State of New South Wales v JR; State of New South Wales v Dickens; State of New South Wales v Jensen

1. [1]

   GLEESON JA: The State of New South Wales (the State) appeals from separate judgments for damages plus interest entered in the District Court on 3 August 2023 in favour of the respondents, JR, Christian Dickens (Dickens) and Aaron Jensen (Jensen), in respect of their claims for the tort of false imprisonment, and also JR’s claims for the torts of malicious prosecution and misfeasance in public office.

Nature of the case

1. [2]

   On 23 December 2015, each respondent was arrested at home and taken to Katoomba Police Station where they were held until they were charged later that day with various sexual assault offences, refused bail and taken into custody. The offences were allegedly committed in October 2012 against a young girl who was then aged 15 years. The respondents and a fourth accused were committed for trial in the District Court. On 26 July 2017, the jury returned verdicts of not guilty in respect of all charges against the respondents and the fourth accused. JR had been held in custody on remand until the conclusion of the trial.

2. [3]

   In 2021, each respondent commenced separate proceedings in the District Court against the State claiming damages for false imprisonment in circumstances where it was alleged that they had been detained after arrest on 23 December 2015 for more than the maximum “investigation period” of four hours permitted by the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), ss 114-117. JR also claimed damages for alleged malicious prosecution and misfeasance in public office and Jensen also claimed damages for alleged battery during his arrest. All of the respondents’ claims were advanced against the State on the basis that it was vicariously liable for the alleged wrongful conduct of the NSW Police Force, given Pt IV of the Law Reform (Vicarious Liability) Act 1983 (NSW).

3. [4]

   In a judgment delivered on 21 June 2023, the trial judge (Curtis ADCJ) concluded that the respondents’ claims of false imprisonment had succeeded, JR’s claims of malicious prosecution and misfeasance in public office had succeeded, and Jensen’s claim of battery had failed. His Honour awarded damages totalling $730,000 plus interest to JR, and $30,000 plus interest to each of Dickens and Jensen.

4. [5]

   On 3 August 2023 judgments for damages and interest were entered in favour of the respondents in the following amounts: JR ($821,605.61), Dickens ($31,940.94), and Jensen ($31,940.94). The State was ordered to pay JR’s costs on the ordinary basis. Special costs orders were made in favour of each of Dickens and Jensen. The judgments were stayed on 5 September 2023 by order of the District Court pending further order of that Court or this Court.

5. [6]

   Leave to appeal: The appeals against the judgments in favour of Dickens and Jensen require leave, since the amount in issue is less than $100,000: Supreme Court Act 1970 (NSW), s 101(2)(r). Leave to appeal was not opposed. Leave was granted at the commencement of the hearing given the commonality of the issues in the appeals relating to the false imprisonment claims in circumstances where the State had an appeal, as of right, against the judgment in favour of JR.

6. [7]

   The appeals raise some common issues with respect to all respondents and some additional issues with respect to JR.

7. [8]

   First, the State contends that each of the judgments should be set aside on the grounds of apprehended bias or procedural unfairness. The basis for the allegation of apprehended bias is the frequency and nature of the interventions by the trial judge during the evidence-in-chief and cross-examination of Detective Senior Constable (DSC) Mathew Clancy, who was the principal police witness, and the cross-examination of Sgt Trevor Phipps, another police witness. There is no allegation of actual bias. This conduct is also said to give rise to procedural unfairness with respect to the conduct of the trial. If either complaint is made out, there would not have been a trial in accordance with law, and a retrial will be necessary. I have concluded that the complaints of apprehended bias and procedural fairness have not been made out.

8. [9]

   Second, the State challenges the findings of malicious prosecution and misfeasance in public office. I have concluded that the trial judge erred in upholding these claims by JR, specifically, in finding that in instituting the criminal proceedings by charging JR on 23 December 2015, DSC Clancy acted without reasonable and probable cause and maliciously. Accordingly, the component of the judgment for damages and interest in favour of JR relating to these claims (being $700,000 plus interest) should be set aside.

9. [10]

   Third, the State challenges the findings of false imprisonment with respect to each respondent. Alternatively, the State contends that only nominal damages should have been awarded. I have concluded that notwithstanding some errors in the trial judge’s factual findings as to the period of false imprisonment, the appeal against the findings of false imprisonment should be rejected, however, the award of damages for false imprisonment is erroneous, as it proceeded on the incorrect counterfactual. The award of damages should be set aside, and in lieu, judgment for damages of $10,100 should be entered in favour of each respondent comprising nominal damages of $100 and exemplary damages of $10,000.

10. [11]

    The costs orders on appeal and at trial, taking into account the outcome of the appeal, are addressed at [298]f below.

Factual circumstances

1. [12]

   The arrest and charging of each respondent on 23 December 2015 with offences of alleged sexual assault arose from events occurring on 26 October 2012 at a house party at Hazelbrook in the Blue Mountains, where Dickens resided. Some 40 to 50 young people attended, including the respondents. At that time JR was aged 17 years, Dickens was aged 18 years and Jensen was aged 19 years. During the party the Fire Brigade and the police attended the house following complaints by a neighbour about an illegal bonfire in the backyard. A 15-year-old girl subsequently alleged that she was sexually assaulted at the party by each respondent and a fourth person referred to as “SK”. The girl cannot be identified, given her age, and she was referred to as the complainant in the proceedings below and in this Court. Nor can SK be named as he was aged 16 years at the time of the alleged offending, or JR as he was aged 17 years at the time of the alleged offending.

2. [13]

   The complainant first reported her allegations of sexual assault on the day following the house party, and again shortly thereafter. Those contemporaneous reports are referred to below at [27]. In late January 2013, Dickens corresponded with the complainant via Facebook Messenger after she had complained that Dickens was saying that she “got gang banged”, which the complainant understood to be an assertion that she had consented to what had occurred. In a series of Facebook messages, Dickens said to the complainant:

3. [14]

   On the same day the complainant replied to Dickens in a Facebook message that she did not remember saying “yes” to JR having sex with her. She described what occurred with Jensen and said that she remembered that Dickens “… came in and i pulled away from u a few times then u left …”. She also described what occurred when SK came into the room and Jensen left and said that she was assaulted by SK and JR. Dickens replied:

4. [15]

   In late January 2013 the complainant reported her allegations of sexual assault to a youth worker/counsellor, Ms Naomi Murray. An internal email dated 29 January 2013 from Mr Roger Kidd of the Mountains Youth Services Team to Ms Murray, among others, described the complainant reporting “that she had been in a ‘gang bang’ and that it wasn’t consensual”.

5. [16]

   On 7 February 2013, the complainant attended Springwood Police Station accompanied by Ms Murray and spoke informally with Leading Senior Constable (LSC) Stephen Adams. There was no evidence of any notes taken by LSC Adams. The complainant declined to make a formal statement, indicating that she was scared of the “BK gang”. This was a reference to a local group who described themselves variously as the “Blaxland Kings”, “Blaxland Killers” and “Blaxland Kaos”. LSC Adams sent an email at 12:03 pm on 7 February 2013 to various police officers, including Detective Sergeant (DS) Benjamin Peat, which included the following report of his interview with the complainant (the Adams email):

6. [17]

   In a statement dated 23 May 2017, Mr Adams (who had recently retired from the Police Force) said:

7. [18]

   In the complainant’s statement dated 27 July 2015, she described first meeting Ash Gibbins who was her age (15 years) on 30 September 2012 and said that they became good friends talking via Facebook and met on most afternoons in Springwood. She said that the first time she had sex was with him. In closing submissions below, counsel for JR submitted that the terms of the Adams email were “crystal clear” as to what the complainant told LSC Adams. DSC Clancy gave unchallenged evidence that he first saw the Adams email not long before the criminal trial in June 2017.

8. [19]

   On 8 February 2013, DS Peat sent a copy of the Adams email to Plain Clothes Constable (PCC) Nick Campbell and instructed him in the absence that day of LSC Adams, to create a COPS report. PCC Campbell did so and created an entry at 9:29 am in the computerised operational policing system database known as COPS. In his third statement dated 23 May 2017, PCC Campbell said that he created this report based mainly on the information contained in the Adams email, and that it was likely he placed a phone call to “Naomi” (Murray) to clarify this email but he could not be “100%” certain. The trial judge observed (at [6(2)]) that this COPS report, E50923677, was consistent with the information contained in the Adams email. It is sufficient to reproduce the following parts of the COPS report, which was referred to in the proceedings below as “narrative 1”:

9. [20]

   Later that day at 4:00 pm, the complainant together with her mother attended Springwood Police Station and spoke with PCC Campbell. At 5:59 pm, PCC Campbell created a further COPS report, which was referred to in the proceedings below as “narrative 2”. The trial judge referred to the following parts of this COPS report (at [6(2)]):

10. [21]

    This COPS report also included reference to the complainant’s allegation that after JR had left the room, Jensen digitally penetrated her vagina again, and during this time police arrived at the front door in relation to the party’s noise. The complainant said that, at this point, Jensen left the room and JR returned with another person, SK, who tried to put his penis in her mouth, and she had to pull her head back to stop this from happening. After SK tried to do this a second time, the complainant again pulled away and told him to go away, and before SK left the room, Jensen re-entered the room and laid down with her and again started to penetrate her vagina with his fingers. The COPS report noted that it was unclear what JR was doing at this time and included the notation in brackets “to be clarified”. The complainant also referred to other people entering the room who told Jensen and JR to get out and they left the room before they re-entered the room. The complainant recalled “coming to shortly after this and swearing at them to ‘get out’ and ‘fuck off’”. She remembered the room door being open and another person re-entering to ask her if she was alright. She made her way out of the room sometime after this.

11. [22]

    At the criminal trial, the first COPS report based on the Adams email was relied upon by JR as exculpatory, insofar as it recorded that the complainant had reported having “consensual” sex “with a male she has had sex with before” prior to the other assaults occurring. The complainant disputed this, and other statements attributed to her in the COPS report, in her statement made shortly prior to the criminal trial: see [47]-[48] below.

12. [23]

    On 4 March 2013 Jensen corresponded with the complainant via Facebook Messenger. In one of his messages, he said:

13. [24]

    JR’s case below was that the complainant’s response to Jensen implied that the sexual intercourse with JR was consensual, and she did not thereafter consent to sexual activity with Jensen.

14. [25]

    On 11 March 2013 the complainant attended Springwood Police Station and completed a sexual assault questionnaire. She informed police that she did not want to take the matter any further. In the questionnaire, the complainant said that four people had assaulted her in a bedroom for about two hours and none of them would stop when asked multiple times throughout the night. This was a reference to each of the respondents and SK. After describing the conduct as “all unconsensual” (emphasis added), she continued:

15. [26]

    In July 2015 the complainant attended Katoomba Police Station. She made her first formal statement on 27 July 2015. The investigating officer was DSC Clancy. Police commenced an investigation and obtained other statements, including from the complainant dated 30 July 2015, 26 October 2015, 3 December 2015, and 14 December 2015.

16. [27]

    The statements from persons describing the events on the night of the party confirming something adverse happened to the complainant at the party, included:

    1. (1)

       Mr Scott Irwin saw the complainant “laying on the bed and she looked petrified” with JR and at least one other person in the bedroom. Mr Irwin said he “got a really bad feeling about what was going on”;

    2. (2)

       Ms Portia Day observed the complainant “so upset” in the bedroom and said that the complainant disclosed some non-consensual sexual activity;

    3. (3)

       Mr Fisher Gregson observed the complainant “sitting on the bed and crying hysterically” and thought “she had possibly been raped”;

    4. (4)

       Mr Jared Tindall observed the complainant to be “extremely upset”; and

    5. (5)

       Ms Julianne Williams observed the complainant to be “clearly very upset and distraught about something”.

17. [28]

    The statements from persons who corroborated the complainant’s contemporaneous report of the sexual assault, or made observations as to the complainant’s emotional state following the party, included:

    1. (1)

       Ms Olivia Shepherd said that the complainant told her the next day that she had been raped by Jensen, Dickens and the “skinny guy with the mullet”, which counsel for JR accepted at trial that JR said was him;

    2. (2)

       Ms Cherylee Crich said that the complainant told her the next day that she had been raped by Jensen, Dickens and JR at the party;

    3. (3)

       Mr Ian Watkins, a cousin of the complainant, said that the complainant told him, the next day that she had been assaulted by Dickens and JR at the party;

    4. (4)

       the complainant’s sister and mother observed her to be upset and “not herself” in the hours, days and weeks following the party. The complainant also disclosed her allegations to them some months later;

    5. (5)

       Ms Jemma van Deinsen said that the complainant told her several weeks after the party that she was raped by Jensen, Dickens and JR; and

    6. (6)

       Ms Naomi Sanders-Sullivan said that the complainant told her in November 2012 that she had been assaulted by Jensen, Dickens and JR.

18. [29]

    Police also obtained statements from persons who observed interactions between the complainant and JR at the party. Mr Gibbins said:

19. [30]

    Mr Chez Griffin said that he observed the complainant kissing and cuddling JR, that the complainant and JR were both talking and giggling, and it seemed to Mr Griffin to be a positive interaction between them.

20. [31]

    After JR was charged, Mr Aaron Bell told investigating police on 21 January 2016 that he was at the party when he saw the complainant and JR “hooking up” and that he saw the complainant and JR in a bedroom where the complainant was on top of JR, and they were having sex.

21. [32]

    On 23 December 2015 Jensen was arrested at home at 5:15 am, Dickens was arrested at home at 5:20 am and JR was arrested at home at 6:01 am. Following their arrest, each was taken to and held at Katoomba Police Station where they participated in a recorded interview, referred to as an ERISP. DSC Clancy interviewed JR between 8:00 am and 8:13 am and Jensen between 8:36 am and 9:54 am. DSC Michael Gale and DSC Brett Smith interviewed Dickens between 10:44 am and 11:36 am. In advance of the arrest of each respondent, the police had obtained a warrant for listening devices for any dock area and holding area occupied by the respondents at the Katoomba Police Station.

