s alibi evidence. Further, part of the strategy was to “generate media interest”. In what was supposed to be a document that records the investigation thus far (in the words of the Terms of Reference “to investigate the disappearance of William TYRRELL”), the Summary recorded the following “duties [which] have been carried out”:

On 14 April 2015, consistently with the strategy set out in Exhibit E, LS made a statement to the Police. Her statement makes various allegations of sexual assault against Mr Spedding. At least in part, these statements were based on “sensory”, “triggered” memories and “flashbacks”. Importantly, however, the statement did not mention any sexual assault in a caravan; that is, it did not disclose the facts the subject of the offences with which Mr Spedding was charged some 8 days later.

Brennan’s notebook for 16 April 2015 contained a detailed list of tasks under the heading Spedding Sexual Assault Task Lists. These included:

There is also a separate note headed “KEARNS (family enquiries, para 41 [JT]’s Statement)”. The reference to JT’s statement is a reference to the statement that had been taken on 1 April 2015 by a different Detective Senior Constable. Paragraph 41 of that Statement included the following:

This paragraph was, in effect, to repeat in vague and qualified language the discredited allegations from the Kearns v Kearns family court proceedings, a copy of the judgment from which was in the possession of the police although Brennan’s evidence was that he had not read it at this stage i.e. 16 April 2015.

A significant number of the tasks noted in Brennan’s notebook were not undertaken prior to Spedding’s arrest on 22 April 2015. Indeed, the strategy to arrest him on 22 April 2015 had been conceived at least as early as 11 April 2015 as illustrated by Exhibit E, significantly prior to a statement having been obtained from LS and indeed prior to police having obtained, let alone examined, the FACS file which was not obtained until 13 April 2015, and which Brennan did not commence reviewing until 16 April 2015.

PHASE 5 of the Exhibit E strategy included the making of “attempts … to conduct a covert operation to obtain a confession from Spedding in regards to Tyrrell.” To this end, on 17 April 2022, the police secured a surveillance device warrant from Bellew J of the Supreme Court. The alleged offence in respect of which the warrant was issued was “child abduction” (obviously a reference to the abduction of William Tyrell) and the warrant was sought and issued for 6 listening devices in “Any room occupied by William Spedding at Port Macquarie Police Station, 2 Hay Street, Port Macquarie.” It was to Port Macquarie Police Station that Mr Spedding was taken after his arrest. Immediately after he had been interviewed briefly in relation to the charges, Jubelin, who had been in another room during that interview, came into the interview room and interrogated Mr Spedding together with Brennan and Moynihan at some length about the disappearance of William Tyrrell. This was consistent both with his plan in Exhibit E and his strategy, as recounted in a book Jubelin was to publish in 2020 after he left the police force and which is referred to at greater length below: see [182].

Also on 17 April 2015, Brennan attended a meeting at Police Headquarters with Officers Warren and l’Anson. His note of the meeting is somewhat revealing. Preceding a section under the heading “Offences Evidence Matched”, which was a bullet point sketch of what became the various sequences in the Court Attendance Notice, was a separate section headed “Bail Considerations”. Seven points were noted but the significance of the focus on bail was telling. It had always been a critical part of the Exhibit E strategy conceived by Jubelin. If bail was refused, extra pressure could be applied to Mr Spedding whilst in custody, and the surveillance device warrants to listen in on him at Port Macquarie Police Station had been or were to be obtained on the same day. On 21 April 2015, the Police obtained a statement from Cathryn, the biological mother of RT, JT and LS, whose evidence had been rejected in the Gee Judgment and of whom Gee J had been strongly critical (see [82]-[84] above).

Under cross-examination, Brennan gave the following significant evidence about prudent practice prior to arresting and charging a person in a sexual assault case:

Brennan did not speak to either of them until July 2015. This was after Mr Spedding had been discarded as a suspect in the disappearance of William Tyrrell.

On 22 April 2015, Mr Spedding was arrested at his home in Bonny Hills. The arrest was initially effected by Jubelin and then apparently repeated by Brennan.

Certain media reporters had been at Mr Spedding’s home from early that morning and a great degree of publicity was afforded to the news of his arrest (PJ at [14]). As noted in the introductory section of these reasons, the primary judge held that the press was tipped off in this regard, a finding unchallenged on appeal. At PJ [200], his Honour held that:

The CAN listed Moynihan as the “OIC (Prosecutor)”, Brennan as the creator of the document and as having apprehended Mr Spedding. Seven offences were listed, two against JT and five against LS. Two charges (one against JT and one against LS) were of common assault, and the balance of the charges were of sexual intercourse with a person under the age of 10 years, contrary to s 66A of the Crimes Act 1900.

The CAN had attached to it a Facts Sheet in which Moynihan and Brennan were described as the “Arresting Officer”; Moynihan was additionally listed as the “Informant”.

There was a further Facts Sheet described as “Full Facts” which listed both Moynihan and Brennan as “Police Informants”. It referred to “the allegations made by the victims” and to statements as having been obtained from them. It did not refer to the fact that one of the complainant’s statements made no reference to having been sexually assaulted in a way that formed the subject matter of five of the charges. It also did not refer to the fact that the Police had not obtained any statement from RT, the eldest of the three children who was in the caravan on the night of the alleged sexual assaults. Speaking to RT was on Brennan’s task list which he drew up on 16 April 2015 (see [116] above).

At PJ [79], the primary judge held:

The Full Facts Sheet also referred to “victims not part of the accused’s family.” Jubelin and Brennan accepted that this was a reference to the Kearns children. None of them had been interviewed at the time of Mr Spedding’s arrest to substantiate any claims that they had been sexually assaulted by Mr Spedding, even though this was also on Brennan’s task list of 16 April 2015. Brennan accepted under cross-examination that the reference as to “further victims not part of the accused’s family” on the Facts Sheet was “to ensure that [Mr Spedding] was refused bail”.

Five of the seven offences referred to in the CAN related to alleged sexual assaults of LS in March/April 1987. She was three years old at the time. The Full Facts Sheet made it plain that the charged offences all occurred on the one occasion at night in a caravan and in the presence of JT and LS’s elder brother RT. As noted above, the statement that had been obtained from LS on 14 April 2015 did not provide any evidence of these alleged assaults. Brennan gave evidence that he was aware that LS’s statement did not disclose the alleged sexual assault in the caravan in 1987. He continued that he “would not expect her to recall this given that she was three years old at the time” and that he considered it “perfectly reasonable that she would not remember these events”.

At PJ [100], the primary judge held:

The fact of this non-disclosure by LS was not in issue, nor was it in issue that the Facts Statement and the Full Facts Statement did not disclose that no contact had been made with RT or any of the alleged non-family victims, let alone a statement obtained from any of them.

Consistent with the strategy in Exhibit E, Police successfully opposed a grant of bail in the Local Court after Mr Spedding’s arrest, and after police bail had also been refused.

At the time of charging Mr Spedding, Brennan and, it may reasonably be inferred, Moynihan, had not personally interviewed or spoken to either JT or LS. RT had not been spoken to at all by any police even though when asked under cross-examination whether RT was “a very important witness”, Brennan answered “Absolutely, yes”.

The Police brief of evidence forwarded to Mr Spedding’s legal representatives on 23 April 2015 did not include a copy of the Gee Judgment nor the FACS file which had been obtained by Police on 13 April 2015 and to which reference had been made in the Full Facts Sheet. Neither of these documents was disclosed until 9 June 2015 at about the time Jubelin reached the view on the balance of probabilities that Mr Spedding had not been involved in the disappearance of William Tyrrell.

On 30 April 2015, as noted earlier in these reasons, the ODPP assumed responsibility for the prosecution from the Police. This is a matter that has some significance in light of some of the grounds of appeal propounded in the instant case. It is to be inferred, however, that the ODPP was not briefed with any investigative material beyond that which had been provided to Mr Spedding’s legal representatives on 23 April 2015. If it had been, the DPP would have been obliged by his own Guideline (see [22] above) to have served that additional material on Mr Spedding’s legal representatives.

Mr Spedding remained in custody until strict conditional bail was granted by Bellew J on 19 June 2015 (PJ at [15]). Importantly for the purposes of damages, one of those conditions was that Mr Spedding was prohibited from access with any children, such that his grandchildren were unable to return to his home (PJ at [226](172)). This bail only ended once Mr Spedding was acquitted in the District Court in 2018.

