State of New South Wales v Madden

1. [1]

   BELL CJ: The State of New South Wales (the Appellant or the State) appeals from the decision of Fitzsimmons SC DCJ (the primary judge) in which his Honour found the State liable in tort for battery, false imprisonment and malicious prosecution and awarded Ms Ebonie Madden (the Respondent) damages of $320,000 plus interest and costs: Madden v The State of New South Wales [2022] NSWDC 647 (the primary judgment or PJ). The damages award encompasses both general and aggravated and exemplary damages.

2. [2]

   In relation to each of the torts, the State was held to be vicariously liable for the conduct of several New South Wales Police officers, principally Senior Constable (SC) Michael Darnton, SC Lee Kelly and SC Danielle Munt, who were all members of the Nepean Proactive Crime Group, as well as, SC Brett Burnell, SC Brett Nicholls and SC Mac Tamruksa.

3. [3]

   As will be outlined more completely later in these reasons, the case arises out of events which occurred at about 4.30pm on 30 December 2019 when the Respondent, who had recently been released from prison on parole, was walking with Mr Dylan Turner (Mr Turner) on Evan Street, South Penrith (Evan Street) and was then stopped, searched and detained by New South Wales Police officers. A substantial part of the interaction between the Respondent and the police officers on 30 December 2019 was captured on body worn camera video recordings.

4. [4]

   During the course of the interaction between the Respondent, Mr Turner and the police, a bag containing a knife and a collection of new male clothing was placed on the ground. It had been carried by Mr Turner and not the Respondent. Shortly thereafter, the Respondent was arrested for the summary offence of custody of a knife in a public place pursuant to (the subsequently repealed) s 11C of the Summary Offences Act 1988 (NSW) (Summary Offences Act) (the custody of a knife charge). Following an interaction with police during which the Respondent refused to remove her necklace during a strip search, the Respondent was transported to Mount Druitt Police Station where she was also charged with having custody of clothing reasonably suspected of being stolen contrary to s 527C of the Crimes Act 1900 (NSW) (Crimes Act) (the goods in custody charge) and resisting an officer in the execution of duty contrary to s 58 of the Crimes Act (the resist officer charge).

5. [5]

   The Respondent was refused bail on 31 December 2019 and was remanded in custody. Her parole was subsequently also revoked with the consequence that she was held in custody.

6. [6]

   On 9 January 2020, the Respondent entered pleas of not guilty in relation to each of the charges and on 28 October 2020, following a hearing in the Penrith Local Court before Magistrate Hiatt which commenced on 16 September 2020, all relevant evidence was excluded and the charges against the Respondent were dismissed.

7. [7]

   On 2 August 2021, by way of a Statement of Claim filed in the District Court, the Respondent commenced proceedings against the State for trespass to the person, false imprisonment, assault, battery, malicious prosecution and misfeasance in public office. This last claim was not pressed.

8. [8]

   By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, being the first day of the hearing of the appeal, the State appeals from the whole of the primary judgment.

9. [9]

   However, as was noted by the Respondent in written submissions and as will be considered in greater detail later in these reasons, the success or otherwise of the appeal largely turns on the disturbance of the adverse credibility findings made by the primary judge in respect of the Police officers who gave oral evidence in the course of an 11 day trial, including as to what they asserted were their reasonable suspicions in relation to the Respondent.

10. [10]

    On 27 July 2023, the Respondent also filed a Notice of Contention and sought leave on the first day of the hearing of the appeal to file a Further Amended Notice of Cross Appeal. Leave was granted.

The primary judgment

1. [11]

   It is first necessary to provide a short summary of the primary judge’s reasons.

2. [12]

   His Honour held that the initial detention and search of the Respondent on Evan Street was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA): PJ [234]. Accordingly, all physical contact with the Respondent’s person in the context of that detention was held to constitute a battery: PJ [251]-[252]. Moreover, pursuant to s 99 of LEPRA, his Honour held that the Respondent’s arrest was also unlawful such that, from the time at which the Respondent was arrested on 30 December 2019 until the time at which she was remanded in custody on 31 December 2019, she was falsely imprisoned: PJ [244], [308].

3. [13]

   His Honour found that s 43A of the Civil Liability Act 2002 (NSW) (Civil Liability Act) did not apply to exclude any civil liability arising from the conduct of the Police officers because, pursuant to s 3B(1)(a) of the Civil Liability Act, s 43A does not apply in relation to civil liability of a person in respect of an intentional act done with intent to cause injury. Even if the operation of s 43A was not excluded by s 3B(1)(a), the primary judge held that the circumstances in which the Respondent was detained and arrested were so unreasonable that no police office would properly consider the acts of the Police officers to be a reasonable exercise of their power: PJ [267]-[268].

4. [14]

   The primary judge also held that SC Darnton had maliciously prosecuted the Respondent in respect of the “custody of a knife charge” and “resist officer charge” but not the “goods in custody charge”. His Honour found that the evidence in relation to the prosecution of the Respondent for the “custody of a knife” and “resist officer charge” was insufficient to support an honestly held belief that there was reasonable and probable cause for the prosecution of those charges to be brought: PJ [295]. Moreover, the primary judge held that there was sufficient malice in that SC Darnton had commenced and pursued the prosecution for a purpose other than the proper invocation of the criminal law, namely a personal animus he had against the Respondent: PJ [301].

5. [15]

   The primary judge made the following awards of damages:

Factual background

1. [16]

   Before moving to consider the State’s grounds of appeal, it is also necessary to provide some substantial factual background to the events surrounding the arrest of the Respondent on 30 December 2019.

2. [17]

   Prior to 30 December 2019, SC Darnton’s evidence was that the Respondent was well-known for serious offences and had an extensive criminal history of in excess of 50 charges, including for robbery, property offences and offences involving violence and weapons. In particular, SC Darnton had interacted with the Respondent on 3 September 2019 when she, alongside her former partner Mr Gaige Heckle, was charged with, and subsequently convicted of, several offences connected to the attempted theft of a car in police presence.

3. [18]

   The Respondent was sentenced to three years imprisonment with a non-parole period of one year and three months in relation to the 3 September 2019 offences but was released on parole on 5 December 2019. The Respondent gave evidence that following her release from prison and contrary to the conditions of her parole, she had, over a period of days, relapsed into use of the drug “ice”. This evidence is supported by a Breach of Parole Report dated 2 January 2020, which will be referred to later in these reasons, in which it is noted that Community Corrections had been contacted by a significant other on 30 December 2019 to report the Respondent’s suspected drug use. The Report also recorded that the Respondent had admitted to a relapse into methamphetamine use over the Christmas period.

4. [19]

   The Respondent’s evidence was that, as of 30 December 2019, she was suffering from borderline personality disorder, anxiety and depression. She also gave evidence that she experienced anxiety around police officers as a consequence of an incident which occurred at the Penrith Police Station when she was fourteen years old. Moreover, her Breach of Parole Report recorded that on 30 December 2019, the Respondent had disclosed a decline in her mental health over the Christmas period.

5. [20]

   On the morning of 30 December 2019, Mr Turner and another man, Brett Plummer, had been stopped by SC Kelly and SC Darnton, who were on bicycle patrol in Penrith.

6. [21]

   SC Kelly and SC Darnton’s evidence was that Messrs Turner and Plummer appeared to be attempting to avoid police so they wanted to “have a chat to them”. It was SC Darnton’s evidence that Messrs Turner and Plummer had not been effectively stopped but, rather, that it was not uncommon for police officers to have general conversations with lots of people when on patrol. SC Darnton denied that there was any conscious decision to stop and speak to Messrs Turner and Plummer, even though body camera footage captured the two officers riding together before separating to approach the men from different directions.

7. [22]

   Plummer was searched by SC Kelly and SC Darnton but Mr Turner was not. Nothing of note was uncovered during the search. When conducting the search of Plummer, SC Kelly and SC Darnton gave evidence that they became aware that Mr Turner was on parole for a robbery offence.

8. [23]

   The Respondent’s evidence was that on 30 December 2019, she woke up at her father’s house and then attended her mother’s home to collect money and a handbag, which she shared with her mother. At around 2.30pm, she met Mr Turner in Penrith and they took a train to Mount Druitt. She then attended Mount Druitt Community Corrections at about 3pm where she met with her parole officer and returned a negative drug test result.

9. [24]

   After the meeting with her parole officer, the Respondent returned to Mount Druitt train station with Mr Turner and together they travelled to Kingswood Station and then walked via Evan Street to the Jamison Hotel Pub or “Jammo”. The Respondent denied consuming ice between leaving the Mount Druitt Community Corrections facility and being stopped by police on the street.

10. [25]

    As the Respondent and Mr Turner were walking down Evan Street, they observed a man sitting in the street who had been arrested by SC Munt and was awaiting the arrival of a caged vehicle.

11. [26]

    SC Munt, Kelly and Darnton gave evidence that the house in front of which the man was being arrested was a well-known house believed to be involved in drug supply. The Respondent gave evidence that she was friends with Ms Hayley Reitano Taylor whose partner resided at that address, although the Respondent’s evidence was that Ms Taylor was living elsewhere. SC Kelly and SC Darnton gave evidence that they were aware of Ms Taylor’s links to the house on Evan Street as well as the association between the Respondent and Ms Taylor.