22. [33]

    Later that day, JR, Dickens and Jensen were each charged with offences of aggravated sexual assault contrary to the Crimes Act 1900 (NSW), ss 61J(1) and 61JA(1), and other offences. The court attendance notices were issued by DSC Clancy under the Criminal Procedure Act 1986 (NSW), s 48. The charging process involved DSC Clancy using the COPS system to fill in certain fields of information to create a charge, referred to as a court attendance notice. DSC Clancy commenced this process sometime after the recorded interviews with each respondent had been held.

23. [34]

    The creation of the court attendance notices by DSC Clancy “started” at the time referred to as “Created by” shown on the court attendance notice. This “start” time and also the time the charging process “ended” were also recorded in the custody management records. Part of the charging process included preparing a statement of facts in support of the charges against each respondent referred to as the Facts Sheet. These were typed up by DSC Clancy based on the witness statements which had been obtained, which at the time comprised about 22 statements. DSC Clancy undertook a similar process with respect to each respondent. Each Facts Sheet comprised 10 pages.

24. [35]

    The custody management indicate when the charging process “started” and “ended” and bail was refused for each respondent as follows:

    1. (1)

       JR: The creation of a court attendance notice by DSC Clancy started at 11:34 am (although the time recorded on the court attendance notice was 11:33 am) and ended at 3:30 pm when the court attendance notice was filed and issued. JR was refused bail and transferred to Cobham Juvenile Justice Centre at 3:40 pm;

    2. (2)

       Jensen: The creation of a court attendance notice by DSC Clancy started at 12:26 pm and ended at 4:35 pm when the court attendance notice was filed and issued. Jensen was refused bail and transferred to Amber Laurel Corrections Centre at Emu Plains at 5:21 pm;

    3. (3)

       Dickens: The creation of a court attendance notice by DSC Clancy started at 3:49 pm and ended at 4:35 pm when the court attendance notice was filed and issued. Dickens was refused bail and transferred to Amber Laurel Corrections Centre at Emu Plains at 5:21 pm.

25. [36]

    In the underlying proceedings each respondent claimed that after being lawfully arrested in the morning of 23 December 2015, and before being lawfully charged and refused bail later that day, there was a period in which he was falsely imprisoned at Katoomba Police Station because he was held for longer than the maximum “investigation period” of four hours permitted under LEPRA, ss 114-117.

26. [37]

    The offences charged against JR in the court attendance notice issued on 23 December 2015 and the relevant provisions of the Crimes Act 1900 (NSW), were (i) aggravated sexual assault, the circumstances of aggravation being that JR was in the company of others, contrary to s 61J(1); (ii) take / detain with intent to obtain an advantage, namely sexual assault while in the company of others, contrary to s 86(2)(a); (iii) aggravated sexual assault in company, the circumstances of aggravation being that JR in the company of others deprived the complainant of her liberty, contrary to s 61JA(1); and (iv) resisting an officer in the execution of his or her duty, contrary to s 58.

27. [38]

    On 24 December 2015 JR’s application for bail in the Children’s Court at Parramatta was opposed by the police prosecutor and bail was refused on the basis of as unacceptable risk. JR requested reconsideration of bail by the Children’s Court on 5 January 2016. That application was also opposed by the police prosecutor and bail was refused on 8 January 2016 again on the basis of an unacceptable risk.

28. [39]

    It was and is common ground that the Director of Public Prosecutions (NSW) (the Director) took over the criminal prosecution on 13 January 2016, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW). Thereafter, the police including DSC Clancy, continued to undertake investigatory and administrative tasks including obtaining further witness statements and serving a copy of the prosecution brief of evidence on JR’s legal representative on 8 February 2016. The initial prosecution brief included the statements of Mr Griffin dated 25 November 2015 and Mr Bell dated 21 January 2016, which the trial judge considered were exculpatory: at [6]. Further witness statements were obtained by police, including DSC Clancy, throughout 2016 and the first half of 2017, including a further statement by the complainant shortly before the trial dated 25 May 2017: see [47]f below.

29. [40]

    On 23 February 2016 JR made a bail application in the Supreme Court, which was opposed by the Crown and refused by Fullerton J on 24 February 2016. In the underlying proceedings, JR claimed that DSC Clancy withheld exculpatory material from the Court on the bail application, and that had such information been provided, the application would have been successful, and he would not have been held on remand pending his criminal trial.

30. [41]

    The material tendered by the Crown on that application included: (a) a “narrative of facts”, (b) the statement of the complainant dated 27 July 2015, (c) a letter to the Court from DSC Gale dated 23 February 2016, (d) a letter to the Court from DSC Clancy dated 23 February 2016, and (e) the record of interview of Mr Bell. It did not include the COPS entries of 8 February 2013.

31. [42]

    The “narrative of facts” tendered on the bail application was the Facts Sheet prepared by DSC Clancy on 23 December 2015, which had been tendered by the police prosecutor in opposition to the bail applications by JR in the Children’s Court on 24 December 2015 and 8 January 2016, and had been amended by DSC Clancy in certain respects in February 2016. Although lengthy, it is of assistance to set out the following parts of the Facts Sheet:

32. [43]

    The letter from DSC Gale to the presiding judge stated:

    1. (1)

       at the time of the offence, JR was known to be a member of a local gang known as the “Blaxland Killers” (“BK”) and the case against the accused is “strong in my submission”;

    2. (2)

       the accused was identified by 22 witnesses, including the victim, as being present and participating in the offence, and the accused was also named by both the co-accused, Dickens and Jensen, as being present in the room, and Jensen stated in his interview that JR was having sex with the victim;

    3. (3)

       police had received information that members of BK acting on the accused and co-accuseds’ behalf were approaching possible police witnesses to obtain versions of events, which may cause possible witnesses to provide conflicting versions or become reluctant prosecution witnesses for possible fear of reprisal; and

    4. (4)

       DSC Clancy would be attending court, and if required, would provide evidence.

33. [44]

    The letter from DSC Clancy to the presiding judge stated:

    1. (1)

       that page 85 of the attached transcript of the listening device recording on 23 December 2015 contained a conversation between JR and a female believed to be his sister, included threatening statements which JR made with respect to the complainant, including “Well she’s not gunna live long at all mate”;

    2. (2)

       at the time of the offence, JR was a member of the “BK” criminal gang, and there were numerous statements contained in the brief of evidence indicating this. Further, although not a member at the time of arrest, it was the belief of DSC Clancy that JR would again align himself with members of the “BK” gang for the purpose of intimidating witnesses and the complainant; and

    3. (3)

       the complainant had recently been contacted by a friend from Bathurst Correctional Centre and warned that she had to be careful of “BK” as “they are planning retribution against her for making a statement to police regarding this matter”.

34. [45]

    On 26 September 2016 JR among others was committed for trial in the District Court.

35. [46]

    On 6 February 2017 an indictment was presented against JR by a delegate of the Director. The offences then charged against JR and the relevant provisions of the Crimes Act were: (i) aggravated sexual assault, the circumstances of aggravation being that the complainant was under the age of 16 years, contrary to s 61J(1), (ii) aggravated sexual assault, the circumstances of aggravation being that JR and Jensen were in company of each other, contrary to s 61J(1) (2 counts), (iii) aggravated sexual assault in company, the circumstances of aggravation being at the time of or immediately before or after the commission of the offence JR did recklessly inflict actual bodily harm on the complainant, contrary to s 61JA(1) (4 counts), and (iv) aggravated sexual assault, the circumstances of aggravation being that JR was in the company of Jensen and another person, contrary to s 61J(1).

36. [47]

    Shortly before the trial, JR’s solicitors issued a subpoena to produce dated 1 May 2017 to the NSW Commissioner of Police. On 22 May 2017 in answer to the subpoena, the Crown produced copies of the Adams email and the COPS reports of 8 February 2013. The Crown also served an additional statement from the complainant dated 25 May 2017 in which she disputed the accuracy of certain matters attributed to her in the COPS entries of 8 February 2013. Relevantly, the complainant denied saying that she had “consensual” sex with JR. She said that some statements attributed to her in the COPS entry referred to as “narrative 1” were completely wrong, including:

37. [48]

    The complainant also said that several statements attributed to her in the COPS entry referred to narrative 2 were wrong, including:

38. [49]

    The joint trial commenced in the District Court before Flannery SC DCJ with pre-trial applications on 29 May 2017. On 31 May 2017, following representations made to the Director, the Crown discontinued the four counts against JR under s 61JA of the Crimes Act and replaced those counts with four counts of aggravated sexual assault under s 61J(1) of the Crimes Act. DSC Clancy gave unchallenged evidence in the underlying proceedings that he was not aware at the time that amendments were made to the charges, nor was his permission sought with respect to those amendments.

39. [50]

    The jury was empanelled on 1 June 2017. On 7 June 2017 Judge Flannery gave her evidentiary ruling on an objection by the respondents to the admissibility of those parts of the dock and holding cell recordings on 23 December 2015 that the Crown sought to rely upon. Her Honour ruled that the dock and holding cell recordings were inadmissible because that evidence was improperly obtained outside the maximum investigation period permitted by ss 115-117 of LEPRA and should be excluded. The Crown did not seek leave to appeal to challenge that interlocutory judgment pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

40. [51]

    On 26 July 2017, after the jury had deliberated for at least one week and had been given a majority verdict direction, the jury returned verdicts of not guilty in respect of all counts on the amended indictment relating to JR and he was released from custody.

Issues on appeal

1. [52]

   The following issues are raised on the appeals:

2. [53]

   The respondents did not rely on their notice of contention.

3. [54]

   It is well established that the issue of bias (and by extension procedural unfairness) should be addressed first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9] (Basten JA). However, in this case, the nature and significance of the judge’s interventions during the course of the trial are not readily assessed absent a detailed understanding of the issues. It is preferable to defer addressing these grounds until after dealing with the substantive grounds of appeal.

4. [55]

   It is convenient first to address the State’s appeal against the findings of malicious prosecution and misfeasance in public office.

The trial judge’s reasons: malicious prosecution and misfeasance in public office

1. [56]

   After referring to the circumstances of JR’s arrest and detention on 23 December 2015, the sexual assault offences charged against him, the Adams email, the COPS reports, the Facts Sheet and JR’s unsuccessful applications for bail (at [1]-[24]), the trial judge described the conduct of DSC Clancy as “wrongful”, noted that JR had suffered harm as a consequence, and observed that the question was whether the law provides a remedy (at [25]).

2. [57]

   Addressing the claim for malicious prosecution, the trial judge made an adverse credit finding that DSC Clancy was a “most unpersuasive witness”: at [29]. Reference was made to three matters:

   1. (1)

      when it was put to DSC Clancy in cross-examination that the two persons who witnessed the sexual act between JR and the complainant said that it was consensual, he replied: “How would they know?”: at [30];

   2. (2)

      DSC Clancy would not accept that by not including the “exculpatory information” in the Facts Sheet he denied an opportunity for JR to obtain bail: at [31]; and

   3. (3)

      the evidence of DSC Clancy revealed his “evasion and bad faith” because he did not accept that he had breached his duty to disclose exculpatory evidence, notwithstanding that counsel for the State conceded that DSC Clancy was in breach of his duty to disclose to the Director pursuant to s 15A (1) of the Director of Public Prosecutions Act all relevant information, documents or other things obtained during the investigation: at [32]-[33].

3. [58]

   The trial judge had earlier noted at [24] that, at the relevant time, s 15A(1) provided:

4. [59]

   The duty in s 15A(1) is imposed on a law enforcement officer who is responsible for an investigation into a matter that involves the suspected commission of an indictable offence: s 15A(9). The State acknowledged at trial that this duty creates an obligation on police officers to disclose matters to the Director far more broadly than what is required to be included in a brief of evidence.

5. [60]

   Malicious prosecution: The trial judge found that “in charging” JR, DSC Clancy acted without reasonable and probable cause: at [36]. Two reasons were given. First, that DSC Clancy withheld exculpatory evidence “proves that he did not honestly believe in the case against [JR]”: at [34]. Second, there was little doubt that the prosecution would fail to prove beyond reasonable doubt that the sexual act was without the complainant’s consent in circumstances where the four witnesses to the sexual act of penetration – JR, Mr Gibbins, Jensen and Mr Bell – described it as consensual, and the complainant twice stated that it was consensual: at [35].

6. [61]

   Addressing the absence of reasonable and probable cause, the trial judge said that whether DSC Clancy acted for a purpose other than a desire to bring JR to justice may be inferred: at [37]. Reference was made to the remarks of Kitto J in Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68 at 163. The trial judge found that the conduct of DSC Clancy was “so egregious that it can only be explained by improper motives”: at [39]. On this basis, the judge concluded that the State was liable for the malicious prosecution of JR: at [40].

7. [62]

   Misfeasance in public office: Addressing this claim, the trial judge found that the act of DSC Clancy in charging JR with offences on 23 December 2015 was malicious, and “[i]t follows that it was unauthorised”: at [43]. The judge also found that DSC Clancy’s concealment of the COPS reports from the bail authorities were unauthorised acts by a public officer in the purported discharge of public duties: at [44]. The judge concluded that the State was liable for misfeasance in public office: at [46].

8. [63]

   The trial judge awarded damages to JR for malicious prosecution and misfeasance in public office totalling $700,000 comprising: $500,000 for general damages, $50,000 for loss of reputation, $50,000 in aggravated damages and $100,000 as exemplary damages: at [48].

9. [64]

   Reference should be made at this point to the trial judge’s factual findings with respect to the Facts Sheet and the February 2016 bail application, given that the State challenges some of these findings.

10. [65]

    Facts Sheet: The trial judge found that whilst the statements in the Facts Sheet were consistent with the statement taken by DSC Clancy from the complainant on 27 July 2015, at the time of preparing the Facts Sheet DSC Clancy was aware of eight matters to which he did not refer in his letter addressed to the Court in February 2016 in connection with JR’s bail application: at [5].