On 5 May 2015, Brennan read the Gee Judgment for the first time despite it having been in the Police’s possession since a copy of it was seized on 20 January 2015. He did so on a plane from Sydney to Melbourne. So much was accepted at trial (PJ at [135]). Brennan agreed that reading the judgment made him think that there may be issues with Cathryn and that it “to a degree” called into question her credibility and reliability. He also accepted that Gee J’s observation in his judgment as to Cathryn’s “unhealthy concern for construing innocent matters having sexual overtones” would have caused him concern in relation to her credibility and that “it would have been of extreme concern to [him] that there was a suggestion of Cathryn and Christine tutoring the children into making allegations.”

Brennan’s trip to Victoria was to interview TK and DK, and their father, Daniel. This trip was made at the direction and with the approval of Jubelin. Jubelin accepted that, before charging Mr Spedding, he knew that there was an allegation that the Kearns children had been sexually assaulted by him. In Jubelin’s Exhibit E strategy document, however, they had been referred to as “three other definite victims” and they had also been referred to as victims in the Full Facts Sheet (see [130] above).

On 6 May 2015, meetings were held with TK and DK. Brennan volunteered in cross-examination that “I think there was a need to talk to them”. Brennan created two documents, each described as “Investigator’s Note”, both dated 18 May 2015, of his separate meetings with TK and DK although Brennan’s handwritten notes of the interviews were also in evidence. Both meetings were held together with a Detective Senior Constable Semken, and a Detective Sergeant Bell of Victoria Police.

The note regarding TK records in part and with emphasis added:

Brennan’s handwritten notes record at an early stage of the interview “Coaxed into making allegations against mother and Bill”. The contemporaneous handwritten notes make no reference to this being a “vague recollection”. The notes also record Brennan calling Jubelin shortly after this interview, presumably to report on it. Jubelin accepted the likelihood of this under cross-examination and that they might have discussed TK’s evidence that she had been coaxed into making allegations against Mr Spedding and Irene Kearns by Cathryn. Under cross-examination, Jubelin accepted that information of this kind would have caused him major concern in relation to the case against Mr Spedding.

The note regarding the meeting with DK records, in part:

Under cross-examination, Jubelin agreed that this information was highly relevant to the credibility of Cathryn, and affirmed that Brennan would have imparted that information to him.

On 7 May, Brennan and Detective Senior Constable Semken met with TK and DK’s father, Daniel, details of which were also recorded in an “Investigator’s Note” dated 18 May 2015. This note records (with emphasis added):

Jubelin accepted that he was aware from discussions with Brennan, very shortly after Mr Spedding was charged, that Cathryn was someone who was widely regarded as manipulative.

On 9 May 2015, Brennan spoke by telephone to the third of the Kearns children, NK. He made a typed file note of that phone conversation on 18 May 2015. That note included the following:

These Investigator’s Notes were, on any view, highly material to the case against Mr Spedding because they corroborated the conclusions so clearly reached in the Gee Judgment, namely that the allegations against Mr Spedding in relation to the Kearns children which had their origins in the coaching and programming by the mother and aunt of LS and JT, were fabricated. They also totally destroyed the claim – never supported by any evidence – in the Full Facts Statement that there were further “victims not part of the accused’s family”, a claim that had been made to increase the prospects of bail being refused: see [130] above.

The Investigator’s Notes in relation to TK and DK and the contents of the telephone conversation with NK were not disclosed to Mr Spedding’s legal representatives and, it is to be inferred, the ODPP, for more than 11 months. This occurred on 18 March 2016.

Under cross examination in the proceedings before the primary judge, Brennan agreed that the information he received from TK would have been very concerning because it confirmed the allegations which had been dealt with by Gee J in terms of coaxing/coaching and tutoring. He also agreed that reporting back to Jubelin the suggestions of coaching children to make complaints by Cathryn Hillsley/Spedding would have been important and that it was highly likely that he would have told Jubelin about this.

On 11 May 2015, the investigation continued as a Detective Brand and a Detective l’Anson attended the Family Court at Parramatta to obtain documents related to both Spedding v Spedding and Kearns v Kearns (PJ at [177]).

Of this visit, the primary judge noted in an unchallenged finding (at [177]-[178] of the primary judgment):

On 15 May 2015, Jubelin completed a document entitled “Strike Force Progress Report No. 7” (PJ at [87]). In this document, Jubelin listed the duties which had been “carried out” in relation to the Tyrrell investigation. These included:

On 18 May 2015, Brennan made his “Investigator’s Note” of his conversations with TK and DK (which had occurred, as noted above, on 6-7 May 2015) and which recorded that neither child believed that they had ever met Mr Spedding, much less had been sexually abused by him, with both children expressing the view that Cathryn had used them to further her perceived interests in the Family Court proceedings.

Formal statements based on the Investigator’s Notes were not taken until 15 October 2015 (for Daniel), 12 December 2016 (for DK) and 13 December 2016 (for TK) (PJ at [174], [176]).

In the course of May 2015, Mr Spedding was placed in a cell in Cessnock Correctional Centre with another man, and their conversations monitored. This had also been part of the pre-arrest strategy. This was consistent with what had been planned in step xvii of PHASE 1 of Exhibit E: see [103] above. Brennan was one of the officers who monitored this surveillance which did not advance the investigation in relation to William Tyrrell’s disappearance.

On 7 June 2015, Brennan and Moynihan met with RT. It was the first time that RT had been spoken to in relation to the charges against Mr Spedding, a matter about which RT claimed to have expressed surprise (PJ at [153]).

On 15 June 2015 as noted early in these reasons, Jubelin completed a document entitled “Strike Force Progress Report No. 8” for the period ending 10 June 2015. The “Terms of Reference” were, consistently with other Strike Force Progress Reports, “To investigate the disappearance of William TYRRELL…”. In the “Operation Summary”, Jubelin recorded:

The strategy of arresting and charging Mr Spedding with the historical sexual assault charges was expressly referred to in Progress Report No. 8:

The document also records that Moynihan had stepped away from his role as Officer in Charge (OIC) of the investigation during the preceding month due to his other workload, but that “there is an expectation [that Moynihan] will assist on the investigation when available”. Jubelin remained as “Officer in Charge Strike Force.”

It is of no little significance that on 9 June 2015, the day prior to the end of the report period covered by Progress Report No. 8, the Police updated the Police Brief by disclosing to Mr Spedding’s legal representatives the FACS file and the Gee Judgment. No disclosure was however made at this stage of Brennan’s Investigator’s Notes of his interviews with the Kearns children or their father.

On 13 July 2015, Brennan spoke with RT on the telephone. It was possibly on this call, or possibly on a later phone call, in which RT said (PJ at [158]):

On 16 July 2015, two Detectives visited Jeffrey, Cathryn’s brother, at Goulburn Correctional Facility. Jeffrey denied having abused LS and JT when it was put to him by the Police.

On 5 September 2015, LS made another statement to Police. In that statement, she stated that memories had come “flooding” back to her. That statement recalled a sexual assault in the caravan by Mr Spedding and another man when LS was about three years old. It also recalled the “afternoon sun” during the assault. The statement also contained the following at [35]:

On 16 September 2015, Jubelin completed “Strike Force Progress Report No. 11”. Mr Spedding is only mentioned once:

On 15 October 2015, Victorian police took a four page statement from Daniel Kearns. It was consistent with the Investigator’s Note that had been taken by Brennan when he interviewed Daniel on 7 May 2015 (see [146] above). Paragraphs 22-25 of that Statement were as follows:

A copy of this Statement came into Brennan’s possession although his evidence was that he could not recall whether he had asked for it to be taken or when he received it. It was not disclosed in a tranche of disclosure made to Mr Spedding’s legal representatives on 18 March 2016 nor was it referred to in Brennan’s Police Statement of the same date. It is to be observed that, although Brennan said he could not recall when he received this statement, his evidence was that he received a 3 page statement taken by the same Victorian detective on 14 October 2015. This supports a very clear inference that Brennan received Daniel’s statement soon after it was made on 14 October 2015.

On 27 November 2015, LS attended a conference with an ODPP solicitor. A note taken shortly after the meeting states:

On 27 January 2016, Brennan rang RT. Brennan’s file note of this conversation included the following:

This file note was not disclosed either to Mr Spedding’s legal representatives or the ODPP before or during the trial of the criminal proceedings. This was despite discussion evidently having occurred between Brennan and Jubelin as evidenced by the final paragraph of the Note. Under cross-examination, Jubelin agreed that if Brennan had elicited from RT that he was “there to see his mother make the whole thing up”, that would “most definitely” be very significant. Brennan accepted that RT’s firsthand evidence would have exculpated Mr Spedding.