12. [27]

    A verbal exchange took place between Mr Turner and SC Munt on the street in which Mr Turner said words to the effect of, “That’s pretty slack making him sit there in the heat,” at which point SC Munt replied, “Do you want to join him?” Munt gave evidence that the Respondent replied, “Nah miss you can sit down with him.” After the exchange, the Respondent and Mr Turner continued walking down Evan Street.

13. [28]

    SC Darnton and SC Kelly then alighted from a police vehicle. As outlined above, SC Darnton was aware of the Respondent’s extensive criminal record and that she was on parole. Both officers gave evidence that they believed the Respondent to be under the influence of a prohibited drug at the time. SC Kelly’s statement recorded that this was because the Respondent was “laughing and behaving immaturely”.

14. [29]

    The Respondent gave evidence that SC Darnton then asked the Respondent and Mr Turner to “stop”, and they complied. Her evidence was that they were not informed at this time that they would be searched.

15. [30]

    Although SC Kelly had, at paragraph four of his statement in the criminal proceedings against the Respondent, indicated that the Respondent and Mr Turner were “stopped” by SC Darnton, under cross-examination he gave the following evidence:

16. [31]

    SC Darnton gave the following evidence as to the circumstances in which the Respondent and Mr Turner were ultimately stopped on Evan Street:

17. [32]

    Under cross-examination, SC Darnton added the following:

18. [33]

    Shortly after asking, the Respondent and Mr Turner stopped walking down Evan Street and engaged with the police officer, and SC Darnton and SC Kelly activated their body worn cameras. Those cameras captured 60 seconds of visual footage prior to the audio file commencing. In that footage, SC Darnton can be observed removing a black handbag from between Mr Turner’s legs. The Respondent can also be observed walking around the road and on the grass nature strip speaking with SC Darnton and SC Kelly in a jovial manner.

19. [34]

    When the audio file commences, the following exchange is captured:

20. [35]

    SC Darnton asked the Respondent about where she was living but the Respondent did not answer. SC Darnton then directed the Respondent to stand over on the grass nature strip and asked, “Are you high?” to which Mr Turner replied, “Yeah.”

21. [36]

    The following exchange was then recorded as SC Darnton began to search through the bag placed on the ground which had been retrieved from between Mr Turner’s legs:

22. [37]

    SC Darnton then announced, “Breach, breach” upon finding a knife in the bag. SC Kelly is recorded as asking, “Whose bag’s that?” to which SC Darnton replied, by way of assertion, “It’s Ebonie’s.” The transcript of this conversation which was in evidence then records that the Respondent (whose first name is Ebonie) replied, “Fuck off”, although the sound recording does not support the attribution of these words to her.

23. [38]

    After finding the knife, SC Darnton is recorded as saying the following to the Respondent:

24. [39]

    SC Kelly then handcuffed the Respondent which he gave evidence was because of the Respondent’s aggression. The following exchange was then captured:

25. [40]

    SC Munt then approached the group again. She is captured on the footage saying, “See, that’s what happens when you’re mouthy, you get searched”, at which point SC Darnton reminded SC Munt that the body cameras were on.

26. [41]

    SC Darnton conducted a further search of the bag at which point several items of new men’s clothing were located. During an interaction with SC Darnton and SC Kelly, Mr Turner stated that the underwear belonged to him and that he had purchased it that day at K-Mart in Mount Druitt.

27. [42]

    SC Darnton requested that SC Munt search the Respondent while SC Kelly conducted a search of Mr Turner. SC Darnton then made the following comment:

28. [43]

    SC Munt decided after conducting a preliminary search of the Respondent that a more invasive strip search would be required. This was because the Respondent had earlier been reaching down the front of her dress which led to concern that she may be concealing a weapon. A verbal altercation between SC Munt and the Respondent ensued in which the Respondent became agitated. SC Munt attempted to restrain the Respondent by forcing her to sit on the ground but the Respondent resisted on account of her being in a skirt. During this exchange, SC Darnton made comments including, “relax darling”, “stop acting like an animal”, “behave like an adult please darling” and “you carried on like this last time”.

29. [44]

    Thereafter, it was determined that the Respondent should be escorted to the caged vehicle, which had then arrived, for a strip search to be conducted. The Respondent co-operated with the strip-search by showing SC Munt the inside of her bra. A parole card from that morning was found in the Respondent’s bra during the search. At no point during the search did SC Munt activate her body camera.

30. [45]

    SC Munt gave evidence that during the search, she requested that the Respondent remove a necklace she was wearing. SC Munt’s evidence was that the necklace was a “safety risk” because the Respondent might swallow it, although she accepted that the Respondent was handcuffed at the time so would not be able to unlatch the necklace. When the Respondent refused to remove the necklace, SC Munt told her to “stop being a tough bitch”. Subsequently, a physical altercation ensued in which the Respondent was removed from the vehicle and restrained by two male police officers, SC Burnell and SC Nicholls, so as to facilitate the removal of the necklace. She was then lifted back into the vehicle.

31. [46]

    While the search was ongoing, the following exchange was captured:

32. [47]

    A few minutes later, SC Kelly is captured answering his mobile phone and telling the caller that:

33. [48]

    After a further exchange with Mr Turner, SC Darnton was captured as saying:

34. [49]

    Later, the body camera footage captured some discussion between the Police Officers about whether a field Court Attendance Notice (CAN) should be issued and if so, in relation to what charge or charges. SC Kelly suggested that a CAN should be issued in relation to the Respondent having custody of a knife and resisting arrest. SC Munt then re-joined the other Police officers and is recorded as saying in respect of the proposed resist charge that “She wouldn’t take her necklace off … so we pulled her out of the truck”. SC Munt’s evidence was that she agreed she was smiling whilst recounting this altercation to the other Police officers and said this was because she thought the whole situation was “ridiculous”.

35. [50]

    Subsequently, the audio on the body camera footage is paused. There was no evidence as to why SC Darnton elected to pause the audio at that time. Just prior to the audio being paused, SC Kelly can be heard saying in respect of the proposed field CAN, “Just give her the knife”.

36. [51]

    When the audio resumed on SC Darnton’s body camera footage, he conducted what the State referred to as a “roadside interview” during which the Respondent was sitting in the back of the caged vehicle.

37. [52]

    During the roadside interview, the Respondent denied any knowledge of the knife in the bag but gave an unclear explanation as to the origin of the clothing:

38. [53]

    SC Darnton is then captured as saying:

39. [54]

    A field CAN was ultimately not issued. SC Darnton gave evidence that this was because the Respondent had a history of a number of failures to appear before a court, numerous breaches of bail conditions and because he was unaware of where she was living.

40. [55]

    At about 5.30pm on 30 December 2019, SC Darnton returned to the Penrith Police Station where he created a Computerised Operational Policing Sydney (COPS) event with the event reference number “E7 2810337” and a “Facts Sheet outlining the circumstances of the incident that could be used for the charging process” (Facts Sheet).

41. [56]

    Due to the proximity of the events to New Year’s Eve, SC Darnton’s evidence was that he was “under the pump” when completing the Facts Sheet. He maintained that he spent two hours of overtime work on the Respondent’s case but nonetheless conceded that he was aware of matters that were missing from the Facts Sheet.

42. [57]

    The primary judge made the following finding as to the matters which SC Darnton included and failed to include in those documents:

43. [58]

    Although SC Darnton accepted that he was the relevant informant in the matter, he denied any involvement in the prosecution of the matter or in the Respondent’s bail determination following 30 December 2019. His evidence was that it had been SC Tamruksa at Mount Druitt Police Station who had prepared the CAN, agreed facts and charge, although he acknowledged that in doing so, SC Tamruksa would have “copied and pasted” his COPS entry into the agreed facts document. SC Darnton agreed that on the evening of 30 December 2019, he had been in contact with SC Tamruksa to direct him as to what charges to lay. On the CAN, SC Darnton was listed as the “Prosecutor”.

44. [59]

    The Facts Sheet created by SC Darnton was provided to Sergeant Steven Moss who accepted the charges. Pursuant to s 43 of the Bail Act 2013 (NSW) (Bail Act), the Respondent was refused bail at Mount Druitt Police Station and then transferred into the custody of Corrective Services. The decision to refuse bail at this stage was made on the basis that the Respondent was charged with a “show cause” offence, namely the “resist officer charge”, and had not shown cause as to why her detention was unjustified.

45. [60]

    At the time he completed the Facts Sheet, SC Darnton gave evidence that the charges were laid because he believed that they had a reasonable prospect of conviction and that there was sufficient evidence to have the matter put before the Court. He denied that the Respondent being on parole affected his decision and that any omissions from the Facts Sheet were done for the purpose of affecting the Respondent’s application for bail, ensuring that the Respondent’s parole would be revoked or masking the strength of the prosecution’s case.

46. [61]

    At the time SC Darnton completed the Facts Sheet, he had not yet reviewed the body worn camera footage. His evidence was that he reviewed that footage “in January at some point” and that, even after doing so, he “still thought there was a chance of conviction, or a reasonable prospect” and that he would “put it before the magistrate and let – let them decide”.

47. [62]

    Mr Turner was later also issued with a CAN in relation to the offence of goods in custody.

48. [63]

    On 31 December 2019, the Respondent made a bail application at Parramatta Local Court before Magistrate Price.

