Spedding v State of New South Wales

1. [1]

   HIS HONOUR: By his amended statement of claim filed on 21 November 2019, William Harrie Spedding claims damages for malicious prosecution, misfeasance in public office, collateral abuse of process and false imprisonment. Those claims arise out of the following facts and circumstances.

Background

1. [2]

   Mr Spedding is 71 years of age. In late 2014, Mr Spedding became a person of interest in relation to an investigation into the disappearance of William Tyrrell from a house in Kendall, a town in New South Wales approximately 35 kilometres south west of Port Macquarie. At that time, Mr Spedding was living at Bonny Hills with his wife Margaret Spedding and her four grandchildren then aged between 15 and 9 years.

2. [3]

   On 19 September 2014, Mr Spedding attended the Port Macquarie Police Station at the request of the police who were investigating the disappearance. He provided them with his diary and work notebook. The police examined his mobile phone as well. Mr Spedding did not again hear from the police until 20 January 2015.

3. [4]

   On 19 January 2015, search warrants were obtained by the police in respect of Mr Spedding’s home at Wandoo Place, Bonny Hills and his business premises in Bold Street, Laurieton. At approximately 7am on the morning of 20 January 2015, Mr Spedding and his wife were seated on the back verandah of their home at Bonny Hills when their driveway filled up with police cars. Detectives in plain clothes came to their front door. Mr Spedding opened the garage door and let them in. He was informed that they were looking for William Tyrrell.

4. [5]

   The police searched the premises. Mr Spedding later accompanied the police to his business premises in Bold Street, Laurieton. The following day, crime scene warrants were issued with respect to both premises. Mr Spedding’s wife was taken to Port Macquarie Police Station to be interviewed. Mr Spedding was told that he needed to find somewhere else to stay as his home had been declared a crime scene. Detective Sergeant Moynihan said to him: “We want you to come in for an interview to Port Macquarie Police Station.”

5. [6]

   Mr Spedding went to Port Macquarie with Detective Moynihan and Detective Senior Constable King. He was driven in the rear of a police vehicle that had doors that could not be opened by a rear seat passenger. He was told, “Stay there until we let you out.”

6. [7]

   Mr Spedding was then taken through into the custody area of the police station and directed into an interview room. He participated in an electronically recorded interview in relation to the investigation concerning the disappearance of William Tyrrell. That lasted more than six hours. It became apparent to Mr Spedding that the police considered him to be a suspect upon the basis that William Tyrrell’s foster grandmother had telephoned him on the morning of 12 September 2014 requesting that he attend her house in Kendall in order to repair a broken washing machine. Detective Moynihan said to Mr Spedding: “We believe that perhaps you may have seen William … Further to that we believe that you may have grabbed William from the front yard of that address, you may have left that area without anyone knowing … We of course very much believe it.”

7. [8]

   Mr Spedding found this interrogation difficult and confronting. By the end of the interview, he was very agitated. At the conclusion of the interview, Mr Spedding was driven to Colin and Jenna Youngberry’s house by Detective Moynihan and Constable King. Detective Moynihan shouted at Mr Spedding during this journey, saying, “We know you did it. We’re going to get you. I’m going to come and arrest you”. Mr Spedding told them that he had done nothing and that he did not know what they were talking about.

8. [9]

   When they arrived, Constable King asked Detective Moynihan, “Are we going to let him out?” Detective Moynihan said, “Yeah, I suppose we have to”. Mr Spedding left the vehicle feeling “absolutely terrible” and “really stressed”. His legs were shaking and he was hot and sweaty. Constable King himself observed Mr Spedding to appear “shaken and distressed”.

9. [10]

   Mr Spedding later recalled, in conversation with his wife, that on the morning of William Tyrrell’s disappearance, they had been at the Buzz Café in Laurieton where they had paid for coffee with Mr Spedding’s Visa Card, following which they attended a school assembly at their grandchildren’s school. After a difficult night’s sleep, Mr Spedding and his wife drove to Port Macquarie to purchase new mobile phones. When they returned to the Youngberry residence, they observed media vans and reporters to be surrounding the premises. Television cameras were everywhere.

10. [11]

    Later that day, on 21 January 2015, Mr Spedding called Detective Moynihan from the Youngberrys’ home. He told Detective Moynihan that he had bank records from the Buzz Café. He gave Detective Moynihan the details, including the time of the transaction. Detective Moynihan said, “I’m tired of your bullshit and lies. Don’t speak to me again.”