11. [66]

    The eight matters identified by the trial judge were: (1) the Adams email, (2) the COPS narrative created by PCC Campbell dated 8 February 2013, (3) the Facebook message by Jensen to the complainant on 4 March 2013, (4) the statement by Mr Gibbins dated 23 November 2015, (5) the statement by Mr Bell dated 21 January 2016, (6) the statement by Mr Griffin dated 25 November 2015, (7) the statements by Jensen recorded by a listening device when he was in custody on 23 December 2015, and (8) the statement by Ms Kairembora, a friend of the complainant, made to DSC Clancy on 15 December 2015: at [6].

12. [67]

    The content of (1), (2) and (3) above has been referred to at [16], [19]-[21] and [23] above. The content of the other five matters were summarised by the trial judge (at [6(4)-(8)]).

13. [68]

    As to (4), the trial judge noted that Mr Gibbins described observing consensual activity between JR and the complainant, beginning with kissing in the backyard and ending with sexual intercourse in the bedroom. The trial judge found, with reference to Mr Gibbins’ statement, that before DSC Clancy explained the allegations the complainant had made he “honestly had no idea that it had been without her consent” (at [6(4)]). The trial judge found:

14. [69]

    As to (5), the trial judge noted that Mr Bell said he observed JR asking the complainant for a kiss and they started “hooking up” when they walked off; that Mr Gibbins was pretty close with the complainant at the time and was heartbroken; that he suggested to Mr Gibbins that they get a bucket of water and tip it on them; and that Mr Bell said that he observed through an open window (at [6(5)]):

15. [70]

    The trial judge also noted that that Mr Bell said that (i) the kissing in the backyard seemed consensual to him, and (ii) his observation of JR and the complainant having sex in Dickens’ room also seemed consensual to him, remarking “Well yeah, especially if they both punched me in the arm for tipping water over them”: (at [6(5)]).

16. [71]

    As to (6), the trial judge noted that Mr Griffin said that the complainant was kissing and cuddling [JR], they were both talking and giggling, and it seemed to be a positive interaction between the two of them: (at [6(6)]).

17. [72]

    As to (7), the trial judge noted that a listening device recorded statements by Jensen, when he was in custody on 23 December 2015 (at [6(7)]):

18. [73]

    As to (8), the trial judge noted that Ms Kairembora told DSC Clancy on 15 December 2015 that (i) she was happy to provide a statement to the effect that she heard of a rape allegation and did not believe it to be true, (ii) she was told that it was the complainant’s first party that she had attended and that she had drunk too much and had consensual sex with a number of persons that she regards as friends, (iii) she had spoken to Dickens, Jensen and two other persons to get “their version” and was told that several of them had sex with the complainant and the door was open so “the boys” could watch, and (iv) after having sex with the boys the complainant felt sorry for herself and played the “rape card”: (at [6(8)]).

19. [74]

    February 2016 bail application: Turning to the February 2016 bail application, the trial judge found that DSC Clancy was aware of a witness statement made by Ms Kairembora on 27 January 2016 (at [7]) which DSC Clancy did not disclose to Fullerton J (at [8]), that included:

20. [75]

    The trial judge made the following findings in relation to the February 2016 bail application (at [9]-[22]):

Challenges to factual findings

1. [76]

   The State challenged the following factual findings which are relevant to the findings of absence of reasonable and probable cause, and malice:

   1. (1)

      that DSC Clancy “consciously poisoned” the mind of Mr Gibbins (at [6(4)]);

   2. (2)

      that there was “no evidence” that [JR] was ever a member of the BK Gang, and DSC Clancy did not honestly believe that he was likely to realign himself with them (at [15]-[17]);

   3. (3)

      that DSC Gale’s letter to the presiding judge contained mis-statements (at [10]-[13]);

   4. (4)

      that in preparing the brief to the Director, DSC Clancy intentionally excluded the COPS reports and was “consciously misleading” (at [18]-[19]);

   5. (5)

      the Facts Sheet prepared by DSC Clancy did not provide a fair description of the evidence (at [20]-[21]); and

   6. (6)

      that DSC Clancy withheld or concealed exculpatory evidence, including from bail authorities (at [34], [44]).

2. [77]

   The correct approach to appellate review of findings of primary facts is summarised in Superannuation Corporate Services Pty Ltd v Turner [2020] NSWCA 246 at [64]-[65] (Gleeson JA, Basten and Leeming JJA agreeing). Appellate review of findings of primary facts takes place in accordance with the principles applicable to an appeal by way of rehearing. Where the findings involve an assessment of the credibility or reliability of witnesses, the review is conducted in conformity with the principles stated or affirmed in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29]. That includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

3. [78]

   Thus, in order to succeed in setting aside factual findings affected by impressions of the trial judge about credibility and reliability of witnesses, the State must establish that “incontrovertible facts or uncontested testimony” demonstrate that the trial judge’s conclusions are erroneous, or that the decision is “glaringly improbable” or “contrary to compelling inferences” in the case: Fox v Percy at [28]-[29]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43]; Lee v Lee at [55].

4. [79]

   As to (1) above (Mr Gibbins’ statement), there was no impropriety in DSC Clancy informing Mr Gibbins of the context in which his statement was sought in 2015, namely, the events of the party in October 2012, because the complainant had made an allegation of sexual assault. That context was expressly disclosed in Mr Gibbins’ statement. Further and contrary to the trial judge’s view at [6(4)], it was entirely appropriate that DSC Clancy did not taint Mr Gibbins’ recollection by informing him what others, such as Mr Bell and Jensen, had said they had observed. The finding that DSC Clancy “consciously poisoned” the mind of Mr Gibbins is contrary to compelling inferences and should be set aside.

5. [80]

   As to (2) above (JR’s past association with the BK gang), multiple witnesses had identified JR as a former member of the BK gang. Those witnesses included: Mr Gibbins, Mr Jared Trindall, Ms Brodie Trudgett, Ms Annabel Wulff, and Mr Peter Tedinnick. There was also evidence that JR was previously associated with the BK gang given by Mr Scott Irwin, the complainant’s sister and Ms Gemma van Deinsen.

6. [81]

   The trial judge’s finding that there was no evidence that JR was ever a member of the BK gang, relied on the fact that DSC Clancy had charged two members of the BK gang in August 2015 with assaulting JR in March 2015. But that did not undermine the evidence of witnesses that JR was former member of the BK gang. As the State correctly submitted, violence between members of gangs or former members is neither fanciful nor unusual. Nor was the alleged assault of JR in 2015 inconsistent with DSC Clancy holding a genuine belief that JR would seek to reassociate himself with his former gang, especially in the circumstances where the complainant had made serious allegations that implicated gang members, specifically, Jensen and Dickens, in addition to JR.

7. [82]

   The trial judge’s finding that there was no evidence at the time of the February 2016 bail application that JR had been a member of the BK gang is contrary to uncontested evidence. The finding that DSC Clancy did not honestly believe that JR was likely to realign himself with members of the BK gang, is contrary to compelling inferences. Both findings should be set aside.

8. [83]

   As to (3) above (DSC Gale’s letter), DSC Clancy did not have cause to correct DSC Gale’s letter. Contrary to the finding at [10] that DSC Clancy said, without proof, that JR was known to be a member of the BK gang, for the reasons given above the letter accurately stated that JR was known to be a member of the BK gang at the time of the alleged offending in October 2012. The finding that this statement was made “without proof” is contrary to uncontested evidence and should be set aside.

9. [84]

   Contrary to the finding at [11] that DSC Clancy knew the letter was highly misleading in saying that Jensen had stated in his ERISP that JR was having sex with the complainant, that statement was accurate. During his ERISP, when shown Facebook messages with the complainant dated 4 March 2013 and asked if he saw JR having sex with the complainant, Jensen responded, “Well, I must have if I’ve said that at the time. I’d have a better memory closer to that date wouldn’t I?”. When asked whether he was certain about saying that the complainant was “on top”, Jensen responded, “I’m pretty certain”, and when further asked whether it could have been JR on top of the complainant, he answered, “I think it was a bit of both”. The finding that the letter was highly misleading was contrary to compelling inferences from Jensen’s ERISP and should be set aside.

10. [85]

    As to (4) above (excluding the COPS reports from the prosecution brief), it is not in dispute that DSC Clancy omitted the COPS reports from the prosecution brief sent to the Director. The challenge is to the credibility-based finding that this was “consciously misleading”. That finding involved a rejection of DSC Clancy’s explanation that it was never his practice to include COPS reports in briefs of evidence, as they were merely business records of the NSW Police, by contrast to witness statements, which he did include. There was no evidence corroborating DSC Clancy’s evidence that it was “standard operating procedures in the police” not to produce such material.

11. [86]

    The trial judge’s finding was based on his assessment of the credibility of DSC Clancy’s explanation for this omission from the prosecution brief. When asked by the trial judge about disclosure of the COPS reports given that DSC Clancy knew that the complainant did not have sex with Mr Gibbins on that night, DSC Clancy gave the following evidence:

12. [87]

    DSC Clancy also gave evidence that he did not see the relevance of the COPS reports at the time as he felt the complainant’s comprehensive statement explaining what had occurred that night and the 20-plus statements that had been obtained from witnesses expanding on what they knew of the night adequately addressed the issue. The following exchange then occurred between the trial judge and DSC Clancy:

13. [88]

    The cross-examination continued:

14. [89]

    Accepting the advantage of the trial judge in assessing DSC Clancy’s evidence, the State has failed to demonstrate error in the requisite sense in the trial judge’s credit-based finding that DSC Clancy was consciously misleading in excluding the COPS reports from the prosecution brief.

15. [90]

    As to (5) above (the Facts Sheet did not provide a “fair description” of the evidence), the trial judge gave two reasons. First, that the statement that the brief “is compelling with in excess of 20 statements supporting the complainant” did not reflect the fact that most of the statements were hearsay, merely supported the complainant’s assertion that she was subject to digital abuse by others, and were not specific to the allegations against JR, relevantly, penile penetration without consent. This reasoning takes out of context the statement in the Facts Sheet referring to “compelling” evidence in over 20 statements supporting the version supplied by the complainant. Plainly, the statements obtained by the police related to the case against each of the respondents, not just JR.

16. [91]

    The primary judge’s characterisation of the Facts Sheet did not take into account the significance of contemporaneous complaint evidence in supporting the complainant’s account. As indicated, there were multiple witness statements of persons to the effect that the complainant had reported to others on the day following the house party and shortly thereafter that she had been raped and assaulted by JR, among others.

17. [92]

    The trial judge erred in concluding that the only three eyewitnesses to the sexual act of penetration supported JR’s claim of consensual sex. There was no statement by JR when the Facts Sheet was prepared or at the February 2016 bail application as he declined to comment during his recorded interview. Neither Jensen nor Mr Bell was able to give evidence as to whether the intercourse they observed was consensual; their evidence was limited to the impression they formed from observing it.

18. [93]

    Mr Bell’s statement that the intercourse between JR and the complainant “seem[ed] consensual” to him was a view expressed in light of what happened afterwards, given that Mr Gibbins had thrown a bucket of water on both of them. Mr Bell was a juvenile at the time he was interviewed on 21 August 2016 and described himself as having “had a bit to drink, maybe a 7 or 8 out of 10” on the night of the party. Jensen did not purport to give evidence as to whether the intercourse between JR and the complainant was consensual (he did not respond to Q 461 of his recorded interview).

19. [94]

    The trial judge ignored that the complainant was an eyewitness to the assault she alleged and gave evidence of lack of consent in her July 2015 statement. Her statement was supported by Mr Gibbins’ statement who observed JR had been “trying to kiss” the complainant; and that JR was on top of the complainant during the intercourse, with the complainant not moving or making any sound, which is contrary to Mr Bell’s account, but consistent with the complainant’s account. In addition, Mr Gibbins said that when he threw water on JR and the complainant, he observed that she “looked startled”, but did not act like herself, which was consistent with the complainant’s evidence that she felt as if her drink had been spiked. Whilst Mr Gibbins gave evidence that he “blamed” the complainant for kissing JR, he did not say that he formed the view that the intercourse between them was consensual, rather he had “no idea that it had been without her consent”. The trial judge’s characterisation of the Facts Sheet as not being a fair description of the evidence cannot be accepted. The trial judge’s finding at [21] should be set aside.

20. [95]

    As to (6) above (DSC Clancy withheld or concealed exculpatory evidence), the State submitted that this finding ignored DSC Clancy’s evidence that he was aware that the complainant had not made a statement around the time of the COPS report (in February 2013) and that he honestly considered that the COPS report did not accurately reflect the allegations made by the complainant at the time the COPS report was created. That can be accepted but does not take the factual challenge very far, given the concession at trial by counsel for the State that DSC Clancy was in breach of his duties of disclosure to the Director under s 15A of the Director of Public Prosecutions Act, which included disclosure of all relevant information or documents that might reasonably be expected to assist the case for the accused.

21. [96]

    The challenge to this factual finding cannot succeed. At the very least, DSC Clancy “withheld” from the Director (and JR) when he delivered the prosecution brief on 8 February 2017 relevant information that could assist JR’s case in the form of the COPS reports. It is not to the point that DSC Clancy did not consider this information to be relevant for inclusion in the prosecution brief. That did not excuse the conceded breach of his s 15A duty of disclosure. Nor did it relieve the Director from his common law duty of disclosure to the accused of material which is or might be relevant to an issue in the case; here, the issue of consent: R v Rearden (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46]-[54] (Hodgson JA), approved in R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCA 321.

Malicious prosecution

1. [97]

   For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish, as stated in the joint judgment in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1]:

2. [98]

   There was no dispute at trial that the first two elements of this claim were satisfied. The dispute at trial concerned the third and fourth elements. Before addressing those elements, it is necessary to identify the “prosecutor”.

3. [99]

   JR’s case at trial was that DSC Clancy was a prosecutor because he “initiated” the proceedings, and he “maintained” the proceedings after 13 January 2016, when the Director took over the prosecution. It was said that he did so by obtaining witness statements after January 2016 and by withholding the COPS entries. The State admitted that DSC Clancy was a prosecutor insofar as he “initiated” the proceedings but denied that he “maintained” the proceedings once the prosecution was taken over by the Director in early 2016.