49. [64]

    During the bail application, the Respondent’s counsel submitted the following:

50. [65]

    Magistrate Price ultimately refused bail. His Honour’s reasons given during the bail hearing were as follows:

51. [66]

    On 2 January 2020, a Breach of Parole Report was filed which stated:

52. [67]

    On 20 January 2020, the Respondent’s parole order was revoked. The reason for the revocation was noted as:

53. [68]

    On 9 June 2020, the Respondent made a second application for bail at the Downing Centre Local Court. Magistrate Milledge was pointed to the discrepancy between the Facts Sheet, which did not disclose that the handbag was being carried by Mr Turner, and [6] of SC Munt’s statement which disclosed that Mr Turner was holding the handbag. Her Honour held that these circumstances were sufficient to clear the “change of circumstances” threshold set by s 74 of the Bail Act and reasoned that:

54. [69]

    Ultimately, Magistrate Milledge granted the Respondent’s bail application. Her Honour is recorded as saying:

55. [70]

    On 16 June 2020, the State Parole Authority rescinded its earlier revocation of the Respondent’s parole and ordered that the Respondent be released by no later than 4pm on 17 June 2020. The stated reasons for her release were:

56. [71]

    The Respondent was thus in custody between 30 December 2019 and 17 June 2020, a period approaching 6 months.

57. [72]

    On 9 January 2020, the Respondent entered pleas of “not guilty” in relation to each of the charges. The Crown was ordered to serve its brief of evidence by 6 February 2020.

58. [73]

    SC Munt’s statement was completed on 10 January 2020. On 9 March 2020, SC Kelly completed his statement but it was not served upon solicitors acting for the Respondent until 9 June 2020, which was the second day of her bail application.

59. [74]

    SC Kelly acknowledged in evidence that he did not refer in his statement to the fact that the bag in which the knife and clothing was found was at all times observed by police to be in Mr Turner’s possession. Nor did he include in his statement the fact that Mr Turner had claimed ownership of the knife. While SC Kelly acknowledged that those were relevant matters which ought to have been included, his evidence was that their exclusion was justified given the existence of the body worn camera footage.

60. [75]

    By way of an email sent to SC Darnton on 8 May 2020, the Respondent’s solicitor in the Local Court proceedings confirmed that the only statement she had been served with was that of SC Munt.

61. [76]

    A request was made by the Respondent’s new solicitor on 22 May 2020 for a “copy of any brief that has been served to date”. SC Darnton responded to this email by enquiring whether “we can possibly negotiate and resolve the matter” and stating that the Respondent’s former solicitor had a copy of the brief previously served. At this time, SC Darnton had not served or completed his own statement, nor had he served the statement of SC Kelly which was completed on 9 March 2020.

62. [77]

    On 9 June 2020, SC Darnton sent an email to the Respondent’s solicitor purporting to attach a statement of SC Kelly, dated 9 March 2020, and a statement of SC Nicholls, dated 4 June 2020. However, the statement of SC Kelly was not attached to the email.

63. [78]

    Later on 9 June 2020, SC Darnton sent an email to the Respondent’s solicitor attaching the statement of SC Kelly and asked, “Can you please kindly advise what the sticking point is with this matter? I am sure that this could be resolved in some way I would think.”

64. [79]

    SC Darnton’s evidence as to his communication with the Respondent’s solicitors was that:

65. [80]

    SC Darnton commenced drafting his statement on 25 June 2020 and completed his statement on 29 June 2020. His evidence was that his delay in preparing the statement was a consequence of a heavy workload rather than a belief that the Respondent would plead guilty to the offences. The statement, like the Facts Sheet, did not outline the grounds upon which the search of the Respondent was conducted, in particular SC Darnton’s opinion that, due to her connection with Ms Taylor and the house on Evan Street, the Respondent might be taking Mr Turner to the house.

66. [81]

    The hearing of the charges commenced on 16 September 2020 at the Penrith Local Court. On 28 October 2020, Magistrate Hiatt excluded all relevant evidence and all three charges with which the Respondent had been charged on 30 December 2019 were dismissed.

Grounds of Appeal

1. [82]

   By way of a Second Further Amended Notice of Appeal filed on 22 August 2023, the State relies upon six grounds of appeal (with what had originally been ground number 4 not being pressed):

2. [83]

   The Respondent also filed a Notice of Contention in these terms:

3. [84]

   The Respondent also sought leave to file the following Notice of Cross-Appeal:

Credit findings

1. [85]

   As referred to at [9] above, the primary judge made several adverse findings in relation to the evidence given by the Police officers. In no small part, the Grounds of Appeal seek to disrupt those findings.

2. [86]

   Some of the adverse credibility findings made by the primary judge were premised on the primary judge’s review of the body worn camera footage. In respect of that evidence, the primary judge enjoyed no greater advantage than this Court on appeal.

3. [87]

   However, several of the primary judge’s credibility findings were based upon the primary judge’s assessment of oral evidence given by the Police officers over nine days, much of which was the subject of intense cross-examination. In relation to this evidence, the primary judge must be taken to have enjoyed a considerable advantage over this Court. As such, this Court will be required to exercise restraint with respect to interference with those of his Honour’s findings which are based on those impressions of the witnesses garnered from their oral evidence and should not overturn those findings unless it considers that they were “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [28]-[29].

4. [88]

   The primary judge made especially adverse findings in relation to the credibility of SC Darnton, who gave oral evidence over a period of three days. His Honour rejected several aspects of SC Darnton’s evidence and concluded that his credit was “overwhelmingly impugned”: PJ [192].

5. [89]

   First, based on His Honour’s review of the body camera footage, the primary judge rejected SC Darnton’s evidence that his interaction with Mr Turner and Plummer earlier on the morning of 30 December 2019 was merely a “chat” or “conversation”: PJ [192]-[193]. The primary judge went on to find that SC Darnton’s evidence that he had not effectively stopped the Respondent and Mr Turner on Evan Street and was just having a chat “lacked credibility”: PJ [194]. Similar findings were made in respect of SC Kelly’s evidence as to the interaction with Messrs Turner and Plummer: at PJ [188].

6. [90]

   Second, the primary judge rejected SC Darnton’s evidence that, at the time he stopped and subsequently searched the Respondent on Evan Street, he had in mind the connection between the Respondent’s associate Ms Taylor and the house on Evan Street known to be involved in drug supply: PJ [205]. His Honour found that this was not a matter which SC Darnton mentioned in his evidence during the Penrith Local Court proceedings in September 2020. Moreover, when it was later raised over two years later in his evidence before the primary judge, SC Darnton expressed doubt about whether he knew the occupants of that house at the time of the search or whether that was information he found out later: PJ [195]-[196].

7. [91]

   Third, the primary judge rejected SC Darnton’s evidence as to the reasons for his failure to include several matters in the COPS narrative and the Facts Sheet as well as his reasons for including other matters which were said to misrepresent the events of 30 December 2019. His Honour held that:

8. [92]

   On the basis of his rejection of SC Darnton’s explanation for the omission of the exculpatory evidence from the Facts Sheet, the primary judge held that the omissions were “deliberate and done with the purpose of withholding material information from those who would determine whether the [Respondent] should be granted bail”: PJ [202].

9. [93]

   Fourth, the primary judge made adverse credit findings in respect of SC Darnton’s evidence in relation to his failure to comply with court orders and appropriately provide documents to the Respondent’s solicitors for the purposes of the Local Court proceedings. His Honour reasoned that:

10. [94]

    At PJ [189], the primary judge made the following findings in relation to the credibility of SC Kelly:

11. [95]

    His Honour also held at PJ [84] that SC Kelly’s answers with respect to his evidence that at no stage were the Respondent or Mr Turner physically stopped by himself and SC Darnton were, given SC Kelly’s experience as a police officer, “evasive and unconvincing”.

12. [96]

    In relation to SC Munt, the primary judge held that her denial that her comments towards the Respondent, namely the “mouthy” and “tough bitch” comments referred to at [40] and [45] above, were out of frustration was “unconvincing”. His Honour also rejected as credible SC Munt’s explanation for her failure to activate her body warn camera whilst interacting with the Respondent, holding at PJ [110] that:

13. [97]

    In contrast to the adverse credibility findings made by the primary judge in respect of the Police officers, his Honour found that the Respondent gave evidence in a “straightforward and honest manner”. His Honour held at PJ [184] that:

14. [98]

    The primary judge also held that the Respondent’s reaction when she was told she would be searched by police was entirely consistent with her evidence that she felt anxiety around male police officers as a consequence of a strip search incident when she was 14: PJ [185]. While his Honour acknowledged that the Respondent was unable to recall some matters, he found that “her evidence of the events surrounding her arrest was given in a clear and concise manner”: PJ [186].

Ground 1

1. [99]

   By Ground 1 of the appeal, the State asserted that the primary judge manifested apprehended bias by reason of his interventions during the examination of witnesses and allegedly belittling comments made in relation to the State’s submissions. In particular, the State relied on a number of occasions during the hearing in which the primary judge was said to have limited the nature and scope of the cross-examination of the Respondent. It was submitted orally that even if individual exchanges relied upon did not found a case of apprehended bias, the cumulative effect of these passages gave rise to an apprehension that the primary judge was biased.