On 18 March 2016, Brennan prepared a police statement setting out the evidence he would be prepared to give in Court as a witness. This was served on Mr Spedding’s legal representatives on the same day. The statement purported to provide an account of his involvement in investigations into Mr Spedding from early 2015 up until 8 March 2016. Paragraph 33 of this Statement was in the following terms:

Under cross examination before the primary judge, Brennan agreed that he should have included this material in his statement of 18 March 2016 which was served on Mr Spedding’s legal representatives that day. He claimed that the omission to mention this detail was “hindsight”, the same explanation he gave for the failure to disclose his Investigator’s Note of his conversation with RT. His evidence under cross examination was that:

On 10 June 2016, an indictment was presented against Mr Spedding at Campbelltown District Court, to which he pleaded not guilty.

On 12 December 2016, DK signed a statement which said, in effect, that he had had nothing to do with Mr Spedding and had not been sexually abused by him. On 30 December 2016, TK signed a similar statement which went further, stating that while she had never been sexually abused, she believed that Cathryn had attempted to “coax” her into making allegations of sexual abuse against both Bill and Irene (her mother) while she was a child. These statements were consistent with the Investigator’s Notes that had been taken 20 months earlier.

On 4 January 2017, in a matter that was of significance in the determination of damages, Mr Spedding was assaulted in Kew, which was reported to Laurieton Police Station.

On 24 February 2017, RT and Brennan spoke following the refusal of an application for a permanent stay of the proceedings by Huggett DCJ. RT said, among other matters, that his mother should be charged with “mental assault” for what she did to him and his sisters.

The trial commenced on 20 February 2018. RT made a statement only on 22 February 2018, in which he stated:

On 27 February 2018, LS gave evidence before Sweeney DCJ (as her Honour then was). On 5 March 2018, counsel for Mr Spedding made a no case application in relation to the charges relating to LS. That application was upheld, her Honour finding that the evidence taken at its highest was not capable of establishing the elements of each of the offences charged beyond a reasonable doubt. Her Honour noted that LS gave no evidence of any assault by Mr Spedding in a caravan consistent with the charges and gave no evidence at all of any assault by Mr Spedding.

Having done so, Judge Sweeney then addressed a separate application for a Prasad direction in respect of the charges concerning JT. Her Honour identified that the direction should only be given when “the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty”. Her Honour considered JT’s evidence given at trial, the contemporaneous complaint evidence and other contemporaneous documents (including Christine Guthrie’s affidavit in Spedding v Spedding), evidence of later complaints, expert medical evidence and the contradictory evidence of RT, before concluding:

Later that day, Sweeney DCJ granted certificates in favour of Mr Spedding pursuant to ss 2-3 of the Costs in Criminal Cases Act 1967 (NSW), and in her costs judgment, pointed to the significant deficiencies in the prosecution case.

On 20 August 2020, a book, written by Jubelin and entitled I Catch Killers, was published. Extracts were tendered and Jubelin was cross examined by reference to it. It was referred to in some detail in the primary judgment, in particular the following lengthy passage (with added emphasis):

A feature of Jubelin’s evidence, when asked under cross-examination about certain passages in his book, was to seek to characterise them in strained and benign ways when the meaning of what he had written was clear and unambiguous. Examples of this included statements that:

Under cross-examination, Jubelin agreed “most definitely” that if evidence of prior sexual assaults were questionable, it would be improper for a police officer to charge someone with offences that were arguably ill-founded or not well-founded by evidence in order to put pressure on them in relation to a separate investigation.

One feature of the primary judgment is that, with a number of exceptions, on various issues his Honour set out submissions made by the respective parties without always expressly indicating which submissions he accepted or found persuasive. For his Honour to have found, however, as he did that each of the torts had been committed by each of Jubelin, Brennan and Moynihan, the primary judge must necessarily be taken to have found that:

Insofar as the primary judge held that the Police Officers, by their actions in commencing proceedings, acted for the predominant collateral purpose of advancing their investigation into the disappearance of William Tyrrell, his Honour did not hold, nor was it contended, that the Director of Public Prosecutions was ever aware of the improper and collateral purpose found to have been held by the Police Officers.

His Honour considered the charges concerning LS and JT separately, first considering the material available to the Police Officers when Mr Spedding was charged in relation to LS (see PJ at [132]ff). His Honour noted that, although Brennan had not read it at the time of the commencement of the criminal proceedings, that material included the judgment of Gee J in Kearns v Kearns.

The primary judge further noted (at PJ [142]) that Mr Spedding’s case was put on alternative bases. The primary contention was that the “officers” did not hold an honest belief in the case against him, and the second contention was that any honest belief lacked an objectively sufficient basis. This formulation picked up, as his Honour noted, the manner in which the High Court addressed the issue in A v NSW at [77].

His Honour undertook an extensive review of the evidence over the course of the period both prior to and after the laying of charges against Mr Spedding and the termination of the criminal proceedings in his favour.

His Honour made a series of important findings in relation to the Gee Judgment which was in the Police’s possession prior to arresting and charging Mr Spedding but which had evidently not been read by Brennan (and may or may not have been read by Jubelin or by Moynihan, who did not give evidence, being unavailable to do so). What the primary judge held in relation to the Gee Judgment at PJ [134] was that it:

In this context, his Honour noted at PJ [169] that Brennan had agreed in cross examination:

At PJ [188], the primary judge held:

The ultimate thrust of Mr Spedding’s submissions in this regard was summarised by the primary judge (at PJ [182]-[184]) as follows:

In respect of Brennan (addressed at PJ [105]-[108]), the primary judge noted that Brennan prepared the “Facts Sheet” which was before the Local Court (and began doing so on 15 April 2015), and continued investigating the matter after the ODPP assumed responsibility for the criminal proceedings on 30 April 2015, for instance by taking statements and being consulted by the ODPP in relation to “what counts to proceed with”.

In respect of Moynihan (see PJ at [109]-[110]), his Honour noted Moynihan’s involvement as the “OIC (Prosecutor)” listed on the Court Attendance Notice and that the “Facts Sheet” named him and Brennan as the Informants. Further, Moynihan was involved in arresting and questioning Mr Spedding. The primary judge also observed that the Police document detailing the outcome of the criminal proceedings listed Moynihan as the “Officer in Charge”.

In respect of Jubelin (see PJ at [111]-[114]), the primary judge reviewed the extract of I Catch Killers and observed that he created the “Proposed Operational Phase” document which became Exhibit E. The primary judge further noted that Jubelin had accepted in cross-examination that he had overall responsibility for the historical sexual abuse investigation against Mr Spedding. His Honour held that Jubelin was therefore “instrumental in setting the proceedings in motion”, picking up the language of Davis: see [16] above.

His Honour had earlier held (at PJ [89]) that Jubelin’s answer under cross-examination that Mr Spedding’s arrest “related to the sexual assault allegations, which I've already stated had nothing to do with the disappearance of William Tyrrell, it was a separate issue” was not truthful and that:

Separately on the question of intention to harm, a necessary ingredient for the tort of misfeasance in public office, the primary judge made the following finding in relation to Jubelin at PJ [211]:

His Honour expressed his satisfaction that the criminal proceedings were not only instituted but maintained against Mr Spedding without reasonable or probable cause: PJ [193]. His reasoning was largely set out in the immediately preceding paragraphs of the primary judgment as follows:

As to malice, the primary judge held at PJ [200]:

His Honour continued as follows:

It was not in contest on appeal that Jubelin, Brennan and Moynihan were at the time of commencement of the criminal proceedings all prosecutors for the purposes of the tort of malicious prosecution and that each was at least responsible for the initiation of the criminal proceedings and for their maintenance up until about 30 April 2015 when the ODPP assumed carriage of the proceedings.

The primary judge must be taken to have held that they continued to be prosecutors for the purposes of the tort at least until the trial in 2018. This is so for two reasons.

First, he held that each of the Police Officers not only initiated but maintained the prosecution: see PJ [193] and PJ [202], extracted above. Secondly, as PJ [191] and the passage extracted immediately below from PJ [200] illustrates, his Honour drew on matters that emerged in the years leading up to the trial to conclude that the Police Officers continued to lack a reasonable and probable cause for the maintenance of the proceedings:

At PJ [127], the primary judge had held:

The primary judge also found that the DPP had acted with malice at PJ [203]-[204]:

In respect of non-economic loss, the primary judge awarded $550,000 across the three torts that were made out, implicitly rejecting the State’s submission that damages should effectively be awarded only for malicious prosecution as the other two torts did not add any further liability (PJ at [305]). His Honour went on to justify this finding by noting that Mr Spedding suffered a “long and painful ordeal” and took into account the harsh bail conditions to which he was subject, involving separation from the step-grandchildren for whom he had previously cared. His Honour also noted the “harsh and cynical strategy” of the Police which, in his Honour’s view, was “never viable, nor was it proper” (PJ at [207]), and the ongoing effects this had had on Mr Spedding’s amenity of life. The primary judge further noted that included in this damages award was a sum calculated at $1,300 per day for the period in which Mr Spedding was detained in custody (some 58 days).