11. [12]

    Sometime later, the police learned that Mr Spedding had been the subject of historical sexual assault allegations. From the Strike Force Progress Report number 4, dated 9 February 2015, of which Detective Inspector Gary Jubelin is the author, it appears that the investigating police may have learned of these allegations as early as 17 September 2014. Detective Moynihan’s e@glei entry on 5 January 2015 indicates that he was aware of the historical sexual assault allegations made against Mr Spedding at least by that date. In the events that occurred, three of the grandchildren who were living with Mr Spedding and his wife were removed into the care of Family and Community Services. They were told that this was because of Mr Spedding’s involvement in the disappearance of William Tyrrell. The grandchildren were never returned to their custody.

12. [13]

    On 26 February 2015, Detective Jubelin attended Mr Spedding’s Bonny Hills premises and requested that he and his wife participate in a “walk-through” interview concerning their movements on the morning of 12 September 2014. The interviews were conducted by Detective Jubelin and Officers King and Brennan.

13. [14]

    Two months later, at 1.30pm on 22 April 2015, police officers, including Detectives Jubelin, Brennan and Moynihan, attended Mr Spedding’s home and arrested him. Media representatives were present at his home from early that morning. Mr Spedding and the police officers were filmed and photographed during the arrest. Images and videos of Mr Spedding and the police were broadcast widely across multiple news outlets throughout Australia.

14. [15]

    Mr Spedding was taken to Port Macquarie Police Station. He was charged in relation to the historical sexual assault allegations concerning Jeannie Dalrymple and Lois Rifkin. He was refused bail by the police and by the Local Court the following day. Justice Bellew of the Supreme Court granted bail on 19 June 2015. Carriage of the criminal proceedings was taken over by the ODPP by the end of April 2015.

15. [16]

    The offences allegedly committed by Mr Spedding, for which he was arrested, were said to have occurred in 1987 against his stepdaughter Jeannie Dalrymple, then aged six, and his biological daughter Lois Rifkin, then aged three. All offences were said to have been committed on the same night, between 1 March and 30 April 1987, when Mr Spedding had overnight contact with his children. However, no charges were laid by the police as the result of their investigations in 1987.

16. [17]

    The allegations arose after access orders had been made by consent in the Local Court at Parramatta in March 1987, and while proceedings were on foot in the Family Court of Australia, concerning the custody of the children of Drake Kruger and India Kruger (Kruger v Kruger). The allegations had been the subject of a police investigation that year and the girls were interviewed by police. Cynthia Heyman, Mr Spedding’s former wife (later Cynthia Kruger), as well as Connie Goldstein, were complaint witnesses in 1987 and in the subsequent District Court trial proceedings. The allegations against Mr Spedding and India Kruger of sexual assault of the Kruger children were litigated as part of the Kruger v Kruger Family Court proceedings between 17 to 21 October 1988 and 10 April to 12 May 1989.

17. [18]

    During the Kruger v Kruger proceedings, Mr Spedding, Cynthia Heyman, Connie Goldstein, Drake Kruger and India Kruger gave evidence. Portions of the evidence of these witnesses were available by the time of Mr Spedding’s District Court trial.

18. [19]

    Mr Spedding’s legal representatives were served with a copy of the reasons for judgment of Justice Gee in the Family Court dated 17 May 1989 in Kruger v Kruger. Mr Spedding was committed for trial in the District Court, and an indictment was presented on 10 June 2016 in respect of the charges specified in paragraph 37 of the amended statement of claim. Mr Spedding was arraigned on that day and pleaded not guilty. On 7 September 2016, Mr Spedding applied for a permanent stay of the criminal proceedings against him. Huggett DCJ refused that application on 24 February 2017. The matter was listed for trial commencing 8 May 2017. However, that date was vacated and later the proceedings were re-listed on 12 February 2018. Mr Spedding applied for a judge alone trial, which the Crown did not oppose.

19. [20]

    The trial ultimately commenced before Sweeney DCJ on 21 February 2018 but was adjourned on the Crown’s application to 26 February 2018. On 5 March 2018, Mr Spedding applied for a Prasad direction in relation to Counts 1 to 3 on the indictment concerning Jeannie. Mr Spedding also argued that there was no prima facie case in relation to Counts 4 to 7 on the indictment concerning Lois. Sweeney DCJ found Mr Spedding not guilty on Counts 1 to 3 on the indictment and directed herself to return verdicts of not guilty on Counts 4 to 7 because she was of the view that the evidence was not capable of proving each of the offences beyond reasonable doubt. Mr Spedding applied for and was awarded costs pursuant to s 2 of the Costs in Criminal Cases Act 1967.