2. [100]

   In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], the High Court stated that an apprehension of judicial bias arises where (see also Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]):

3. [101]

   The first occasion referred to by the State was the following exchange:

4. [102]

   The second occasion relied upon involved the following exchange with reference to the State’s trial counsel’s cross-examination of the Respondent in relation to an arrest of the Respondent which had occurred whilst she was living at Penrith Youth Refuge in August 2012:

5. [103]

   A short time later, the following exchange took place between the primary judge and the State’s trial counsel:

6. [104]

   The next day, the following exchange took place which was relied upon by the State in its written submissions on appeal as one of the several passages which it was asserted “changed the course of the hearing”:

7. [105]

   For the State to point to this lengthy passage in addition to those already set out in support of the submission that it “changed the course of the hearing” in a way amounting to apprehended bias was fanciful and, in my view, wholly without merit.

8. [106]

   The State also pointed to a number of passages which were said to demonstrate that the primary judge had “vigorously question[ed] witnesses called by the State.” The first instance of such questioning highlighted by the State was the following exchange which took place during the cross-examination of SC Kelly:

9. [107]

   The State then pointed to the primary judge’s intervention during the cross-examination of SC Munt as a further example of questioning that “changed the course of the trial”:

10. [108]

    With reference to the following passage, the State also submitted that the primary judge was at times “belittling, combative, dismissive, condescending and unduly animated”:

11. [109]

    The weakness of Ground 1 of the appeal is made plain in the following exchange between the primary judge and Mr Coffey in the course of final submissions:

12. [110]

    The State was given a clear opportunity by the primary judge to raise any issue of apprehended bias or to make an application to the primary judge to disqualify himself but, quite deliberately, chose not to do so. This exchange further undermined the State’s first appeal ground.

13. [111]

    To adopt the language of Kirby and Crennan JJ (with whom Gummow ACJ relevantly agreed) in Concrete at [105], the comments by the primary judge upon which the State’s argument fastened “were understandable and clearly part of dialogue between bench and bar aimed at clarifying the issues in the case”.

14. [112]

    Ground 1 of the State’s appeal should be rejected for the foregoing reasons and also by reason of considerations of waiver. In this context, I agree with Leeming JA’s reasons at [210]-[215].

Ground 2

1. [113]

   The first aspect of Ground 2 of the appeal concerns whether the primary judge was correct to find that the initial approach and contact by SC Darnton and SC Kelly with the Respondent and Mr Turner was an exercise of power pursuant to s 21 of LEPRA. That section provides as follows:

2. [114]

   The State submits that the primary judge erred in finding that, in initially stopping the Respondent and Mr Turner on Evan Street, SC Darnton was exercising a power pursuant to s 21 of LEPRA. Rather, it submits that such a power was not exercised until the point at which SC Darnton informed the Respondent that she would be searched. It will be apparent that only a very short period elapsed between when the Respondent was “stopped” and when she was informed that she would be searched. So much was confirmed by Mr Hutchings, who appeared for the State in the hearing of the appeal. In these circumstances, the materiality of whether the initial “stopping” of the Respondent was an exercise of the s 21 power, and was unlawful, is minimal given, as the primary judge held, the Respondent’s subsequent arrest pursuant to s 99 was unlawful (a finding that is also challenged).

3. [115]

   The primary judge held that, in asking the Respondent and Mr Turner to stop, Darnton had exercised powers to “stop and detain”:

4. [116]

   The primary judge’s conclusion that the Respondent was “stopped” within the meaning of s 21 of LEPRA was one that was based upon a combination of matters. The fact that the Respondent was not physically restrained and could walk around was not inconsistent with that conclusion. Her ability to do so was limited and in reality circumscribed by the presence of SC Darnton and SC Kelly. In the language of the primary judge, they were “effectively detained”.

5. [117]

   The State also submits that the primary judge erred in finding that SC Darnton did not have a suspicion upon reasonable ground as to the existence of certain circumstances set out in s 21(1) of LEPRA at the time at which he exercised the power to search the Respondent (a power which the State accepted was required to be exercised in accordance with s 21).

6. [118]

   The primary judge held that:

7. [119]

   The primary judge’s reasons for concluding that the search was not lawful included his rejection of SC Darnton’s evidence, including as to the proximity of the Respondent and Mr Turner to a known drug house: see PJ [227]. The primary judge concluded:

8. [120]

   The primary judge’s rejection of SC Darnton’s evidence in relation to his basis for detaining and searching the Respondent was strongly influenced by his adverse findings in relation to the Senior Constable’s credit, finding it “overwhelmingly impugned”: PJ [192]. His Honour’s findings in this regard have been referred to at [87]-[93] above.

9. [121]

   As the primary judge pointed out at PJ [219]:

10. [122]

    The written and oral submissions advanced on behalf of the State on this aspect of the appeal did not overcome the high hurdle that challenges to such credit-based or credit-influenced findings require. It is not sufficient simply to assert, as the State did at [39] of its written submissions, that such findings were “wrong”. The State’s submission that “a police officer encountering an apparently drug intoxicated known drug user, in proximity to a known drug house, must have grounds to suspect that there might be unlawful drugs or unlawful items in their possession” ignores the primary judge’s rejection of SC Darnton’s evidence as to his knowledge of the so-called drug house (see [90] above). I accept the Respondent’s submission that there was nothing glaringly improbable or contrary to compelling inference in the judge’s finding that the connection between the Respondent’s associate, Ms Taylor, and the drug house were not matters that informed the suspicion.

11. [123]

    The second aspect of the second ground of appeal involved a challenge to the primary judge’s conclusion that the Respondent’s arrest by SC Darnton was not lawful. The unlawfulness of the arrest, as found by the primary judge, was not originally challenged by the State and a challenge was only made on the first afternoon of the appeal by way of filing of the Amended Notice of Appeal.

12. [124]

    Section 99(1) of LEPRA provides as follows:

13. [125]

    As the primary judge observed, the onus was on the State to establish that the Respondent’s arrest was lawful, and the two preconditions in s 99(1) were satisfied. The primary judge then said:

14. [126]

    It is evident from these paragraphs that the primary judge’s conclusions were informed by his adverse credit findings in respect of SC Darnton. More than that, however, it was common ground that it was Mr Turner who, at all material times, was in possession of and carrying the bag. SC Darnton was quick to assert that the bag was the Respondent’s. It was, according to what the Respondent subsequently said, in fact her mother’s but, irrespective of that, it was not a bag which the Respondent had been carrying at the time she was detained or arrested. As such, neither the bag, let alone the knife, was in her custody or possession.

15. [127]

    It is well established that a charge under s 527C(1)(a) of the Crimes Act in respect of a person who “has any thing in his or her custody” refers to that thing being in the person’s custody at the time of the person’s apprehension by police. As Gleeson CJ observed in R v English (1989) 44 A Crim R 273 (R v English) at 280, “at least in relation to the element of custody, the offence retains its historical connotation of being caught red-handed”; see also Cleary v Wilcocks (1946) 63 WN (NSW) 101. The “custody of a knife charge” was made pursuant to the subsequently repealed s 11C(1) of the Summary Offences Act (see now s 93IB of the Crimes Act) which provided that a “person must not, without reasonable excuse (proof of which lies on the person) have in his or her custody a knife in a public place or school”. There is no material difference between the reference to “custody” as between s 11C(1) of the Summary Offences Act and s 527C(1)(a) of the Crimes Act.

16. [128]

    SC Darnton’s evidence that he thought that the Respondent was carrying the bag was rejected by the primary judge. Again, Fox v Percy considerations present an insurmountable hurdle to the State in its belated attempt to challenge the primary judge’s conclusions as to the unlawfulness of the Respondent’s arrest.

17. [129]

    Ground 2 of the appeal should, accordingly, be rejected.

Ground 3

1. [130]

   Ground 3 of the appeal concerns whether s 43A of the Civil Liability Act applied to confer a qualified immunity in respect of the State’s civil liability.

2. [131]

   Section 43A(3) of the Civil Liability Act provides that:

3. [132]

   Section 43A will not apply if s 3B(1)(a) is engaged. Section 3B(1) provides that:

4. [133]

   The State accepted that if this Court found that s 3B(1)(a) was engaged, then its arguments in respect of the application of s 43A of the Civil Liability Act must fail.

5. [134]

   At first instance, the primary judge noted that the State conceded that the torts pleaded were intentional acts for the purposes of s 3B(1)(a) but contended that there was no intent to cause an injury and that, in any event, the deprivation of liberty was not an “injury”, given the definition of that term in s 11 of the Civil Liability Act.

6. [135]

   The primary judge’s reasoning in respect of whether there was an intent to cause injury was extremely brief. After referring to Croucher v Cachia (2016) 95 NSWLR 117; [2016] NSWCA 132 and White v Johnson (2015) 87 NSWLR 779; [2015] NSWCA 18, he said at PJ [258] that:

7. [136]

   The State submitted that s 3B(1)(a) did not apply to exclude the operation of s 43A of the Civil Liability Act on two alternative grounds.

8. [137]

   First, it was put that, although the primary judge found at PJ [258] that SC Darnton “intentionally detained, arrested and maliciously prosecuted the [Respondent]”, there was a failure properly to differentiate between the intention to do the act amounting to the tort and an intention to injure the Respondent, and that the “evidence about the intent to injure was not present”.

9. [138]

   Mr Hutchings for the State submitted that SC Darnton’s “principal purpose was to enforce the criminal law and as he perceived it” and that he “did not have a specific intent to injure [the Respondent] by doing that”.