In respect of reputational damage, which both parties accepted was a separate head of damage in malicious prosecution, his Honour awarded a sum of $300,000. This was despite the State’s objection that most of the damage accruing to Mr Spedding’s reputation concerned his status as a person of interest in the Tyrrell investigation, and did not flow from the charges which were ultimately brought and prosecuted. Rejecting this submission, his Honour said (at PJ [310]-[311]):

In respect of aggravated damages, the primary judge awarded $200,000. The State had submitted it should be less than $100,000 (PJ at [293]). It should be noted that his Honour noted that the purpose of aggravated damages was to compensate for “insult or humiliation constituting injury to feelings” (PJ at [288]). The State had submitted that this was limited to insult arising from the tort itself, not from third party insults as a result of the tort (such as abuse directed at Mr Spedding in public, and the like). His Honour rejected that view (at [314]), holding that a “consequence of the inappropriate prosecution must be taken to include, among other things, the opprobrium and unfair treatment directed at him by members of the public as an obvious result of the commission of the tort”. The State had also submitted that it was not clear that any of these “insults” resulted from the criminal proceedings, as opposed to Mr Spedding’s status as a person of interest in the Tyrrell investigation. The primary judge appears to have (as above) rejected the utility of that submission.

In respect of exemplary damages, the primary judge awarded $300,000. The State had suggested $50,000; Mr Spedding had claimed $400,000. His Honour justified this award at [315]:

The primary judge also awarded $109,292.00 for the difference between the costs incurred by Mr Spedding in defending the criminal proceedings and the amount recovered under the certificate given to him under s 2 of the Costs in Criminal Cases Act 1967. The State had contested this as a proper basis for liability but does not press this challenge on appeal.

The primary judge also awarded $25,000 for future treatment expenses (PJ at [317]).

Finally, his Honour awarded interest and requested the parties agree on this and bring in short minutes of order (PJ at [322]). This was later agreed and damages and interest calculated at $1,797,181, plus costs which were also awarded.

In broad overview, to the extent that the primary judge held that the DPP (and delegates) committed any of the torts, the State challenges such conclusions on appeal.

In relation to the tort of malicious prosecution, the State contends, correctly, that the Director did not institute the criminal proceedings, with the ODPP only taking carriage on 30 April 2015. Further, the State contends that, whatever the propriety or collateral nature of the purpose of the Police Officers in commencing the criminal proceedings, there was no basis for concluding that the DPP had any improper purpose or was actuated by malice.

Insofar as the State, via the actions of Jubelin, Moynihan and Brennan, was held to be liable for the malicious institution and maintenance of Mr Spedding’s prosecution, the State contended that the Police Officers ceased to be “prosecutors” in the relevant sense when the ODPP took over the carriage of the proceedings on 30 April 2015. As such, the State contended that the primary judge erred in holding that the Police Officers maintained the proceedings thereafter and that it was illegitimate for the primary judge to rely (as he did) on various matters after that date to demonstrate the absence of a reasonable and probable cause for the institution and maintenance of the proceedings.

The State also amended its Notice of Appeal to challenge any finding by the primary judge that the initiation of proceedings by the Police Officers (as opposed to their maintenance) was without reasonable and probable cause so as to amount to malicious prosecution.

It is convenient to consider the matters raised on appeal by reference to each separate tort.

The primary judge’s findings in relation to malicious prosecution are the subject of Grounds 1-5 of the Further Amended Notice of Appeal (including additional ground 1A) and also the Notice of Contention.

Grounds 1-5 are in the following terms, noting that grounds 4 and 5 are confined to the findings of liability solely in relation to the DPP and his delegates:

Ground 1A is framed in the conditional way it is because in various parts of the primary judgment, the primary judge referred to the institution or maintenance of proceedings (see, for example, PJ [187]) and in other parts to the institution and maintenance of proceedings as being without reasonable and probable cause (see, for example, PJ [193]).

In addition to the Further Amended Notice of Appeal, the State (in an attachment to its Reply Submissions) identified a number of findings challenged in accordance with the requirements of UCPR r 51.36(2). A number of these overlapped with various grounds of appeal but the following findings should be specifically noted as having been challenged:

The Notice of Contention is in the following terms:

It is convenient, first, to consider the question of malicious prosecution as at the time of initiation of the proceedings and up to 30 April 2015 when the ODPP took over carriage of the matter and the DPP was deemed to be the prosecutor pursuant to s 9 of the DPP Act.

In this context, the State accepted or did not ultimately challenge the primary judge’s findings that each of Jubelin, Brennan and Moynihan were prosecutors at the time of initiation of the criminal proceedings. To the extent that, by appeal ground 1A, the State called into question whether the primary judge had found that the criminal proceedings had been initiated without reasonable and probably cause, there is no doubt that he did so. At PJ [193], the primary judge expressed himself unambiguously: “I am satisfied that the criminal proceedings were initiated and maintained against Mr Spedding without reasonable and probable cause.”

The question of whether the elements of malice and absence of reasonable and probable cause on the part of the Police Officers were established at the time of the initiation of the criminal proceedings must, of course, be considered by reference to what was known or available to the Police Officers at that time. Matters that only became known or available to the Police Officers after the initiation of the criminal proceedings cannot be used to impugn their institution as an act of malicious prosecution. There are elements of what may be described as a “timing point” in both the second and third grounds of appeal (see [220] above).

A separate point of law raised by ground 2 of the appeal is thrown up by the reference to “actual knowledge” in that ground. It was submitted on behalf of the State that the question of whether a relevant prosecutor lacked reasonable and probable cause could only be considered by reference to what he or she actually knew at the time of the initiation of proceedings. This submission should be rejected. Paragraph [58] of A v NSW extracted at [39] above refers to what material was “available” to a prosecutor, and makes it clear that that material must be considered in two ways. The second way is identified in the final sentence of [58], and is introduced by the word “conversely”: “to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.”

In our opinion it is clear from A v NSW that, in emphasising the concept of what material a prosecutor had “available” to him or her at any particular point in time, the fact that the prosecutor may not have read or reviewed certain material does not render it irrelevant in an assessment of the critical question of whether the prosecutor lacked reasonable and probable cause to initiate the serious step of criminal proceedings. So much is also confirmed by the reference in A v NSW at [55] to what the prosecutor “made” or “should have made” of the available material. For those reasons, appeal ground 2 must be rejected.

The obvious but not sole significance of this matter for the purposes of the present proceedings is that the Police Officers had the Gee Judgment available to them for a number of months prior to the charging of Mr Spedding on 22 April 2015. Jubelin did not indicate in his evidence whether he had ever read it. Brennan said he first read it on the plane to Melbourne on 5 May 2015 prior to interviewing the Kearns children and Mr Kearns on the following two days. Moynihan did not give evidence.

No challenge was made to the primary judge’s characterisation of what each of the Police Officers would have discerned had they read the Gee Judgment, namely that:

A number of the key passages from the Gee Judgment have been set out at [82]-[84] above. A reading of the judgment as a whole, however, makes the significance of Gee J’s conclusions even more powerful as his conclusions were evidently reached as a result of his observations of witnesses and based upon his considered judgment as an experienced Family Court judge. The hearing before Gee J was lengthy and resulted in a judgment of over 80 pages. By the time of his judgment, Gee J had served on the Family Court for almost a decade.

Brennan accepted under cross examination that his reading of the Gee Judgment on 5 May 2015 caused him to think that there may be issues with Cathryn Spedding/Hillsley, the mother of RT, JT and LS. Those issues would have related to whether or not the then very young children had been coached or “programmed” by their mother and aunt. The real possibility that this was so would have called for great caution in placing any reliance on the accounts of JT and LS, even more so on account of the lapse in time since the events in question and the fact of Mr Spedding’s strong denial of any impropriety and the absence of any corroboration from RT.

Had the Police Officers read the Gee Judgment prior to charging Mr Spedding, he should either not have been charged at all, or not charged without police first having undertaken a series of further interviews which were only likely to have given further cause for pause in any decision to charge him, especially in circumstances where in the case of one of the complainants, LS, Brennan was fully aware that she provided no evidence to support the specific allegations made (see [131] above), and the third child RT, the brother of JT and LS who was alleged to have been present in the caravan when the alleged assaults on his sisters had occurred, had not even been contacted even though this was on Brennan’s task list of 16 April 2015, as was the need to make inquiries of the Kearns children in relation to allegations made in [41] of JT’s Statement of 1 April 2015.