4. [100]

   Given the trial judge’s finding that “in charging” JR, DSC Clancy acted without reasonable and probable cause (at [36]), it can be inferred that the trial judge also found that DSC Clancy was a prosecutor in “initiating” the proceedings. The State accepts this finding.

5. [101]

   It is common ground that the trial judge did not make any finding that DSC Clancy “maintained” the prosecution against JR. Notwithstanding the absence of a notice of contention, JR repeated his submission that DSC Clancy “maintained” the proceedings after the Director took over the prosecution in early 2016. The State disputed this submission. JR’s submission should be rejected for the following reasons.

6. [102]

   The “maintenance” of a prosecution requires that the alleged prosecutor take some positive conduct to maintain the prosecution, that is, play some active role in the conduct of the proceedings: A v NSW at [34]; State of New South Wales v Landini [2010] NSWCA 157 at [52]-[59] (Macfarlan JA, Tobias JA and Sackville AJA agreeing). As Nettle J observed in Skrijel v Mengler [2003] VSC 270 at [200] (cited with approval in Klein v National Australia Bank Ltd [2016] VSCA 114 at [23]):

7. [103]

   It is not in dispute that there can be more than one prosecutor: see, for example, Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 40; State of New South Wales v Landini at [67]. In this case the acts of DSC Clancy in further investigating the matter and obtaining witness statements after the Director took over the prosecution in early 2016 did not make him a prosecutor after that date in addition to the Director. DSC Clancy was not “actively instrumental” in the relevant sense in continuing the proceeding after the Director took over the prosecution. The Director was responsible for maintaining the prosecution after early 2016, including for making decisions as to the conduct of the committal proceedings, the selection of charges on the indictment and the amendment of the indictment.

8. [104]

   Nor did DSC Clancy dominate the Director or the Office of the Director of Public Prosecutions by “prevailing upon them or procuring them” to continue the proceeding as to be regarded as really taking the action through them: Skrijel v Mengler at [200]. When the Court raised this issue, senior counsel for JR submitted that it was sufficient that DSC Clancy initiated the prosecution. It is appropriate to proceed on that basis.

9. [105]

   The absence of reasonable and probable cause involves two kinds of inquiry: one subjective (what the prosecutor made of the available material), and the other objective (what the prosecutor should have made of that material): A v NSW at [70].

10. [106]

    With respect to the prosecutor’s subjective state of mind, the High Court drew a distinction in A v NSW between cases where the prosecutor may be supposed to know where the truth lies, and cases where it is alleged that the prosecutor knew or believed some fact that was inconsistent with guilt: at [71]. The present case falls into the latter category.

11. [107]

    The joint judgment in A v NSW observed that “the absence of reasonable and probable cause will not in every case be shown by demonstrating that the prosecutor had no positive belief that the accused person was, or was probably, guilty”: at [76]. For this reason, references to belief by the prosecutor in guilt, or the absence of belief in guilt, will very likely prove distracting in any case where the prosecutor may not be supposed to know where the truth lies. An example of such a case mentioned in the joint judgment is where the prosecutor acts on statements of others: at [76].

12. [108]

    The joint judgment identified at [77] three critical points concerning the absence of reasonable and probable cause:

13. [109]

    Where the prosecutor has acted on material provided by third parties, unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established: A v NSW at [80].

14. [110]

    Whilst the objective aspect of reasonable and probable cause will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution, that absence of reasonable and probable cause is not demonstrated by showing only that there were further enquiries that could have been made before a charge was laid: A v NSW at [86].

15. [111]

    As to the subjective element, JR’s case at trial was that DSC Clancy did not honestly believe that the material against JR was such as to warrant the charges against him. It was said in closing submissions:

16. [112]

    As to the objective element, JR’s case was that “any honest belief on the part of DSC Clancy in the case against the plaintiff, especially in relation to the allegation of penile sexual intercourse without consent, did not have an objectively sufficient basis for [several] reasons”. It was said that an objective person with reasonably sound judgement would conclude that the case was not viable including because (i) the complainant’s credibility and reliability as a witness was significantly undermined by the numerous inconsistencies between the complainant’s first statement and narratives 1 and 2, (ii) the statement of Mr Gibbins was said to support the proposition that the complainant consented to sexual intercourse with JR, and (iii) Mr Griffin said in his first statement that he observed the complainant “getting with” JR, that is, the complainant was kissing and cuddling JR, and he described this interaction action between the two of them as “positive”.

17. [113]

    The State contends that the trial judge erred in finding that in charging JR, DSC Clancy acted without reasonable and probable cause (ground 15). This is a general ground. Success on this ground depends on grounds 13 and 14 which challenge the trial judge’s findings as to the subjective and objective elements of absence of reasonable and probable cause. That directs attention to what DSC Clancy as the prosecutor who initiated the prosecution “made” or “should have made” of the material available to him on 23 December 2015.

18. [114]

    The trial judge’s finding that DSC Clancy did not honestly believe in the case against JR, relied upon an inference that if DSC Clancy truly believed that the available material warranted charging JR, there was no reason for him to withhold exculpatory evidence. Ground 13 challenges this finding.

19. [115]

    The primary submission by senior counsel for JR is that DSC Clancy did not have an honest belief in the case against JR because (i) it should be presumed in light of the COPS report that the person the complainant thought she was led off to have sex with was JR, not Mr Gibbins, (ii) when DSC Clancy charged JR, the complainant’s statement made no attempt to address what were said to be apparent inconsistencies between her statement and the Adams email and narratives 1 and 2 in the COPS reports, and there was a statement from Mr Griffin that he recalled the complainant was quite drunk and he observed her kissing and cuddling JR, and (iii) DSC Clancy considered it necessary to withhold exculpatory material.

20. [116]

    Addressing each submission in turn. As to (i), the premise is unwarranted. On the material available to DSC Clancy the reference in the Adams email, which was reproduced in narrative 1 of the COPS report, to the person the complainant “has had sex with before”, was not JR (there being no suggestion that she had ever had sex before with him); this was a reference to Mr Gibbins. That appears from the complainant’s July 2015 statement where she said that Mr Gibbins was the first person she had had sex with before.

21. [117]

    As to (ii), DSC Clancy gave the following evidence in cross-examination in answer to questions asked by the trial judge and the cross-examiner:

22. [118]

    The trial judge did not find that DSC Clancy did not have an honest belief that there was a proper case against JR based on the statement obtained from the complainant in July 2015. Nor did the evidence of what Mr Griffin observed with respect to the complainant’s intoxication and her kissing and cuddling JR in the backyard, mean that DSC Clancy could not have had an honest belief that there was a proper case for prosecution. There was competing evidence of Mr Gibbins’ observations that JR tried to kiss the complainant.

23. [119]

    As to (iii), counsel for JR submitted, as the trial judge inferred, that the fact that no disclosure was made by DSC Clancy of the COPS report and the Adams email speaks to DSC Clancy’s state of mind at all times, including at the earlier time when JR was charged. There are difficulties with this submission which seeks to uphold the trial judge’s reasoning.

24. [120]

    First, it was not put directly to DSC Clancy in cross-examination that at the time he charged JR he had no intention of providing the COPS reports and the Adams email to the Director. Nor should it be accepted, as suggested by counsel for JR, that this proposition was implicit in the general attack on DSC Clancy’s failure to disclose that material to the Director. In this regard, the s 15A duty (to which DSC Clancy was subject) to disclose all relevant material to the Director had a temporal operation, from the time the Director took over the prosecution, which in this case was mid-January 2016: see s 15A(1A) which is set out at [58] above.

25. [121]

    In the absence of a specific challenge to DSC Clancy’s state of mind at the time he charged JR, namely, that he did not then intend to later disclose this material to the Director, the trial judge erred in drawing an inference from DSC Clancy’s later conduct in not disclosing that material to the Director, that it reflected his state of mind at an earlier time when he charged JR.

26. [122]

    Second, counsel for JR properly accepted in this Court that the complainant’s own statements were plainly inculpatory of JR, as were some of the other statements including from an observation point of view the statement of Mr Gibbins. It is to be recalled that the complainant made contemporaneous reports to friends immediately following the incident on 26 October 2012, a report to the youth counsellor, Ms Murray, in January 2013, a report of the incident to police on 7 and 8 February 2015, and an allegation of “unconsensual” sex in the sexual assault questionnaire she completed in March 2013. Given the available material, including the complainant’s statement obtained in July 2015, the trial judge should have found that DSC Clancy had an honest belief that there was a proper case for prosecution of JR when he charged JR.

27. [123]

    The finding that DSC Clancy did not have an honest belief that there was a proper case for prosecution of JR should be set aside.

28. [124]

    The trial judge’s assessment of the evidence available to DSC Clancy as giving rise to “little doubt” that the prosecution would fail was based on two findings: first, that four witnesses described the act of sexual penetration as consensual, and second, that the complainant twice stated that it was consensual: at [35]. Ground 14 challenges this finding.

29. [125]

    The first finding contains error which has been referred to above when dealing with the factual challenge to trial judge’s characterisation of the Facts Sheet. It bears repeating that at the time DSC Clancy charged JR there was no statement by JR, as he declined to comment during his recorded interview. Neither Jensen nor Mr Gibbins was able to give evidence as to whether the intercourse they observed was consensual; their evidence was limited to the impression they formed from observing it. Nor did Jensen purport to give evidence as to whether the intercourse between JR and the complainant was consensual (he did not respond to Q 461 of his recorded interview). Mr Bell did not give his statement concerning his observations until 21 January 2016 when the Director had taken over the prosecution; his evidence of the impression he formed from observing the intercourse between JR and the complaint was not part of the material available to DSC Clancy at the time he charged JR.

30. [126]

    The second finding also contains error. The trial judge’s statement that the complainant “twice” stated that it was consensual sex was an overstatement. This seems to be a reference to that part of the Adams email which was reproduced in narrative 1 of the COPS report. The Adams email contained a note of the complainant reporting being “intoxicated and was led off to a room to have consensual sex with a male she has had sex with before”. As indicated, on the material available to DSC Clancy, the person the complainant had had sex with before was Mr Gibbins, not JR.

31. [127]

    The trial judge erred in ignoring that the complainant was an eyewitness to the assault she alleged and gave evidence of lack of consent in her July 2015 statement. That her statement was supported by Mr Gibbins’ statement of his observations is addressed at [94] above.

32. [128]

    The fact that the complainant’s credibility and reliability as a witness would be a significant matter in establishing the guilt of JR, does not mean that on an objective assessment of the material available DSC Clancy formed a view that there was a proper case for prosecution of JR on an insufficient basis. The trial judge’s objective assessment of the available material cannot stand.

33. [129]

    For the above reasons, the finding of absence of reasonable and probable cause should be set aside.

Malice

1. [130]

   As stated in HD v State of New South Wales [2016] NSWCA 85 at [78] (Gleeson JA, Leeming JA and Emmett AJA agreeing), in deciding the issue of malice in a case such as the present, involving a public prosecution initiated by a police officer, it is necessary to keep in mind the statement in the joint judgment in A v NSW at [41]:

2. [131]

   To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v NSW at [91].

3. [132]

   Examples of an improper purpose include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However, as the joint judgment in A v NSW emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose.

4. [133]

   Although it has been said that malice can be inferred from an absence of reasonable and probable cause (A v NSW at [90]), this statement needs to be read in context with what follows at [91] in A v NSW. In State of New South Wales v Abed [2014] NSWCA 419 at [150]-[152], the position was summarised thus:

5. [134]

   JR’s case at trial was that malice was established because the dominant purpose of DSC Clancy in prosecuting JR was simply to get a result, as opposed to bringing a wrongdoer to justice. It was said in closing submissions that:

6. [135]

   Alternatively, JR’s case was that malice could be inferred from a finding that DSC Clancy did not honestly believe in the case against him. In this regard it was said:

7. [136]

   In finding that DSC Clancy acted maliciously in charging JR the trial judge did not accept JR’s primary submission; rather, the judge accepted his alternative submission that malice can be inferred. The judge drew this inference on the basis that DSC Clancy’s “conduct” was so egregious that it can only be explained by “improper motives”. The State challenged that finding (ground 16).

8. [137]

   The trial judge did not state what the “improper motives” were of DSC Clancy, and there is no finding of spite or ill will or an intention to punish JR. No such proposition put to DSC Clancy in cross-examination.

9. [138]

   Counsel for JR submitted that the “conduct” to which the trial judge was referring was the non-disclosure of the COPS reports and the Adams email, and that the finding of malice was underpinned by the finding that DSC Clancy did not have an honest belief that there was a proper case for prosecution of JR. Aside from the difficulty that this conduct occurred after the prosecution was taken over by the Director, it provides no support for the finding of malice, given that the finding that DSC Clancy did not have an honest belief that there was a proper case against JR should be set aside for the reasons given above.

10. [139]

    Counsel for JR also pointed to the Facts Sheet which was created at the time JR was charged and submitted that there was no reference to any of the material said to be exculpatory, including the statement of Mr Griffin. That can be accepted, but it does not follow that DSC Clancy did not have an honest belief that there was a proper case for prosecution of JR when he charged him. The finding of malice cannot stand.

11. [140]

    It follows that the claim of malicious prosecution should have been dismissed at trial.

Misfeasance in public office

1. [141]

   Misfeasance in public office is an intentional tort. The elements of the tort were stated by Deane J in Northern Territory of Australia v Mengel (1995) 185 CLR 307; [1995] HCA 65 at 370, citing Lord Diplock in Dunlop v Woollahra Council [1982] AC 158 at 172: (1) an invalid or unauthorised act; (2) done maliciously; (3) by a public officer; (4) in the purported discharge of his or her public duties; and (5) which causes loss or harm to the plaintiff. This statement was cited with approval in Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [36] (Payne JA) and [137] (Simpson AJA); and State of New South Wales v Spedding [2023] NSWCA 180 at [48] (Bell CJ, Ward P and Adamson JA). See also Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 at [42].