10. [139]

    Secondly, it was put that even if the Police officers intended to “injure” the Respondent, deprivation of liberty does not fall within the definition of “injury” as that term is used in s 3B(1)(a). As the argument on appeal progressed, it became clear that what the State originally put as two alternative grounds in fact coalesced and that the whole argument in fact turned on the meaning of injure in the context of s 3B(1)(a). In short, if “injury” extended to a “deprivation of liberty”, it followed that SC Darnton must have had the requisite “intention to injure” because this was the necessary consequence of his detention and arrest of the Respondent. So much was reflected in the following exchange in the course of argument:

11. [140]

    It was argued on behalf of the Respondent that the stopping of the Respondent, her arrest and the physical acts associated with each detention were acts committed with the intention of depriving her of her liberty and that the deprivation of the Respondent’s liberty amounted to “injury” within the meaning of s 3B(1)(a) of the Civil Liability Act such that the application of s 43A is excluded. This submission was consistent with established case law.

12. [141]

    Section 3B(1) is contained in Part 1 of the Civil Liability Act. The term “injury” is not defined in that Part of the Act. Section 11, which is contained in Part 2 of the Civil Liability Act, provides that:

13. [142]

    In Houda v The State of New South Wales [2005] NSWSC 1053; [2005] Aust Torts Reports 81-816 (Houda), the plaintiff alleged malicious prosecution, false imprisonment, wrongful arrest and assault following an incident in which a police officer pushed the plaintiff and then, after the plaintiff responded to defend himself, ultimately arrested the plaintiff on charges of assaulting a police officer. In construing the term “injury”, as it appears in s 3B(1) of the Civil Liability Act, Cooper AJ reasoned at [335]-[346] as follows:

14. [143]

    Those classes of injury included the deprivation of liberty and the consequences of malicious prosecution. In New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (Ibbett) at [11], Spigelman CJ made reference to Houda in support of his conclusion that he could “see no reason why the word “injury” in s 3B(1)(a) should not be given its natural and ordinary meaning.” In holding that the term “injury” in s 3B(1)(a) should not be construed with reference to the definition of “injury” in s 11 of the Civil Liability Act, the then Chief Justice reasoned as follows:

15. [144]

    Although Ipp JA’s construction of s 3B(1) differed from that of Spigelman CJ in some respects, his Honour held in Ibbett at [125] that:

16. [145]

    The analysis proffered by Spigelman CJ in Ibbett has subsequently been adopted in several decisions of this Court: see, for example, Hamilton v State of New South Wales (No 13) [2016] NSWSC 1311 at [191]-[192]. Moreover, in State of New South Wales v Williamson [2011] NSWCA 183 at [53], Campbell JA, with whom Hodgson and Macfarlan JJA agreed, held that:

17. [146]

    In my respectful opinion, the reasoning of Spigelman CJ (with Basten JA agreeing) in Ibbett, when read in conjunction with his Honour’s apparent approval of Houda, goes a little further than simply leaving “open the possibility” that deprivation of liberty could amount to an “injury”. It is not a stretch of language to say that a deprivation of a person’s liberty effects an injury upon that person. Once it is accepted, as Ibbett did, that “injury” in the context of s 3B(1)(a) need not be a personal injury, then deprivation of liberty may readily be conceived of as involving injury. Such deprivation infringes a person’s common law right to enjoy freedom of movement in his or her community. In Trobridge v Hardy (1954) 94 CLR 147 at 152; [1955] HCA 68, Fullagar J observed that the “mere interference with the plaintiff’s person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights.”

18. [147]

    The State submitted that the effect of New South Wales v Williamson (2012) 248 CLR 417; [2012] HCA 57 (Williamson) was to transpose the s 11 definition of “injury” to s 3B(1)(a) of the Civil Liability Act, thereby impliedly overturning Ibbett. That submission must be rejected. Williamson concerned the construction of the statutory provisions which fix the maximum costs that can be awarded in personal injury damages matters. It did not concern the construction of “injury” in s 3B(1)(a) of the Civil Liability Act.

19. [148]

    At first instance, the primary judge was not satisfied that Williamson overruled Ibbett and, in particular, Spigelman CJ’s reasoning, noting that the High Court in Williamson was specifically determining the definition of personal injury damages contained in the Legal Profession Act 2004 (NSW) by reference only to Part 2 of the Civil Liability Act.

20. [149]

    Since the decision in Ibbett, the Civil Liability Act has been amended on at least 29 occasions. In particular, s 3B has been amended by the Civil Liability Amendment Act 2006 (NSW), Crimes and Courts Legislation Amendment Act 2006 (NSW), Civil Liability Legislation Amendment Act 2008 (NSW), Victims Rights and Support Act 2013 (NSW), Motor Accident Injuries Act 2017 (NSW) and Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW). Yet, the Parliament has taken no steps to define the meaning of “injury”, as that term is used in s 3B(1) of the Civil Liability Act.

21. [150]

    As was held in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [52] (per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ), in relation to the construction of the Building and Construction Industry Security of Payment Act 1999 (NSW) and the NSW Court of Appeal’s interpretation of that Act in Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 (Brodyn):

22. [151]

    In detaining and then arresting the Respondent, SC Darnton’s subjective intention was to deprive the Respondent of her liberty. Had this been done lawfully, no question of liability would have arisen. The primary judge’s conclusion that the detention and arrest was not lawful removed a defence or justification that would otherwise have been lawful. The subjective intention of the police officer remained clear. Contrary to submissions advanced by the State, it did not need to be put to SC Darnton that his intention was to deprive the Respondent of her liberty. That was self evident.

23. [152]

    So also it was to conflate subjective intent with motivation or purpose to submit, as the State did, that SC Darnton’s purpose was to enforce the law. In fact, that purpose was given effect by depriving the Respondent of her liberty. That was exactly what SC Darnton intended. Where this was not justified, the deprivation of “liberty” amounted to an injury within the meaning of s 3B(1)(a).

24. [153]

    For all these reasons, Ground 3 of the appeal should be rejected.

Ground 5 and the Cross Appeal

1. [154]

   By Ground 5 of the Notice of Appeal, the State contended that the primary judge erred in finding that the “custody of a knife charge” and “resist officer charge” were brought against the Respondent without reasonable and probable cause and with malice.

2. [155]

   By way of a Cross Appeal, the Respondent argued that the primary judge erred in holding that the “goods in custody charge”, unlike the “custody of a knife charge” and “resist officer charge”, were brought with reasonable and probable cause.

3. [156]

   Before turning to the submissions made in support of this ground and the cross-appeal, it is convenient to set out the elements of the tort of malicious prosecution as recently summarised in State of New South Wales v Spedding [2023] NSWCA 180 at [13] (Spedding):

4. [157]

   As to the third and fourth elements of the tort, the following was said in Spedding:

5. [158]

   In relation to the “custody of a knife charge”, the State sought to impugn the primary judge’s rejection of SC Darnton’s evidence as to the creation of the Facts Sheet. His Honour’s reasons were as follows:

6. [159]

   As to the existence of malice, the primary judge pointed to the following circumstances:

7. [160]

   The State submitted that, in circumstances where the bag in which the knife was found was a women’s handbag, SC Darnton’s failure to record the fact that Mr Turner was holding the handbag at the time the Respondent and Mr Turner were stopped by police was neither a ground to find an absence of reasonable and probable cause nor to find malice. Reference was made to that portion of the interaction between SC Darnton and the Respondent reproduced at [52] above in which the Respondent said “I didn’t know that was in my bag”. SC Darnton had evidently assumed it was the Respondent’s bag because he told her that he was going to ask her some questions “about some items that were located in your handbag”. Shortly thereafter, however, he asked the Respondent whether it was her handbag to which she replied that she had borrowed it from her mother.

8. [161]

   The State also submitted that Mr Turner’s claims of ownership of the knife lacked credibility and his evidence could not exclude a suspicion or reasonable belief in the Respondent’s guilt.

9. [162]

   In any event, the State argued that it was not determinative that Mr Turner was holding the handbag prior to the search on the basis that it was not contested that the handbag was owned by the Respondent’s mother and had been borrowed by the Respondent that day. It was put that there was a reasonable basis for SC Darnton to have believed that either the Respondent and Mr Turner were in joint possession of the knife, or that one or the other was in possession of the knife.

10. [163]

    The State accepted in its written submissions that it would have needed to be proven that the Respondent had the intention and ability to exercise control and ownership over the knife to the exclusion of all other people: R v Filippetti (1978) 13 A Crim R 335. The Respondent relied upon the act of possession, as described in Director of Public Prosecutions v Brooks [1974] AC 862 at 866, as being what is to one’s knowledge, physically in one’s custody or under one’s physical control, pointing out that at all material times, the bag containing the knife was in Mr Turner’s possession.

11. [164]

    The State pointed out in its written submissions that SC Darnton denied that he did not honestly believe in the charge. That submission was correct but the critical point is that SC Darnton’s denial was evidently not accepted by the primary judge. In light of the totality of reasoning of the primary judge and his undoubted advantage in seeing SC Darnton give evidence over some three days, his Honour’s conclusion was not so glaringly improbable that this Court should interfere with it.