The interviews of two of the Kearns children on 6 and 7 May 2015, as well as that of Daniel Kearns, who had been at the forefront, together with Mr Spedding’s ex-wife Cathryn, in the proceedings before Gee J, only served to confirm the highly problematic nature of the charges of historic sexual assault against Mr Spedding. The Investigator’s Notes in respect of those interviews have been set out at [142]-[146] above. In essence, TK said that she had been coaxed into making allegations against Irene and Mr Spedding, and DK and NK also denied having been sexually assaulted by him (PJ at [74]). Daniel (Mr Kearns) appears to have similarly said that he did not think his children had ever been assaulted by Mr Spedding, having completely retreated from the position he had taken in the family law proceedings before Gee J (PJ at [176]). He confirmed that Cathryn was “very manipulative”.

On Jubelin’s evidence, suggestions of witness coaching would have caused him a “major concern”: see [143] above; see also in relation to Brennan, [151] above. If that were so, a finding by a respected Family Court judge of coaching and programming young children should have been even more alarming.

At the time of commencement of the criminal proceedings alleging seven counts as having occurred in a weekend in the first half of April 1987, the Police Officers had in their possession:

Attention should also be drawn to the passage in Brennan’s cross-examination set out at [122] above as to the importance of speaking to a sexual assault complainant in advance of charge so as to make an assessment of credibility, amongst other matters. Notwithstanding this evidence, Brennan did not speak to JT or LS until July 2015.

These matters illustrate that the Police Officers lacked a reasonable and probable basis for arresting and charging Mr Spedding with the serious crimes with which he was charged on 22 April 2015, and that the primary judge was correct to so conclude. The investigation was far from complete, as illustrated by Brennan’s task list, and the important but outstanding tasks noted on it. This is not to say that all investigations must be complete before a person may be charged but it is to observe that, on the facts of this case, key steps had not been taken. The arrest and charging was rushed, not because of any imminent threat but because of the Police Officers’ anxiety to further their investigation into William Tyrrell’s disappearance and to enhance this by being able to subject Mr Spedding to covert surveillance whilst in custody and increase pressure on him and, indirectly, his wife. The Police Officers were obviously aware of the fact of the earlier Family Court proceedings and the allegations in relation to the Kearns children, and had not explored them. They were also aware, on JT’s account, that RT was present in the caravan but had taken no steps to contact or interview him. They also had available to them reference in the FACS material to the effect that, when interviewed in 1987, RT had not “revealed any knowledge of the events”: see [78] above. For these reasons, appeal ground 1A must fail.

The basis for the charges against Mr Spedding only became less, rather than more, secure, in light of subsequent events, most notably those events which became known to the Police Officers after the Kearns children and their father had been interviewed in early May 2015. Those interviews made the case weaker rather than stronger in that they confirmed what Gee J had held more than 25 years beforehand. In October 2015, at least Brennan learnt that Daniel Kearns had made a statement to Victorian police expressing his belief that the “kids had been coached” and that “when it came to [LS] and [JT], I never witnessed any offending, heard of any offending and the children never told me of any offending neither did Cathy”: see [167] above. The position became still less secure when RT told Brennan in January 2016 that his mother, about whom Brennan accepted to thinking there were “issues” with after he had read the Gee Judgment, had “made the whole thing up”: see [170] above.

The primary judge’s apparent reference (at PJ [191], extracted at [199] above) to events and developments in the police’s knowledge after Mr Spedding had been arrested and charged did not detract from his finding that the Police Officers lacked reasonable and probable cause at the time of the charging of Mr Spedding. In any event, on an appeal by way of rehearing and for the reasons given, we are firmly of the view that the Police Officers lacked reasonable and probable cause for the initiation of the criminal proceedings at the time they were instituted. Mr Spedding was charged when he was not because police had formed a comfortable view that sufficient evidence existed to do so but because of a desire urgently to enhance their unrelated investigation of William Tyrrell’s disappearance with Mr Spedding in custody in respect of historical sexual assault allegations.

A conclusion that the Police Officers continued to lack reasonable and probable cause after the initiation of the proceedings will only be relevant if they continued to “maintain” the maliciously commenced proceedings thereafter. It is to that issue, raised by Ground 1 of the Amended Notice of Appeal, that we now turn.

The primary judge held that the Police Officers continued to maintain the criminal proceedings even after the ODPP had formally taken over carriage of the proceedings.

The State, in its oral submissions, accepted that there may be multiple prosecutors and, consistently with Davis, that the question is to be considered by looking to the substance of the matter, as opposed to the form. In that context, it is perhaps notable that s 9 of the DPP Act only “deems” the DPP to be the prosecutor once the ODPP has taken over carriage of the matter.

The decision in Landini, discussed in some detail at [23]-[30] above, was a case where police officers responsible for initiating a prosecution were found to have maintained it as a matter of substance in part because of the control of information germane to the prosecution and the withholding of that from the prosecuting authority and thus the accused to whom disclosure was required. Lamont, referred to at [35] above, was an analogous case where it was held that a private complainant would maintain proceedings maliciously “if he withholds information in the knowledge of which the police would not prosecute”. In the present case, it was the Police Officers’ withholding of information from the ODPP (and also Mr Spedding) that warranted the conclusion that they maintained proceedings notwithstanding the formal position after 30 April 2015 when the ODPP took over the criminal proceedings.

Brennan signed a s 15A Disclosure Certificate in relation to the criminal proceedings on 9 November 2016 in which he acknowledged awareness of his disclosure obligations under s 15A of the DPP Act. It is to be presumed that he was aware of those serious obligations at all material times. The terms of s 15A of the DPP Act have been set out at [19] above.

Disclosures were made to Mr Spedding’s lawyers (and, it is reasonable to assume, the DPP at the same time) on 23 April 2015, 9 June 2015, 18 March 2016 and 5 December 2016. This latter disclosure included a series of affidavits and statements from the Kearns v Kearns Family Court proceedings in 1988-1989.

Of particular significance in terms of lack of disclosure is the fact that the Investigator’s Notes of the interviews with the Kearns children and Mr Daniel Kearns were not disclosed until 18 March 2016 even though the interviews had taken place in early May 2015 and written up as formal Notes shortly thereafter. Moreover, in his Statement also served on 18 March 2016 and as noted at [170]-[173] above, Brennan, although referring to his call with RT on 27 January 2016, failed to refer to RT’s statement to him that he “was there to see his mother make the whole thing up”. This had not been disclosed to Mr Spedding’s defence team nor, it may be inferred, the DPP by the time the indictment was presented on 10 June 2016.

The fact that the Police Officers did not disclose the Investigator’s Notes with regards to the interviews of the Kearns children and their father for more than 10 months after they were made cannot be dismissed as inadvertent or simply as a matter which, with the benefit of hindsight, should have occurred earlier.

At the time they were obtained, Mr Spedding was on remand, the police having vigorously opposed bail. Surveillance device warrants were being used to listen to his conversations whilst on remand. The relevance of the Kearns interviews was self-evident, as is reflected in the fact that Brennan had noted as early as 16 April 2015 that interviewing them was a task that needed to be undertaken in relation to the then-investigation in relation to the historical sexual assault matters, and had flown to Melbourne soon after the arrest. Brennan had reported to Jubelin immediately after TK had been interviewed and said to Brennan that she had a recollection of being “coaxed” into making allegations against Spedding by her mother and that she did not believe that she was sexually abused and believed that the allegations made in 1987 to be false.

The fact that they were ultimately disclosed highlights their obvious materiality and the Police Officers’ awareness of this fact. But what was of critical significance was that they were not disclosed until well after Mr Spedding had been discounted as a suspect in the Tyrell disappearance. So too, as noted at [162] above, the FACS File and the Gee Judgment were not disclosed until 9 June 2015, the day prior to the end date of the report period in which it was recorded that investigators were “of the view that there is a likelihood Spedding is not responsible for the abduction of William Tyrell”: see [159]-[162] above. They had been withheld from the Spedding Defence team and, it is to be inferred, the ODPP, while the Police Officers were continuing their investigation and covert surveillance of Mr Spedding whilst he was on remand.

In these circumstances, his Honour was correct to conclude that the Police Officers maintained the proceedings well after the ODPP had formally assumed their carriage. The Police Officers were as a matter of substance controlling the proceedings and maintaining them through their control and withholding of material that was relevant to the maintenance of bail until mid-2015 and the ongoing prosecution of proceedings for a number of years thereafter. It could be said that, analogously to Lamont, they “virtually compel[led]” the ODPP to proceed with the prosecution of Mr Spedding through the information that was and was not disclosed. Further, there was never any disclosure of the Police’s improper purpose in arresting Mr Spedding for the purposes of advancing their investigation of him in relation to wholly unrelated events, namely the disappearance of William Tyrell.