2. [142]

   It is not necessary to refer to all of these grounds. It is sufficient to note that the State challenged the finding that in charging JR, DSC Clancy engaged in an unauthorised act which was done maliciously (grounds 17 and 18).

3. [143]

   Senior counsel for JR did not address the misfeasance in public office claim in oral argument. Counsel acknowledged that the trial judge did not separately address what was required of the element of malice for this tort. Instead, the judge adopted at [43] his finding of malice with respect to the tort of malicious prosecution. Counsel accepted that success or otherwise of the claim of misfeasance in public office rises and falls on the question of whether malicious prosecution was established.

4. [144]

   As the finding of malice with respect to the malicious prosecution claim should be set aside, so also should the finding of misfeasance in public office be set aside. In these circumstances it is not necessary to address whether the conflation of the element of malice in the two torts was an error.

5. [145]

   One further matter should be mentioned for completeness. Contrary to the trial judge’s finding at [43], the act of DSC Clancy in charging JR by issuing a court attendance notice was not beyond power. The relevant power exercised by DSC Clancy in instituting proceedings was authorised by the Criminal Procedure Act, s 48:

6. [146]

   It is not necessary to address ground 24 which challenged the award of damages to JR totalling $700,000. This award of damages must be set aside as the claims of malicious prosecution and misfeasance in public office have both failed.

False imprisonment

1. [147]

   The tort of false imprisonment, sometimes referred to as wrongful imprisonment, involves the detention of the person and the unlawfulness of such detention. Where the plaintiff establishes the element of detention the onus shifts to the defendant to negative the element of unlawfulness: Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 (Lewis) at [24] (Gageler J).

2. [148]

   Section 114 of LEPRA provides:

3. [149]

   Section 115(1) defines the “investigation period” as a period “that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances but does not exceed the maximum investigation period”. At the relevant time, s 115(2) provided that without extension by warrant, the “maximum investigation period” was four hours.

4. [150]

   Section 116(1) provides that in determining what is a reasonable time for the purpose of s 115(1), all the relevant circumstances of the particular case must be taken into account, and s 116(2) contains a non-exhaustive list of circumstances (if relevant) that are to be taken into account.

5. [151]

   Section 117 provides that certain periods are to be disregarded in calculating the investigation period. At the relevant time, those “timeout” periods included:

6. [152]

   The reference in s 117(1)(c) to facilities for complying with section 281 of the Criminal Procedure Act 1986 (NSW) is a reference to a “tape recording” of an interview (being an audio recording, or video recording, or a video recording accompanied by a separately but contemporaneously recorded audio recording) made in the course of official questioning by an investigating official, that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.

7. [153]

   Several matters should be immediately noted about s 117. It is not in issue that the following are not a permitted timeout under s 117(1): (i) the interview of a person detained for the purpose of investigation (also known as an ERISP), and (ii) movements of a detained person within the precinct of a police station, as senior counsel for the State properly acknowledged.

8. [154]

   Section 117(2) says that in any criminal proceeding the burden lies on the prosecution to prove on the balance of probabilities that any “particular time” was a time that was not to be taken into account because of s 117. No point seems to have been taken by the State at trial that this provision only applies in criminal proceedings, and not civil proceedings.

Trial judge’s reasons: false imprisonment

1. [155]

   The conduct of the police which the trial judge found constituted the false imprisonment of the respondents was detaining each of the respondents beyond the maximum “investigation period” referred to in s 114 of LEPRA, taking into account the permitted “timeouts” under s 117(1) of LEPRA.

2. [156]

   The trial judge only made detailed findings with respect to the detention of JR, however, some of the findings concerning “timeouts” which were not permitted by s 117(1) apply equally to Dickens and Jensen. Otherwise the reasons were brief. Those findings were, first, that to the knowledge of the custody officer, Sgt Phipps, and also DSC Clancy, the custody management records kept by Sgt Phipps contained false entries: at [59]. The false entries included:

   1. (1)

      an entry under the description “Moving back to cell” at 8:13 am recorded “8 minutes” when the cells were adjacent, and Sgt Phipps agreed that 30 seconds was the probable time occupied by this procedure: at [60];

   2. (2)

      an entry under the description “Moving to ERISP room” recorded 11 minutes: at [61]; and

   3. (3)

      the entries under the description “Waiting for ERISP room for forensic procedures”, included 1 hour 27 minutes commencing at 8:29 am and 1 hour 34 minutes commencing at 10:21 am, when it was common ground that after JR’s ERISP, no further forensic procedure was either planned or took place at [62].

3. [157]

   The State does not challenge the findings at [59]-[62] that the custody management records contained false entries.

4. [158]

   Second, that DSC Clancy and Sgt Phipps knew of their statutory obligations and wilfully ignored them: at [63]. The trial judge gave the following example (at [64]):

5. [159]

   There seems to be a minor error in the first sentence of the primary judge’s reasons at [64] insofar as the conversation between Sgt Phipps and DSC Clancy is said to have occurred at “9:47 AM”. The transcript of the surveillance device suggests that this conversation occurred at 9:57 am. However, that does not affect the trial judge’s finding that the custody records confirm that the ERISP room was not in use between 9:54 am and 10:44 am. The State did not challenge the finding at [64] but challenged the finding at [63] that DSC Clancy and Sgt Phipps “wilfully ignored” their statutory obligations (JR – ground 28, Dickens and Jensen – ground 6).

6. [160]

   Turning to the detention of Dickens and Jensen, the trial judge found that the transcript of a listening device revealed that Dickens and Jensen expected to be released upon the expiration of the investigation period: at [67], [70]. The State challenged the judge’s further findings that their continued detention was not inadvertent, but the result of a “conscious decision” by DSC Clancy to ignore his legal duty, and that DSC Clancy knew that further detention after the expiration of the investigation period was contrary to law: at [67], [70] (Dickens and Jensen – ground 4).

7. [161]

   The trial judge concluded that:

   1. (1)

      JR was falsely imprisoned between 1:16 pm and 3:30 pm: at [58];

   2. (2)

      Dickens was “falsely imprisoned for over 5 hours” between 11:20 am and 3:49 pm: at [66]; and

   3. (3)

      Jensen was “falsely imprisoned for 5 hours” between 11:20 am and 4:35 pm: at [69].

8. [162]

   The State challenges these findings (JR – ground 25, Dickens and Jensen – ground 3).

9. [163]

   Ignoring interest, the trial judge awarded each of JR, Dickens and Jensen damages for false imprisonment totalling $30,000 comprising: $5,000 general damages; $5,000 aggravated damages; and $20,000 exemplary damages: at [65], [68], [71]. The State challenges these awards of damages as excessive (JR – ground 29, Dickens and Jensen – ground 7).

10. [164]

    The State contends that the trial judge erred in three respects. First, in finding that each of JR, Jensen and Dickens was falsely imprisoned. This is a general ground which does not identify any error. Its success depends on the remaining two grounds.

11. [165]

    Second, the State challenges several factual findings; strictly these findings are relevant to the issue of damages, but it is convenient to address them immediately. The State challenged the findings that (i) DSC Clancy was “evasive and unrepentant” in responding to questions about custody management records (JR – ground 26), (ii) Dickens’ detention was a result of a “conscious decision” by DSC Clancy to ignore his legal duty (Dickens – ground 4), and (iii) DSC Clancy knew that the further detention of Jensen after the expiration of the investigation period was contrary to law (Jensen – ground 4).

12. [166]

    As to ground 26 of the JR appeal, no substantive submission was advanced by the State as to why the finding that DSC Clancy was evasive and unrepentant in responding to questions about custody management records was erroneous. On a fair reading of the transcript of cross-examination of DSC Clancy that finding was well-open to the trial judge. No basis for intervening with this credit-based finding was identified by the State. Insofar as the State’s challenge to this finding depended on the success of grounds 1 and 2, those grounds 1 and 2 should be rejected for the reasons given below.

13. [167]

    As to ground 4 of the Dickens and Jensen appeals, no oral argument was advanced in support of these grounds. In writing, the State submitted that the findings at [67] and [70] are undermined by the scant reasoning, which does not adequately detail the basis of those findings. That criticism of the trial judge’s reasons ignored that the impugned findings at [67] and [70] should not be read in isolation. When read together with the findings at [63] and [64] that DSC Clancy and Sgt Phipps wilfully ignored their statutory obligations, noting that the finding at [64] is not challenged, and that the challenge to the finding at [63] by ground 28 should be rejected for the reasons given at [198]f below, the complaint of inadequate reasons is rejected.

14. [168]

    Third, the State contends that the permitted “timeouts” under s 117(1)(m) of LEPRA for time reasonably required to carry out charging procedures was applicable and stopped time in the calculation of the permitted maximum investigation period under s 115 of LEPRA for two reasons.

15. [169]

    First, the State complained that the trial judge did not engage with its submission at trial that by the expiration of the investigation period, JR was being held for the purpose of being charged, and that the limit of the investigation period was no longer engaged, and instead the judge relied solely on the supposed concessions of DSC Clancy and Sgt Phipps. Contrary to the State’s submission, the trial judge did not rely solely on the concessions of DSC Clancy and Sgt Phipps. The judge found at [53] that JR’s ERISP took place between 8:00 am and 8:13 am, and the State had not proved that charging procedures could not have taken place in the three hours between 8:13 am and 11:30 am. There is no challenge to this finding.

16. [170]

    Further, although the trial judge did not make an express finding, it is to be inferred from the trial judge’s findings at [63], [64], [67] and [70] concerning the conduct of DSC Clancy and Sgt Phipps in unlawfully detaining the respondents, that the judge found that the reason each respondent was detained beyond the maximum investigation period was that DSC Clancy was seeking to gather inculpatory evidence against the respondents whilst detained in the dock or holding cell area of the Katoomba Police Station where listening devices had been authorised by warrant.

17. [171]

    Second, the State submitted that the time reasonably required to carry out charging procedures should be construed to encompass “steps reasonably and promptly taken following a decision to charge”, including the charging of successive accuseds if there are no resources available for simultaneous process.

18. [172]

    The respondents say that the phrase “reasonably required” in s 117(1)(m) of LEPRA applies in relation to the time reasonably required to carry out charging procedures and nothing else. It is said the investigation period in respect of each respondent expired before the charging process commenced in relation to each respondent and therefore the relevant “timeout” under s 117(1)(m) of LEPRA was never engaged. It is also said that the commencement of the carrying out of the charging process after the expiry of the investigation period does not afford a further “timeout” under s 117(1)(m).

19. [173]

    A major difficulty in the present case with the application of s 117(1)(m) in the manner contended for by the State is that the State did not identify what, if any, “steps” were “reasonably and promptly taken following a decision to charge”, nor the “time” such “steps” were taken relative to the expiration of the investigation period for each respondent, as recorded in the custody management records. The State’s submission should be rejected.

20. [174]

    Addressing the facts, the respondents pointed to the custody management records maintained by the police as showing, it was said, that the charging process for each respondent commenced after the expiry of the maximum investigation period for each respondent, taking into account permitted timeouts. The respondents also relied on admissions made by Sgt Phipps regarding the expiration of the investigation period for each respondent. The State disputed the weight to be given to these admissions which were said to have been qualified.

21. [175]

    In writing, the State did not engage with the summary of the custody management records provided by the respondents as an “aide memoir” at trial for determining the permitted timeouts and when the charging procedures commenced for each respondent, relative to the expiration of the investigation period for each respondent. Nor did senior counsel for the State dispute in oral argument, when specifically asked by the Court, the respondents’ written submissions by reference to the custody management records.

22. [176]

    Alternatively, the State submitted that the any false imprisonment ended when the police commenced the charging procedures. This submission sought to take advantage of suggested concessions made by the respondents in writing and in oral argument. The difficulty with this submission is that it was common ground with respect to damages, that any false imprisonment ended when the respondents were refused police bail.

23. [177]

    Thus, the State said that any period in which the respondents were falsely imprisoned followed a period of lawful imprisonment (the investigation period) and preceded another lawful period of imprisonment following the refusal of police bail. That should be accepted. As the respondents said in their supplementary submissions, assuming the respondents were unlawfully imprisoned before the charging process commenced, the refusal of bail rendered lawful what had, until then, been an unlawful detention. That bail options become available upon the laying of a charge, says nothing about the lawfulness of a person’s detention before the charge is laid.

24. [178]

    After the conclusion of the hearing, the Court requested the respondents to provide a schedule as to the time period it is said that each respondent was wrongfully imprisoned; such a schedule had been foreshadowed by the respondents’ counsel during the hearing. The State was given an opportunity to respond, which it did. The respondents sought and obtained leave to provide a further short written response to matters contained in the State’s response, which were said, correctly, to have gone beyond the respondents’ schedule. Both parties resiled from some concessions made by their respective senior counsel during oral argument.

25. [179]

    To the extent that the respondents’ schedule contained several inconsistencies with (i) statements made by the respondents’ senior counsel at trial as to when the period of false imprisonment of JR and Jensen ended, (ii) the respondents’ written submissions at par [74]-[76], and (iii) internally within the schedule, the respondents accepted that some criticism of inconsistencies in their written submissions and schedule was valid. It was submitted, however, that the difference in the case of JR and Jensen is de minimis (5 minutes and 7 minutes respectively) and in Dickens’ case is more substantial (2.5 hours), which is said to be explained by whether the initial 2.5 hours of police inactivity in relation to him was reasonable, given that he arrived at the police station before the other respondents.

26. [180]

    The State’s response to the respondents’ schedule did not address the detail of the respondents’ calculations of the permitted timeouts or the expiration of the investigation period for each respondent. It is appropriate to proceed on the basis that the State does not challenge these calculations.

27. [181]

    The State’s specific challenges to the findings of false imprisonment in respect of each respondent is addressed below.

