Hrdavec v State of New South Wales

HIS HONOUR: By an amended statement of claim filed 31 August 2018 (“ASOC”), Mr Valentino Hrdavec (“the plaintiff”) claimed damages for wrongful arrest, false imprisonment and malicious prosecution. His claim arose out of his arrest on 1 July 2015, and subsequent charging and prosecution, for aggravated sexual assault, contrary to s 61JA(1) of the Crimes Act 1900 (NSW), and aggravated indecent assault, contrary to s 61M(1) of the Crimes Act (since repealed) (collectively, “the aggravated assaults”). On 11 December 2015, the charges against the plaintiff were dropped by the Office of the Director of Public Prosecutions (“ODPP”).

The plaintiff sued the State of New South Wales (“the State”) as being vicariously liable for the actions of Detective Sergeant Jason Pietruszka (“Inspector Pietruszka”) and officers and constables of the NSW Police Force. Inspector Pietruszka was the Officer-in-Charge of the investigation into the aggravated assaults.

The State admitted that it would be vicariously liable for torts committed by Detective Inspector Pietruszka (“Inspector Pietruszka”) and Constable Michael Mahony, Constable Darren Boyd and Constable Muhsen Bayzidi (although the proceedings were not continued against these officers) who was in service of the Crown, but denied any such alleged torts were committed. (Inspector Pietruszka held that rank at the hearing of his matter and hence he shall, for the balance of this judgment, be referred to in that fashion).

On 21 August 2019, the Court made orders by consent that included, inter alia, that the plaintiff was to file the ASOC with the omission of any allegation that Constable Boyd initiated a prosecution. By the filing of the ASOC, the subject of the claims brought by the plaintiff was confined to the conduct of Inspector Pietruszka. The same confinement was reflected in both the closing written submissions of the parties, and the agreed statement of issues filed by the parties on 19 February 2020.

At the outset of this judgment, it is useful to outline the dramatis personae in these proceedings.

The following members of the plaintiff’s family were required for cross-examination:

Both the plaintiff’s father and brother, for convenience and clarity, will be referred to by their first name in this judgment.

Inspector Pietruszka was the main State witness. He arrested and charged the plaintiff in July 2015.

Inspector Pietruszka commenced as a student police office in 1997. He completed the Detectives Education Program in 2003. He was appointed a Senior Constable in around 2003. He was appointed Sergeant in June 2005. As Sergeant, within the Redfern Local Area Command, he oversaw investigations being carried out by other officers. In March 2007, he was appointed Senior Sergeant and moved to City Central Local Area Command. He oversaw a crime management unit of approximately 30 officers.

In December 2007, Inspector Pietruszka moved to Central Metropolitan Region Officer, where he provided operational assistance to approximately 13 Local Area Commands. In January 2010, he transferred to Blacktown Local Area Command Detectives Office as Detective Sergeant Team Leader. In that role, he had command of any homicide or high profile investigation, often including sexual assaults. Inspector Pietruszka has experience in investigating a wide variety of offences, including sexual assaults (both immediate report and historical).

Inspector Pietruszka, in my view, is an experienced detective, with a long history of investigating and supervising investigations of alleged sexual assault.

Inspector Pietruszka was required for cross-examination.

On the evening of the plaintiff’s arrest, the initial custody manager was Sergeant Mark Kneipp. Sergeant Kneipp accepted the plaintiff into custody at approximately 12.19am on 2 July 2015. He was required for cross-examination.

In addition to Inspector Pietruszka, several police officers and detectives are mentioned throughout the factual background, with roles relevant to different stages of the arrest, charging and investigation. For present purposes it is unnecessary to identify each officer, save for noting that no claim is brought against those officers. As mentioned, it is the conduct and intent of Inspector Pietruszka, at the various stages, that is relevant to the claims before the Court.

Amy Williams is the partner of Dorijan. Tony and Melissa Khawaga are associates of the plaintiff.

On the night of 21-22 June 2015, there was a party (also referred to as a “gathering”) at the premises of Mr Loyd Bandao in Blacktown (“the premises”). The party was attended by four males and two females. The “four males” were:

The two females that attended the gathering were:

In addition to the six persons that attended the premises for the party, reference is also made to two persons present in the premises: the father and sister of Mr Bandao although no party contended they were involved in the party or connected to the events of the evening.

The aggravated assaults took place, on the evening of the party, in a bathroom external to the premises, which was a small tiled room that featured a toilet and sink, which was accessible via a single doorway from the outside yard. The location of the assault was referred to interchangeably as “the bathroom”, “the toilet”, “the cubicle” and “the crime scene”. All four males were charged and arrested with respect to the aggravated assaults.

The accounts provided by Ms Tejada, MM, Mr Alcazar and the plaintiff, in the context of the investigation conducted by Inspector Pietruszka, were each before the Court and were the subject of controversy. I will return to those controversies within the context of the factual findings.

The relevant principles of law as to false imprisonment and malicious prosecution were recently set out by this Court in the judgment of Edwards v State of New South Wales [2021] NSWSC 181 at [7]-[43], [49]-[59], [65], [71]-[83]. I adopt those principles, which are set out below.

False imprisonment is the unlawful arrest or detaining of any person: Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714. A false imprisonment is an intentional, total and direct restraint on a person’s liberty. There is no requirement that the defendant intend to act unlawfully or to cause injury. In that regard, liability for the tort may be considered as strict liability: Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [140] (per Kirby J, in dissent but not on this principle).

Thus, a significant difference between false imprisonment and malicious prosecution is that with false imprisonment, if the detaining or arrest was unlawful, the tort is established. The intent of the person doing the detaining is not relevant. See Ruddock v Taylor at [140].

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

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

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

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

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

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

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

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

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

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

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

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

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

In these proceedings, there is no dispute about the first two elements, except that there is an important secondary issue as to how long Inspector Pietruszka remained the prosecutor, with the State contending the case was taken over by the Director of Public Prosecutions (“DPP”). Further, in these proceedings, issues arise as to the third and fourth elements.

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

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

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

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

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

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

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

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

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

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

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

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

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

While the cross-examination of Inspector Pietruszka often travelled beyond the pleaded and particularised case, the Court should, it was submitted by counsel for the State, hold the plaintiff strictly to his pleaded case.

As to the standard of proof, s 140(1) of the Evidence Act 1995 (NSW) states that the case must be proved on the balance of probabilities. However, under s 140(2), the Court is to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The allegations now made against Inspector Pietruszka are grave within the meaning of s 140(2) and of the utmost seriousness having regard to the statements of principle in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at 362 (per Dixon J).

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

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

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

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

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

Rule 15.4 states:

The effect of these rules, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given. However, the function of the pleadings and particulars thereof in the disposition of these proceedings will be discussed further below.

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

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

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

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

In this case, the plaintiff relies on the subjective aspect of absence of reasonable and probable cause. He asserts that, as at 1 July 2015, Inspector Pietruszka knew that there was not reasonable and probable cause to prosecute the plaintiff.

Counsel for the State contended “it is not open to the [p]laintiff to run a case that objectively there was no basis for [Inspector] Pietruszka to form a view that there was no proper case to prosecute”. To succeed on the objective element, having regard to the fact that the plaintiff advances a “subjective” case, the plaintiff must establish that, at the time of each active step, Inspector Pietruszka had not honestly formed the view that there was a proper case for prosecution.

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

The High Court continued at [93]:

The plaintiff must therefore prove that the sole or dominant purpose of Inspector Pietruszka at the time of the taking of each active step was some purpose other than the proper invocation of the criminal law.

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

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

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

Her Honour also noted (at [146]):

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

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

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

In this case, the circumstances include the role of the DPP once it assumed carriage of the prosecution. That directs attention to s 9 of the Director of Public Prosecutions Act 1986 (NSW) (“the DPP Act”), which states:

Section 10 provides for the Director to give notice when he or she takes over a matter under s 9 of the DPP Act.

The effect of s 9(4)(a) is to deem the DPP to be the prosecutor (not a prosecutor) in connection with the prosecution.

In written submissions, the plaintiff has taken the point that there is no evidence of the existence of a notice having been issued.

The plaintiff advanced the following submissions in reply as to the identity of the prosecutor:

Counsel for the State submitted that the evidence establishes that the Director in fact took over the prosecution by no later than 7 July 2015. The Court should infer, it was submitted, consistently with the presumption of regularity, that the DPP complied with his duties under s 10 of the DPP Act from the time he took over the prosecution. The Court does not need, it was contended, the notice to conclude that notice was given. This presumption of regularity is applicable to this content and permits the Court to presume that the DPP complied with all applicable procedures: see, example, Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; Hill v Woollahra Municipal Council [2003] NSWCA 106 at [51]-[52] (per Hodgson JA, with Ipp JA and Davies AJA agreeing at [62] and [63], respectively).

In the final disposition of these proceedings, it will be unnecessary to resolve the issue of when Inspector Pietruszka was no longer the prosecutor, given the conclusions I will reach as to maintenance of the prosecution. It is sufficient to observe at this juncture that it was common ground that Inspector Pietruszka remained the prosecutor until 7 July 2015.

The ASOC was lengthy with the pleadings and particulars extending over 15 pages, including several attached statements of particulars. Those statements are listed below:

In support of its application, the plaintiff filed closing written submissions dated 17 January 2020 (74 pages) and reply submissions dated 4 February 2020 (22 pages).

At the outset of closing written submission, the plaintiff accepted that “wrongful arrest” is not of itself a separate tort, but a necessary part of false imprisonment. An arrest involves a deprivation of liberty; if the arrest is unlawful the consequent deprivation of liberty is false imprisonment. Thus, there are two causes of action in issue, false imprisonment and malicious prosecution.

The claim in false imprisonment raises the issue of whether the arrest of the plaintiff, being an arrest without warrant, complied with the terms of s 99 of the LEPRA. The plaintiff acknowledged that if false imprisonment is established, it does not continue beyond the time at which the plaintiff was refused bail by a court, with the consequence that imprisonment continuing beyond that time becomes part of the claim for malicious prosecution.

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

It should be observed that the plaintiff particularised his claim with respect to (3) above as being: as at 1 July 2015 ,when the plaintiff was arrested, Inspector Pietruszka knew that he did not have reasonable and probable cause to arrest and charge the plaintiff for the offences as charged.

The plaintiff seeks the following relief:

As to the particulars of damages, the plaintiff pleaded the following (at para 5 of the ASOC):

During the course of closing submissions, the parties confirmed that an agreed chronology was before the Court. Following the closure of the parties respective cases, pursuant to directions of the Court, an amended and agreed statement of issues was received by the Court on 19 February 2020.

The parties agreement as to the issues in dispute joined was as follows:

In addition the above statement of issues with respect to quantum, was the following notation: “Note: The plaintiff has not filed a Statement of Particulars pursuant to UCPR 15.12”.

This summary provides a broad overview of the plaintiff’s case on malicious prosecution and false imprisonment. Particular elements of the submissions will be discussed during the course of this judgment.

It was common ground that Inspector Pietruszka initiated the prosecution of the plaintiff. The initiation occurred on 2 July 2015 at the time of charging. It did not occur prior to then at the time of arrest.

The plaintiff’s position is that Inspector Pietruszka was the prosecutor who continued and maintained the proceeding against the plaintiff. It is alleged that he was the prosecutor from the date of the plaintiff's arrest until the date that the charges against the plaintiff were withdrawn on 11 December 2015. The pleaded acts of maintenance or continuance were listed in the statement of particulars (see Annexure A).

In written submissions, the plaintiff advanced the following submissions:

Turning to the element of reasonable and probable cause, the plaintiff’s position is that as at 1 July 2015, when the plaintiff was arrested at Blacktown Railway Station, Inspector Pietruszka knew that he did not have reasonable and probable cause to arrest and charge the plaintiff for the offences as charged (see Annexure B).

The plaintiff advanced the following submissions in support of a finding of an absence of reasonable and probable cause:

The plaintiff contended that Inspector Pietruszka did not honestly belief there was a proper case for prosecution:

In reply submissions, whilst the plaintiff to a great extent repeated the submissions set out above, the following additional submissions were advanced as to the any contention advanced by the State with respect to the significance of the plaintiff withdrawing “Jenka” as an alibi witness, shortly after offering her as one, and the fact that the plaintiff placed himself in the house with Ms Tejada, as opposed to sitting with her on the grass, it was submitted:

The plaintiff contended that the malice of Inspector Pietruszka in initiating, maintaining and continuing the prosecution against the plaintiff is to be inferred from the following facts, matters and circumstances (see Annexure C).