12. [165]

    As to the State’s submission that the fact that Mr Turner held the handbag immediately before the search “was not in any way determinative”, the charge was “custody of a knife in a public place”. The knife was in the bag that was at all material times being held by Mr Turner until it was searched by the police. The State did not explain how the knife was in the Respondent’s custody when she was not in possession of the bag nor how it was alleged that the Respondent knew what was in the bag. It was faintly submitted that “there was a reasonable basis to suspect and believe that the Respondent and Mr Turner were in joint possession of the knife.” The State could not point to any authorities in support of this notion of joint possession. At first instance the State’s counsel had accepted that for the entire time the police had both Mr Turner and the Respondent in their sight, the Respondent did not have custody of either the knife or the goods which were the subject of the “goods in custody charge”.

13. [166]

    This concession was well made in light of well established authority and Gleeson CJ’s decision in R v English at 280, noted at [127] above.

14. [167]

    In circumstances where the primary judge rejected SC Darnton’s evidence that he had forgotten or not realised that the bag was at all material times in Mr Turner’s possession – a fact that would also have been evident on any revision of the body worn camera footage which showed him taking the bag from Mr Turner – SC Darnton cannot have had reasonable or probable cause to suspect the Respondent of committing the offence for which she was charged.

15. [168]

    Important in the context of the primary judge’s findings was the fact that SC Darnton gave evidence that he viewed the body worn camera footage very shortly after the Respondent’s bail was initially refused. This footage clearly showed that it was in Mr Turner’s custody. The cross-examination which no doubt strongly influenced the primary judge was as follows:

16. [169]

    It should also be noted that the primary judge’s finding that SC Darnton entertained a personal animus towards the Respondent was not challenged on appeal. The State accepted, in euphemistic terms, that SC Darnton’s manner and tone in interacting with the Respondent during the course of her arrest were “not ideal” and “less than ideal” but then submitted that that was insufficient to find impropriety of purpose. This submission overlooks the other matters that contributed to the primary judge’s finding of malice, set out in detailed reasons.

17. [170]

    For all the above reasons, the State’s attack on the primary judge’s findings in relation to the malicious prosecution of the custody of the knife charge must fail.

18. [171]

    The State also attacked the primary judge’s conclusion that the “resist officer charge” was maliciously prosecuted. It is necessary to set out his Honour’s reasoning:

19. [172]

    The State’s submissions on appeal did not attack this reasoning per se but rather contended that the Respondent was in fact resisting SC Munt and that it was reasonable for SC Darnton to rely on SC Munt’s report of this conduct. Whilst it may be accepted that that would ordinarily be so, the decision to include the “resist officer charge” cannot be divorced from the “custody of knife” charge in respect of which the Respondent had been wrongfully arrested.

20. [173]

    If, as the primary judge held (as it was open to him to do) that SC Darnton did not have reasonable and probable cause to prefer the charge concerning custody of the knife, it would follow that he did not have reasonable and probable cause to prefer the “resist officer charge” as the search that was performed on the Respondent during which the resistance occurred, and the attempt forcibly to remove the Respondent’s necklace, was predicated on her having been lawfully arrested in the first place.

21. [174]

    This aspect of Ground 5 of the appeal should also be rejected.

22. [175]

    At PJ [288]-[290], the primary judge held that there was a qualitative difference between the “custody of a knife charge” and “goods in custody charge” and reasoned as follows:

23. [176]

    There is some inconsistency between the primary judge’s analysis of this charge and the “custody of a knife” charge. The “goods in custody charge” was that, in contravention of s 527C(1)(a) of the Crimes Act, the Respondent had certain goods “in his or her custody”. The charge relevantly involves that a person has a thing in his or her custody at the time of the person’s apprehension by the authorities: R v English at 280 referred to at [127] and [166] above.

24. [177]

    Although his Honour did note points of distinction between the two charges in terms of the evidence given by the Respondent, the two charges shared the common deficiency that the goods in question were contained in a bag that was not in the Respondent’s custody at the time of the Respondent’s detention and charging by the police. This was fatal to the charge (and it was perhaps this that led SC Darnton to seeking to have the charges resolved informally prior to the hearing: see [76] above and his inquiry whether “we can possibly negotiate and resolve the matter”).

25. [178]

    This was the essence of the Respondent’s cross-appeal and its logic is, in my opinion, inexorable. The cross-appeal should be allowed.

26. [179]

    Further, as already noted, the primary judge rejected SC Darnton’s evidence that he did not appreciate that the bag was in fact in Mr Turner’s rather than the Respondent’s custody at all material times, and that it was open to his Honour to reach that view.

27. [180]

    In any event, as seen in [168] above, from the time the body worn camera footage was viewed shortly after the Respondent’s arrest, SC Darnton became aware of this fact and did not amend the Facts Sheet to reflect this fact and expose the weakness in the Crown case although conscious that the Respondent was on remand with bail having been refused. SC Darnton lacked reasonable and probable cause, even on his own evidence, from the time he saw the body worn camera footage. Malicious prosecution may lie equally in the maintenance as well as the initiation of a prosecution: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [59].

Ground 6

1. [181]

   By Ground 6 of the appeal, the State submitted that the primary judge’s award of damages for malicious prosecution included compensation for the Respondent being held in custody that was not a “natural and probable consequence” of the prosecution.

2. [182]

   In assessing the quantum of the general damages for malicious prosecution to be awarded to the Respondent, the primary judge held that:

3. [183]

   The State argued that, although the charges led to the Local Court and the Parole Authority considering the question of the Respondent’s liberty, there was an insufficient causal connection between the charges and the Respondent’s resultant detention. Rather, the chain of causation was said to have been severed by the Magistrate’s refusal of the Respondent’s bail application or, at least, by the Parole Authority’s revocation of her parole.

4. [184]

   In particular, the State challenged the primary judge’s finding at PJ [330] that the only reason for the revocation of the Respondent’s parole was the prosecution commenced by SC Darnton. It was submitted that even if the primary judge was correct to find that the “custody of a knife charge” and “resist officer charge” ought not to have been brought, the Respondent would nevertheless have been in breach of the conditions of her parole in respect of the “goods in custody charge” such that it cannot be said that the Parole Authority would have acted differently if the Respondent had only been charged with the goods in custody offence.

5. [185]

   In Spedding, it was held that:

6. [186]

   The State’s argument on causation assumed and relied heavily upon the primary judge’s conclusion that the “goods in custody charge” was not prosecuted maliciously. As, for reasons already given, I would uphold the cross-appeal in relation to that charge, the Respondent’s argument cannot be sustained. So much is also borne out by the fact that, once the true facts had emerged before Magistrate Milledge, and the discrepancy between those facts and that which was contained in the original Facts Sheet became plain, bail was granted (see [68]-[69] above), the Parole Board reversed its earlier cancellation of parole and the Respondent was released from remand where she had unwarrantably been held since January 2020, a period of over 5 months.

7. [187]

   Appeal ground 6 does not succeed.

Ground 7

1. [188]

   The State, by Ground 7 of the appeal, challenges the primary judge’s award of exemplary damages on the basis that it was excessive.

2. [189]

   The State’s written submissions go beyond a mere challenge to the quantum of the exemplary damages awarded. Thus the State submits that the award of exemplary damages for battery and false imprisonment “should not stand or at least ought to be reduced” and that the award of exemplary damages in the sum of $75,000 in respect of malicious prosecution was “productive of double compensation”, the State pointing out that “proof of malicious prosecution (which necessarily includes a finding of malice) does not give rise to an entitlement to exemplary damages unless something over and above malice can be demonstrated: Gray v Motor Accident Commission (1998) 196 CLR 1 (at [12]); Hamilton v State of New South Wales [2020] NSWSC 700 (at [1109]).”

3. [190]

   Insofar as Ground 7 also challenged the amount of exemplary damages awarded, while the decision to award exemplary damages is not discretionary in nature (Gacic v John Fairfax Publications Pty Ltd (2015) 89 NSWLR 538; [2015] NSWCA 99 at [92], citing Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1477]), the amount of exemplary damages to award is discretionary. As was observed in Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [26]:

4. [191]

   The discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King (1936) 55 CLR 499; [1936] HCA 40 constraints on appellate interference, and the quantum of exemplary damages cannot be challenged where the amount is within the limits of a “proper exercise” of discretion: see James v Hill [2004] NSWCA 301 at [84].

5. [192]

   In Whitbread v Rail Corporation NSW [2011] NSWCA 130, McColl JA held:

6. [193]

   In the same case, Whealy JA observed that:

7. [194]

   The primary judge’s decision to award exemplary damages was entirely consistent with these valuable statements of authority. In respect of the false imprisonment and battery, the primary judge held the following in relation to the award of exemplary damages:

8. [195]

   The State submitted that there was insufficient evidence to permit a finding that SC Darnton detained and searched the Respondent because of the comments she made to SC Munt and that this matter, alongside the suggestion that his true motivation was to get the “last laugh”, was not a proposition that was put to SC Darnton.

9. [196]

   By way of response, the Respondent submitted that:

10. [197]

    I agree with this submission.

11. [198]

    The exculpatory matters that were held to have been deliberately concealed or withheld from the Facts Sheet were identified by the judge at PJ [165]-[166] as including:

12. [199]

    In addition, Mr Toomey submitted with some force that the statement by SC Darnton in the Facts Sheet that:

13. [200]

    A decision as to whether to award exemplary damages is, as the State accepted, necessarily impressionistic and it is clear that the primary judge found that SC Darnton in particular had behaved in a high-handed way towards the Respondent. His award of exemplary damages was within the limits of a “proper exercise” of his discretion, and based upon his close analysis of the facts and assessments of the credibility of the key police witnesses.