28. [182]

    In relation to JR, the trial judge found:

    1. (1)

       JR was arrested at 5:15 am on 23 December 2015: at [51];

    2. (2)

       the investigation period expired at 11:30 am, taking into account extensions of time permitted by s 117 which totalled 1 hour and 15 minutes (not including time reasonably required to carry out charging procedures: s 117(1)(m)): at [51];

    3. (3)

       JR was charged by court attendance notice created by DSC Clancy at 11:33 am: at [51];

    4. (4)

       DSC Clancy was evasive and unrepentant in responding to questions about custody management records, whilst agreeing in cross-examination that JR was entitled to be released at about 11:20 am, subject to the qualification that “these questions are for a custody manager, not myself”, and the custody manager, Sgt Phipps, relied on what he was told by the detectives: at [52];

    5. (5)

       JR’s ERISP took place between 8:00 am and 8:13 am, and the State had not proved that charging procedures could not have taken place in the three hours between 8:13 am and 11:30 am: at [53];

    6. (6)

       the State had not discharged the onus of proof under s 117(2) of LEPRA that “the particular time was not a time that was not to be taken into account”: at [57]; and

    7. (7)

       JR was falsely imprisoned between 1:16 pm and 3:30 pm on 23 December 2015: at [58].

29. [183]

    There are errors in some of his Honour’s findings.

30. [184]

    As to (1), it is common ground that the finding contains error. JR was arrested at 6:01 am on 23 December 2015.

31. [185]

    As to (3), it is common ground that the charging process commenced at 11:34 am, as recorded in the custody management record. Insofar as the court attendance notice records the time created as 11:33 am, the difference of one minute is unexplained but immaterial.

32. [186]

    As to (4), the State’s challenge to the finding that DSC Clancy was evasive and unrepentant in responding to questions about custody management records should be rejected for the reasons given below at [297].

33. [187]

    As to (5), it is not to the point that the State disputed that Sgt Phipps made admissions that JR should have been released at 11:20 am, given the qualification that Sgt Phipps knew that the charge process would commence. The objective evidence in the custody management records, read together with the proper concessions made by DSC Clancy and Sgt Phipps in cross-examination, established that at least four timeouts referred to in the custody management records in respect of JR were not permitted timeouts referred to in s 117(1) of the LEPRA, specifically sub-par (c) or (n), relevantly:

34. [188]

    JR submits that excluding the above times, results in 86 minutes of permitted timeouts, and therefore, the maximum investigation period of 4 hours expired at approximately 11:27 am. Although the respondents’ schedule did not explain in detail how the permitted timeouts were calculated, the State did not contest the submission in the schedule. There should be a finding that JR was falsely imprisoned commencing at 11:27 am until 3:40 pm when he was refused bail: see [34(1)] above.

35. [189]

    In relation to Dickens, the trial judge made the following findings:

    1. (1)

       Dickens was arrested at 5:20 am on 23 December 2015: at [66];

    2. (2)

       the investigation period expired at 11:20 am, given the concession by Sgt Phipps: at [66];

    3. (3)

       the charge process in respect of Dickens commenced at around 3:49 pm: at [66]; and

    4. (4)

       Dickens was “wrongfully held for over 5 hours”: at [66].

36. [190]

    The State disputed the findings referred to in (2) and (4) above.

37. [191]

    As to (2), the respondents’ primary submission is that Sgt Phipps admitted that Dickens should have been released at about 10:30 am and this is the start of the period of false imprisonment. Little, if any, weight should be given to this admission, which was qualified by the words “[i]f that’s what you’re saying” and was otherwise inconsistent with the custody management records. The respondents’ primary submission should be rejected.

38. [192]

    Alternatively, the respondents submitted that two timeouts under s 117(1)(c) for “wait for ERISP room” of 31 minutes (7:51 am to 8:22 am) and 87 minutes (8:29 am to 9:56 am) should be disallowed, with the consequence that the maximum investigation period expired at around 1:00 pm. (This implies that the respondents accept about 220 minutes of permitted timeouts given that Dickens was arrested at 5:20 am.) Although the State did not respond to this submission, the custody management records show that 91 minutes of the disputed 118 minutes of timeouts for Dickens is subsumed by “wait for ERISP room”, being a permitted timeout under s 117(1)(c) given that the ERISP room was occupied for JR’s recorded interview between 8:00 am and 8:13 am and for Jensen’s recorded interview between 8:36 am and 9:54 am. No alternative submission was made by the respondents that the time between 7:51 am and 8:00 am (before JR’s recorded interview commenced) or between 8:13 am and 8:36 am (before Jensen’s recorded interview commenced) should be disallowed. In these circumstances, it is appropriate to assume that the two timeouts for “wait for ERISP room” are permitted under s 117(1)(c).

39. [193]

    When the disallowed time of 118 minutes (31 plus 87) in the respondents’ schedule is added back to their alternative submission based on the summary of the custody management records that the false imprisonment commenced at about 1:00 pm which the State did not dispute, this results in 338 minutes of total permitted timeouts given that Dickens was arrested at 5:20 pm. On this basis, the maximum investigation period of 4 hours expired at about 2:58 pm.

40. [194]

    There should be a finding that Dickens was falsely imprisoned at 2:58 pm, rather than about 1:00 pm (being the respondents’ alternative submission), until 5:21 pm when he was refused bail: see [34(3)] above.

41. [195]

    In relation to Jensen, the trial judge made the following findings:

    1. (1)

       Jensen was arrested at 5:15 am on 23 December 2015: at [69];

    2. (2)

       Sgt Phipps agreed that Jensen should have been released at about 11:30 am: at [69];

    3. (3)

       Jensen was charged at 4:35 pm: at [69]; and

    4. (4)

       Jensen was “falsely imprisoned for 5 hours”: at [69].

42. [196]

    The State disputed the finding above in (2) on the basis that Sgt Phipps did not make the asserted concession. Putting aside the proper characterisation of Sgt Phipps’ evidence, the objective evidence contained in the custody management records, together with DSC Clancy’s proper concessions and Sgt Phipps’ evidence that the recorded timeouts for “Move location” and the time for an ERISP is not a timeout permitted by s 117(1) of LEPRA, established that at least the following timeouts should be disregarded:

43. [197]

    Jensen submitted that excluding the above time results in 130 minutes of permitted timeouts, and therefore, the maximum investigation period of 4 hours expired at about 11:25 am. Again, the State did not contest this submission. There should be a finding that Jensen was falsely imprisoned at 11:25 am until 5:21 pm when the was refused bail: see [34(2)] above.

Damages for false imprisonment

1. [198]

   The State said that its challenge to the factual finding that DSC Clancy and Sgt Phipps “wilfully ignored” their statutory obligations relate to the trial judge’s assessment of DSC Clancy as a witness and of the evidence of both DSC Clancy and Sgt Phipps and is closely related to grounds 1 and 2. Insofar as these grounds depend on the success of grounds 1 and 2, those grounds should be rejected for the reasons given below.

2. [199]

   Otherwise, no substantive submissions were advanced by the State as to why this finding was erroneous having regard to the concessions by DSC Clancy and Sgt Phipps concerning specific entries in the custody management records. There was no error by the trial judge in finding that both DSC Clancy and Sgt Phipps wilfully ignored their statutory obligations with respect to detaining the respondents beyond the maximum investigation period.

3. [200]

   The compensatory principle as applied to false imprisonment “entitles the victim of a tort to no less and no more” than “a sum which, so far as money can, will put the party in the same position as he or she would have been if … the tort had not been committed” (Haines v Bendall (1991) 172 CLR 60 at 63; [1991] HCA 15): see Lewis at [30] (Gageler J), [65] (Gordon J) and [139] (Edelman J).

4. [201]

   In Lewis at [37], Gageler J said that the correct counterfactual analysis in a case of wrongful imprisonment is to be undertaken on the assumption that:

5. [202]

   Thus, it is necessary to compare the position of the claimant in fact with the position the claimant would have been in had the wrongful imprisonment not occurred and all concerned acted strictly in accordance with the law: Lewis at [38] (Gageler J).

6. [203]

   Gordon J agreed. Her Honour rejected the submission of Mr Lewis that the proper counterfactual scenario is not one in which he is lawfully imprisoned, but rather one in which he is not imprisoned at all: at [87]-[90].

7. [204]

   Edelman J also agreed. His Honour rejected Mr Lewis’ argument that the “correct counterfactual” for assessing causation of loss is that rather than imprisoning the plaintiff unlawfully, “the plaintiff is not imprisoned at all”: at [177]. His Honour said at [178]:

8. [205]

   The State submitted that the trial judge erred in awarding other than nominal damages for the period of false imprisonment with respect to each respondent. It is said that any period of false imprisonment followed a lawful period of imprisonment (the investigation) and preceded another lawful period of imprisonment following the refusal of police bail. It is also said that the trial judge erred because he failed to address the State’s argument relying on Lewis that there can be no award of compensatory damages for false imprisonment where there is no counter-factual on which the respondents would have been free.

9. [206]

   The State submitted that the respondents would have been detained regardless of any non-compliance with LEPRA, because the respondents were charged and refused bail, rather than released following the investigation period, and the period of unlawful detention was minimal. It is said that nominal damages are appropriate in circumstances where each respondent was charged with serious offences, brought before a court and remanded in custody.

10. [207]

    The respondents argued, pointing to the trial judge’s reasons at [54]-[55], that although not expressly referred to by the trial judge, the judge did essentially deal with the State’s argument based on Lewis. That submission is rejected. The trial judge dealt at [54]-[55] of his reasons with an argument concerning LEPRA. Those paragraphs did not “essentially” deal with the Lewis argument, either expressly or implicitly.

11. [208]

    Addressing the counterfactual scenario, the respondents submitted that the proper counterfactual is that but for the unlawful detention, each would have been free/at liberty, and they would therefore be entitled to more than nominal damages. It is said that the respondents were not released, nor brought before an authorised officer or court in the investigation period, or as soon as practicable after the end of that period, and therefore each respondent was entitled to be immediately released upon the expiration of the investigation period: LEPRA, s 114(4). It is said that the respondents would then have to be summonsed to court to answer the charges, by service of a court attendance notice, which specified a return date.

12. [209]

    An understanding of the correct counterfactual is assisted by reference to the reasoning in Lewis.

13. [210]

    In Lewis, the appellant had been sentenced to 12 months’ imprisonment to be served by weekend periodic detention but failed to attend the periodic detention and an inquiry by the Sentence Administration Board. The Board decided to cancel his periodic detention, with the consequence that he was required to serve the remainder of his sentence by way of fulltime detention. Following his subsequent arrest and imprisonment, the appellant successfully challenged the cancellation of his periodic detention on the basis that he was denied procedural fairness by the Board. He then brought proceedings seeking damages for false imprisonment for the time he spent in fulltime imprisonment following his arrest. At first instance he was awarded nominal damages on the basis that, but for the denial of procedural fairness, it was inevitable that the periodic detention order would have been cancelled and he would have been imprisoned fulltime. The High Court (Kiefel CJ and Keane J, and each of Gageler, Gordon and Edelman JJ writing separately) unanimously dismissed his appeal, finding that the appellant had suffered no compensable loss.

14. [211]

    After stating at [38] that it is necessary to compare the position of the claimant in fact with the position the claimant would have been in had the wrongful imprisonment not occurred and all concerned acted strictly in accordance with the law, Gageler J acknowledged at [39]:

15. [212]

    Gageler J concluded at [40] that the counterfactual position of Mr Lewis on the balance of probabilities cannot be in doubt:

16. [213]

    Gageler J concluded at [42]:

17. [214]

    Gordon J said at [90] that it is contrary to common sense to say that the correct counterfactual is that Mr Lewis would not have been imprisoned, when the legislation governing periodic detention required him to be imprisoned. Her Honour found at [91] that if Mr Lewis had not been unlawfully imprisoned, he would have been in lawful detention.

18. [215]

    Edelman J said at [179] that the correct method of framing the counterfactual is to ask:

19. [216]

    Edelman J referred at [183] to an example of the correct application of the counterfactual approach in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245:

20. [217]

    Gordon J agreed at [90] that Lord Dyson’s reasoning in Lumba is to be preferred. That is, it was a “fallacy” not to draw a distinction between those who would otherwise have been imprisoned and those who would not: Lumba at [93].

21. [218]

    The respondents submitted that Lewis is distinguishable on the ground that Mr Lewis had breached his periodic detention order which meant that he could be arrested without warrant, in other words, he was not entitled to be at liberty. That factual distinction can be accepted, but it is no answer to the trial judge’s failure to determine and apply the correct counterfactual in this case.

22. [219]

    The State submitted, correctly, that the detention of each respondent is properly described as “inevitable” in circumstances where they were each informed that they were going to be charged and were in fact charged and denied bail. DSC Clancy gave unchallenged evidence that when the interviews of JR and Jensen concluded at 8:13 am and 9:54 am respectively, he informed each of them that they were going to be charged with aggravated indecent assault of the complainant. DSC Gale also gave unchallenged evidence that he informed Dickens when he was taken into custody at the Katoomba Police Station that he was going to be charged with aggravated indecent assault, and that he confirmed this with Dickens during his recorded interview (in fact, at about 11:29 am).

23. [220]

    As indicated, in advance of their arrests on 23 December 2015 the police had obtained a warrant for listening devices for the dock and holding cell area of the Katoomba Police Station where the respondents were held, when not otherwise being interviewed by the police. The respondents’ pleaded case was that the detention of each respondent was undertaken deliberately in order to utilise the listening devices. DSC Clancy accepted in cross-examination that he wanted to capture the respondents’ conversation if they had one and that he wanted to gather inculpatory evidence against the respondents in the form of conversations between them at the Katoomba Police Station.

24. [221]

    Reference has been made above to the trial judge’s unchallenged findings that the State had not proved that the charging process could not have taken place for JR in the three hours between 8:13 am and 11:30 am (at [53]) and the rejection of the State’s submission that after his record of interview, JR was held not for the purpose of investigation but for the purpose of charging him when convenient (at [54]). The challenge to the trial judge’s findings that DSC Clancy and Sgt Phipps knew of their obligations and wilfully ignored them (at [63]), that the detention of Dickens and Jensen beyond the maximum investigation period was not inadvertent, but was a conscious decision of DSC Clancy to ignore his legal duty and that he knew that this was contrary to law (at [67] and [70]) has been rejected above. As indicated, although the trial judge did not make an express finding it is to be inferred that his Honour found that each of the respondents was detained beyond the maximum investigation period because DSC Clancy was seeking to gather inculpatory evidence against the respondents whilst detained in the dock or holding cell area of the Katoomba Police Station where listening devices had been authorised by warrant.