The plaintiff’s submissions focused upon particular aspects of the investigation and evidence at the hearing, namely:

First, in support of its case as to malice, the plaintiff contended that Inspector Pietruszka made numerous misrepresentations in the ERISP with the plaintiff, in the Facts Sheet, in the interview on 2 July 2015 with Ms Tejada, and to the plaintiff’s barrister. Inspector Pietruszka gave evidence that they were mistakes. However, in light of quantity of “mistakes” made, it was contended, the Court would not accept them as genuine errors. The most significant misrepresentation, it was contended, was the “deliberate” lie in the ERISP of the plaintiff with respect to Ms Tejada’s statement, namely, his multiple representations to the plaintiff that Ms Tejada did not include reference to the plaintiff in her statement.

Secondly, as the further statement of Ms Tejada, the plaintiff’s contentions vis-à-vis malice were focused upon the manner in which Inspector Pietruszka approached the second interview with Ms Tejada (and were supported by reference to the ERISP of the plaintiff). An analysis of that material, it was contended, revealed:

The plaintiff also contended in written submissions that the malice of Inspector Pietruszka may be inferred by his “highly implausible evidence” given at the hearing. In support of that contention, the plaintiff extracted T484.4-T486.20, albeit without any analysis, save for stating that it was in contrast to Inspector Pietruszka’s “actual behaviour” in the interview. In light of that reliance, the relevant extract is summarised below.

In summary, T484.4-T486.20 is an extract of cross-examination in which Inspector Pietruszka is questioned about a series of topics in quick succession.

As to the contention that aspects of the ERISP of the plaintiff may be contrasted, the plaintiff, once again, simply extracted passages of the material relied upon, namely, Q102, Q114 and Q118, without any analysis, save for noting that Q118 appears to indicate that Inspector Pietruszka approved Q118 being asked:

As mentioned at the outset of this judgment, the plaintiff alleged wrongful arrest and false imprisonment. The plaintiff contended that the imprisonment of the plaintiff was unlawful because there was no valid power to arrest and, without a valid power to arrest, there was no valid power to detain the plaintiff.

The period of false imprisonment, it was submitted, ran from when the plaintiff was detained at the time of arrest at the train station to the time in which the plaintiff was refused bail by the Local Court of NSW (the following morning).

The plaintiff argued that the claim of false imprisonment comprised two grounds:

In support of the false imprisonment claim, the plaintiff advanced the following submissions:

The State contended that the plaintiff’s pleadings in the ASOC was deficient. It was contended that the deficiencies in the plaintiff’s pleadings created fundamental problems in their case. The State submitted that the plaintiff’s ASOC was affected by the following issues:

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

The State submitted that the effect of UCPR rr 15.3 and 15.4, particularly r 15.4, is that particulars of malice and any state of mind relating to absence of reasonable and probable cause must be given by the plaintiff.

The State noted that, whilst the cross-examination of Inspector Pietruszka often travelled beyond the pleaded and particularised case, the Court should (and must) hold the Plaintiff strictly to his pleaded case.

The State submitted the plaintiff’s particularisation of malice as deficient and lacking for the following reasons:

As to the particulars of absence of reasonable and probable cause, the State submitted the plaintiff’s pleadings were deficient for the following reasons:

The State engaged in detailed analysis of each of the plaintiff’s particulars in relation to maintenance or continuance. The State contended that the plaintiff did not assert that there was an absence of reasonable and probable cause at the time of any of those steps of maintenance or continuance. Examples of the State’s approach to analysing the plaintiff’s particulars are as follows:

As to the identity of the prosecutor, the State submitted that the DPP took carriage of the prosecution no later than 7 July 2015. The State contended that the Court should find the DPP to have been the sole prosecutor, and Inspector Pietruszka should not be found to be a prosecutor. The State contended this is the correct approach to the facts due to the following reasons.

The State submitted there was no basis for the plaintiff’s contention that the DPP was acting as Inspector Pietruszka’s agent. The State contended that the plaintiff has not identified evidence in support of that contention. It further contended that the plaintiff failed to identify the nature of the agency and scope of the agency arrangement alleged by the plaintiff. The State submitted that, as the plaintiff did not plead an agency arrangement, the Court should not receive that contention.

The State contended the plaintiff’s case as to the absence of reasonable and probable cause was pleaded as a subjective case rather than an objective case and an objective case should “not be received”. The State submitted that the plaintiff’s written submissions failed to particularise an absence of reasonable and probable cause. It was contended that an argument as to the absence of reasonable and probable cause could not be constructed by the plaintiff at the late stage of proceedings such as the closing written submissions.

The State contended the plaintiff’s pleaded case was solely that Inspector Pietruszka knew as at 1 July 2015 that there was no reasonable and probable cause to prosecute. The State contended that at that time, the information available to Inspector Pietruszka was capable of establishing a proper case to prosecute. As at 1 July 2015, the information available to Inspector Pietruszka was that he:

The State submitted that the plaintiff’s case lacks merit as it failed to establish that Inspector Pietruszka had a malicious purpose. It was contended that the plaintiff did not articulate and could not articulate any particular malicious purpose. The State submitted that Inspector Pietruszka did not need a malicious reason to prosecute the plaintiff as he had evidence from the victim that she was raped by four males, and there were only four males at the party, one of which was the plaintiff.

The State submitted that should the Court find that there was a malicious purpose (which they contend there was not), the plaintiff did not and could not establish that such malicious purpose was the sole or dominant purpose. It was contended that Inspector Pietruszka believed that the plaintiff was guilty of sexual assault. It was contended that the plaintiff failed to show that Inspector Pietruszka would not have charged and prosecuted on that basis alone.

The State submitted the plaintiff’s case is flawed due to deficiencies in their pleadings. The State contended that the plaintiff had not specified a malicious purpose or particularised a time at which the malicious purpose was held.

The State contended that the plaintiff’s case was insufficiently pleaded to establish that Inspector Pietruszka took active steps to maintain the prosecution against the plaintiff. In responding to the plaintiff’s particulars 22 to 25, the State contended that Inspector Pietruszka did not take active steps in the prosecution of the plaintiff. It was contended by the State, for example in response to particular 23, that the conduct of Inspector Pietruszka could not be considered as active steps taken to maintain the prosecution of the plaintiff when Inspector Pietruszka’s conduct was steps taken towards terminating the prosecution of the plaintiff:

It is convenient to address the factual background by reference to what was known to Inspector Pietruszka at various points in time from 22 June 2015 to 11 December 2015. This approach is consistent with the parties’ summaries of the relevant facts in their respective written submissions. Furthermore, this approach is appropriate in light of the nature of the plaintiff’s claims vis-à-vis malice and absence of reasonable and probable cause, which ultimately rises and falls on what Inspector Pietruszka was aware of at the relevant time in the manner earlier discussed in the section of this judgment dealing with the relevant principles.

As illuminated by the plaintiff’s statements of particulars and the parties’ respective submissions, several factual controversies arose. Throughout the following summary, I resolve those factual controversies, for the most part, in chronological order dealing with various aspects of the issues brought by the parties as to the torts.

Prior to turning to factual background, it is important to note, at this juncture, that after close observation of the respective witnesses, I consider the plaintiff and his father to be unreliable witnesses. Earlier in this judgment, the Court indicated its view as to the credit of the Inspector Pietruszka as a witness. I now turn to a summary of my findings with respect credit of the plaintiff’s witnesses and Inspector Pietruszka.

The State sought a finding that the plaintiff was not a reliable witness. For the following reasons, and in light of my observations made in the section of my judgment entitled “Factual Findings and Resolution of Intermediate Issues”, I accept that submission.

My overall impression of the plaintiff’s evidence was that he was often evasive and unresponsive. His credibility was significantly affected by circumstances where his father was required to be cautioned about giving signals or indications to his son whilst he was in the witness box.

Other aspects of the plaintiff’s evidence were simply implausible. One significant example was the plaintiff’s evidence about a Facebook Chat message, which read: “Come Yallah pussy’s gonna close”. The following exchange occurred in cross-examination:

The explanation that “pussy” meant a “house” was self-evidently prepared and not credible.

A further illustration was the plaintiff’s evidence as to who entered the toilet with him at Blacktown Police Station – Inspector Pietruszka or Constable Mahoney or both, with different past statements saying different things – was inherently implausible.

Another example of implausibility of the plaintiff’s evidence was the plaintiff’s insistence in evidence that his time in prison left him socially reclusive and depressed. Despite that, the plaintiff maintained in evidence that he was “ready, willing and able” to return to work upon his release from prison. The evidence is inconsistent; and it reflects a self-serving strategy of saying that which will assist the plaintiff without regard to the truth. The plaintiff’s evidence as to the effect of custody on his mental health is also contrary to his contemporaneous admissions: he told the psychologist at Parklea Correctional Centre that he was adjusting well to custody

Other aspects of the unreliability of the plaintiff’s evidence were as follows:

In light of those findings, where the plaintiff’s evidence is in conflict with other witness evidence of the State’s witnesses, I prefer the evidence of the State witnesses.

My observations regarding the conduct of the plaintiff in receiving assistance from his father during the course of his cross-examination applies with even greater force with respect to assessing the credibility of Sinisa. In any event, I do not consider Sinisa to be a reliable witness. He was significantly evasive to the point where the Court indicated that consideration would be given to issuing a direction.

The plaintiff made a strong attack upon the evidence of Inspector Pietruszka. It was contended that his evidence was incoherent at times or contained contradictions such that overall the Court should find his evidence was false, particularly in relation to the interview of Ms Tejada. It was submitted that Inspector Pietruszka was a “cynical and manipulative man”.

I do not accept that Inspector Pietruszka’s evidence was dishonest or unreliable or that ultimately he was a witness lacking in credit. That conclusion needs to be seen in the context of a number of concessions, made by him, as to errors made by Inspector Pietruszka during his investigation.

My overall impression of the evidence of Inspector Pietruszka was that he presented credibly under rigorous cross-examination. He made appropriate concessions even accepting serious error, such as his acceptance of what he said in the ERISP of the plaintiff about the first statement of Ms Tejada. When presented with the error, he did not challenge it, he indicated “I don’t disagree sir” in answer to a question.

Again, I will make further observations (directly or indirectly) as to Inspector Pietruszka’s evidence in the course of making findings of fact below.

I do not consider that Dorijan, was an unreliable witness. However, I accept the submission of the State that the weight that can be afforded his evidence was affected, to a degree, by the absence of documents which were the legal foundations as to the views he expressed as to renumeration structure, noting that his evidence related to the plaintiff’s employment prospects.

Similar conclusions may be reached with respect to the credibility of Amy Williams, Tony Khawaga and Melissa Khawaga. Each of the associates of the plaintiff gave evidence as to their perceptions of the plaintiff’s personality. The weight of that evidence, as with Dorijan’s evidence as to that matter, is effected by the fact that none of those persons were the plaintiff or experts. The weight of the evidence is diminished accordingly.

I now return to the fact background and resolution of intermediate issues, which as mentioned above, will be dealt with for the most part in chronological order.

On 22 June 2015, at about 5am, Inspector Pietruszka received a call from Detective Elyse Houldin. Detective Houldin had been a Detective since about 2013. Inspector Pietruszka was of the view that Detective Houldin was a “competent and professional” detective. Inspector Pietruszka was aware that she had been “Police Officer of the Year” at the Blacktown Local Area Command in the 2014 year. Inspector Pietruszka had worked with Detective Houldin on a number of investigations, including sexual assaults where she was the Officer-In-Charge. He thought Detective Houldin was an “exceptional detective”.

During the call on 22 June 2015, Detective Houldin said to Inspector Pietruszka words to the following effect:

It was by that conversation that Inspector Pietruszka was first advised of the occurrence of a gang-rape in Blacktown, and was informed that, at that stage, Detective Houldin understood there to be “four” offenders.

In his statement of dated 20 July 2018 (“the First Inspector Pietruszka Statement”), Inspector Pietruszka gave evidence that he formed the view that the conduct that Detective Houldin referred to “might involve an aggravated sexual assault, which is a serious offence”.

Shortly after the call from Detective Houldin, Inspector Pietruszka arrived at Blacktown Police Station. Upon arrival, he was briefed by a combination of detectives and police officers:

In addition the above briefings, Inspector Pietruszka viewed photographs of the scene, reviewed a copy of Constable Bayzidi’s notebook and viewed exhibits that had been obtained from the crime scene. The photographs viewed were not annexed to his statement. The following explanation was provided for their omission:

As a result of those briefings, together with his review of Constable Bayzidi’s notebook, Inspector Pietruszka obtained the following information as at the morning of 22 June 2015:

As mentioned above, one of the documents that Inspector Pietruszka reviewed on the morning of 22 June 2015 was the written statement of Ms Tejada. An extract of her account appears below:

As to the information available to Inspector Pietruszka, after reading that statement, the following findings may be made:

As to that statement, the plaintiff contended that “[f]rom her account, it was clear that the plaintiff had been with her while the victim was in the toilet”. That submission was supported with reference to para 10 of Ms Tejada’s statement (extracted above).