The sexual assault allegations

1. [21]

   It is at the heart of Mr Spedding’s claim for damages that the sexual assault allegations that led to his District Court prosecution were in effect a collateral attack upon him in order to facilitate the investigation of him as a suspect in the disappearance of William Tyrrell. It is therefore important to understand the circumstances surrounding the making of those allegations, Mr Spedding’s family background and the relationship between and among various people concerned.

2. [22]

   Mr Spedding’s first marriage was to Jenna Spedding. The marriage produced three children: George Spedding, Izzy Spedding and Robin Spedding. Mr Spedding later married Cynthia Heyman on 4 December 1982. Cynthia had two children to her previous husband, Gene Temple: Ross Temple and Jeannie Temple. Mr Spedding’s marriage to Cynthia produced one daughter, Lois, who was born in December 1983. In 1984, Mr Spedding adopted Ross Temple and Jeannie Temple and they took his surname.

3. [23]

   In mid-December 1986, Cynthia informed Mr Spedding that their marriage was over, and in the days following she moved from Victoria, where the family were then residing, to her parents' home in Dundas, New South Wales. Cynthia took Ross, Jeannie and Lois with her.

4. [24]

   When Mr Spedding and his family were residing in Victoria, they had met and socialised with Drake Kruger and India Kruger. This couple also had three children: Noreen Kruger, Tina Kruger and David Kruger. At the end of December 1986, Drake Kruger left his wife India Kruger, taking his children to reside with Cynthia in Dundas. This prompted India Kruger to commence custody proceedings against Drake Kruger in the Magistrates Court at Ballarat. This was effectively the commencement of the Kruger v Kruger family law proceedings. On 29 January 1987, consent orders were made in the Family Court in Melbourne granting India Kruger sole custody of Noreen Kruger, David Kruger and Tina Kruger, with some access also granted to Drake Kruger.

5. [25]

   On 24 February 1987, the Community Services Child Protection Department in Victoria received a notification about the Kruger children being sexually abused by India Kruger. In early March 1987, the Department terminated the investigation on the basis that the allegations of abuse were unsubstantiated. Importantly, on 4 March 1987, orders for access by Mr Spedding to Ross, Jeannie and Lois were made in the Local Court at Parramatta. Mr Spedding was entitled to weekend access to his children every alternate weekend commencing 11 April 1987.

6. [26]

   In April 1987, Mr Spedding resided in a caravan parked on the driveway of a house in Lillian Street, Campbelltown, the home of his friends, Les Turner and Sue Turner. Mr Spedding had known the Turners since the early 1970s.

7. [27]

   Mr Spedding’s first period of weekend access to Ross, Jeannie and Lois after the making of the orders on 4 March 1987 occurred on 11 April 1987. Mr Spedding and his children slept in the caravan on the Turner property that night.

8. [28]

   Sometime around 22 April 1987, following Mr Spedding’s first weekend access visit with the children, Cynthia telephoned him and said words to the effect of "You will not be having any more access with the kids. You molested them". A week later, Lois, then three years of age, was taken to Westmead Children's Hospital. Lois alleged that Mr Spedding had sexually assaulted her. The allegation was made to Jennanne Scott, a social worker at the Hospital. Significantly, Ms Scott spoke with Jeannie who was also present at the Hospital when Lois alleged that she had been sexually assaulted by Mr Spedding. Jeannie denied that she had also been sexually assaulted. On 1 May 1987, Lois was taken back to Westmead Children's Hospital to be examined by Dr Tanya Dus with Ms Scott present. Once again, Ms Scott spoke with Jeannie who did not disclose being sexually assaulted.

9. [29]

   Between 1 and 5 May 1987, Jeannie allegedly disclosed to her aunt, Cynthia's sister Connie Goldstein, that she had been sexually assaulted by Mr Spedding. Jeannie was taken to Westmead Children's Hospital on 5 May 1987 where she was interviewed by Ms Scott and examined by Dr Newton. At this time, Jeannie repeated the allegation.

10. [30]

    The circumstances in which Jeannie allegedly disclosed to Connie Goldstein that she had been sexually assaulted by Mr Spedding are relied upon by him as of vital importance to the claim for malicious prosecution. The circumstances are addressed in detail later in these reasons.