25. [222]

    Lewis requires that the determination of the correct counterfactual is to be conducted on the assumption that all who had lawful authority to contribute to the detention of each of the respondents “acted strictly in accordance with their legal duties and in the observance of the express and implied limitations on their legal powers”: at [40] (Gageler J). In my view, the counterfactual position of each respondent on the balance of probabilities is not in doubt, given that the police had determined to charge each of the respondents and had communicated that decision to each of them within the investigation period.

26. [223]

    It should be accepted that acting strictly in accordance with their statutory powers of detention for the purpose of investigation under LEPRA, the police would have commenced the charging procedures for each respondent before the expiration of the investigation period for each respondent. As each respondent was refused police bail when charged, the counterfactual detention of each respondent would not have been for a materially different period from the period for which each was in fact detained, nor under conditions in any way different from those under which each was in fact detained.

27. [224]

    In these circumstances, the compensatory principle should be reflected in the award of nominal damages. I would assess that amount at $100 in respect of each respondent.

28. [225]

    The conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages must be kept in mind. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant, here, the State. The relevant principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in State of New South Wales v Zreika [2012] NSWCA 37 at [60]-[64].

29. [226]

    Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8; [1987] HCA 47. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; [1966] HCA 40 (Windeyer J).

30. [227]

    Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14].

31. [228]

    In State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138], Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view that the description in Gray does not fully cover the field. His Honour said that “[c]onduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing”. However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court’s disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.

32. [229]

    In State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:

33. [230]

    The factors relied upon by the respondents as constituting aggravation of the false imprisonment were (i) the detention of each respondent was undertaken deliberately in order to utilise a listening device that had been installed in the cells at Katoomba Police Station, and (ii) the wrongful detention was a deliberate contravention by police of s 114(1) of LEPRA.

34. [231]

    The first factor can be accepted. As to the second factor, the trial judge found that the unlawful detention was a conscious decision of DSC Clancy to ignore his legal duty and that he knew the detention was contrary to law. Nevertheless, I do not consider that the harm done to each respondent by the wrongful act of detention was aggravated by the manner in which the act was done.

35. [232]

    Although DSC Clancy did not commence the charging procedures during the investigation period for each respondent, the length of the delay in the commencement of the charging procedures after expiry of the investigation period was relatively small; with respect to JR, the charging procedures commenced with the start of the creation of the court attendance notice six minutes after the investigation period ended at 11:27 am, for Dickens 51 minutes after the investigation period ended at 2:58 pm, and for Jensen 61 minutes after the investigation period ended at 11:25 am.

36. [233]

    Further, each respondent was refused police bail when charged and as indicated, the counterfactual detention of each respondent would not have been for a materially different period from the period for which each was in fact detained, or under conditions in any way different from those under which each was in fact detained.

37. [234]

    In my view, the award of aggravated damages to each respondent should be set aside.

38. [235]

    The factor relied upon by the respondents for the claim for exemplary damages was that the conduct of DSC Clancy and other police officers during the detention of the respondents at Katoomba Police Station showed a contumelious disregard for the rights of the respondents under LEPRA.

39. [236]

    It should be accepted that the conduct of the police in this case calls for the Court to express its disapproval beyond the award of ordinary compensatory damages, which for the reasons given above, should be nominal. DSC Clancy and Sgt Phipps knew of their statutory obligations and wilfully ignored them. And, having decided to charge the respondents, DSC Clancy did not commence the charging procedures during the investigation period in order to utilise the listening devices that had been installed in the cells at Katoomba Police Station.

40. [237]

    In State of New South Wales v Madden (2024) 113 NSWLR 509; [2024] NSWCA 40 (Madden), Bell CJ observed at [191] that the discretionary nature of the quantum to be awarded by way of exemplary damages engages House v The King (1936) 55 CLR 499; [1936] HCA 40 constraints on appellate interference, and the quantum of exemplary damages cannot be challenged where the amount is within the limits of a “proper exercise” of discretion: James v Hill [2004] NSWCA 301 at [84]. The Chief Justice continued at [192]-[193]:

41. [238]

    The trial judge’s decision to award exemplary damages was entirely consistent with these statements referred to in Madden, however, the judge’s reasons did not differentiate the basis on which exemplary damages, as distinct from general and aggravated damages, were awarded. It seems from the judge’s reasons that the exemplary damages were based on the findings (i) with respect to JR, that DSC Clancy and Sgt Phipps “wilfully ignored” their statutory obligations, (ii) with respect to Dickens, that DSC Clancy made a conscious decision to ignore his legal duty, and (iii) with respect to Jensen, that DSC Clancy knew that further detention was contrary to law.

42. [239]

    It is of some assistance to consider the quantum of exemplary damages awarded for other relatively comparable periods of false imprisonment, recognising that each case turns on its own facts, and the trial judge’s credit findings.

43. [240]

    State of NSW v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 involved a wrongful arrest and false imprisonment during which the plaintiff, a 23-year-old mother, was unlawfully held for some four hours at Queanbeyan Police Station for the purposes of investigation but was never charged. This Court reduced an award of $25,000 in exemplary damages to $10,000.

44. [241]

    Madden involved a finding of false imprisonment for less than 24 hours. The trial judge found that the period was from 4:30 pm on 30 December 2019 until the plaintiff was remanded in custody by Price LCM on 31 December 2019: see Madden v State of New South Wales [2023] NSWDC 647 at [308]. This Court dismissed an appeal by the State against an award of $20,000 in exemplary damages.

45. [242]

    McLaughlin v State of New South Wales [2023] NSWDC 525 involved a plaintiff who was unlawfully detained by police overnight (for a period of approximately 9.5 hours). The District Court awarded $5,000 in exemplary damages to reflect “the offhanded nature of the way in which the police approached their duty to place the plaintiff before the court as soon as practicable”. This Court refused an application for leave to appeal: State of New South Wales v McLaughlin [2024] NSWCA 137.

46. [243]

    Here, the period of false imprisonment for each respondent was: JR – a little over 4 hours (11:27 am to 3:40 pm); Dickens – a little less than 2.5 hours (2:58 pm to 5:21 pm); and Jensen – about 6 hours (11:25 am to 5:21 pm).

47. [244]

    As the Chief Justice said in Madden at [200] a decision as to whether to award exemplary damages is necessarily impressionistic. The trial judge made a strong adverse credit finding against DSC Clancy and found that he and Sgt Phipps had behaved in a manner towards each respondent that consciously ignored their legal rights not to be detained beyond the maximum investigation period of four hours. Against this, as indicated, the period of unlawful detention for each respondent was 6 hours or less. It also is relevant to have regard to the limited practical resources at Katoomba Police Station for DSC Clancy to successively charge each respondent. Weighing all the circumstances, in my view, the award of exemplary damages of $20,000 was outside the limits of a “proper exercise” of the trial judge’s discretion: cf Madden at [192].

48. [245]

    I propose that the award of exemplary damages of $20,000 be set aside, and in lieu, $10,000 exemplary damages should be awarded to each respondent.

Conduct of trial: apprehended bias and procedural fairness

1. [246]

   Grounds 1 and 2 of the three notices of appeal contend that the trial judge’s involvement in the examination of the State’s witnesses at trial, particularly DSC Clancy, gave rise to an apprehension of bias (ground 1A), and the State was denied a proper opportunity to advance its defence to the claims (ground 1B). It is said that this, in turn, led the trial judge into error in his assessment of DSC Clancy as “a most unpersuasive witness”, and that his evidence demonstrated “evasion and bad faith” (ground 2).

2. [247]

   The respondents’ primary submission is that even if it is established that the trial judge’s involvement in the examination of the State’s witnesses at trial, particularly DSC Clancy, gave rise to an apprehension of bias and/or procedural unfairness, the State had waived its right to complain of these matters. Reference was made to the well-known passage in Vakauta v Kelly (1989) 167 CLR 568 at 572; [1989] HCA 44 (approved in Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [43] and [61], and cited by Leeming JA in Madden at [214]), where Brennan, Deane and Gaudron JJ said of waiver in the present context:

3. [248]

   In response to the respondents’ assertion of waiver, the State says that the trial judge’s reasons revived the earlier appearance of bias: Vakauta v Kelly at 573. It is said that the reasonable lay observer would conclude that his Honour might not have approached the case impartially, and particularly not approached the evidence of DSC Clancy impartially.

4. [249]

   In oral argument, the respondents qualified their written submissions and senior counsel only relied on waiver as an answer to the complaint of apprehended bias. With respect to the claim of procedural unfairness, the respondents took the position that it is arguable that a denial of procedural fairness cannot be waived, such as, if the trial judge’s interventions result in the judge becoming too closely involved in cross-examining a witness, that may affect the judge’s ability to make a proper assessment of credibility: see the discussion by Kourakis CJ in R v T, WA [2014] SASCFC 3 at [39].

5. [250]

   In reply, senior counsel for the State maintained the position that waiver can be an answer to both a complaint of apprehended bias or procedural unfairness. Reference was made to Royal Guardian where Basten JA said at [11] that “in principle” the parties can waive a defect in the administration of justice, which would include a claim of procedural unfairness. His Honour found in that case that the appellant had not waived the complaint of procedural unfairness, which was based on interventions by the trial judge (at [23]-[34]). Ward JA also accepted that waiver can be an answer to a complaint of procedural unfairness: at [252], [255] (Emmett AJA agreeing at [298]).

6. [251]

   The State’s position on waiver is favourable to the respondents, since the State accepted that waiver can provide an answer to ground 1B which asserts procedural unfairness. Nevertheless, it is not necessary to resolve this issue, given my conclusion below in relation to ground 1B.

7. [252]

   Although related, it is appropriate to address grounds 1A and 1B in turn.

Apprehended bias

1. [253]

   The test for apprehended bias is the “double might” test of whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. This test is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson at [33].

2. [254]

   The application of this test requires, first, the identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner at [8], Michael Wilson at [32]-[33]. Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step: Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]; CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J).

3. [255]

   In Polsen v Harrison [2021] NSWCA 23 at [46], the Court (Bell P, Basten JA and Simpson AJA) summarised various statements in the authorities concerning the attributes of the fair-minded lay observer. Relevantly in the present context, that includes:

4. [256]

   The asserted apprehension of bias is on the ground of prejudgment. It is said that the interventions during examination and cross-examination of the State’s principal witnesses were “excessive” in that the nature, scope, timing, frequency and extent of those interventions would lead a fair-minded lay observer to apprehend that the judge might depart from deciding the case on its merits.

5. [257]

   In writing, the State provided a schedule of transcript references upon which it relied for grounds 1A and 1B. I have considered those references, together with the State’s written submissions referring to particular interventions by the trial judge.

6. [258]

   In oral argument, the State drew attention to ten interventions by the trial judge, which I take to be the high point of its case: seven occurred during the evidence of DSC Clancy and three occurred during the evidence of Sgt Phipps. The context and subject matter of the highlighted interventions during evidence of DSC Clancy are addressed below.

7. [259]

   First, during the course of DSC Clancy’s evidence-in-chief that it was not his practice to include COPS reports in the brief of evidence, the trial judge asked questions as to whether he conceded that it was relevant that the record of the complainant stating that the sexual intercourse was consensual. It is said that the judge took over the role of questioner and was attempting to extract concessions from the witness. I do not agree. The trial judge was seeking clarification of the “practice” evidence of DSC Clancy. That the COPS reports were omitted from the prosecution brief was a matter on which counsel for JR had opened.

8. [260]

   Second, at the conclusion of DSC Clancy’s evidence-in-chief, the trial judge asked him questions as to his current practice with respect to including COPS reports in the prosecution brief. I do not agree with the State’s submission that the judge took over the role of questioner. Again, the trial judge was seeking clarification of the “practice” evidence of DSC Clancy.

9. [261]

   Third, during cross-examination of DSC Clancy on the topic of whether he viewed the narratives in the COPS reports as being a “problem” in the prosecution of JR, the trial judge asked whether he considered the first COPS entry created a problem or something that needed to be explained. It is said that the judge was seeking to extract concessions from the witness. I do not agree. The judge was seeking clarification of the significance of the first narrative in the COPS reports the omission of which from the prosecution brief, was a matter on which counsel for JR had opened.

10. [262]

    It is also said that the judge was dismissive and disparaging of the witness when he commented that he found “this evidence strange”. Whilst it would have been preferable if the judge had not made his comment in the presence of the witnesses, I do not agree that the comment was dismissive or disparaging of the witness. In a judge-alone trial, the judge was being transparent with counsel as to a concern held by the judge.

11. [263]

    Fourth, during cross-examination of DSC Clancy on the topic of whether the COPS report exculpated JR, the trial judge asked questions of him given his earlier evidence that he read the COPS statement as suggesting that the complainant was having sex with Mr Gibbins, and asked further questions as to why the COPS report was not included in the prosecution brief. Again, those questions were seeking clarification given DSC Clancy’s earlier evidence. I do not agree with the State’s submission that the judge interrupted the witness’s evidence. The judge sought clarification of DSC Clancy’s evidence that he did not see the “relevance” of the cross-examiner’s question.

12. [264]

    Fifth, during cross-examination of DSC Clancy suggesting that at the time of obtaining a statement from Mr Gibbins, he explained the complainant’s allegation as relayed to him, the following exchange occurred with counsel for JR, after several questions had been put by the cross-examiner to DSC Clancy on this topic:

13. [265]

    It is said that this is a “critical” passage in which the proposition put to the witness originated with the judge and was not a clarification. It can be accepted that the word “poisoned” originated with the judge, but that was in circumstances where this was the plain thrust of the cross-examiner’s preceding questions, being another matter on which counsel for JR had opened. The judge, no doubt aware of the opening, and possibly with some frustration at the pace of cross-examination, suggested to the cross-examiner to put the question to the witness in plain terms.