Whilst it is true that Ms Tejada made no statement that the plaintiff left her to go to the bathroom, that omission, in and of itself, does not sustain a conclusion that Inspector Pietruszka subsequently acted without reasonable or probable cause, nor does it support an inference that he acted with malice in initiating, maintaining or continuing the prosecution against the plaintiff. The reasons for that conclusion are as follows:

Later on the morning of 22 June 2015, Inspector Pietruszka attended MM’s address with Detective Singh and carried out an electronically recorded conversation with MM (“the first ERISP of MM”). The interview commenced at approximately 7.40am (a completion time was not recorded). A transcript of the first ERISP of MM (10 pages) was before the Court.

Following some preliminary questions as to name and location, Inspector Pietruszka asked MM to “tell us please what, what happened this morning?”. MM said the following, inter alia, in reply:

By the next question, Inspector Pietruszka sought clarification and expansion of MM’s answer:

MM provided the following response:

Once again, Inspector Pietruszka sought further clarification. He asked, “when you say fondling and fingers, were you at all penetrated with fingers”. To which MM said, “Yes, I was”.

Following that clarification, Inspector Pietruszka asked MM a series of questions with respect to what happened next. That exchanged is extracted below (with questions italicised for the purpose of distinguishing from answers):

The next series of questions concerned MM’s identification of “the four people”. MM identified three males by name, namely, “Lloyd” (sic), “BJ” and “James”. As to the fourth person, she was unable to provide a name because he was unfamiliar to her: “I don’t know one of them at all”.

Returning to the unidentified male, Inspector Pietruszka asked further questions to obtain information as to his identity from MM. That exchange is extracted below (with questions italicised, once again, for the purpose of distinguishing from answers):

Turning to the order at which the four males entered the bathroom. MM said that “Lloyd [sic] and BJ” were the first to enter the bathroom. In answer to the question “[h]ow long were they there… before they were joined by one or the other two”, MM said: “Not long”.

During the interview, Inspector Pietruszka asked whether there was a reason for MM “struggling to remember” how the assault started and finished. MM said: “I, I mean, I was also affected by alcohol and um, but that was, that was just it, I was just… drunk”.

Later in the interview, when discussing who of the men “penetrated” MM, Inspector Pietruszka asked if MM remembered what “the other two were doing” when that act occurred (being a reference to “James” and the unidentified fourth male). MM said:

The interview ended with Inspector Pietruszka informing MM of the next steps in the investigation. He said:

In his first statement, Inspector Pietruszka gave the following evidence as to his preliminary views following the first ERISP of MM:

Later on the afternoon of 22 June 2015, MM attended Blacktown Police Station and gave a second electronically recorded statement (“the second ERISP of MM”). A copy of that statement, together with the transcript of the second ERISP of MM (33 pages) was before the Court.

The interview was conducted by Inspector Pietruszka with Detective Megan Oxley. It commenced at approximately 11.20am and finished at 12.21pm.

At the outset of the interview, Inspector Pietruszka asked MM if she was “comfortable to speak with me… or would [she] prefer to speak with a female?”. MM said she “would prefer a female”. As such, in accommodating that request, Inspector Pietruszka was only present for the first half of the interview. At around the half way mark, Inspector Pietruszka exited the interview and Detective Senior Constable Natalie Vrana (“DSC Vrana”) entered the interview room. Detective Oxley continued the balance interview with DSC Vrana, in absence of Inspector Pietruszka. Inspector Pietruszka listened to the balance immediately after the statement was completed.

The relevant aspects of the second ERISP of MM relate to the victim’s account of the assault. That subject matter was covered primarily by Detective Oxley in the absence of Inspector Pietruszka, as such, it is unnecessary to relay each question, save for the establishing context. There is no contention that either Detective Oxley or DSC Vrana acted improperly in her conduct of the interview.

During the second ERISP of MM, MM provided the following information and accounts of her assault to Detective Oxley:

There were factual controversies as to the conclusions that were reasonably available to Inspector Pietruszka, as at the time of arrest and charging the plaintiff, on the face of the victim’s account, which comprised of the first and second ERISP of MM (at that stage). The two primary contentions concerned whether, by that account, MM had either expressly or impliedly stated that all four males “took turns” and/or participated in the assault she described. As well as the related considerations as to the significance of MM’s use of the pronoun “they” and the qualifications MM provided throughout her account. Those controversies are related to the consideration of reasonable and probable cause and false imprisonment and will be addressed in turn.

The plaintiff submitted that upon a review of both the first and second ERISP of MM, “it is clear that, when asked to attribute acts to individuals, she could not say that the fourth man had done anything to her”. Whilst it was conceded that MM also spoke of activity that occurred that did not involve touching, which, it was accepted, could be interpreted “as preparation for engagement in sexual activity, that is, the men having their penises out and touching them”. It was submitted that in relation to the “the fourth person she was not sure of that”, namely, she was not sure whether or not he partook in that activity.

As to the use of “they”, the plaintiff submitted that MM tended to use the word “they” loosely (though understandably) in referring to actions of any member of the group, even where obviously it could have been the action of only one. It was submitted, the example of MM’s initial account that “someone… pulled my pants down” in the first ERISP of MM, when contrasted with her repetition of the incident in the second ERISP of MM, “like I wasn’t even conscious that, you know, they had pulled my pants down or anything”, is one example where “they” is being used as a generic pronoun as opposed to indicating a multiple persons.

Putting aside considerations of the other evidence available or not available to Inspector Pietruszka at the time of arrest, which I will return to below, the plaintiff contended that “the victim’s account in relation specifically to the fourth person was that he was present, but not that he did anything”.

The State contended that account of MM, in particular the second ERISP of MM, was of significance. Reliance was placed on six particular passages, which, it was contended, “make it clear that the witness was saying that the four males at the party were in the toilet and that all of them ‘took turns’”. Those passages, with emphasis by the State, are extracted below:

Further, as to MM’s consistent use of “they”, the State contended that:

Whilst I ultimately find that the contents of the first and second ERISP of MM, when considered in their entirety, provide a reasonable basis for further investigation into the allegation that “four males” participated in the assaults, for the reasons that follow, I do not accept the simplified analysis adopted by the State with respect to the second ERISP of MM:

It may also be noted, whilst I accept that contention by the plaintiff that several aspects of MM’s account make specific mention of the conduct of individual males, namely, “Loyd” and “BJ”, and at times the usage of pronoun, particularly when considered in context, supports an inference that at times MM was using the word generically. That finding, however, does not apply globally to MM’s use of “they”. I accept that at times, the use of “they” was consistent with the victim having been subjected to a group assault and the use of “they” represents an inability for MM to differentiate between each male, but believed “they” each were present and participated to some extent. That finding is supported by the below extract.

Whilst I have found that the passages relied upon by the State do not support the specific inference sought to be drawn, I accept that other aspects of the second ERISP of MM, in particular the victim’s use of “they”, when considered in context, specifically address activity undertaken by the group, which, in my view, support a finding that the victim’s account could be reasonably understood as suggesting that all four males participated in the assault, namely:

As to “qualifications” within the accounts of MM, the plaintiff contended that MM’s account was subject to some significant qualifications:

To the extent that the plaintiff’s submissions with respect to the qualifications provided by MM should have the effect of reducing the weight put on that evidence, namely, it could not meet the requisite standard of proof at trial, that is not a consideration for the Court to engage in with respect to the present proceedings. Had the matter proceeded to trial, that would have been a matter for the jury to consider. For present purposes, the issue is whether, on the basis of all the material before Inspector Pietruszka, he formed the suspicion (and reasonably formed the suspicion) that the plaintiff had been one of the victim’s assailants. There was ample material – both in what the victim told Inspector Pietruszka and the other accounts that Inspector Pietruszka received from police officers – to support the formation of that suspicion.

It is true that MM’s account was qualified and she admitted that her memory was vague. However, when considered in its entirety, her account suggested four men were present for the majority of the time and that all four men participated in the assault at some stage. As to the extent of participation, whether it be simply watching, masturbating/touching and/or penetrating her, that remained unclear on her account. However, the accounts of MM do not exclude the possibility that the fourth male had a role, beyond watching, in those acts other than penile penetration of the victim’s vagina. Nor did that qualification or some sense of vagueness render the subsequent suspicion formed by Inspector Pietruszka unreasonable nor sustain a conclusion that any continued investigation into role played by the fourth person lacked reasonable and probable cause, particularly, when considered in the light of other evidence available to Inspector Pietruszka at the time of arrest, namely, that only four males were present at the gathering including the plaintiff and the physical description provided by MM, appeared to match that of the plaintiff. Further, the fact a fourth person is said to have been present for part of the assault would remain a relevant factor for investigators.

A related issue raised by the plaintiff was the prospect of digital penetration of MM simpliciter and, in the context of “crowding issues” in the toilet, if there had been four assailants (and difficulties in all four males participating in the assault).

With respect to the cross-examination of Inspector Pietruszka the plaintiff placed particular reliance upon answers given at T480. I will refer to a slightly wider extract than that relied upon by the plaintiff as follows (T479.41-T480):

The italicised answer given by Inspector Pietruszka, when seen in the context of the questioning, relates to DNA evidence. Inspector Pietruszka confirmed that he did not believe the plaintiff’s DNA would “turn up” from DNA testing because he did not believe the plaintiff had penile vaginal intercourse with MM and his experience was that digital penetration would not result in a positive DNA result. The lack of certainty he referred to related to that circumstance and not because he had formed the view that he could properly exclude on the evidence that the plaintiff had digitally penetrated MM as confirmed in his subsequent answers, which revert back, in large measure, to MM’s account (consistent with my earlier discussion of her account).

Further examination of parts of Inspector Pietruszka’s cross-examination confirm this analysis:

I interpose to note that I have earlier dealt with MM’s use of the word “they”.

Returning to Inspector Pietruszka’s evidence in cross-examination:

I will return to that statement of Mr Alcazar but at this juncture I note the following evidence of Inspector Pietruszka:

As to the charges, Inspector Pietruszka gave the following evidence:

When his evidence as to the two charges are read together, and some allowance is made for confusion created by the second question in the extract (by referring to “sexual intercourse with the victim”) and the answer given to that question is taken into account, it is tolerably clear that, when Inspector Pietruszka excluded “sexual intercourse” from the first charge, he was not referring to the extended definition of that expression in s 61HA of the Crimes Act.

Inspector Pietruszka gave evidence in re-examination that he believed that it was not possible, on the evidence available to him at the time, to exclude that the plaintiff had digitally penetrated MM notwithstanding him standing in the bathroom behind two assailants.

In re-examination, Inspector Pietruszka then gave the following evidence (at T614):

A further relevant extract of re-examination, relied upon by the State, is extracted below:

In reply submissions, the plaintiff contended that extracts of re-examination relied upon by the State, as extracted above, do not advance the State’s argument as to Inspector Pietruszka’s belief that the plaintiff had digitally penetrated the victim. It was submitted:

It follows from my earlier discussion that I do not accept the plaintiff’s submissions as to the evidence of Inspector Pietruszka on re-examination. I do not consider that there is any inconsistency between his evidence in cross-examination and re-examination. Inspector Pietruszka’s evidence does not demonstrate that he did not hold an honestly held belief that there was a proper basis for the prosecution particularly in relation to digital penetration.

Inspector Pietruszka’s answer at T480 does not indicate a lack of certainty in the plaintiff digitally penetrating MM (or “grabbing” her vagina) or that the plaintiff had not been part of a group of four persons engaged in that those acts which were contrary to the provisions of s 61JA (and s 61M) of the Crimes Act. His evidence in re-examination was not, in that context, contradictory at all. Inspector Pietruszka’s evidence was consistently that he could not properly exclude that the plaintiff had engaged in the acts charged so far as they involved digital penetration of MM (falling within the wider definition of “sexual intercourse” given by s 61HA) in company with another person or person (as discussed in FP v R [2012] NSWCCA 182). In my view, on a fair reading of his evidence in cross-examination and re-examination, Inspector Pietruszka had formed the view that the plaintiff had engaged in such conduct (or could not be excluded as having been so engaged). This latter evidence in re-examination did not represent a retreat from his evidence that the evidence disclosed that four persons, one being the plaintiff, had engaged in digital penetration (and other conduct attracting the provisions of s 61M of the Crimes Act).

The State submitted that Inspector Pietruszka’s view that there had been digital penetration was consistent with what Detective Houldin had told him, namely, that “[a] victim has been gang-raped by four persons”. I accept that submission.

The plaintiff also contended that Inspector Pietruszka’s rationale of “they” and “all” being a reference to all four males was “a fraud, created to defend what he must recognise as indefensible”. It was submitted that on a consideration of his evidence during cross-examination, it is clear, that “he did not really believe it”. Notwithstanding his appropriate concessions that at times MM made specific reference to individuals which did not include the plaintiff, it was submitted that he maintained a “bizarre” and improbable position that the victim’s references to “they” and “all” included the plaintiff.