It follows that the State’s contention that the assumption of carriage of the matter by the ODPP on 30 April 2015 meant that Jubelin, Brennan and Moynihan could no longer be regarded as prosecutors must be rejected. There was a firm foundation for the primary judge’s conclusion that the Police Officers not only initiated the prosecution but maintained it. Appeal ground 1 fails.

Appeal ground 3 is that:

The primary judge’s finding of malice have been noted at [200]-[201] above. Malice was inferred from the improper purpose that his Honour found underpinned the commencement of the proceedings. That finding was entirely justified, and was laid bare in Exhibit E and confirmed by the terms of Jubelin’s later book. His Honour’s conclusion that “[t]he frenetic and poorly conceived arrest of Mr Spedding could never in my view have been justified and was clearly malicious” did not involve a failure “to consider the implications of particular evidence by reference to particular points in time at which relevant acts of instituting or maintaining the proceedings occurred”, as contended in appeal ground 3. As already noted, the improper purpose from which malice on the part of the Police Officers was inferred was not shared by the ODPP.

It is true that the primary judge, at PJ [204], went on to observe that “this is one of those cases where malice can also be inferred from the absence of reasonable and probable cause” (emphasis added) and in this context observed that “[b]y the time of Mr Spedding’s trial, it was clear that the case against him was hopeless and doomed to fail.” This last observation appears to be the source of the formulation of appeal ground 3 but, as the emphasised word “also” makes plain, this was an additional basis for finding of malice. No attack was made on the finding of malice inferred from the improper purpose of the Police Officers in commencing the proceedings. That necessarily existed at the time of the commencement of the prosecution. Accordingly, appeal ground 3 fails.

An independent aspect of the appeal related to the primary judge’s holding that the Director of Public Prosecutions was liable for malicious prosecution. Appeal ground 4 was that:

The language of this ground reflects the allegation made by Mr Spedding as recorded in PJ [203] rather than any finding by the primary judge in terms to this effect. The Court was not taken to any material which would have justified a finding in terms of this allegation and no independent ground was advanced by way of Notice of Contention as to how the element of malice was said to have been established against the DPP. More importantly, and a reason why this aspect of the appeal must be upheld, is that the improper or unauthorised purpose of the Police Officers in arresting and charging Mr Spedding, from which the primary judge inferred malice on their part, was never disclosed to the ODPP.

The fact, as held by the primary judge at PJ [204], that, “by the time of Mr Spedding’s trial, it was clear that the case against him was hopeless and doomed to fail” does not itself establish malice on the part of the DPP. In submissions on appeal, it was contended for Mr Spedding that, notwithstanding the absence of material to support the allegation that the ODPP maintained the prosecution for the dominant purpose of justifying the public resources that had been expended upon the suspected role of the respondent in the William Tyrrell investigation, malice could be inferred from the absence of reasonable and probable cause. That was not how the allegation of malice as against the ODPP was pleaded or particularised, and in those circumstances, we do not think it fair or properly open to advance an alternative, unparticularised allegation of malice on the part of the ODPP to justify a finding of malice against the DPP or the ODPP.

As such, appeal ground 4 should be upheld and appeal ground 5 (concerning the more ready drawing of an inference against the DPP as to malice because of an absence of evidence from the DPP or individual prosecutors) becomes unnecessary to decide.

The primary judge’s findings in relation to misfeasance in public office are the subject of Grounds 6-8 of the Further Amended Notice of Appeal in the following terms:

In its Statement challenging findings of fact, the State challenged the primary judge’s finding that:

At PJ [209], the primary judge held that “[i]n relation to the element of malice, what is required is proof that the defendant acted in bad faith, which may be established by showing either that the defendant's unauthorised act or acts were carried out with the intention of harming Mr Spedding or that the unauthorised act or acts were carried out with reckless indifference to the harm that was likely to ensue: Northern Territory of Australia v Mengel at 347”.

At PJ [212], his Honour noted that “Mr Spedding relies on the evidence and submissions put forward in respect of the element of malice in his claim for malicious prosecution”.

There is perhaps some force in appeal ground 7 insofar as his Honour made reference in PJ [210] to the institution and maintenance of proceedings on the footing that the maintenance of proceedings for the purpose of the tort of malicious prosecution does not obviously or necessarily involve the exercise of public power or authority by the police for the purposes of the separate tort of misfeasance in public office which requires an unauthorised act of public power. As the State submitted in reply:

This argument, however, is of limited if any utility to the State. What appeal ground 7 does not challenge is the primary judge’s finding at PJ [210] that the institution of the proceedings was an unauthorised act for the tort of misfeasance in public office. The State at the very least implicitly accepted that the arrest and charging of Mr Spedding could and would be an unauthorised exercise of public power if undertaken for an improper purpose, which it was. All three of the Police Officers were involved in the arrest of Mr Spedding and again, at the very least Brennan and Moynihan were responsible for Mr Spedding being charged.

Although the primary judge’s use of the singular “unauthorised act” in PJ [210] in relation to the “institution and maintenance of the criminal proceedings” may, as a matter of grammar, treat those matters in a composite way, it is plain that the very institution of the proceedings for an improper purpose was itself an unauthorised act for the purposes of the tort of misfeasance in public office, as was accepted in argument by the State and also by Jubelin under cross examination. Appeal ground 7 should be rejected.

The attack on the finding of malice in the context of this tort should also be rejected for the same reasons as expressed in [254]-[255] above in relation to the tort of malicious prosecution. Appeal grounds 6 and 8 should therefore also be rejected.

The primary judge’s findings in relation to collateral abuse of process are the subject of Grounds 9-11 of the Further Amended Notice of Appeal in the following terms:

In its Statement challenging findings of fact, the State challenged the following purported finding of fact, referencing PJ [217]-[218] and [305]-[315]:

It must be observed that, although there was no doubt that the primary judge found that this tort had been established against the Police Officers, his reasoning was spare, presumably because of his earlier more extensive findings that the criminal proceedings were used as a vehicle to further the investigation of Mr Spedding as a suspect in the disappearance of William Tyrrell, and that this was the predominant purpose for his arrest.

The claim for collateral abuse of process was made against each of the Police Officers, including Moynihan, and not just Jubelin and Brennan. The absence of any reference to Moynihan in grounds 9-11 of the Notice of Appeal or in the UCPR r 51.36(2) statement may reflect the fact that he was identified as the Officer in Charge and the Prosecutor on the Court Attendance Notice by which the criminal proceedings were commenced and, as such, was undoubtedly a party to those proceedings: see [57] above. The State appeared to accept on appeal that Brennan who, with Moynihan, was described as an informant on the Facts Sheet accompanying the CAN, was also a party to the charging and thereby the criminal proceedings commenced against Mr Spedding.

In submissions on appeal, Mr Free emphasised, by reference to Leerdam, that the tort of collateral abuse of process only lay against a party to proceedings (although Emanuele contemplates that it may lie against a non-party where an actual party to proceedings has commenced proceedings on behalf of or as agent for a non-party) and that Jubelin was not a party to the criminal proceedings. (In the context of the reference to Emanuele, it should be noted that neither in the Amended Statement of Claim nor in Mr Spedding’s written submissions on appeal was it alleged or contended that the criminal proceedings had been commenced by Moynihan (or Brennan) on behalf of or as agent(s) for Jubelin.)

In reply, Mr Free submitted that, whereas Jubelin, as the author of Exhibit E which included Mr Spedding’s arrest and charging as a central part of the William Tyrell investigation strategy, may have been actuated by a collateral purpose, as he was not a party to the proceedings, he could not be liable for the tort of collateral abuse of process. He also submitted that, even if Jubelin had been actuated by this improper purpose, it did not follow that that purpose was necessarily shared by Brennan and Moynihan. Extensive reference was made in this context to aspects of Brennan’s evidence in the proceedings and upon which he was extensively cross examined. No equivalent submission was able to be made by reference to Moynihan who was not available to give evidence.

Mr Free frankly accepted that it was open to the Court to infer that, as officers in charge of Strike Force Rosann (which was established to investigate William Tyrell’s disappearance) and, as direct reports to Jubelin, Brennan and Moynihan shared his collateral and improper purpose in the commencement of the proceedings, and this was the dominant reason for the commencement of the criminal proceedings. In our view, not only was this the inference that the primary judge must have drawn, but he was correct to do so.

While Jubelin was the supervising officer of the taskforce, Moynihan and Brennan were the officers in charge of the strike force. The evidence demonstrated that all three of the Police Officers were working to the strategy contained in Exhibit E and were assigned particular steps by way of implementation of that strategy.