11. [31]

    On 20 May 1987, Mr Spedding was interviewed by Detective Roderick Dayment from Campbelltown Police Station. Mr Spedding agreed that he slept with the children in the caravan but denied the allegations of sexual assault. He was not charged and the investigation was terminated. The Police Incident Report from 1987 states that "Due to the victims’ age, their mother Cynthia Jeannie Spedding was spoken to. She declined to allow her daughters to give evidence in this matter at the present time".

12. [32]

    In the Kruger v Kruger Family Court proceedings, Cynthia and Drake Kruger alleged that Mr Spedding and India Kruger were in a relationship. They further alleged that when India Kruger had access to her children, she and Mr Spedding sexually assaulted them.

13. [33]

    After a hearing occupying several weeks in the Family Court, in October 1988 and April and May 1989, Gee J of the Family Court of Australia delivered judgment in Kruger v Kruger. His Honour ordered India Kruger to have sole custody of the Kruger children and denied Drake Kruger access. His Honour’s reasons are referred to in more detail below. However, his Honour was scathing in his assessment of the credibility of Cynthia and Connie Goldstein. His Honour found that Cynthia and Connie Goldstein had tutored the Kruger children to make allegations of sexual abuse against Mr Spedding and India Kruger. His Honour also found that the household of the Kruger and Spedding children was one in which allegations of sexual assault of the Kruger and Spedding children by Mr Spedding were much discussed. His Honour further found that there was a special relationship between Connie Goldstein and the Kruger children, and between Connie Goldstein and Jeannie, to the extent that if the children told her “the right thing” they would be cured of germs.

The criminal proceedings

1. [34]

   In summary, it was alleged against Mr Spedding that between 1 March 1987 and 30 April 1987, whilst Ross, Jeannie and Lois were inside the caravan on the Turner property at Campbelltown, he:

2. [35]

   There were changes to these charges whilst the matter proceeded through the District Court. The indictment ultimately presented to the District Court at the commencement of Mr Spedding’s trial contained seven charges. The allegations supporting the charges in the indictment were described in the Crown Case Statement in the following terms:

The Family Court decision

1. [36]

   Although the views and findings expressed by Gee J in his 17 May 1989 judgment in Kruger v Kruger are in no sense determinative of the issues raised in the present proceedings, the subject matter and comprehensive analysis exposed in his Honour’s detailed reasons reveal a significant forensically valuable historical analysis of the primary material that would appear ultimately to have inspired the criminal case against Mr Spedding. It is in effect the first critical consideration of the metaphorical Petri dish from which Mr Spedding’s charges emerged. It is therefore instructive to take some time to refer to it now. That is particularly so having regard to the fact that it was material that was in the hands of the prosecution from as early as 20 January 2015, when a copy of his Honour’s judgment was seized by police during the execution of the search warrant at Mr Spedding’s business premises at Laurieton on that date, and some time before the proceedings terminated favourably to Mr Spedding.

2. [37]

   The proceedings related to the custody of the three children Noreen, David and Tina Kruger, whose parents were Drake Kruger and India Kruger. Drake Kruger was, by the time of these Family Court proceedings, married to Cynthia Jeannie Heyman-Temple-Spedding-Kruger (as his Honour described her), in whose custody the children then were. Drake Kruger and Cynthia Heyman alleged that the children had been sexually abused by India Kruger and Mr Spedding.

3. [38]

   His Honour described India Kruger’ case as follows:

4. [39]

   Mr Spedding obviously places considerable emphasis upon the availability and content of this material as informing the question of whether or not the institution and maintenance of the criminal proceedings against him occurred without reasonable and probable cause and maliciously.

Mr Spedding’s evidence

1. [40]

   Mr Spedding’s evidence-in-chief was given in an affidavit sworn by him on 1 July 2020. It is largely uncontroversial so far as his recitation of the events surrounding his arrest and prosecution are concerned. His version of what occurred is largely agreed and is reflected in the outline contained earlier in these reasons. However, the conversations that he had with arresting police are not accepted in full by the State, and those portions of Mr Spedding’s statement that record those conversations must be included in these reasons. They are as follows. First at the Bonny Hills premises on the morning of the police raid:

2. [41]

   Mr Spedding’s affidavit then dealt with events a little later:

3. [42]

   Mr Spedding’s evidence concerning the circumstances of his apprehension and arrest on 22 April 2015 needs to be recorded in full:

Malicious prosecution

1. [43]

   Mr Spedding contends that his prosecution on the historical child sexual assault charges was commenced and maintained without reasonable or probable cause and maliciously. The following material is marshalled by him in support of that contention.