The plaintiff described the above evidence as “an invention designed to provide a desperate defence for the indefensible”. It was contended that Inspector Pietruszka did not subjectively have reasonable and probable cause.

As to the plaintiff’s contentions vis-à-vis the subjective account of Inspector Pietruszka’s interpretation of the account of MM at the hearing, in my view, they are not supported by a fair reading of his evidence. My observation of Inspector Pietruszka was that he was a cooperative witness, who, notwithstanding some brief moments of confusion and/or frustration, made concessions where appropriate and endeavoured to answer all questions put to him. His answers support a conclusion that his view, having read and/or watched the accounts of the victim, was that the four males present at the party each participated in the sexual assault of MM to varying degrees. Thus, I do not find that subjective view expressed by Inspector Pietruszka, in particular with respect to his interpretation of MM’s use of “they” and/or “all”, to be glaringly improbable. That finding broadly confirms with my earlier analysis of MM’s used of the pronoun “they”.

I will return to my consideration of reasonable and probable cause at the completion of the factual background, at a separate juncture.

Between 22 June and 1 July 2015, Inspector Pietruszka viewed photos of the crime scene which had been uploaded to the police “ViewIMS” system. The photographs viewed were annexed to his first statement and included, inter alia, photographs of the bathroom (namely, the area in which the assault occurred), the toilet, the bin (with clothing and hair extensions in it), the bra strap in situ under the bathroom door, the outdoor area and the grass area. Inspector Pietruszka considered the photographs were consistent with MM’s version of events.

On 28 June 2015, Inspector Pietruszka received a written statement from Constable Boyd, which he considered to be consistent the briefing he was earlier provided by Constable Boyd on 22 June 2015.

Constable Boyd’s statement recounted a conversation that he had with the victim at around 11pm on the night of the sexual assault. During that conversation:

At this juncture, it may be noted, this is the first record of MM naming the fourth male. In both the first and second ERISP of MM, she did not identify the fourth person by name. However, in all three records, the fourth male was described as “Caucasian” and as having either “red” or “orange” hair.

On or around 30 June 2015, Inspector Pietruszka was provided with a copy of a photograph of the plaintiff. The photograph was taken from a social media account of the plaintiff. In his first statement, Inspector Pietruszka stated that he “observed that the photograph appeared to match the description given by the victim of the fourth male”. As earlier mentioned, prior to taking this step, Inspector Pietruszka was aware of the names of four men that had attended the gathering on 21 June 2015, having read the statement of Ms Tejada.

Upon formulating the view that the identity of the fourth male was the plaintiff, Inspector Pietruszka obtained a copy of the plaintiff’s criminal history. By his first statement, Inspector Pietruszka said that he attached “[a] copy of a document containing that history”. The copy of the criminal history attached to his statement is dated 12 January 2017 and includes reference to the aggravated charges subsequently withdrawn. As such, it is evident that the record is not the same that Inspector Pietruszka accessed on or around 30 June 2015. Inspector Pietruszka said that “I observed that [the plaintiff] had a previous warrant arrest, but I could not find an offence that was linked to that warrant”. This appears consistent with the record attached to the statement, albeit retrieved later in time, which included reference to a “warrant executed” on 16 December 2014.

In conducting a further search on the police COPS system, Inspector Pietruszka observed that the plaintiff had previously been listed as the victim for an offence. The relevant Officer-In-Charge in relation to that offence was Detective Sergeant Condon.

On 30 June 2015, Inspector Pietruszka called Detective Sergeant Condon. During that call, Detective Sergeant Condon said words to the following effect:

Between 22 June and 1 July 2015, detectives from Blacktown Police Station arrested four males in connection with the sexual assault of MM, namely:

Both Mr Bruce and Mr Bandao declined to provide a statement and/or participate in an electronically recorded interview. Mr Alcazar agreed to participate in an ERISP on the date of his arrest.

By his first statement, Inspector Pietruszka said that he listened to the ERISP of Mr Alcazar before the evening of 1 July 2015 (namely, prior to the arrest of the plaintiff). A copy of that ERISP was annexed to his statement and before the Court.

As it was information available to Inspector Pietruszka before the arrest of the plaintiff, as derived from the ERISP of Mr Alkazar, a summary of the relevant passages follows.

In the course of his ERISP, Mr Alcazar:

At 11.30pm on 1 July 2015, Inspector Pietruszka arrested the plaintiff. I will return to a summary of that arrest following a consideration of the factual controversies concerning the account of Mr Alcazar and, subsequently, whether such evidence impacted upon Inspector Pietruszka’s perception of existence of reasonable and probable cause to arrest and maintain proceedings against the plaintiff.

The ERISP of Mr Alcazar attracted controversy as, beyond the accounts of MM (earlier set out), his was the only other account of who was inside the toilet. In particular, the plaintiff placed emphasis on the fact that at no stage during the account of Mr Alcazar does Mr Alcazar say what happened in the toilet. Hence, it was contended that “any case to this point relied entirely on the accounts of the victim as to the activity that occurred”. I now turn to the submissions of the parties with respect to significance of the account of Mr Alcazar to the arguments concerning reasonable and probable cause.

The plaintiff contended that Mr Alcazar’s account did not implicate the plaintiff, and to some extent undermined MM’s account. Reference was made to the following aspects of the ERISP of Mr Alcazar:

On the basis that Mr Alcazar’s account placed the plaintiff, not only at the party, but in the toilet, the State contended that the Court would reject the contention that Mr Alcazar’s account weakened the victim’s account. For the reasons that follow, I accept that submission.

Each aspect of the evidence with respect to the investigation into the aggravated assaults, for the purposes of the torts before the Court, must be considered through the lens of what was known to Inspector Pietruszka at the relevant time; in particular, that assessment is not to be done in isolation, nor is it assisted by relying upon extracts of material devoid of context. Whether or not Inspector Pietruszka’s formation of a suspicion that the plaintiff had committed a sexual assault on the victim was reasonable must be assessed in light of the totality of what was known to him.

By 1 July 2015, Inspector Pietruszka had formed the view that the plaintiff was one of a group of four males that had sexually assaulted the victim. The material available to Inspector Pietruszka by that time, immediately prior to arresting the plaintiff, was relevantly as follows:

(For completeness, it may also be noted, that Inspector Pietruszka, at that stage, had also obtained the result of a COPS search with respect to the plaintiff as well as additional information about plaintiff, with respect to an unrelated matter, via a conversation with Detective Sergeant Condon).

From reviewing that material, Inspector Pietruszka had knowledge of the following:

Inspector Pietruszka stated he had considered the aforementioned material before arresting the plaintiff and, based upon the same, had formed the view that the plaintiff was one of the four males involved in the incident about which MM complained on 22 June 2015, as at 1 July 2015, Inspector Pietruszka had satisfied himself that it was necessary to arrest the plaintiff.

On that basis (and upon the basis of the material referred to above), in his first statement, Inspector Pietruszka stated that the level of satisfaction was further informed by the following matters:

I will return to my finding in that respect, in the conclusions section of this judgment.

The Court has before it two accounts as to what occurred at the time of the arrest of the plaintiff, namely, the evidence of Inspector Pietruszka and the evidence of the plaintiff. As earlier mentioned, both witnesses were required for cross-examination. For reasons that I have earlier set out (and supplemented by my observations below), I accept the account provided by Inspector Pietruszka and, save for the presence of corroborating evidence, have placed little weight upon the evidence of the plaintiff, in this respect, whom I have found not to be a witness of credit.

On 1 July 2015, at approximately 11.30pm, Inspector Pietruszka attended Blacktown Train Station, where he saw the plaintiff. Inspector Pietruszka, who was wearing a suit, approached the plaintiff and presented his police identification. There was then a conversation to the following effect:

Beyond that conversation, Inspector Pietruszka also recalled the plaintiff said: “I have an alibi. I will tell you everything”.

After announcing the arrest of plaintiff, the following steps were taken by Inspector Pietruszka (all of which occurred prior to the custody manager's bail decision):

I will review in more detail those steps below.

Inspector Pietruszka provided an account of the search of the plaintiff in his first statement, which is extracted below:

In the second evidentiary statement of Inspector Pietruszka dated 12 December 2018 (“the second statement of Inspector Pietruszka”), Inspector Pietruszka provided further information:

Inspector Pietruszka, together with Detective Mahoney, conveyed the plaintiff on foot to Blacktown Police Station. During that walk, Inspector Pietruszka had minimal conversation with the plaintiff. In his first statement, Inspector Pietruszka recalled that the extent of any conversation had was reflected in answers 8-13 of the ERISP of plaintiff dated 2 July 2015 (set out below).

Whilst walking back to the police station, Inspector Pietruszka did not question the plaintiff about the sexual assault. Rather, the plaintiff volunteered to Inspector Pietruszka that he had been on the grass helping Ms Tejada (T436:8-12). During cross-examination he rejected the suggestion that the plaintiff said: “I am innocent, I have nothing to hide” (T437.27). During cross-examination, the fact of that statement being said was never put to the plaintiff, the plaintiff did, however, accept that he had said to Inspector Pietruszka words to the effect that “I will tell you everything”. The focus of the cross-examination, with respect to the conversation between the train station and the police station, was whether the conversation was instigated by Inspector Pietruszka’s questions or whether the plaintiff volunteered information. On balance, I consider Inspector Pietruszka’s account of the conversation may be accepted. I will return to a more concentrated consideration of the plaintiff’s account, which supports that finding, below.

They arrived at the police station at approximately 12.01am. At the police station, Inspector Pietruszka walked the plaintiff to the charge room and placed him in the cell. Inspector Pietruszka then provided the plaintiff’s details to the custody manager, Sergeant Mark Kneipp. Sergeant Kneipp accepted the plaintiff into custody at approximately 12.19am on 2 July 2019.

At 12.21am, Sergeant Kneipp read the plaintiff the information contained in a form entitled: “Caution and Summary of Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002”. The form set out the plaintiff’s rights whilst he is detained in police custody. A copy was provided to the plaintiff. The form provides for the person in custody to sign as a means of confirming they understand the information that has been read to them. The plaintiff refused to sign. Sergeant Kneipp recorded that the plaintiff said: “I don’t wish to sign now”. Sergeant Kneipp executed the form at 12.34am.

Between 12.45am and 1.22am, the plaintiff spoke to his mother by telephone.

At approximately 12.52am, Inspector Pietruszka led the plaintiff’s father to the charge room and, as mentioned above, gave the plaintiff and his father time to speak.

While at the police station, the plaintiff indicated that he wished to speak to a lawyer. At 1.22am, the plaintiff’s family contacted a solicitor, Mr Joseph Nashed, on behalf of the plaintiff.

The account of the plaintiff consists of his statement dated 15 July 2018 (Ex 1) and his evidence at the hearing.

In written submissions, emphasis was placed upon the account of the plaintiff, in particular, his evidence as to the absence of a caution as fundamental to the tort of false imprisonment. During the course of oral submissions a correction was also made as the plaintiff’s characterisation of the significance of the absence of a caution at the time of arrest, in written submissions, upon the validity of the arrest. Senior counsel submitted:

Thus, the factual controversies with respect to the conversations had between Inspector Pietruszka and the plaintiff, together with his conduct at the time of arrest, as recounted by the plaintiff, are relied upon primarily in support of malice. I now turn to summary of the plaintiff’s account.

Turning first to the time of the arrest, the plaintiff provided the following account of Inspector Pietruszka’s conversation and conduct:

During cross-examination, the plaintiff provided the following evidence about the conversations at the train station:

As to the conversation that occurred whilst he was conveyed to the police station, the plaintiff provided the following evidence:

As to why he did not “complain” when given the opportunity at the police station, he gave the following answers:

As to the conversation that occurred prior to the ERISP, the plaintiff gave the following account:

During the course of cross-examination the plaintiff, in addition to denying he was cautioned at the time of arrest, he denied:

Those passages served to confirm my earlier observation as to the plaintiff’s credit, in particular, having considered the evidence of the plaintiff, including my observations of his demeanour at the hearing, I do not accept the account of the plaintiff with respect to his arrest and events prior to him being charged. My reasons for the finding, in addition to my credit findings set out earlier in this judgment, are as follows:

Early on the morning of 2 July 2015, Inspector Pietruszka conducted a search of the plaintiff’s phone.

He obtained a Facebook message sent from Mr Bandao to the plaintiff on the night of the sexual assault. The message read: “Come Yallah pussys gonna close”. A copy of that message and other message obtained from the plaintiff’s phone, including “Facebook chats” with “Trish Tejada”, “Jenka Bandao” and “Brad Harvey” were annexed to his statement.