The State’s point that Jubelin (as opposed to Moynihan and Brennan) was not a party to the criminal proceedings commenced against Mr Spedding may be accepted as a valid point. Nothing, however, turns on it, as the State was vicariously liable for Moynihan and Brennan’s tortious conduct. A conclusion that Jubelin did not commit the tort of collateral abuse of process because he was not party to the criminal proceedings does not alter the State’s liability for the other Police Officers’ tortious conduct nor operate to reduce the damages for which the State was liable.

The State’s written submissions on appeal in relation to the finding of collateral abuse of process were brief and ran all three grounds of appeal together. Further, by reference to aspects of the primary judge’s discussion of damages, it was submitted that his Honour regarded the “maintenance of the criminal proceedings to be an aspect of the tortious conduct”. From this observation, the State sought to attribute to the primary judge a conclusion that the “maintenance of the criminal prosecution involved some exercise by the police of the machinery of the criminal law” which, in turn, was submitted to be in error, on the basis that the functions of the police were confined to arresting Mr Spedding, investigating and questioning him whilst in custody and commencing criminal proceedings against him.

This submission should be rejected. It conflates the three torts that were in play in the proceedings at first instance. Of these, the tort of collateral abuse of process was the most straightforward in terms of its elements. Central to the establishment of this tort was the finding that the proceedings had been commenced for a dominant purpose which was outside the scope of the criminal process invoked. As has earlier been noted, it was properly accepted by Mr Free that the institution of criminal proceedings to advance an unrelated investigation was not a proper purpose. In this context we would wholeheartedly endorse the primary judge’s observation at [315] that it is:

It was submitted on behalf of Mr Spedding that Exhibit E was powerful evidence of the alleged collateral purpose, and strongly supported the characterisation of that purpose as predominant. We agree.

That conclusion is strengthened by the haste with which Mr Spedding was arrested relative to the investigations being undertaken by Brennan. Mr Spedding was arrested on 22 April (as specified by Jubelin in Exhibit E which was prepared on 11 April) and well prior to Brennan completing important investigative tasks which he had listed on 16 April 2015. The arrest and charging, coupled with the planned opposition to bail, were designed to enhance the Strike Force’s investigation in a number of ways that were both spelt out in Exhibit E and were somewhat brazenly confirmed in Jubelin’s subsequently published book.

The grounds of appeal in relation to collateral abuse of process must also be rejected.

The State appeals against the primary judge’s award of damages on the following grounds:

As noted earlier in these reasons, on 20 February 2023, the primary judge ordered judgment in favour of Mr Spedding in the sum of $1,797,181 (which comprised $1,484,292 plus interest of $312,889). The principal sum comprised:

Although ground 13 is a separate ground, it would appear that it is also relied upon as an explanation for the manifest excess alleged in ground 12. It is appropriate that it be addressed before ground 12 since the question of manifest excess is affected by the determination of ground 13. As there is no cross-appeal on damages, it is not necessary for this Court to assess damages for itself unless it is satisfied that a lesser award of damages is warranted.

For the reasons given above, Mr Spedding is entitled to damages from the State on the basis of its vicarious liability with respect to the following torts:

In the Court below, the State argued that damage caused to Mr Spedding by reason of his being identified as a person of interest in the disappearance of William Tyrrell (the disappearance) was not compensable. The primary judge rejected that argument, finding at PJ [310] that on the facts the prosecution of the alleged historical child sex offences was “inextricably woven into the police strategy to investigate [the disappearance]” and Mr Spedding became associated with the disappearance “as the direct and inevitable result of his arrest and prosecution on unrelated matters”. Thus, the primary judge did not differentiate between the damage suffered by Mr Spedding as a result of the failed prosecution, and the damage he suffered by reason of being publicly identified as a suspect in the disappearance. The State submitted that the primary judge was in error in incorporating into the award the fact that Mr Spedding was publicly identified as a suspect in the disappearance and the consequences of that identification.

This issue was important because, as was accepted by the State, the reputational damage and associated stressors on Mr Spedding were significantly greater because of the alleged association with a high profile investigation into the disappearance than had he simply been charged with historic child sex offences.

The State submitted that the primary judge’s approach was founded on the following two matters, of which only the second was challenged:

The State submitted that (2) was inconsistent with the primary judge’s findings that before the police became aware that Mr Spedding had been accused of historical child sexual assault, he was a person of interest (from late 2014), experienced a distressing police search and confronting interviews in January 2015, was the subject of significant media attention in that regard and had the children who resided in his home removed by the Department of Family and Community Services (FACS). The State contended that the “long and painful ordeal” to which the primary judge referred at PJ [306] was “primarily” about his public identification as a suspect in the disappearance, which was not compensable.

The State further submitted that “[i]n the unusual circumstances of this case, a substantial allowance needed to be made for the fact that much of the damage caused to Mr Spedding, including the damage caused to his reputation, was attributable to the public identification and not the malicious prosecution”.

In order to prove that the harm from an intentional tort ought sound in damages, the injured party is required to prove, first, causation, namely, that the tortious act caused the harm and, second, that the tortfeasor had an actual or presumed intention to cause the harm. The tortfeasor’s intention to cause the harm will be presumed if the harm is the natural and probable consequence of the tort. Thus foreseeability of harm has no role to play in limiting the injured party’s damages. These propositions were confirmed with respect to the tort of injurious falsehood in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 at [13]-[14] (Gleeson CJ), [73]-[79] (Gummow J), [114] (Kirby J). This Court has treated these principles as being of general application for the recovery of loss for intentional torts: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 at [100] (Spigelman CJ, Mason P and Grove J agreeing).

Causation is a question of fact. While most of the authorities on causation in tort derive from the tort of negligence, the basic principles still apply to intentional torts:

In the present case, although the naming of Mr Spedding as a suspect in the disappearance was not tortious and preceded his arrest for unrelated crimes, his having been named as a suspect was the reason (as the primary judge has found and this Court has accepted) he was charged with historical child sex offences: see the analysis of causation in The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 591-592 (Windeyer J); [1961] HCA 15, which remains good law; see also, for example, March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 at [6] (Deane J) and Outerbridge trading as Century 21 Plateau Lifestyle Real Estate v Hall (2020) 102 NSWLR 921; [2020] NSWCA 205 at [5] (Leeming JA).

The effect of the malicious prosecution (and associated torts which have been addressed above) was to give the (false) impression that it was more likely that Mr Spedding was responsible for the disappearance because he was a paedophile who had previously committed child sex offences. Although it might have been careless for the police to name Mr Spedding as a suspect, that act was not compensable. However, the act of charging him for an ulterior purpose significantly magnified the (non-compensable) damage he would have suffered anyway as a consequence of being named as a suspect in the disappearance. The harm he suffered by being associated with the disappearance was explained as the natural and probable consequence of his then being charged with historic child sex offences, and it was the very harm that Jubelin intended when devising his strategy (addressed in more detail above in the reasons concerning liability).

Jubelin’s adoption of an ends-justify-the-means rationale appears explicitly from the passage in his book, I Catch Killers, where he admitted that, before charging Mr Spedding:

We are not persuaded that the primary judge was in error in making the finding in (2) above. Although Mr Spedding was named as a suspect in the disappearance before he was charged with the historic child sex abuse offences in 1987, but for the charges he would not have remained as a figure of public opprobrium, since Mr Spedding ceased to be a suspect shortly after he was named as one (his exoneration in the disappearance having resulted from checking dates and alibis which established his whereabouts elsewhere on the day of the disappearance). However, because of the relationship between the crimes of which the respondent was charged (child sex abuse) and a hypothesis that naturally arose from the fact of the disappearance of a child (that the missing child had been taken, sexually assaulted and killed by a paedophile), the maintenance of the charges, coupled with the lack of public statement that the respondent was no longer a suspect, meant that Mr Spedding continued to be, as the primary judge found, closely associated with the disappearance.

It was also significant that the prosecution of Mr Spedding remained within Strike Force Rosann, which was set up to investigate the disappearance. This was necessarily part of Jubelin’s strategy (which was carried out by Monyihan and Brennan) since, had the matter been passed to the Child Sex Offence Department (the usual area in the NSW Police for such prosecutions), Jubelin and Brennan would have lost control of the process. In the role they continued to perform up to and including Mr Spedding’s trial, they were responsible for determining which witnesses to interview, when and whether to obtain statements and when and whether to disclose documents to the defence pursuant to the prosecutor’s duty of disclosure and to the ODPP pursuant to s 15A of the Director of Public Prosecutions Act 1986 (NSW).

For these reasons, we are not persuaded that ground 13 has been made out.