14. [201]

    The State’s submission that the award of exemplary damages in respect of malicious prosecution entailed “double compensation” did not rise above assertion and was not elaborated upon in oral argument.

15. [202]

    A basic element of two of the charges, namely the custody of the knife and goods at the time of the arrest, was never able to be sustained and, on the primary judge’s findings, SC Darnton well knew that the Respondent had not been in custody of the bag containing the two items at the time of her detention.

16. [203]

    The State also put that a relevant factor in determining the quantum of damages ought to have been that the Respondent did not have a right to unrestrained liberty on the basis that she was on parole. I find this a most unattractive submission. There is a significant qualitative difference between being held in custody and being on parole. As the State itself submitted, citing Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31; Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, the purpose of the legislature in fixing minimum terms (and thus providing for release on parole) is “to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time”. See also Power v The Queen (1974) 131 CLR 623 at 629; [1974] HCA 26.

17. [204]

    The primary judge was well aware that the Respondent had only recently been released on parole at the time of her arrest. The practically inevitable effect of her arrest on the charges was her return to full time custody where she remained for almost 6 months until the grant of bail and the reversal of the cancellation of parole in circumstances where, even if, contrary to the primary judge’s finding, SC Darnton did not realise at the time of the Respondent’s arrest that she was not in custody of the bag (and therefore the knife and goods contained in it which were suspected of having been stolen), on his own evidence, he became aware of this fact when he viewed the body worn camera footage in January 2000 but did not amend the Facts Sheet to reflect this or make a statement accurately setting out the position until many months thereafter in breach of the Court’s order for the police brief to be served by 6 February 2020 (see [72] above).

18. [205]

    The State also submitted that the primary judge erred in awarding interest on the exemplary damages, referring in this context to PJ [339]. Although s 18(1) of the Civil Liability Act precludes the payment of interest on damages awarded for non-economic loss, that section does not apply to intentional torts. In Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10 at 22, it was held that “the award of interest should always be approached in a broad and practical way [and] should not be allowed to assume disproportionate importance…”. See also Van Haren v Van Ryn [2023] NSWSC 776 at [52]-[55], [92], where Chen J awarded interest in respect of an award of exemplary damages arising from an assault and battery.

19. [206]

    It is by no means clear that the primary judge did award interest on the amount of exemplary damages. In the table at PJ [338], his Honour set out the various amounts he awarded in respect of each of the torts he held had been committed. This table is effectively reproduced at [15] above, and totalled $308,000. Of this amount, $115,000 was in respect of exemplary damages. His Honour then said:

20. [207]

    While the arithmetic is not precise, it would appear that the amount excluded from the award of interest almost entirely subsumed that awarded in respect of exemplary damages.

Conclusion

1. [208]

   For the above reasons, I would dismiss the appeal with costs.

2. [209]

   LEEMING JA: I have had the very considerable advantage of reading the reasons for judgment of the Chief Justice in draft. I agree with the large majority of his Honour’s reasons. Those reasons enable me to explain the points of difference concisely. I shall not except to the extent necessary repeat the factual and procedural background.

Ground 1

1. [210]

   On ground 1, I agree with the Chief Justice that the State’s claim of apprehended bias is not established. I would add that even if that were not so, I would have dismissed the ground because any entitlement to have the primary judge disqualify himself was waived.

2. [211]

   The Chief Justice has reproduced the passage from near the end of the trial, when, upon inquiry from the primary judge, junior counsel unequivocally rejected the suggestion that he was making any such application. It was not suggested in this Court that anything happened after that exchange that contributed to the conclusion of apprehended bias. It was recognised in Vakauta v Kelly (1989) 167 CLR 568 at 573, 588; [1989] HCA 44 that there can be no question of waiver where the basis of the claim is in the judgment itself, as opposed to the conduct of the hearing. However, as articulated on behalf of the State in this Court, no aspect of this ground turned upon the reasons of the primary judge, as opposed to his Honour’s interventions during the hearing.

3. [212]

   In those circumstances, there is no answer to Ms Madden’s primary submission, namely, that any basis for complaint had been waived.

4. [213]

   Neither the State’s written submissions in reply, nor its oral submissions in chief, addressed waiver. Ms Madden confirmed at the hearing that “Our principal position is that the right has been waived by counsel taking no issue”. Nothing was said in reply on the point.

5. [214]

   Accordingly, it is clear that the ground must be rejected. The principles are familiar and uncontroversial. They emerge from the following passage from the joint judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly at 572, which in turn was reproduced and endorsed in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 in the joint judgment of Gleeson CJ, Heydon and Crennan JJ at [43], with which Gummow and Hayne JJ agreed at [61]:

6. [215]

   It is with respect difficult to see why in circumstances where there was no answer, nor could there be an answer, to Ms Madden’s submission that any entitlement on the part of the State had been waived, the ground was not abandoned.

Ground 2(a)

1. [216]

   Ground 2(a) as drafted conflated “the stopping, searching and detaining” of Ms Madden. It is necessary to be considerably more precise. As the Chief Justice explains, there was an initial stopping of Ms Madden and Mr Turner, followed by a formal exercise of a power to detain and search, followed by a purported arrest. Although together they occupied less than three minutes, each was distinct. The second and third were undoubtedly formal exercises of power, while there was a debate as to the nature of the first. But at least two and perhaps all three required separate consideration as to whether the State had satisfied the preconditions on which the exercise of power by the police officers was based. In what follows I shall give time references by reference to the elapsed time on Senior Constable Darnton’s body-worn video.

2. [217]

   Despite the exchange of submissions on the first 70 seconds of the encounter, I shall pass over this because I cannot see that anything turns on whether, as the primary judge found, there was an exercise of coercive power by the police officers to stop Ms Madden and Mr Turner prior to the explicit exercise of power to detain and search them, or whether as the State maintained this was entirely informal. I did not understand any point to be made that somehow an invalid exercise of coercive power infected the explicitly formal exercise of power 70 seconds later (“You’re going to be detained for a search okay?”). If some submission along those lines were to have been advanced, I would have rejected it. The exercise of power to detain and search was different from any exercise of power to stop, and required a separate analysis of whether the preconditions had been satisfied.

3. [218]

   The power to detain and search under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) was explicitly invoked at around 1:10. By that time, Senior Constable Darnton had seen Ms Madden and Mr Turner behave erratically on the streets, and was aware of their criminal history and parole status. No challenge was made to Senior Constable Darnton’s evidence that he believed or at least suspected that both were affected by licit or illicit drugs. Ms Madden’s elevated mood is apparent from the body-worn video. As it happens, when she was assessed by a health practitioner the following day, Ms Madden reported that she had a daily consumption of 3 grams of “methamphetamine (eg ice)”, either smoked or injected intravenously, with her last use being the day of her arrest.

4. [219]

   Senior Constable Darnton was also personally familiar with Ms Madden’s behaviour in his presence some 13 weeks earlier. There is no doubt that this was at the forefront of his mind, when he said “Stealing a car in front of a police officer, that’s a first for me” (3:15). His evidence about this was summarised at [122]-[123] by the primary judge:

5. [220]

   Senior Constable Darnton also knew, from his encounter with him earlier that day, that Mr Turner was on parole for the offence of robbery in company.

6. [221]

   In those circumstances, I would conclude that Senior Constable Darnton reasonably suspected that Ms Madden had in her possession or under her control something used or intended to be used in connection with an offence or illicit drugs, thereby engaging paragraphs (b) or (d) of the power in s 21(1) of the Law Enforcement (Powers and Responsibilities) Act.

7. [222]

   The primary judge reached the opposite conclusion, for reasons given at length. At [229] his Honour put to one side Ms Madden’s participation in attempting to steal a motor vehicle in September 2019, on the basis that it had not been suggested that she knew the items in the vehicle were known to her, and in any event, three months had elapsed. I respectfully agree that that fact alone would not suffice.

8. [223]

   The Chief Justice has reproduced the balance of his Honour’s reasoning, which is at [230]-[234] of the primary judgment. The main point made in [230] is that a known drug user was walking towards, rather than away from, a house associated with the supply of illicit drugs. This reasoning proceeds on a false premise. His Honour had earlier found (at [195]-[196]) that Senior Constable Darnton did not at the time link the exercise of power to detain and search Ms Madden with her proximity to a nearby house associated with drugs, thereby rejecting one aspect of the case advanced by the State. That finding was based on his oral evidence, but I note that it is corroborated by the absence of any mention of that fact in the contemporaneous documents, including the COPS entry and Fact Sheet. Accordingly, the analysis for the purposes of determining a reasonably held suspicion does not turn on the proximity of the incident with a house associated with illicit drugs.

9. [224]

   The other point made by the primary judge at [230] was that a suspicion that a person had taken drugs is “not necessarily consistent with [her] having such a prohibited drug in her possession” and, if anything, “is consistent with [her] having previously used a prohibited drug”. Both propositions may be accepted, but they do not contradict the proposition that a person who is obviously affected by drugs may reasonably be suspected of having drugs in her possession. It is not unknown for people to acquire more drugs than they need for immediate use.

10. [225]

    The primary judge proceeded to fortify his conclusion by three considerations stated at [233].