2. [44]

   Eleven days prior to his arrest on 22 April 2015, Detective Inspector Gary Jubelin prepared a document (Exhibit E) entitled Strike Force Rosann Proposed Operational Phase. It is a document described by counsel for Mr Spedding as “dripping with malice”. It purports to identify Mr Spedding as a person of interest in the disappearance of William Tyrrell by reference to Mr Spedding’s “involvement” in the historical child sexual offences dealt with, and discredited by, Gee J in 1987. Despite its length, but having regard to its significance in Mr Spedding’s case, it is necessary to include the following important extracts:

3. [45]

   However, by 15 June 2015, some weeks after Mr Spedding’s arrest on the unrelated historical child sexual assault allegations, Detective Jubelin was in a position to prepare a Strike Force Investigation Progress Report into Mr Spedding’s “suspected” involvement in William Tyrrell’s disappearance. As will be apparent from the following extracts, Mr Spedding was by this time effectively being excluded as a suspect in that investigation:

4. [46]

   Mr Spedding has contended that this document totally undermines any suggestion that the historical child sex offence charges against him were “standalone matters” unrelated to the police attempts to put pressure upon him in the Tyrrell investigation. On the contrary, Mr Spedding maintains that the charges were transparently the backbone of the police strategy in the investigation of Mr Spedding as a suspect in William Tyrrell’s disappearance. The proposed plan by the police to speak to Anthony Jones, a sex offender in custody who was also a suspect in the William Tyrrell disappearance, makes this plain: Mr Spedding was refused bail and kept at Cessnock Correctional Centre in a cell occupied by Mr Jones and their conversations were covertly recorded. The police could have achieved that result without arresting Mr Spedding on charges completely unrelated to their investigation.

5. [47]

   Detective Samuel Brennan joined the William Tyrrell investigation in February 2015. He said that he became “formally aware” of historical child sexual assault allegations against Mr Spedding through “team and investigation meetings”, but had “some awareness” of allegations before this time. Detective Brennan’s statement in these proceedings included the following:

6. [48]

   The statements of Jeannie Dalrymple and Lois Rifkin are both exhibited to Detective Brennan’s statement. The parts of Jeannie’s statement that purport to describe the charged incidents in the caravan in April 1987 are as follows:

7. [49]

   By way of contrast, Lois’s statement contained no reference at all to any incidents in the caravan either in April 1987 or at any time at all.

8. [50]

   Detective Brennan attempted to secure a statement from Ross Spedding, as Detective Brennan’s Investigator’s Note dated 27 January 2016 reveals:

9. [51]

   Detective Brennan’s Investigator’s Note dated 24 February 2017 took that process a little further:

10. [52]

    Detective Brennan eventually obtained a statement from Ross Spedding on 22 February 2018. He was present in the caravan with Jeannie and Lois on the night in question and gave his recollection of what occurred as follows:

11. [53]

    Mr Spedding submitted that Detective Brennan's evidence as to the reason why he did not disclose his 27 January 2016 Investigator's Note in relation to a phone conversation he had with Ross Spedding also affected his credibility. The note records, amongst other things, that Ross Spedding again pursued an explanation for why he was not spoken to prior to his father being charged. Importantly, Detective Brennan made a note of Ross saying, "I was there and I was also there to see my mother make the whole thing up."

12. [54]

    Detective Brennan did not disclose his note to Mr Spedding’s legal representatives in the criminal proceedings. It was suggested to him that if he was being transparent he would have done so. Detective Brennan described his failure as an "oversight":

13. [55]

    However, not only did Detective Brennan fail to disclose the note to Mr Spedding’s legal representatives in the criminal proceedings, but he also failed to disclose the substance of the note in his 18 March 2016 statement in those proceedings:

14. [56]

    Detective Brennan gave the following evidence in relation to this failure:

15. [57]

    Mr Spedding submitted that I should not accept Detective Brennan's evidence that failing to disclose the Investigator's Note of 27 January 2016 to his legal representatives in the criminal proceedings and failing to mention the substance of the conversation he had with Ross Spedding on 27 January 2016 in his police statement dated 18 March 2016 were mere oversights on his part. He submitted that, on the contrary, I should find that Detective Brennan was not being transparent with his legal representatives in the criminal proceedings.