The Facebook chat between “Brad Harvey” and the plaintiff included, inter alia, the following messages sent to the plaintiff: “Ok my little rapist Hahahahaha” and “What did they say now? They charge u with anything?”.

As the contents of those messages and chats were put to the plaintiff during his ERISP (set out below), I accept that Inspector Pietruszka was abreast of the content of the Facebook chat messages prior to conducting the interview and, it follows, prior to charging the plaintiff.

At approximately 1.30am, Inspector Pietruszka conducted an ERISP with the plaintiff. The ERISP continued until 2.09am. Inspector Pietruszka decided to conduct an ERISP after the plaintiff said words to the effect that he wished to hear the allegations against him, and Inspector Pietruszka decided that was appropriately done in the context of an electronically recorded interview. In his second statement, Inspector Pietruszka denied the contention that he “insisted” the plaintiff take part in the ERISP. A transcript of the ERISP of the plaintiff (20 pages) was produced.

During cross-examination, Inspector Pietruszka gave the following explanation for why he considered an ERISP to be appropriate:

The course taken was, in my view, both available and reasonable.

I now turn to a summary of the ERISP of the plaintiff, which was before the Court.

The ERISP of the plaintiff was conducted by Inspector Pietruszka, together with Detective Mahony. At the outset of the interview, it may be noted, that the plaintiff permitted the detectives to call him “Tino”.

Preliminary matters were dealt with at the start of the interview, as follows:

Following those preliminary matters, Inspector Pietruszka put the allegations against the plaintiff to him. Whilst the plaintiff confirmed that he understood the allegation put, he offered no comment (see Q38-Q59). The following aspects of that series of questions were the subject of controversy, which will be returned to below:

By his second statement, Inspector Pietruszka denied that he “attempted to trick or coerce the Plaintiff to give answers to questions that he had earlier indicated that he did not wish to answer”. He said: “I endeavoured during the interview to explain the allegations and circumstances of the offences”.

At Q59-Q70, Inspector Pietruszka asked the following questions:

Next, Inspector Pietruszka told the plaintiff that Ms Tejada did not include him in her statement (see Q72-Q76):

Next, the plaintiff turned to identify two other people who could support his alibi: Mr Bandao’s father and sister, respectively. The plaintiff said that they either saw him “taking care of” or “helping” Ms Tejada (Q77-Q85). As to the location of his assistance that was observed, the plaintiff said “This was all in the house” and not on the grass (A86). Upon Inspector Pietruszka confirming that he would “speak with them”, the plaintiff told him to speak with Ms Tejada and Mr Bandao’s father but “not the sister don’t worry” (A88).

Due to the inconsistency of the location where Ms Tejada was getting sick, when considered against her own account of being moved from the bathroom to the grass, Inspector Pietruszka repeated that allegation and emphasised that “she is saying she is somewhere different to where you are saying you were” (Q89-92). Whilst the plaintiff said he understood the allegation and the clarification therein, he did not provide further comment and gave “no audible response”.

At Q96, Inspector Pietruszka accepted that the plaintiff had “provided… alibi which [he] asked questions about”. He then offered the plaintiff the opportunity to either “finish the interview” or continue. If the latter was nominated, Inspector Pietruszka advised that “you can comment on the allegations you can say if you were there, you can provide any version you like right now I’m giving you the opportunity to speak freely”. The plaintiff answered that question with a request: “Can you ask Loyd’s dad to agree I was in the house taking care of Trisha he saw me”.

From Q97-Q103, Inspector Pietruszka pressed the plaintiff further about the consistency of this alibi and the significance of providing an indication as to “when this was occurring”. The plaintiff was consistently recorded as providing “no audible response”. Save for the following answers at Q102-104:

At that juncture Inspector Pietruszka repeated that he had already spoken with Ms Tejada: “We already have, I told you that it doesn’t mention you” (Q105).

The next series of questions concerned “some Facebook chat” and the plaintiff’s knowledge of MM’s assault in the bathroom. At Q107-Q110:

At Q111, Inspector Pietruszka returned to the plaintiff’s comment at the Blacktown Police Station:

At Q112-113, Inspector Pietruszka turned to two questions about Mr Alcazar:

For completeness, as earlier mentioned, at the end of the interview Sergeant Kneipp, as an officer independent of the investigation, asked the plaintiff a number of questions. The exchange included the following:

In Inspector Pietruszka’s first statement, he identified a “number of things said (or not said)” by the plaintiff that were of “particular importance to my subsequent decision to charge [the plaintiff]” (at para 44). That passage is extracted below:

It was Inspector Pietruszka’s perception during the interview that the plaintiff’s demeanour and approach to answering questions “were consistent with a person who had been involved in the offence”. He further noted: “When presented with facts, information and assertions, he refused to comment. This was, in my experience, unusual and aroused my suspicions”. At the completion, the interview did not cause Inspector Pietruszka to change his “suspicion as to [the plaintiff’s] involvement in the offence”.

During the course of oral submissions, senior counsel for the plaintiff submitted that plaintiff’s case as to wrongful arrest relied primarily upon the evidence of Inspector Pietruszka and the objective evidence, and did not depend upon the plaintiff’s account of what was said and/or done at the time of arrest. As to the unlawful nature of the arrest, during closing submissions, the plaintiff crystallised the two bases of its case vis-à-vis unlawful arrest, as follows:

It was conceded by the plaintiff, if the Court were to find the arrest to be valid, it follows, there can be no false imprisonment.

Senior Counsel submitted that “arrest” commences with an announcement and continues with the holding of the person. It remains justified “only for so long as the suspicion based on reasonable grounds lasts”. Hence, the significance of the controversy vis-à-vis Inspector Pietruszka’s state of mind at the time of arrest and immediately prior to charging the plaintiff.

Upon consideration of particular questions asked by Inspector Pietruszka’s during the ERISP of the plaintiff, together with his evidence at the hearing, it was contended that the Court may infer that Inspector Pietruszka did not have the requisite state of mind at the time of arrest, thereby, rendering the arrest unlawful. A summary of the submissions advanced by the plaintiff, in that respect, follows:

As to the contentions vis-à-vis Q66, in oral submissions, counsel for the State submitted:

For the reasons that follow, I do not accept the plaintiff’s contention as to Inspector Pietruszka’s state of mind prior to conducting the ERISP (namely, at the time of arrest) and immediately following the ERISP (namely, at the time of charging the plaintiff):

In reaching that conclusion, I have also had regard to my prior findings with respect to the evidence of Inspector Pietruszka, namely, with respect to the accounts of MM, the account of Mr Alcazar and what was known to Inspector Pietruszka immediately prior to making the decision to arrest the plaintiff.

The plaintiff contended that during the course of the ERISP of the plaintiff, Inspector Pietruszka knowingly made five representations that were without foundation and characterised as “very prejudicial to the plaintiff, and likely to produce fear and shake his confidence”. By making such statements, it was submitted that Inspector Pietruszka “knew” that he did not have reasonable and probable cause to arrest and charge the plaintiff for the offences as charged and acted with malice.

For ease of reference, and with some repetition, the relevant representations will be set out below and dealt with seriatim.

The first representation relied upon by the plaintiff was Q43:

The plaintiff submitted that there was “no basis for this”. Reliance, in that respect, was placed upon the victim’s earlier statement in the second ERISP of MM, with respect to the fourth male, “I’m not sure about the other guy”.

As to the first representation, the defendant contended that the “precise misrepresentation alleged is not apparent”. As to the plaintiff’s reference to the statement of MM failing to provide foundation, the State submitted that the first representation was identified by reference to what was alleged, not what the victim had said. Further, in any event, the victim had said that “they just took turns” and “They were kind of just like touching themselves in front of me”. Therefore, it was not erroneous to assert (if it was asserted) that the victim had alleged that the plaintiff (as one of the four assailants in the toilet) had his penis in his hands and was indecently assaulting her.

For the following reasons, I do not accept the submission advanced by the plaintiff with respect to the first representation:

Hence, I reject the plaintiff’s contention that Q46 was a misrepresentation of the allegation made against the plaintiff. On the material available to Inspector Pietruszka at the time of the interview, it was an available and important allegation to put to the plaintiff. As earlier mentioned, matters of proof of the facts surrounding the allegation, had the charge not been withdrawn, are properly a matter for the jury to consider.

The second representation relied upon by the plaintiff appeared in Q49 and Q50:

The plaintiff contended, once again, “[t]here was no basis for this”. That submission was supported with general reliance upon the account of MM. It was submitted that “[t]he victim had not said that the plaintiff had touched her at all”.

As to contention that MM never said the plaintiff had touched her, the State highlighted the following extracts of MM’s account:

In light of those passages, it was submitted that it was not erroneous to assert (if it was asserted) that the victim had alleged that the plaintiff (as one of the four assailants in the toilet) had grabbed her breasts and her vaginal area.

For the reasons that follow, I reject the plaintiff’s contention vis-à-vis the second representation:

The third representation relied upon by the plaintiff concerns Inspector Pietruszka’s references to the evidence of Ms Tejada and “the alibi” of the plaintiff, in particular, the representation that Ms Tejada provided a statement but that statement did not include reference to the plaintiff (see Q57, Q75 and Q104-105).

The plaintiff submitted that such a representation is “flagrantly false” when considered in the light of Ms Tejada’s evidence, which is extracted below:

The plaintiff also relied upon Q118:

It was contended, by that statement, that Inspector Pietruszka “tried to throw doubt on the force of the plaintiff’s alibi by suggesting that it might have been set up”. In the light of Ms Tejada’s statement, it was submitted, that the suggestion at Q118 “was entirely without foundation”. At para 14 of that statement, Ms Tejada said she had gone to sleep in the house and had been woken by the police. Her statement, it was also emphasised, was taken shortly afterwards. Therefore, it was submitted, there was “no opportunity for the plaintiff to have put an alibi in place, and no evidence even that he could have known at that time that the police were involved”.

In support of its case as to malice, the plaintiff advanced the following additional submissions about Inspector Pietruszka’s conduct of the interview of the plaintiff, which are plainly relevant to my consideration of the third representation. The contentions are twofold

At this juncture, it may be noted, by his second statement, Inspector Pietruszka accepted that “on a small number of occasions during the ERISP, I misquoted statements made by Patricia TEJADA. I did not do so deliberately”. During cross-examination, he also accepted it was a serious error to have made.

The plaintiff advanced the following submissions, relevant to its case as to malice:

In written submissions, the State submitted that the plaintiff’s contention vis-à-vis the representation as to the contents of Ms Tejada’s statement “goes nowhere” because in both Inspector Pietruszka’s written and oral evidence he accepted that was an error on his part. The State did not directly respond the plaintiff’s argument with respect to Q118.

For the following reasons, in my view, the third representation (including the contentions advanced with respect to Q118) does not support a finding of malice and/or that Inspector Pietruszka knowingly charged the plaintiff, notwithstanding an absence of reasonable and probable cause:

In the result, I do not accept the third representation supports a finding of malice and/or a finding that there was an absence of reasonable and probable cause when Inspector Pietruszka ultimately charged the plaintiff. In particular, the reasonableness of the questions asked by Inspector Pietruszka, including his erroneous reference to the statement of Ms Tejada in the context of the plaintiff’s alibi, are informed by the context of the interview. It is erroneous to consider the questions in isolation, devoid of context.

The source of the fourth and fifth representation is Q57:

The plaintiff contended that the above extract is “fundamentally false” on two counts:

The latter representation was also repeated at Q112.

Both the fourth and fifth representations relate to Inspector Pietruszka’s recounting of the evidence of Mr Alcazar. The State contended that, as Inspector Pietruszka accepted an error was made, the argument “goes nowhere”. This is further the case, it was submitted, as Inspector Pietruszka “is not on trial for misrepresentation”.

I have earlier set out my findings with respect to the credibility of Inspector Pietruszka. Having found him to be a witness of credit, I accept his evidence that his recollection of Mr Alcazar’s account was imperfect, which led to the erroneous representations identified by the plaintiff. Notwithstanding those conceded errors, I do not find they sustain a finding of malice and/or suggest that Inspector Pietruszka knowingly acted without reasonable and probable cause. To the extent those errors are relied upon by the plaintiff, they attach little weight.

Between approximately 2.20am and 2.30am, Sergeant Kneipp conducted a forensic procedure (a buccal swab) on the plaintiff.

On the morning of 2 July 2015, Inspector Pietruszka prepared a Facts Sheet in relation to the anticipated charges against the plaintiff (“the Facts Sheet”).

An extract from the Facts Sheet, setting out the assault and the alleged involvement of the plaintiff, appears below:

The Facts Sheet also included summary of arrest and referred to aspects of the ERISP of the plaintiff, that is extracted below:

Within that Facts Sheet, Inspector Pietruszka also included a summary of his present view as to the involvement of the plaintiff:

By his second statement, Inspector Pietruszka stated that he “created [the Facts Sheet] based on the information I had available to me at the time”.