11. [226]

    The first was that Senior Constable Darnton used the same words as had been used earlier in the day (when he encountered Mr Turner) where the circumstances were different. I do not see how that materially bears upon the matter. There are only so many ways in which the statute may be complied with, and well-trained officers might be expected to use similar language when exercising the power conferred upon them.

12. [227]

    The second was that the only reason for the search stated at the time was Ms Madden’s “history”. That statement needs to be assessed in context. As recorded on the body-worn camera, Senior Constable Darnton said, “You’re going to be detained for a search okay?”. Ms Madden immediately said “Oh no, I want a female” (1:14), and was told a female officer was available. The explanation continued, “For an item in connection with an offence or a drug okay. Just because of your history obviously, very”. Senior Constable Darnton then interrupted himself to say “what are you doing darling?” The tone is mostly professional although also, regrettably, condescending. The interruption reflects the officer’s reaction to the fact that Ms Madden’s erratic behaviour changed, and she reached into the inside of the top of her dress and appeared to be moving an item. With the benefit of hindsight, it seems likely that this was her parole card, which she was carrying (at least when Senior Constable Munt conducted a search a few minutes later) inside the top of her dress. True it is that Senior Constable Darnton did not return to giving an explanation for the exercise of the power. But the issue for present purposes is whether there was a reasonable suspicion entitling him to exercise a coercive power. In those circumstances, not much can be drawn from the fact that he merely said “history” and then interrupted himself by reason of Ms Madden’s unexpected conduct.

13. [228]

    The third point rested upon a statement by Senior Constable Munt saying, after Ms Madden was arrested, “that’s what happens when you’re mouthy” (2:51), and Senior Constable Darnton then saying “We’ve got our cameras on, Sarg” (2:56). It is not clear whether Senior Constable Munt was addressing Ms Madden or Mr Turner or both of them, although it is clear that Mr Turner’s profanities towards the police officers were stronger than those of Ms Madden, and seconds beforehand, he had said “I’m on bail dickhead” and “I’m just saying, fuck” in response to Senior Constable Munt asking “Put your hands out please”. I would accept, as did the primary judge, that Senior Constable Darnton’s reminder that the cameras were on was intended to remind her that it was necessary to act professionally. But I do not see how any of those statements bear greatly upon whether or not Senior Constable Darnton genuinely believed he was entitled to search the woman’s bag being carried by Mr Turner. Nor do I see how his later statements “Who has the last laugh now, hey?” (3:21) and his description to a superior officer that they had had a “run in with Ebonie Madden” who had “started mouthing off” undermines the genuineness of his belief. The former comment was unnecessarily gratuitous, the latter was not inaccurate, but neither greatly bears upon whether there was a reasonably held suspicion, which fell to be addressed at the commencement of their encounter, rather than after the discovery of the knife and apparently stolen clothes and the profanities offered by Ms Madden. I accept that statements and conduct after the event can be employed to impute an earlier state of mind. But it seems that this aspect of the reasoning of the primary judge turned upon the proposition that the purpose of the search was in retaliation for the rudeness of Ms Madden and Mr Turner. That reasoning is unpersuasive. The decision to conduct a search was formed in the first minute of the interaction. The nature of body-worn cameras is that the first 30 or 40 seconds of sound is not recorded, but there is nothing in the critical period – the period before the power was exercised – to suggest an improper purpose of pay-back for rude language. More generally, the fact that Ms Madden was known to Senior Constable Darnton, and even if it be the case that he disliked her, does not prevent his forming a reasonably held suspicion that she might be carrying illicit drugs or items connected with crime.

14. [229]

    The trial judge saw Senior Constable Darnton cross-examined over two full days, and was very critical of his credibility. As the Chief Justice observes, there are limitations upon this Court’s power to intervene with findings of fact that are likely to have been influenced by the oral evidence of a witness. However, the best evidence of whether there was a reasonably held suspicion is found in the video and audio captured at the time, and the documents prepared by Senior Constable Darnton later in the immediate aftermath of that afternoon. By that I mean that the best evidence of his subjective intentions is what he said at the time, and the best evidence of whether his suspicion was reasonably held likewise emerges from the contemporaneous evidence, as opposed to his testimonial evidence years after the event. In short, I do not think that this is a case where the advantage enjoyed by a trial judge, who was obliged to assess Senior Constable Darnton’s credibility and reliability and who formed a poor view, disentitles an appellate court from interfering with the findings of fact.

15. [230]

    I did not understand the primary judge to have found that Senior Constable Darnton, when he said that the search was being conduct “for an item in connection with an offence or a drug”, did not subjectively hold the requisite suspicion. It is true that his Honour found at [232] that “Darnton’s motivation was other than a legitimate exercise of police powers under s 21”, but that finding falls short of a rejection that the officer in fact suspected that Ms Madden was carrying drugs or an item connected with an offence. On whether there was an objective basis for a reasonable suspicion, the appearance of Ms Madden and Mr Turner coupled with their criminal history and parole status is not in dispute, and on the facts of this case sufficed.

16. [231]

    I would conclude that this ground is made out, insofar as it relates to the validity of the detaining and search which led to the discovery of the knife in Ms Madden’s mother’s bag which had been carried by Mr Turner.

Ground 2(c)

1. [232]

   This ground was added without (ultimate) objection during the hearing, presumably in the belated appreciation that success in establishing the lawfulness of the actions of the police officers in the first two and a half minutes of their interaction with Ms Madden and Mr Turner on 30 December 2019 goes nowhere if nonetheless the arrest purportedly effected by Senior Constable Darnton at 2:31 was unlawful.

2. [233]

   This ground challenges both preconditions to the exercise of the power to arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act. That power was exercised immediately after discovery of the knife in the bag which had been held by Mr Turner but which Ms Madden had borrowed from her mother and in which were some of her clothes.

3. [234]

   It is plain from the body-worn video that the bag is a woman’s bag, but it is also plain that it was being carried by Mr Turner, and remained with him for the first two minutes of the interaction, when (at 2:12) the knife was located. It emerged a few minutes later that Ms Madden had borrowed the bag from her mother. To my mind, it is not overly difficult to see how an officer could in good faith believe that the bag was in the possession of Ms Madden, rather than the man with whom she was walking. However, the trial proceeded on the basis that an essential component of the definition of custody was the concept of immediacy, and the primary judge found that Senior Constable Darnton did not in fact have a genuine or honest suspicion that Ms Madden, as opposed to Mr Turner, was committing the offence of custody of a knife in a public place. No basis has been established to interfere with that credit-based finding. It follows that ground 2(c) is not made out.

Ground 5

1. [235]

   I agree that, for the reasons given by the Chief Justice, the challenge to the finding of malicious prosecution for the custody of a knife charge fails, and the submissions in support of the “cross appeal” concerning goods in custody should be allowed. The so-called “cross appeal” challenged no order made by the District Court, but sought different findings concerning this charge, and accordingly should be treated as a notice of contention, in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 51.40.

2. [236]

   More generally, insofar as this ground necessarily challenged the findings of malice which his Honour imputed to Senior Constable Darnton, I agree with the Chief Justice that no sufficient basis has been established such as to permit this Court to interfere.

3. [237]

   Although I have concluded that the initial detaining and search of Ms Madden was lawful, the arrest which followed shortly thereafter was not. Had the arrest been lawful, then I would have concluded that there was reasonable and probable cause for charging Ms Madden with resisting Senior Constable Munt when she was searched and her necklace removed. However, I agree with the Chief Justice that in circumstances where the arrest was not lawful, the resistance offered by Ms Madden in its immediate aftermath is not to be regarded as resistance to an officer in the lawful execution of her duties, and thus this element of the tort is made out. Accordingly I agree with the dismissal of the entirety of this ground.

Remaining grounds and orders

1. [238]

   I agree with, and have nothing to add to, what the Chief Justice has said in relation to grounds 3, 6 and 7. The State’s success in relation to ground 2(a) does not flow through to damages, and I see no reason in those circumstances to treat it as materially affecting the discretion as to costs. I accordingly agree with the orders proposed by the Chief Justice.

2. [239]

   STERN JA: I agree with the Chief Justice.

3. [240]

   As regards ground 1, I also agree with Leeming JA that any entitlement of the State to complain of apprehended bias was waived having regard to the interchange between the primary judge and counsel for the State on the last day of trial.

4. [241]

   Given that the Chief Justice and Leeming JA have reached different conclusions as regards ground 2(a) it is appropriate that I briefly indicate the basis for my concurrence with Chief Justice’s rejection of this ground. In this regard, the adverse findings of the primary judge as to the credibility of SC Darnton were of particular significance, given that the burden of proving that the detention was lawful rests on the State. SC Darnton claimed in evidence that his knowledge of the connection between the respondent, Taylor and the drug house was a factor of relevance to his decision to search the respondent: PJ [195]. The primary judge found that SC Darnton’s evidence was not credible in this regard: PJ [205]. That entails a rejection of a material factor that SC Darnton said had informed his decision to search the respondent. That finding was neither glaringly improbable nor contrary to compelling inferences. None of the other matters relied upon by SC Darnton, as set out at PJ [227], either alone or cumulatively, nor the behaviour of the respondent, as is apparent from the body worn video camera, suffice in that context to satisfy the burden on the State to establish reasonable grounds for the requisite suspicion under s 21 the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).