16. [58]

    Detective Brennan gave evidence that Mr Spedding was going to be arrested regardless of the outcome of investigations into his suspected involvement in the disappearance of William Tyrrell:

17. [59]

    That evidence is to be compared with the terms of Exhibit E which reveals that the arresting and charging of Mr Spedding on unrelated matters was to take place as part of the plan to further the investigation of the disappearance of William Tyrrell, even though there was no basis to arrest Mr Spedding with respect to the disappearance. Mr Spedding contends that there is therefore nothing to support Detective Brennan’s insistence that the charges were standalone matters and that his evidence to that effect must be false, something that goes to the core of the claim for malicious prosecution as well as collateral abuse of process and misfeasance in public office.

18. [60]

    Mr Spedding also relied upon the terms of Detective Brennan’s daybook entry for 15 April 2015, being part of Exhibit C. The note is headed “Re Rosann briefing, issues to raise”. Detective Brennan’s evidence about this was as follows:

19. [61]

    Mr Spedding maintained that if the charges were standalone matters, they would have been dealt with separately from the William Tyrrell disappearance investigation. The fact that they were dealt with together is further support for the proposition that the charges were part of a strategy to investigate Mr Spedding as a suspect in the disappearance.

20. [62]

    Mr Spedding also maintains that there was “cogent and compelling” evidence before the relevant police officers showing that the Kruger and Spedding children had been tutored and coached into making allegations of sexual assault against Mr Spedding and India Kruger. Detective Brennan was asked questions concerning the affidavit of Connie Goldstein sworn on 14 January 1988 in the Kruger v Kruger Family Court proceedings. That affidavit contains what on any view are egregious examples of Connie Goldstein making suggestions to the children about sexual abuse committed by Mr Spedding. Detective Brennan was asked about that affidavit:

21. [63]

    Mr Spedding submitted that Detective Brennan’s somewhat benign interpretation of what that affidavit revealed was disingenuous and amounted, in effect, to an attempt by him to revive and enhance the status of such evidence as material supporting a reasonable basis upon which to prosecute him.

22. [64]

    Mr Spedding also suggested that Detective Brennan’s credibility was undermined by the fact that the charges against Mr Spedding that were before the Local Court were based upon allegations of sexual assault in the caravan in March or April 1987 at the Turner property at Campbelltown. However, the Facts Sheet did not disclose that Lois had been sexually assaulted at that time and place. Detective Brennan did not draw that to the attention of the court. He conceded before me that such information was “most important” to disclose to the Local Court:

23. [65]

    Mr Spedding maintained that this indicates that Detective Brennan, by his silence or omission, misrepresented to the Local Court that there was evidence that Lois had been sexually assaulted in the way suggested in the charges that were laid when she had not in fact provided a statement saying so. This was something going both to Detective Brennan’s credit generally as well as informing the issues of malice and intention to harm Mr Spedding.

24. [66]

    Detective Brennan had access to the file of the then Department of Family and Community Services which contained references to the caravan incidents upon which the charges against Mr Spedding were based. The file contained multiple references to allegations that Jerry Heyman had sexually assaulted Lois and Jeannie. It was put to Detective Brennan that if he had carefully examined the FACS file, he would have become aware of those allegations. Detective Brennan denied that:

25. [67]

    Mr Spedding submitted that Detective Brennan could not have paid close attention to the FACS file, otherwise he would not have asserted, as he did in paragraph 129 of his statement, that he believed there were no allegations that Jerry Heyman had sexually assaulted his nieces.

26. [68]

    Mr Spedding also suggested that Detective Brennan’s credibility was in doubt, to the extent that he expressed no concern about the truthfulness or reliability of Cynthia Heyman or Connie Goldstein, having regard to his evidence concerning documents received from Grevillea Cottage at Westmead Hospital on 7 August 2015.