The plaintiff contended that Inspector Pietruszka included untrue statements about the plaintiff’s alleged involvement in the Facts Sheet, which statements were intended to show that the plaintiff was in fact guilty of the charges. The plaintiff relied upon the following “misrepresentations” as evidence of the malice of Inspector Pietruszka in initiating, maintaining and continuing the prosecution against the plaintiff.

The plaintiff relied upon two extracts of the Facts Sheet. The first alleged misrepresentation appears below:

The second alleged misrepresentation is extracted below:

The plaintiff advanced the following submissions to support a conclusion that the first and second alleged misrepresentations sustain a finding that Inspector Pietruszka acted with malice:

In reply to those contentions, the State submitted:

In my view, neither the first or second alleged misrepresentation sustains an argument that Inspector Pietruszka acted with malice. As the State correctly submitted, the foundation for each of the representations is found in the evidence available to Inspector Pietruszka at the time of drafting the Facts Sheet, namely, the ERISPs of MM and, significantly, the ERISP and the plaintiff. Whilst the plaintiff seeks to rely upon the statement of Ms Tejada as supportive of the initial alibi proffered by the plaintiff at or around the time of arrest, that was not the alibi ultimately relied upon by the plaintiff at the time of the ERISP. The alibi included in the Facts Sheet is a summary of what the plaintiff said during the interview. Whilst it is true he did not expressly say “the lounge room”, the plaintiff emphasised that he was inside the house when taking care of Ms Tejada and not outside.

Further, I accept that State’s submissions that whilst the plaintiff relied upon that statement as containing a representation that plaintiff only offered an alibi after hearing the allegations, the text does not carry the representation alleged. Further, even if it did, it was contended, there is no reason to think that Inspector Pietruszka intended the text to carry that representation.

Finally, evidence as to alibi is a matter for a jury to ultimately consider. It is not the purpose of a facts sheet to set out every account available at that stage.

At approximately 2am, Inspector Pietruszka prepared a CAN for the purpose of charging the plaintiff.

Two charges were included on the CAN:

I pause at this juncture to briefly mention the elements of each charge.

Section 61JA(1) was in the following terms:

Section 61HA provides an extended meaning for the expression “sexual intercourse” as follows:

Assuming that the prosecution alleged aggravation by virtue of the plaintiff depriving MM of her liberty for a period before the alleged commission of an offence (see s 61J(2)(i)) then the elements of the offence are as follows:

Section 61M was repealed in 2018 (see Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)) but applied at the time of the plaintiff’s arrest and the laying of charges against him. At the time was in the following terms:

The elements of the offence are:

The Crown need not prove a separate assault if the act of indecency was committed on the victim, although that is not an issue in this case.

The plaintiff was charged at or around 4.45am.

In the first statement of Inspector Pietruszka, as to his belief and actions at the time of charging the plaintiff he said:

At the time of charging the plaintiff, Inspector Pietruszka marked a box on the police computer system indicating that the matter was for the DPP.

Following the charging of the plaintiff, an initial bail determination under s 43 of the Bail Act 2013 (NSW) was made by the Custody Manager, Sergeant Kneipp.

Sergeant Kneipp prepared a statement dated 23 July 2018. In that statement he stated that “I have no recollection of the events of that evening of the 1 and 2 July 2014… beyond that which is contained in the [Custody Management Record] and the other documents which I exhibit to this statement”.

Sergeant Kneipp provided evidence of his usual practice when tasked with making a bail decision:

At approximately 4:56am, Sergeant Kneipp refused bail.

As to that decision, Sergeant Kneipp said the following:

I accept that bail was refused because the plaintiff had been charged with a “show cause” offence and the plaintiff had not shown cause as to why he should be granted bail. Further, I accept the decision maker, with respect to the refusal of bail by the police, was Sergeant Kneipp.

From 5.32am, Sergeant Scicluna took over as Custody Manager. Sergeant Kneipp had no further involvement in the custody, investigation or prosecution of the plaintiff.

Sometime after 2 July 2015 and prior to 7 July 2015, the DPP took carriage of the matter.

On 2 July 2015 at 6pm, Inspector Pietruszka obtained a further statement from Ms Tejada. The statement was electronically recorded, with a duration of 40 minutes.

The following elements of Ms Tejada’s further statement may be noted:

The further statement of Ms Tejada was the basis of two factual controversies relating to the plaintiff’s claim vis-à-vis malice. In summary, the plaintiff contended:

Turning to the first contention that Inspector Pietruszka sought to deliberately undermine the alibi of the plaintiff, the following submissions were advanced:

Turning to the contention that Inspector Pietruszka “always knew” the content of Ms Tejada’s first statement, and misrepresented it for his own purposes to Ms Tejada (noting I have earlier dealt with the submission as advanced with respect to the plaintiff during the ERISP), the plaintiff submitted:

After considering the further statement of Ms Tejada, the ERISP of the plaintiff and the evidence of Inspector Pietruszka during cross-examination, it was submitted, the simple explanation for “all this incoherence and contradiction” is that Inspector Pietruszka’s evidence is false. The plaintiff contended:

In reply, the State’s submissions focused upon Inspector Pietruszka’s approach to the plaintiff’s alibi throughout the further statement of Ms Tejada. It advanced the following submissions:

I do not accept the contention advanced by the plaintiff that an analysis of the further statement of Ms Tejada supports a conclusion that Inspector Pietruszka’s primary goal was to undermine the alibi of the plaintiff. Rather, the interview reveals the contrary:

As to the contention that Inspector Pietruszka “always knew” the content of Ms Tejada’s statement, I adopt my earlier finding set out above. Further, in the light of that findings above and upon my assessment of the Inspector Pietruszka’s conduct of his interview with Ms Tejada, I do not find that he misrepresented Ms Tejada’s first statement to Ms Tejada. Nor do I find that any aspect of Ms Tejada’s statement was represented to the Ms Tejada for a purpose other than a proper purpose and in the ordinary course of conducting a police investigation.

On 3 July 2015 at 1.56pm, the victim made a further written statement. Inspector Pietruszka had phoned MM around 5pm the previous day to tell her that people had been charged, and she had told him that she had remembered some things better. The statement adopts the contents of a further ERISP carried out on 3 July 2015, a transcript of which was before the Court.

In the course of that interview, the following exchange occurred:

By his first statement, Inspector Pietruszka explained the effect of that evidence upon steps taken with respect to the investigation and prosecution of the plaintiff:

The plaintiff contended that with the new of evidence of MM, “if ever there had been a case against the plaintiff, it completely disappeared”. During cross-examination, that contention was put to Inspector Pietruszka:

The plaintiff described the above evidence, as with his evidence with respect to his view of the earlier accounts by MM, as “an invention designed to provide a desperate defence for the indefensible”. It was contended that Inspector Pietruszka did not subjectively have reasonable and probable cause.

Notwithstanding that fact, it was contended, that the plaintiff was falsely imprisoned for a further four weeks. By the new evidence, Inspector Pietruszka had formed the view that the prosecution case had weakened. However, on the basis of MM’s initial accounts of “four males” being present, combined with his experience working with victims of sexual assault commonly changing their evidence, it did not cause Inspector Pietruszka to form a definite view that the plaintiff was not involved in the sexual assault.

By his first statement, Inspector Pietruszka also gave the following evidence as to his initial communication with counsel for the plaintiff, Mr Peter Linger, following the third ERISP of MM:

On 7 July 2015, Inspector Pietruszka sent an email to the plaintiff’s counsel, Mr Linger, about a forthcoming mention of the plaintiff’s matter. In the email, Inspector Pietruszka said:

The plaintiff advanced the following submissions with respect to email sent by Inspector Pietruszka to Mr Lineger:

The State submitted that it can be inferred from the terms of the email that there followed an oral conversation between Inspector Pietruszka and Mr Linegar to the effect of what is set out in the email. I accept that submission.

The State contended that the following observations may be made about the email.

The State further contended that there is no evidence as to the information that Mr Linegar had at this time, and no inference should be drawn in the plaintiff’s favour as to precisely what information Mr Linegar had at this point (wherein various submissions are made as to what Mr Linegar must have known at this point).

I do not accept that the email sent by Inspector Pietruszka sustains a finding of malice.

As to what material was at that stage available to counsel for the plaintiff, in light of my findings with respect to Inspector Pietruszka and the email, it is not strictly necessary to make a finding in that respect. Such a fact would not alter my assessment of the presence of malice and/or an absence of reasonable and probable cause.

In any event, contrary to the plaintiff’s submission that Mr Linegar would have been left uncertain as to the significance of Inspector Pietruszka’s communication due to the Facts Sheet, the email from Inspector Pietruszka made clear that the victim said that she “could not confirm” the plaintiff was in the room “when the sexual assault took place”.

Whilst it is true the email does not expressly assert the view that Inspector Pietruszka would not oppose bail, it is implicit on the face of the email that, as Inspector Pietruszka stated, recognition was given to the then counsel for the plaintiff that “the prosecution case had weakened considerably”. As to the latter paragraph commencing with “Despite this statement from the complainant”, the email points out that there is contradictory evidence to the victim’s fresh account. The contents therein suggests that notwithstanding a “weakened” prosecution case, the evidence still suggests the case brought against the plaintiff presently remained viable.

Later on 7 July 2015, Inspector Pietruszka obtained a statement from Denis Lim, the victim’s boyfriend. Mr Lim’s evidence included the following:

Mr Lim’s statement placed the plaintiff at the party and confirmed that Ms Tejada was intoxicated, but did not otherwise illuminate.

On 9 July 2015, the plaintiff’s matter was mentioned in court. Mr Linegar did not apply for bail, the reasons for which are apparent from Mr Linegar’s email of 16 July 2015 below.

On 16 July 2015, Mr Linegar sent an email to Inspector Pietruszka which stated:

Inspector Pietruszka replied later on 16 July 2015, stating: “I will be in a position next week to serve you with those statements”.

On 24 July 2015, Inspector Pietruszka sent an email to Mr Linegar, which attached transcriptions of the victim’s statements. It said:

There is no evidence that Mr Linegar “needed” anything else or expressed any view to that effect.

On 28 July 2015, the police wrote to the DPP indicating that bail should not be opposed at the next mention.

On 29 July 2015, at approximately 2:29pm, a representative of the DPP sent an email to Inspector Pietruszka stating:

The following observations by counsel for the State made about that email may be accepted:

As to my ultimate conclusion as to malice, I will return to that within the consideration of this judgment.

On 29 July 2015, at approximately 6pm, Inspector Pietruszka sent an email to the DPP stating as follows:

The following observations may be made about that email:

On 31 July 2015, there was a further mention of the plaintiff’s matter. At that hearing, the plaintiff applied for and was granted bail. The plaintiff adduced no evidence explaining what occurred at that hearing.

On 12 August 2015, Inspector Pietruszka attended the Metropolitan Remand and Reception Centre at Silverwater to speak with Mr Alcazar.

On 14 August 2015, Mr Linegar sent an email to Inspector Pietruszka which stated:

It can be inferred, in the absence of evidence from Mr Linegar, from this email that Mr Linegar was having difficulties speaking to his client and that had prevented a discussion as to “how the matter will progress from a defence point of view”.

On 20 August 2015, Inspector Pietruszka replied to Mr Linegar’s email of 14 August 2015. He stated:

Because of some scheduling difficulties, Inspector Pietruszka did not serve the brief on 20 August 2015, but instead served the brief on 21 August 2015.

On 24 August 2015, Mr Linegar sent an email to Inspector Pietruszka which stated:

On 25 August 2015, Inspector Pietruszka sent an email to Mr Linegar which stated:

On 31 August 2015, Inspector Pietruszka attended the premises to speak with Ms Bandao. Ms Bandao declined to make a statement.

That same day, Mr Linegar sent an email to Inspector Pietruszka, which stated:

Later on 31 August 2015, Inspector Pietruszka sent an email to Mr Linegar stating:

On or around 6 October 2015, Inspector Pietruszka received documentation from the DPP identifying evidence that Mr Alcazar was proposing to give. The document indicated that Mr Alcazar could give evidence, including evidence to the following effect:

When Inspector Pietruszka read Mr Alcazar’s proposed evidence, it led him to form a definite view that the plaintiff was not involved in the offence.

On 6 October 2015, at 11.33am, a representative of the DPP sent an email to Inspector Pietruszka stating:

On 6 October 2015, at 12.05pm, Inspector Pietruszka replied to the DPP stating:

The State correctly contended that the willingness of Inspector Pietruszka to cause the charges to be dropped (and to identify the weakness in the prosecution case) “does not sit well with any suggestion that Inspector Pietruszka was motivated by malice”. I will return to that submission in the context of my consideration of the plaintiff’s claim of malice below.