14. [266]

    Sixth, during cross-examination of DSC Clancy concerning the custody management records, the trial judge asked him the following questions:

15. [267]

    It is said that the trial judge spoke in a disparaging tone or expressed critical commentary of the witness’s evidence. I do not agree that this is a fair reading of the transcript.

16. [268]

    Seventh, the State complained of the manner of the trial judge’s interventions which were said to be argumentative. Two examples were given in oral argument. The transcript records:

17. [269]

    The State’s characterisation of this intervention as argumentative is misplaced. Plainly, the judge was seeking clarification of DSC Clancy’s answer that the narrative in the COPS report was not relevant, being a matter squarely raised in JR’s opening.

18. [270]

    The other example given occurred during cross-examination of DSC Clancy as to whether evidence given by Mr Griffin was exculpatory of JR. The transcript records:

19. [271]

    It is said that the trial judge stopped the witness from attempting to answer the questions. I do not agree. The judge was seeking clarification in circumstances where there seems have been an earlier elision in cross-examination between two topics – one being the issue of consent, and the other being an inconsistency between the complainant’s statement, in effect, that JR forced her to kiss him, and the statement of Mr Gibbins that he observed the complainant kiss JR. The concluding comment by the trial judge did not stop the witness giving evidence; it was an indication by the judge to the cross-examiner that this line of cross-examination had exhausted itself.

20. [272]

    Eighth, during cross-examination of Sgt Phipps the trial judge asked questions of him concerning his recording of instructions from the detectives with respect to “timeouts”:

21. [273]

    It is said that the trial judge offered the suggestion to Sgt Phipps that he was “misled” by the detectives. But that complaint ignored that the cross-examiner had (i) earlier put to DSC Clancy that entries in the custody management records were objectively untrue, and (ii) cross-examined DSC Clancy on evidence he had given on the voir dire at the criminal trial of his conversations with Sgt Phipps concerning some of the entries was said to be, including that he told Sgt Phipps that no ERISP room was available for a forensic procedure.

22. [274]

    Ninth, during cross-examination of Sgt Phipps concerning a timeout recorded in the custody management records for JR of 1 hour and 27 minutes for a forensic procedure that was not needed, the trial judge asked him questions as to who told him that there was a timeout. The cross-examination continued and the trial judge asked further questions as to whether Sgt Phipps might have been misled:

23. [275]

    It is said that the trial judge intervened to redirect the course of cross-examination to ask Sgt Phipps who told him that there was a timeout. But again, this complaint ignores that, given the concessions made by DSC Clancy that the entries for movement within the police station were excessive, and that his understanding was that no forensic procedure was required, the trial judge’s questions were directed to clarification of the evidence.

24. [276]

    Tenth, during cross-examination of Sgt Phipps as to the purpose of some of the timeouts recorded in the custody management records, the trial judge asked the following questions:

25. [277]

    It is said that the trial judge spoke in a disparaging tone or expressed critical commentary of the witness’s evidence. I do not agree that this is a fair reading of the transcript. Again, the judge was seeking clarification of how certain entries came to be made in the custody management records, given that both DSC Clancy and Sgt Phipps had agreed in cross-examination that the times recorded were excessive.

26. [278]

    The first to fourth interventions and the first of the seventh intervention during the evidence of DSC Clancy occurred before counsel for the State objected to the trial judge’s interventions, but expressly declined to make a recusal application. The transcript records the exchange between the judge and counsel for the State:

27. [279]

    The State said that although the judge’s interventions reduced for a period after this exchange, they later returned with considerable force. The State referred to the remarks of Basten JA in Royal Guardian at [31] that it is neither appropriate nor expected that counsel “maintain a running commentary on how the judge is handling a trial, nor should such conduct be encouraged”. That can be accepted but is not germane to the present case.

28. [280]

    The passage of the transcript extracted above makes plain that counsel for the State made a forensic decision not to make a recusal application, having raised an objection to the trial judge’s interventions. The State is bound by the conduct of its counsel, who was an experienced junior counsel. The State cannot now assert that the interventions by the trial judge prior to this exchange were not the subject of waiver.

29. [281]

    As to the interventions by the trial judge after this exchange, I reject the State’s characterisation of these further interventions as being of “considerable force”. The State should be taken to have waived its right to object to the trial judge’s further interventions on the ground of apprehended bias, given that it did not subsequently make a recusal application before the end of the trial, having earlier disavowed making such an application.

30. [282]

    Insofar as the State submitted that the reasons of the trial judge “revived” the earlier appearance of bias/unfairness, referring to the remarks of Leeming JA in Madden at [211], and that the “full extent to which the risks associated with the judge’s interventions were to materialise was not apparent until the judgment was delivered”, citing Royal Guardian at [33] (Basten JA), the suggested analogy with Madden and Royal Guardian is misplaced. That the trial judge ultimately rejected the State’s defence for a variety of reasons does not and cannot demonstrate actual or apprehended bias. In Feldman v Nationwide News Pty Ltd (2020) 103 NSWLR 307; [2020] NSWCA 260 at [43] Bell CJ (Payne JA agreeing) said:

31. [283]

    Further, this is not a case where the full extent to which the (asserted) risks associated with the judge’s interventions were to materialise was not apparent until the judgment was delivered. Rather, by the end of the trial, the State was well aware of the full extent of the judge’s interventions.

32. [284]

    Nor is this a case where failure to make a recusal application can be excused on the basis of the inappropriateness of counsel maintaining a running commentary on the handling of the trial. That is a straw man argument. Having made a forensic decision not to make a recusal application in respect of the judge’s interventions during cross-examination of DSC Clancy, the State was well aware of the subsequent conduct of the trial judge to which it now objects as giving rise to an apprehension of bias, but still did not make a recusal application before the end of the trial.

33. [285]

    In my view, the conduct of the trial judge during the trial to which objection is now taken does not meet the undemanding test in Ebner. If I am wrong in this assessment, then the State should be taken to have waived its right to object. Ground 1A is not made out.

34. [286]

    The relevant principles are sufficiently stated in both Galea v Galea (1990) 19 NSWLR 263 and Royal Guardian. To the extent that the State’s written submissions invoked the gladiatorial language derived from Yuill v Yuill [1945] P 15 at 20 that the trial judge “descend[ed] into the arena” in which the judge’s vision is “clouded by the dust of the conflict”, it has been said that this language is unhelpful and should be abandoned: Royal Guardian at [16] (Basten JA); see also Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [117] (Leeming JA).

35. [287]

    The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: Galea at 281. Different considerations apply to a judge-alone trial, in contrast to a trial with a jury, and again, different considerations will apply to judicial intervention in the course of opening or final submissions, as compared to intervention in the questioning of witnesses: Galea at 281B, Royal Guardian at [14] (Basten JA), [164] (Ward JA, Emmett AJA agreeing).

36. [288]

    As Leeming JA observed in Wehbe at [121]:

37. [289]

    It is common ground that the ultimate question is whether the intervention by the trial judge was unjustifiable and resulted in a miscarriage of justice. In this regard, the State accepts that, the “concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37].

38. [290]

    It is said that the interventions by the trial judge, which were characterised as excessive in number and quality, gave rise to procedural unfairness by undermining the proper presentation of the State’s case, including preventing its principal witnesses from doing themselves justice in giving their evidence. It is also said that this compromised the capacity of the trial judge to objectively evaluate the evidence such that the State was denied the opportunity of a hearing “above the fray”.

39. [291]

    Complaint is made of the possibility that pressure from the trial judge, even if not consciously applied, may have resulted in the State’s witnesses making concessions which would otherwise not have been made. Reference was made to the trial judge asking DSC Clancy at least eight times about the relevance of the COPS reports which DSC Clancy ultimately conceded. It is sufficient to refer to the following extract of the transcript, bearing in mind the context was DSC Clancy’s evidence that he did not include the COPS report in the prosecution brief of evidence because to his mind it was not relevant to his investigation:

40. [292]

    I reject the State’s submission that DSC Clancy made a concession in answering the trial judge’s questions which he would not otherwise have made. Whilst DSC Clancy ultimately accepted the relevance of what the complainant was reported to have said when first speaking to police on 7 February 2013, he also gave an explanation for why he did not regard that as relevant at the time charges were laid in December 2015, namely, he had obtained a statement from the complainant in July 2015.

41. [293]

    The second example referred to by the State was that the trial judge asked questions of DSC Clancy in relation to what should have been included in the Facts Sheet in circumstances where the Facts Sheet did not refer to the witness statement obtained from Mr Bell that referred to his observations of the complainant and JR kissing, cuddling and giggling. The concession by DSC Clancy that he made a conscious decision not to include that matter in the Facts Sheet followed his acceptance in cross-examination that one person’s interpretation of that interaction, being Mr Bell’s interpretation, would be a very relevant issue. I reject the State’s submission that DSC Clancy made a concession that he would not otherwise have made in response to the trial judge’s questions.

42. [294]

    The third matter referred to by the State concerned questions of DSC Clancy about the timeouts recorded by the custody manager during the detention of the respondents. The trial judge asked a question of DSC Clancy concerning his knowledge of the layout of Katoomba Police Station and how long it would take to walk from the cell to the ERISP room. DSC Clancy answered, “a 30-second walk”. The State does not assert that answer was inaccurate or incorrect. Again, I reject the State’s submission that DSC Clancy made a concession that he would not otherwise have made in cross-examination.

43. [295]

    Finally, the State referred to evidence given by DSC Clancy in answer to the trial judge’s question as to whether he agreed that the investigation period had expired or not with respect to JR, given that DSC Clancy had accepted the cross-examiner’s proposition that the timeout recorded for “wait for ERISP room for forensic procedure” between 10:21 am and 11:55 am was not a permitted timeout. There was no unfairness in this questioning.

44. [296]

    The State’s complaint that the trial judge’s questions created an unfair trial cannot be accepted. Ground 1B is not made out.

45. [297]

    Ground 2 contends that the trial judge erred in finding (at [29]) that DSC Clancy was “a most unpersuasive witness”, and that his evidence demonstrated “evasion and bad faith” (at [32]). This ground relied upon acceptance of ground 1A or ground 1B. No additional submissions were advanced in support of ground 2. In these circumstances, this ground has not been made out.

Costs in this Court

1. [298]

   JR: The appeal by the State against the judgment in favour of JR has substantially succeeded, with a significant reduction in the award of damages. Rather than make separate costs orders reflective of each parties’ relative success on appeal, it is preferable to make a single costs order taking a broad-brush approach to an assessment of the time taken on the issues on which each party succeeded or partly succeeded.

2. [299]

   In my assessment, a significant proportion of JR’s written and oral submissions were devoted to appeal against the finding of malicious prosecution (whilst less so to the finding of misfeasance in public office), and the related award of damages, in respect of which the State has had complete success (19 pages of written submissions; 22 pages of appeal transcript) compared to the submissions devoted to the issue of false imprisonment and the award of damages on which the State has had partial success in obtaining a reduction in the award of damages (3 pages of written submissions; 8 pages of transcript). In my view, the appropriate order is that JR should pay 90 per cent of the State’s costs in this Court.

3. [300]

   Jensen and Dickens: In each appeal, each side has achieved some success. Jensen and Dickens have successfully defended the findings of false imprisonment, whilst the State has achieved a significant reduction in the award of damages for that tort. The relative success of each party has offset the other parties’ success. Taking a broad-brush approach, there should be no order as to costs as between the State on the one hand and Jensen and Dickens on the other, to the intent that each party should pay their own costs in this Court.

Costs at trial

1. [301]

   Given the result on appeal, it is necessary to reassess the costs at trial taking into account the outcome on appeal.

2. [302]

   At trial, the State was ordered to pay JR’s costs on the ordinary basis. Special costs orders were made in favour of Dickens and Jensen, relevantly, (i) that the State pay Dicken’s costs up to 18 September 2022 on the ordinary basis and from 19 September 2022 on an indemnity basis, and (ii) that the State pay Jensen’s costs up to 19 September 2022 on the ordinary basis and from 20 September 2022 on an indemnity basis.

3. [303]

   JR: Taking into account the State’s substantial success on appeal, and that it appears from the transcript of the trial and the parties’ written submissions below that a significant proportion of the time at trial was devoted to the issues on which JR has now lost, JR should pay a substantial proportion of the State’s costs of the trial. I propose that JR should pay 90 per cent of the State’s costs at trial.

4. [304]

   Jensen and Dickens: I do not consider that the reduction in the award of damages on appeal is a sufficient reason why costs should not follow the event at trial taking into account the outcome of the appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 41.2. As the successful parties, albeit for reduced damages, the State should pay Jensen’s and Dickens’ costs of the trial.

5. [305]

   Insofar as Jensen and Dickens each obtained a special costs order at trial, the materials in this court do not permit an assessment of whether the reduced judgments on appeal in favour of Jensen and Dickens exceed the amount of any offer of compromise made by them at trial. In the event that either Jensen or Dickens seeks a special costs order, they can make application by notice of motion within 14 days under UCPR, r 36.16 to vary the costs order which I have proposed.

Orders

1. [306]

   I propose the following orders:

   1. (1)

      Appeal allowed in part.

   2. (2)

      Set aside the orders made in the District Court on 3 August 2023.

   3. (3)

      In lieu thereof:

   4. (4)

      The respondent to pay 90 per cent of the appellant’s costs in this Court.

   5. (1)

      Appeal allowed in part.

   6. (2)

      Set aside the orders made in the District Court on 3 August 2023.

   7. (3)

      In lieu thereof:

   8. (4)

      Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

   9. (1)

      Appeal allowed in part.

   10. (2)

       Set aside the orders made in the District Court on 3 August 2023.

   11. (3)

       In lieu thereof:

   12. (4)

       Make no order as to the costs of the appeal to the intent that each party pay their own costs of the appeal.

2. [307]

   WHITE JA: I agree with Gleeson JA.

3. [308]

   STERN JA: I agree with Gleeson JA.