Manifest excess is a conclusion which does not require the proof of patent error since it is sufficient if the determination made is that it was not open to the primary judge to award damages for non-economic loss (which will be used compendiously to describe general damages for pain and suffering, aggravated damages and exemplary damages) in the amount that his Honour did. The assessment of non-economic loss involves the exercise of discretion: Moran v McMahon (1985) 3 NSWLR 700. Accordingly, it is necessary for the State to show a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. This requires the Court to be satisfied that the judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts, failed to take into account a material consideration, or where upon the facts the outcome is unreasonable or plainly unjust.

Even if the Court considered that House v The King error existed, there is no need for such intervention if no lesser damages are warranted on this Court’s analysis of the respective torts.

In substance, the State argued that the damages awarded for non-economic loss were manifestly excessive because they were outside the range established by previous decisions.

While comparables are a guide, they cannot be used to fetter a discretion to assess damages by reference to the circumstances of the particular case. Further, whereas sentences of imprisonment can be compared without regard to the date of their imposition, monetary damages cannot be separated from the time of their award because of the effect of inflation. The indexation of the maximum amount relating to damages for non-economic loss in ss 16 and 17 of the Civil Liability Act 2002 (NSW) is a statutory recognition of this effect. Although by reason of s 3B(1)(a) of the Civil Liability Act these provisions do not apply to intentional torts, it is necessary that the diminishing value over time of a nominated sum be taken into account. The Court has considered all of the awards of damages which are alleged to be comparative and taken them into account in the assessment of whether the present award is manifestly excessive. As each case turns on its own facts, there is no utility in reciting the facts and awards referable to each case to which the Court was referred.

The State submitted that child sex abuse is a lesser offence than murder and that, accordingly, the general damages in the present case ought be substantially less than awarded in cases involving malicious prosecution for murder. This is, at best, a questionable proposition and on further analysis cannot be accepted for the reasons which follow.

The charges on the indictment as presented at Mr Spedding’s trial (each of which are said to have been committed between 1 March 1987 and 30 April 1987) are set out in the following table:

The maximum penalty is regarded as representing the legislature’s assessment of seriousness of the offence: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. The maximum penalty for murder is life and has been since the death penalty was abolished for that offence in 1955. At the time of the alleged offending, 1987, the maximum penalty for an offence under s 66A of the Crimes Act (sexual intercourse with a child under 10 years) was 20 years’ imprisonment (as set out in the table above).

However, since that time the maximum penalty for the conduct alleged against Mr Spedding has increased from 20 years’ imprisonment to life imprisonment. In 2003, the maximum penalty was increased to 25 years’ imprisonment. In 2009, the maximum penalty for a non-aggravated form of sexual intercourse with a child under 10 remained at 25 years’ imprisonment but for the aggravated form (which was introduced by the amendment), which applied in particular circumstances, including when the victim was under the offender’s authority, the maximum penalty was life imprisonment. In 2015, the maximum penalty for the non-aggravated form of the offence was increased from 25 years’ imprisonment to life, following a recommendation of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders (New South Wales, Joint Select Committee on Sentencing of Child Sexual Assault Offenders, Every Sentence Tells a Story - Report on Sentencing of Child Sexual Assault Offenders, (October 2014) at 35 (Report 1/55, n 2, recommendation 5)). In the Second Reading Speech for the Crimes Legislation Amendment (Child Sex Offences) Bill 2015, child sexual assault was described as a “depraved, cruel and truly awful crime” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 May 2015 at 407).

Thus, by the time of the laying of the charges on 22 April 2015, the legislature can be taken to have regarded the offences in counts 1, 4, 5 and 6 as being as serious as murder (though a lower maximum was applicable because of the timing of the alleged offending and the date of the trial).

However, the view of the legislature, while relevant, is not necessarily the most relevant one in the present context since the view of the public at large also plays a considerable part. Child sexual offenders are commonly regarded as sick, dangerous recidivists who are incapable of self-restraint or rehabilitation. Such is the disgust with which child sex abuse is regarded, it is well known that, while incarcerated, suspected or convicted offenders are required to be housed separately from the general prison population because of the violence against them which could be expected otherwise to ensue. Vigilante conduct by members of the public against such offenders can be extreme: see, for example, AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46. In R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1, Sheller JA said, at [20]:

Further, following the expiry of their sentences, child sex offenders may be subject to extended detention or supervision orders under the Crimes (High Risk Offenders) Act 2006 (NSW). The vast majority of orders made under that Act are made against those who have been convicted of child sex offences.

For the reasons given above, the charging of Mr Spedding with historic child sex offences following his identification as a suspect in the disappearance was also capable of implying that he was a murderer of William Tyrell (if one assumed he was already dead, more than six months after his disappearance) as well as a child sex offender. A charge of child sexual abuse carries with it a taint which is difficult, if not impossible, to remove. It invariably results in ostracism and vilification of the alleged offender. Child sex offenders are typically presumed to be repeated offenders because of an inherent perversion. These are natural and probable consequences of the laying of the charges which ensued in the present case.

The consequences for Mr Spedding of the torts for which the State is vicariously liable include (as his unchallenged evidence established) the following: he was physically assaulted in the street; when he went to a pathology laboratory, he was refused service because of who he was; and he was forced to move house because people were tooting their horns in the street and calling out to him. When he did move, a police officer and his wife told him how unhappy they were about him moving into the neighbourhood. He was hounded until he was acquitted in 2018. Until his acquittal, he was prohibited by the conditions of his bail from having any contact with persons under the age of 18 years. As a consequence, from the grant of bail on 19 June 2015 until his acquittals on all charges on 5 March 2018, he was unable to attend weddings, funerals, birthday parties, Christmases, and other significant events in his social life. He was deprived of the four children who had formerly shared his house. The foster family, of which he and his wife were fond, was broken up and the children split and not reunited. He lost his employment and his business. The metaphor which Jubelin used of “pulling a trigger” on his life was apt.

In these circumstances, we are not persuaded that the components of the damages which are intended to have a compensatory effect (including aggravated damages) are excessive or that any lesser award is warranted. There was no challenge to the primary judge’s finding that Mr Spedding’s reputation was comprehensively destroyed as a result of his arrest and prosecution. The aggravated damages are not excessive in the light of what Mr Spedding has had to endure.

The State has separately challenged the award of exemplary damages and has contended that it is not only excessive, but that it also involves “double-counting”.

The purpose of an award of exemplary damages is to punish and deter the wrongdoer: Lamb v Cotongo (1987) 164 CLR 1 at 8-9 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. It has a separate function to that of aggravated or general damages because it is directed at the wrongdoer. The primary judge was plainly correct to find at [351]:

Exemplary damages are particularly significant where public officials have been involved in the commission of the tort or torts. In State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, the High Court (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ), at [39], approved the statements of Devlin LJ in Rookes v Barnard [1964] AC 1129 at 1223 and 1226 that:

The High Court, at [40], approved Lord Hutton’s statement in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149:

The use of public power must be reserved for proper purposes. The use of public power for improper purposes may have significant consequences for the administration of justice and other public institutions, which extend far beyond the original improper purpose. The narrative set out above contains several instances of this. A salient example is the police conduct in summoning the media to film the arrest of Mr Spedding (a finding of the primary judge which was not challenged). This act was apt to turn the investigation into the disappearance of a child into a gladiatorial circus which apparently elevated Jubelin to heroic status with corresponding demonisation of Mr Spedding. It set the tone for what was to follow in the ensuing period of almost three years. Further, the maintenance of tenuous charges of child sexual abuse may be apt to undermine credible charges.

The purposes of the component of the award of $300,000 for exemplary damages is to indicate the Court’s disapproval of the conduct, to uphold and vindicate the rule of law and to encourage the State to take steps to ensure that such reprehensible conduct does not recur. The primary judge’s award for exemplary damages falls within the range of appropriate awards, having regard to the conduct.

The State submitted that the damages award in the present case is, whether viewed in whole, or by reference to its component parts, “without compare in the context of malicious prosecution claims proved against the State”. So much may be accepted. However, the egregiousness of the conduct for which the State is vicariously liable is also “beyond compare”. The high-handed, self-serving, grand-standing undermining of the criminal justice system by the relevant police officers in arresting, charging, opposing bail and maintaining the prosecution against Mr Spedding has no relevant comparator in the reported cases in New South Wales. One can only hope that its standing as the worst case is never repeated and is never superseded by conduct that is even worse.

The award of damages in the present case has not been shown to be manifestly excessive. Accordingly ground 12 is not made out.

Although we have held that appeal ground 4 should succeed in relation to the finding of malicious prosecution by the DPP, that success does not affect the ultimate outcome as the State remains vicariously liable for the tortious conduct of the Police Officers.

Accordingly, the order of the Court is: “Appeal dismissed with costs”.