On 21 October 2015, a representative of the DPP sent an email to Inspector Pietruszka stating:

That same day, after receiving this information, Inspector Pietruszka called Mr Linegar and said:

During that call, the following conversation also occurred:

On 22 October 2015, Inspector Pietruszka sent an email to the DPP stating:

On 16 November 2015, Inspector Pietruszka facilitated an interview with Mr Alcazar for the purpose of taking a witness statement from him. Inspector Pietruszka was not able to attend, but he listened to the recording within the two days after it was taken. Inspector Pietruszka included a summary of the effect of that statement:

The findings in the preceding section of this judgment lay the foundations for the conclusion that the plaintiff has failed to establish either his malicious prosecution claim or false imprisonment claim. As to the former, I have concluded that the plaintiff has failed to establish either an absence of reasonable and probable cause or malice, in the initiation or maintenance of the prosecution against the plaintiff until the withdrawal of charges against him. As to the latter, the plaintiff has not established that the plaintiff’s arrest was wrongful.

It is unnecessary to resolve, in that light, the issue of when, if at all, Inspector Pietruszka ceased to be the prosecutor prior to the withdrawal of charges against the plaintiff.

It was common ground that Inspector Pietruszka initiated the prosecution on 2 July 2015 at the time of the charging of the plaintiff. In particular, I find that the plaintiff has not established the absence of reasonable and probable cause or malice in that respect.

On the parties’ cases, Inspector Pietruszka maintained the prosecution until 7 July 2015. I will find, assuming he maintained the prosecution of the plaintiff until the charges were withdrawn, that, the plaintiff failed to establish:

Nonetheless, I propose to make one observation about the status of the prosecutor so far as it may bear upon the question of damages. It is true that the question of damages does not arise for determination in light of the finding that judgment should be given for the State. However, less a different view be taken of the conclusion that I have reached, it is appropriate that I briefly deal with the question of damages which will be undertaken below.

The question as to whether the DPP had taken over the prosecution after 7 July 2015 may also have implications for the assessment of damages (it would have otherwise been relevant to malice but, as mentioned, I have found no case for malice in the maintenance of the prosecution until the withdrawal of charges).

In that respect, I consider that there is merit in the contention advanced by the plaintiff that, even assuming that the DPP had become the prosecutor from 7 July 2015 (and thus, irrespective of the absence of a notice under s 10 of the DPP Act), it does not necessarily follow that the original prosecutor would be held liable for the maintenance of the prosecution until the lapse of a reasonable period for the DPP to consider his position: see A v NSW at [18].

In the present case, I accept that the DPP could not have been placed to consider its position until at least the receipt of the victim’s statements on 24 July 2015 or, more likely, until the receipt of the brief which was served on 21 August 2015. I note, in that respect, Inspector Pietruszka’s evidence was that he was not able to serve the documents any earlier in time and hence, he would not have been able to serve them any earlier on the DPP.

Those assessments are relevant to the assessment of damages to which I will later return.

Before turning to the particular aspects of the plaintiff’s malicious prosecution case, I propose to say something briefly about particulars about which the State devoted considerable attention.

In broad terms, I accept the submission by the plaintiff that the Court must ultimately resolve the merits of the proceedings on the admitted evidence and the plaintiff is not precluded from seeking a verdict on a pleaded cause of action alleged in reliance on the facts actually established by that evidence: Deare v Pullman (1982) 148 CLR 658 at 644 (and see Leotta v Public Transport Commission of NSW [1976] 50 ALJR 666 at 668).

That is not to suggest that the pleadings will not ultimately govern the disposition of the proceedings. There is substance to the contentions of the State in that respect as set out earlier in this judgment. However, given the conclusions I have reached as to the merits of the plaintiff’s case, I do not propose to dwell further on that question.

As earlier mentioned in a discussion of relevant legal principle, the High Court made it clear in A v NSW that an inquiry about reasonable and probable cause has two parts. In order to decide whether a prosecutor did not have reasonable and probable cause the material available to the prosecutor must be assessed. The first question is subjective, namely, what the prosecutor made of the available material and the later objective, namely, what the prosecutor should have made of that material.

Where a plaintiff alleges, as in this case, that the prosecutor did have the requisite subjective state of mind when instituting or maintaining the prosecution, that is an allegation about the State prosecutor’s state of persuasion. The subject matter of the relevant state of persuasion in the mind of the prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the process of the criminal law in motion: A v NSW at [71]. If, as in this case, the plaintiff alleges that the prosecutor knew of a fact or facts inconsistent with guilt, the absence of reasonable and probable cause may be described as the absence of a belief in the guilt of the plaintiff (the same approach would apply to a belief of some fact inconsistent with guilt).

Thus, the High Court identified two negative conditions for this element of the tort, the first of which relates to the subjective aspect of the element and the second which relates to the objective element. At [80] of A v NSW, the High Court stated:

It is therefore appropriate to turn firstly to the subjective element. In that respect, I will deal with the issue globally with the institution and maintenance of the charges against the plaintiff, notwithstanding particular submissions made by the State as to limitations in the pleadings.

In my view, there is no proper basis to find that, as at 1 July 2015, Inspector Pietruszka knew there was no reasonable or probable cause to prosecute. That is so because as at that date, Inspector Pietruszka had available to him the following information:

These matters were amply capable of establishing a proper case to prosecute as at 1 July 2015.

On 2 July 2015, and before charging, Inspector Pietruszka conducted an ERISP of the plaintiff. I accept the submission of the State that during the ERISP the plaintiff did not offer any cogent or consistent explanation as to his alibi. He had offered Mr Bandao’s sister and father as alibi witnesses but subsequently, at least with respect to Mr Bandao’s sister, withdrew part of his account without further explanation. He did offer an alibi with respect to Ms Tejada, which placed him with Ms Tejada the “whole time” and, additionally, placed him inside the house, which sat ill with Ms Tejada’s recollection that she was on the grass at times with the plaintiff (that information came out of the statement from Ms Tejada). Further, the plaintiff expressly rejected the possibility that he assisted Ms Tejada whilst she was on the grass: “no, no, no this was all in the house” (A86). Otherwise, the plaintiff largely refused to comment on allegations made against him. An additional consideration arising prior to the charging was that Ms Tejada did not say that the plaintiff was not involved or could not have been involved in the offence. She was unable to say who went into the toilet because she was intoxicated. As will be evident from the discussion in the section of this judgment entitled “Factual Findings and the Resolution of Intermediate Issues”, there is no basis for drawing an inference of maintenance or continuation based upon a consideration that the material known to Inspector Pietruszka materially changed after 1 July 2015 or 2 July 2015 such that there became no reasonable or probably cause to continue or maintain the prosecution

Having regard to my earlier discussion in that section of the judgment no different conclusion may be reached with respect to material obtained by Inspector Pietruszka after the plaintiff was charged so as to warrant the acceptance of the plaintiff’s submissions as to continuance and maintenance.

I will briefly expand upon those conclusions in two parts. There is substance in the State’s contention that the plaintiff does not clearly assert whether there was an absence of reasonable and probable cause with respect to steps taken in maintenance. In any event, having regard to the findings made in the earlier section of this judgment to which I have referred, I do not consider that such a finding may properly be made.

As to the question of whether there were steps made in maintenance or continuance of the prosecution by Inspector Pietruszka, two further observations should be made:

In the light of those conclusions, it is strictly unnecessary to consider the objective element. Nonetheless, it may be shortly stated that the evidence available to Inspector Pietruszka constituted a sufficient and proper case for prosecution. Very little attention was paid by the plaintiff to the second charge brought under s 61M(1) of the Crimes Act. As to s 61JA, at the time of charging the plaintiff Inspector Pietruszka had material corresponding to and supportive of the elements of that charge (as I have discussed earlier in this judgment):

As to s 61M, digital penetration would of course constitute an assault. Again, the alleged assault occurred in a circumstance of aggravation, namely, the offence occurred in company. No submissions were substantially advanced as to the question of acts of indecency but the general conduct described by the victim as taking place in the bathroom and in particular digital penetration, would seem to satisfy that criteria.

There is real substance in the submissions of the State in this respect that the plaintiff did not articulate any particular malicious purpose. Further, the foregoing review of the material available to Inspector Pietruszka was to the effect that the victim had been raped by four males and there were only four males at the party where the rape was said to have occurred, one of whom was the plaintiff.

Further, I accept the submission of the State that the plaintiff has not established that, if there was a malicious purpose, it was the sole or dominant purpose. As I have found Inspector Pietruszka believed that upon arrest and subsequent charging the plaintiff, that he was guilty of sexual assault, even though he accepted that the ERISP (or some later evidence) had the prospect to exculpate the plaintiff (which it eventually did not). That was the foundation for the charging of the plaintiff.

These considerations dovetail with the pleading issues raised by the State but again is unnecessary to further explore those considerations. Rather, I will consider some particular issues raised by the plaintiff going to the merits of his case in this respect.

The plaintiff did not press submissions regarding the failure to caution the plaintiff. Further, as earlier discussed, I have rejected the plaintiff’s contentions concerning the questioning of the plaintiff in the ERISP.

Nor is there anything rising out of the plaintiff being searched that would give rise, having regard to my earlier findings, to a finding of malice. Nor do I accept, for earlier reasons given, that the evidence demonstrates that Inspector Pietruszka insisted on the plaintiff answering questions in the ERISP before consulting his lawyer (the plaintiff expressed a desire to inquire about the allegations after he requested a lawyer).

Further, as to the plaintiff being given opportunities to identify an alibi in my view Inspector Pietruszka gave him ample opportunity to do so.

Based on my earlier conclusions, there is no proper basis for any allegation that Inspector Pietruszka recommended that bail be denied. Nor do I consider that there is any evidence of malicious purpose arising out of the preparation of the Fact Sheet for the purposes bail. At the end of the day, the bail application was made in a context of the applicant being required to show cause for the purposes of the Bail Act.

I do not consider that the victim’s statement of 3 July 2015, namely, the third ERISP of MM, exculpated the plaintiff to the extent that, on 3 July 2015, the victim said there were only three assailants. Whilst, that statement was contrary to her earlier repeated insistence that there had been four assailants, Inspector Pietruszka was aware that sexual assault victims sometimes change their evidence over time and not necessarily owing to circumstances of improved memory or recollection.

I do not consider that Inspector Pietruszka’s engagement with the plaintiff’s then counsel, Mr Linegar, constituted any basis to find malice for the reasons I have earlier discussed. Nor do I consider that Inspector Pietruszka’s approach to the termination of the charges, again for reasons earlier provided, was undertaken with a malicious purpose. There was no malice demonstrated.

Taken overall and for the reasons identified, there is no proper basis to infer malice.

I accept the submission of the State that the plaintiff’s contention in this respect is to the effect that the imprisonment of the plaintiff was unlawful because there was no valid power to arrest and, there being no valid power to arrest, there could be no power to detain. Further, I note Mr Molomby SC’s concession that this pleading could not be sustained if the Court were to find there was no wrongful arrest.

In my view, the arrest of the plaintiff was lawful for two reasons.

I consider that the provisions of s 202 of the LEPRA are met in the arrest of the plaintiff.

Section 202 of the LEPRA, relevantly, states:

At the time of arrest, Inspector Pietruszka stated his name, stated that he was a Detective, stated that he was from Blacktown Police Station and stated that the plaintiff was under arrest for sexual assault

Lastly, I turn to the question of the length of the detention.

Section 114 of the LEPRA, relevantly, states:

Section 115 of the LEPRA is extracted below:

Section 116 of the LEPRA states:

Section 117 of the LEPRA, relevantly, states:

The plaintiff was arrested at approximately 11.30pm. The plaintiff was denied bail at approximately 4.56am. The total period of detention prior to the refusal of bail was no longer than 5 hours and 26 minutes. The plaintiff does not assert that there was some unlawfulness in the decision to refuse bail, and does not assert that any tort was committed in refusing bail. From the time that bail was refused, the source of the power to detain was the decision to refuse bail.

I accept the submission of the State that for the purposes of the LEPRA, the following periods, which were not disputed, do not count towards the “investigation period”:.

Once those matters are taken into account, 3 hours and 28 minutes is deducted the “investigation period”.

That leaves an “investigation period” of 1 hour and 58 minutes, which is well within the maximum four hours.

In ascertaining the reasonable time, the following factors are relevant:

In all the circumstances, I consider the time involved in the investigation period was reasonable.

It follows from the aforementioned conclusion that the plaintiff’s case for malicious prosecution and false imprisonment must fail and, correspondingly, the ASOC should be dismissed. Judgment should be entered for the State.

I shall now consider damages in the event a different view is taken to that conclusion.

The plaintiff sought damages in the following categories:

There was no dispute as to the principles applicable to the assessment of general damages. The plaintiff’s submissions in that respect may be accepted.