27. [69]

    The FACS file contains a form entitled "Child Protection Intake" dated 29 April 1987. The form was completed in relation to Lois. On the second page there is a note made that Jeannie had been interviewed by Jennanne Scott and had not "disclosed anything". It is uncontroversial that Ms Scott was the social worker at Grevillea Cottage who interviewed Lois and Jeannie. It is also uncontroversial that Lois was the first of the children to be interviewed by her. The interview was conducted on 29 April 1987. Ms Scott’s notes reveal that Jeannie was present when Ms Scott interviewed Lois on 29 April 1987. Ms Scott noted at that time that Jeannie had denied being sexually assaulted. The note reads "Denies she has been touched, who knows!" Ms Scott also made the following note on 29 April 1987:

28. [70]

    Jeannie then returned to Grevillea Cottage/Westmead Hospital on 5 May 1987. It was at this time that she alleged that Mr Spedding had sexually assaulted her in the caravan at the Turner property. After Lois had been interviewed by Ms Scott on 29 April 1987 and before 5 May 1987, when Jeannie had disclosed being sexually assaulted to Grevillea Cottage/Westmead Hospital, Connie Goldstein had suggested to Jeannie that Mr Spedding had touched her vagina and potentially given her AIDS. Connie Goldstein’s Family Court affidavit sworn on 26 May 1987 in the Spedding v Spedding proceedings contains evidence that that allegation had been “coaxed” by her.

29. [71]

    However, Detective Brennan said in cross-examination that he had read Ms Scott’s note that Jeannie had vehemently denied that anything had happened. Despite doing so, Detective Brennan denied being concerned about the credibility of either Cynthia Heyman or Connie Goldstein and the case against Mr Spedding:

30. [72]

    Mr Spedding submitted that Detective Brennan’s evidence that he was not concerned about Connie Goldstein’s credibility and the case against him, given the evidence that Jeannie initially denied being sexually assaulted and then had the allegation coaxed from her by Connie Goldstein, “defies logic and common sense”. That is said to follow because the coaxing of an allegation against Mr Spedding from Jeannie by Connie Goldstein would be cause for concern regarding the case against him in respect of Jeannie. Mr Spedding submitted that Detective Brennan's evidence that he was not in any way concerned is at the very least unbelievable and at worst dishonest. It is evidence that severely diminishes his credibility and reliability.

31. [73]

    Detective Brennan gave evidence that the information he received from the Kruger family, especially from the Kruger children, did not give him cause to reflect on the state of the case against Mr Spedding, particularly given that Jeannie and Lois had said in their police statements that they witnessed Mr Spedding sexually abusing the Kruger children:

32. [74]

    The Kruger children denied being sexually assaulted by Mr Spedding. On 6 May 2015, Tina Mandelbaum (nee Kruger) had informed Detective Brennan that she had been coaxed into making allegations against her mother and Mr Spedding. David and Noreen also denied being sexually assaulted. In these circumstances, Mr Spedding contended that it beggars belief that in circumstances where Detective Brennan read the decision of Gee J on 5 May 2015, the day before meeting with the Kruger children, he would not be concerned about the reliability of the complainants and therefore the case against Mr Spedding. He submitted that it would have been readily apparent to Detective Brennan, in reading the decision, that his Honour was persuaded that the allegations of sexual assault against Mr Spedding and India Kruger had been coaxed from the Kruger children by Cynthia Heyman and Connie Goldstein. The information Detective Brennan received from the Kruger children, including their father Drake Kruger, confirmed that the allegations were concocted and coaxed. Mr Spedding submitted that “any reasonable investigator would have been very concerned about the viability of the case” against Mr Spedding in these circumstances and that Detective Brennan’s failure to concede this very basic proposition was another matter adversely affecting his credibility as a witness.

33. [75]

    Detective Brennan agreed in cross-examination that it is important to speak to a complainant in a sexual assault case before deciding whether or not to arrest and charge the perpetrator. He agreed that it was important to do so in order to make an assessment of the complainant's credibility, amongst other things:

34. [76]

    Detective Brennan first spoke with the complainants on 8 July 2015. In this context, it was suggested to him that when he charged Mr Spedding he did not honestly believe in the case against him. In answer to this suggestion, Detective Brennan said, "Nothing could be further from the truth." Mr Spedding submitted that Detective Brennan's response was “artificial and without foundation”: he wants the Court to accept that he honestly believed in the case against Mr Spedding in circumstances where he did not speak to either complainant until several months after charging him, having agreed in cross-examination that it was important to speak to a complainant in a sexual assault case before doing so.