General damages are compensatory in nature and must focus upon the impact on the plaintiff of the alleged tortious conduct of the defendant. An award of general damages should be in an amount adequate to compensate the plaintiff for all consequences of the defendant’s wrongful conduct that are not too remote: see State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [127] per Hodgson JA). His Honour Justice O’Keefe J noted in Nye v State of New South Wales [2003] NSWSC 1212 (at [247]) that general damages:

In Spautz v Butterworth (1996) 41 NSWLR 1 (at 17G and 18B), Clarke JA (with whom Priestley and Beazley JJA agreed) said this about compensatory and aggravated damages:

In wrongful arrest and false imprisonment actions, general damages should include an amount for curtailment of liberty and associated hurt feelings (including humiliation, distress and loss of status): see State of NSW v Delly [2007] NSWCA 303 at [76].

In McDonald v Coles Myer Limited (1995) Australian Torts Report 81-361 at 4, Powell JA referred to the types of damage for which the plaintiff may be compensated in a successful action for false imprisonment as follows:

In Coyle v State of New South Wales [2006] NSWCA 95 (“Coyle”), the Court (in circumstances where it was contended by the defendant that false imprisonment for 2.5 hours should only sound in a nominal award of damages) stated (at [99]):

In Australia, there is no authoritative guideline on how to calculate damages in wrongful imprisonment or malicious prosecution cases by reference to the period of time the plaintiff was detained. There is no clear arithmetical symmetry. Each case appears to have been decided on its facts and the reasoning behind the quantum of damages is usually short. An Australian case where a Court calculated the damages for wrongful detention in an arithmetical way was at first instance in Spautz v Butterworth, where a daily rate was applied. However, this was overturned on appeal, and a lump sum was substituted: see Beckett v State of New South Wales [2015] NSWSC 1017 per Harrison J at [670].

In McDonald v Coles Myer Limited at 7, Powell JA stated that the types of damage for which the plaintiff may be compensated in a successful action for malicious prosecution were as follows:

In cases of malicious prosecution general damages will be similarly be awarded for damage to fame and character; Noye v Robbins; Noye v Crimmins [2007] WASC 98 (“Noye v Robbins”) at [261]. This head of general damages is sometimes referred to as reputational damages. In Noye v Robbins, Heenan J held that had he found for the plaintiff, he would have awarded $50,000 for injury to reputation.

In Berry v British Transport Commission [1962] 1 QB 306, the Court of Appeal held that the financial consequences of the destruction or damage to reputation are recoverable. Devlin and Danckwerts LJJ held that reputational damages were recoverable where the imputed criminal offence would cause a reasonable observer to form the view that it was a damaging reflection on the "fair fame" of the plaintiff.

Damages will also be awarded for the inconvenience and disturbance to the plaintiff’s life, as well as the stress constituted by the fear of conviction: see Coyle at [92].

The plaintiff relied upon the following factors as matters which should be taken into account in the assessment of the quantum of damages and to increase the quantum of damages:

I will turn firstly to the question of false imprisonment and detention, upon the premise, for the purposes of this part of my judgment, that the plaintiff’s arrest was unlawful.

The assessment of ordinary damages is essentially an evaluative question for the judge, to be decided in the circumstances of the case: see Smith v State of New South Wales [2016] NSWDC 55 at [256].

In SB v State of New South Wales [2016] NSWDC 189 (“SB”), the District Court considered the ordinary damages which should be awarded for a false imprisonment of one day. The Court (Hatzistergos DCJ) awarded $10,000 in ordinary damages for the false imprisonment: SB at [266].

In State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 (“Abed”), the Court of Appeal affirmed an award of $10,000 ordinary damages for false imprisonment. In that case, the plaintiff was detained for approximately three hours: see at [12]. In Abed, in order to effectuate the imprisonment, police had seized the plaintiff’s arms and forced her to the ground to handcuff her: see at [224]. There is nothing similar in the present case.

Here, the detention was well short of one day. On the evidence, the plaintiff was not mistreated in the course of the detention. Further, the plaintiff gave no evidence that he was shocked to be arrested. Nor is that evident from the plaintiff’s responses in his ERISP.

Taking into account those considerations, in my view, ordinary damages for false imprisonment should be $8,000.00. I make no separate assessment on the assumption that the plaintiff’s arrest was lawful but the detention thereafter became unlawful prior to the bail decision, although plainly damages would be less on that account.

Before turning to the particular factors relied upon by the plaintiff, I should deal with the submission advanced by the State that the plaintiff should not be entitled to damages reflecting a loss of liberty between the time of the refusal of bail by Sergeant Kneipp and his release from detention on 31 July 2015.

The State made that submission on the following basis:

As to the first of those contentions, I reject the submission in reply by the plaintiff that it was Inspector Pietruszka’s conduct that contributed to Mr Linegar not making the bail application. I reject the contention that Inspector Pietruszka’s email of 7 July 2015 did not accurately represent the effect of MM’s statement of 3 July 2015. Nor do I consider that Mr Linegar’s email of 16 July 2015 should alter that conclusion.

Nor do I accept the plaintiff’s submissions that the provisions of s 74 of the Bail Act would necessarily act as a barrier given the contents of the 7 July 2015 email of Inspector Pietruszka.

However, I accept the submission of the plaintiff that it was reasonable for Mr Linegar to delay the making of a bail application until he was in receipt of the victim’s statements. That would be the preferable basis for the making of a bail application not only because of the considerations arising under s 74 of the Bail Act but because the plaintiff was required to cross the hurdle of the show cause provisions of that Act. I do not consider the failure to call Mr Linegar to explain his decision adversely affects that conclusion. It follows that I reject the contention advanced by the plaintiff in that respect.

The second aspect of the State’s contention is substantially affected by my approach to the question of whether the DPP may properly be found to have taken over the prosecution of the plaintiff.

Those considerations relate to the first factor relied upon by the plaintiff.

As to the second factor relied upon by the plaintiff above, the State is correct to submit there is nothing improper in arresting the plaintiff at a railway station which was proximate to the police station and at the time of the arrest, was reasonably private. The plaintiff abandoned the contention that the plaintiff was not cautioned. The evidence does not sustain that he was laughed at. Nor was there anything improper in searching him upon arrest. Inspector Pietruszka’s explanations for doing so may be readily accepted.

As to the third factor, I have earlier rejected the plaintiff’s contentions in that respect.

Similarly I have earlier rejected the component of the fourth factor, which relies upon a proposition that the plaintiff was subjected to a “deliberately” misleading ERISP (based upon the notion of the plaintiff requesting a lawyer). There does not seem to be any other reliance upon the questioning in the ERISP under the arguments raised with respect to the fourth factor. Further, Inspector Pietruszka conducted the ERISP of the plaintiff because the plaintiff wished to hear the allegations against him and Inspector Pietruszka decided that it should be done in the context of an electronically recorded interview.

As to the fifth factor, the evidence does not sustain any causal link between the plaintiff’s arrest or prosecution and the plaintiff not having a girlfriend for two years. I accept the State’s submission that there is no expert evidence as to the casual relationship between arrest or prosecution and any sleeplessness or personality change, but nonetheless I accept the contention of the plaintiff (at least by inference) that the plaintiff’s detention in protective custody (including a fear of being hurt or killed in goal because of the nature of the charges brought against him) would have resulted in adverse personal consequences which included sleeplessness (consistent with the plaintiff’s evidence).

Save for the consideration of whether Inspector Pietruszka ceased as a prosecutor after 7 July 2015, I accept the sixth factor relied upon by the plaintiff.

As to the seventh factor, I have earlier found that the weight which may be attributed to the evidence of personality change, retreat from social engagement and loss of confidence and self-esteem is limited. However, I shall make limited allowance for that factor.

As to the eighth factor, I do not accept the State’s submission that there is an absence of evidence that the internet entries remain in place and thereby have the prospects of being detrimental to future employment prospects of the plaintiff. The thrust of the plaintiff’s submission that the effect of the internet entries is significant in that respect may be accepted.

As I will further discuss below, there are real difficulties in the plaintiff establishing, on the evidence, a connection between media reports of the plaintiff’s arrest or charging and any employment consequences for the plaintiff or evidence that may properly establish that those factors contributed to UBank not continuing the plaintiff’s probationary employment. In that respect, it may be emphasised the plaintiff’s employment was a probationary and, therefore, offered a wide discretion to UBank not continue the plaintiff’s employment if it chose to do so.

The plaintiff contended that his employment was terminated on 6 July 2015 and that his probationary period for that employment ended on 16 July 2015, some 10 days later. However, the proximity to the end of the probationary period merely emphasises, in my view, that many discretionary factors may operate in the cessation of probationary periods, even where there has been a history of an acceptable engagement, irrespective of the existence of the media reports upon which the plaintiff relies. Further, there is no direct evidence of the reasons for termination of the plaintiff’s employment and as I will note later, he was absent from work without explanation for two days prior to the termination of his employment.

I consider, however, that some allowance should be made in the assessment of damages in this respect for loss of chance of the retention of employment or the finding of new employment after termination of employment with UBank.

The plaintiff’s made the following submission in this respect:

As earlier mentioned, I do not accept the submission of the State that there is no evidence demonstrating an absence of media articles that indicate the charges against the plaintiff were dropped or that the apology no longer appears on the internet.

Nor do I accept the submission of the State that there is an absence of evidence that an employer who searched the internet would need to ask the plaintiff to ascertain the results of the charge as that may be reasonably understood as a step an employer may take in all the circumstances if the articles continue to appear in through a Google search.

However, it is important to note that evidence was admitted provisionally, following objection, that the plaintiff had been compensated in an amount of $315,000.00 inclusive of costs for asserted reputational damage arising from the charges. That evidence, in my view, is relevant to the question of damages in this respect and should be admitted. It must, therefore, be taken into account in the assessment of damages in this respect. As a broad proposition, the State was correct to submit that there is no causation for damage if in fact the plaintiff has been compensated.

The plaintiff contended that the damages awarded to the plaintiff in the other proceedings differed from the present matter because:

There is substance in the plaintiff’s submission here. However, the State is correct to submit that damages in this respect need substantively to be assessed for a closed period what the plaintiff has described as the first period.

As to the plaintiff’s submission that the plaintiff was a person of unblemished character, the State relied upon the fact that the plaintiff failed to comply with a subpoena to give evidence but otherwise the submission should be accepted.

I do not accept that submission. The plaintiff was not cross-examined about this question and no criminal recorded of the plaintiff was tendered. The warrant was issued only with respect to a failure to appear in respect to a subpoena upon which the plaintiff proffered an explanation. That evidence was the subject of objection by the State. If the State intended to raise the point taken here then a different ruling may have been made as to the tender. I reject the State’s submission as to this factor.

The plaintiff submitted that the following circumstances aggravated the plaintiff’s claim for damages:

The principles governing aggravated and exemplary damages were stated in Abed at [230]-[234], where the Court of Appeal observed:

I do not accept the various factors relied upon by the plaintiff to establish aggravated damages do establish a basis for aggravated damages for the following reasons:

It follows that I would refuse to award aggravated damages.

The plaintiff’s submissions as to exemplary damages was expressed in the following terms:

This submission is entirely based upon premises which I’ve rejected as having any factual foundation earlier in this judgment. It follows that I would not award exemplary damages.

The plaintiff made the following submissions in this respect:

I have earlier discussed this issue. However, some further observations may be made in this context.

The State submitted that there is a perfectly plausible explanation for the discontinuation of the plaintiff’s employment: he was on probation and his probationary period was up. No inference favourable to the plaintiff as to the reason for his termination should be drawn. He has failed to seek evidence from UBank (for example, by way of subpoena) that could have established the reason for his termination. That submission is sound. The plaintiff was not summarily terminated. UBank was not required to provide a reason for termination of a probationary employee. Apart from the proximity to the end of the probationary period, the mere fact of his unexplained absence from work over two days may have been sufficient to justify the cessation of his probation without notice. As earlier indicated, I consider the limit of any award made in this respect must be a loss of chance. Quantum of economic loss

The plaintiff made the following written submission in this respect:

Based on the foregoing analysis, I would have assessed damages at $25,000.00.

In all the circumstances, there should be judgment for the State. In the absence of any disentitling conduct or other relevant factors, the State should have its costs of the proceedings as agreed or assessed. In the event of any dispute as to costs, the State should file and serve within 14 days of this judgment, submissions in support of any application as to costs it makes together with any supporting evidence in that respect. The plaintiff shall have a further 14 days after service of those materials in which to respond and put on evidence in reply.

The State shall file short minutes of order reflecting this judgment. Those short minutes of order shall reflect the position as to costs, either as agreed or, in lieu of agreement, in accordance with the foregoing procedure for the resolution as to a dispute as to costs.