35. [77]

    In response to the suggestion in cross-examination that the criminal proceedings were brought against Mr Spedding in an attempt to put pressure on him to confess to abducting William Tyrrell, Detective Brennan insisted that the allegations were "heinous" and that they had to be investigated. Mr Spedding submitted that, if that were so, it was not readily apparent why before charging him in relation to events that were by then at least 28 years old, the investigation took less than a month. Mr Spedding submitted that the true position was because the charges were an integral part of the strategy to gather evidence inculpating him in the disappearance of William Tyrrell, in which the police were under considerable pressure to produce a result. Mr Spedding submitted that Detective Brennan's evidence that the charges were laid after a "lengthy investigation" is a fabrication: the investigation was peremptory; the statements from the complainants and the witnesses, and the FACS records, were all obtained in April 2015; the allegations dated back to 1987; and Mr Spedding had no intervening criminal record. There was in the circumstances simply no need to rush the investigation, apart from the imperative to arrest and charge Mr Spedding to further the investigation of him as a suspect in the disappearance of William Tyrrell. The reference in Exhibit E to the timeframe being "tight" could hardly have been a reference to the historical child sexual assault allegations.

36. [78]

    Detective Brennan also gave evidence in re-examination which Mr Spedding submitted further diminished his credibility. The relevant part of the re-examination was directed to eliciting evidence from him as to why he did not follow up other lines of inquiry in relation to the historical sexual assault allegations. His evidence in this regard was as follows:

37. [79]

    According to the Facts Sheet and the information within the FACS file, Detective Brennan knew that Ross Spedding, then aged 9 years, was in the caravan at the time of the alleged offences, and yet he failed to pursue this fundamental and very important line of inquiry at all prior to charging. If he had read the documents in the FACS file carefully, he would have noticed Folio 51 which recorded that Ms Scott had spoken to Ross who had not revealed any knowledge of the events in the caravan. This is of particular note when the allegations concerning the alleged assaults of Jeannie and Lois include the suggestion that they were screaming.

38. [80]

    Finally, Detective Brennan insisted that it was ultimately his and Detective Moynihan's decision to charge Mr Spedding. Exhibit E was prepared by Inspector Jubelin on 11 April 2015. Phase 5 of the operation planned by Inspector Jubelin involved arresting and charging Mr Spedding for the historical allegations. Mr Spedding submitted that the clearer inference was that Inspector Jubelin directed Detectives Brennan and Moynihan to arrest and charge him. Acceptance of that proposition supports the contention that Mr Spedding’s arrest was an unrelated and collateral attack upon him in the context of the William Tyrrell investigation.

39. [81]

    There were several matters raised in the evidence of former Detective Inspector Gary Jubelin that Mr Spedding contended would lead me to doubt his credibility and reliability in the absence of corroboration.

40. [82]

    During his cross-examination, counsel for Mr Spedding called for the 44 Strike Force investigation progress reports Inspector Jubelin mentioned during his evidence. That material was produced at the conclusion of the sixth day of the trial. Additionally, Exhibit E was produced shortly before the re-commencement of the cross-examination of Inspector Jubelin on the final day of the trial, necessitating a short adjournment. This was despite Mr Spedding having called for this document on day three of the trial, during Detective Brennan’s cross-examination.

41. [83]

    Mr Spedding submitted that Exhibit E and the Strike Force investigation progress reports which became Exhibit D establish that the criminal proceedings against him were used principally as a strategy to further the investigation of him as a suspect in the disappearance of William Tyrrell. Mr Spedding also submitted that Inspector Jubelin's evidence to the contrary is false.

42. [84]

    For example, Inspector Jubelin is the author of progress report number 6 for the month ending 13 April 2015. He was cross-examined about it. The report says that, given the resources available to the Strike Force, the only option was to focus on the Spedding line of inquiry. Inspector Jubelin also makes reference to the "targeting" of Mr Spedding involving the use of covert investigative techniques, a prepared media strategy and overt inquiry regarding his alibi evidence. Inspector Jubelin then mentions the tasks that have been carried out during the reporting period which include, amongst other things, generating media interest in the matter via a planned media strategy designed to elicit more information from the public and initiate discussion which may be captured by listening devices and, importantly, making contact with Lois and Jeannie, obtaining statements from them and compiling a brief of evidence against Mr Spedding for the sexual assault of his daughters. Immediately after the task of compiling a brief of evidence against Mr Spedding, Inspector Jubelin mentions the following task:

43. [85]

    At page 3 of the progress report, under the heading “Future Directions”, Inspector Jubelin mentions the phases of the operation against Mr Spedding specified in Exhibit E:

44. [86]

    Inspector Jubelin confirmed in cross-examination that the operation mentioned in the progress report was the operation concerning the investigation of the disappearance of William Tyrrell. However, he also said that the arrest of Mr Spedding was "going to be forthcoming", as if to suggest that the decision to arrest and charge him had been made before deciding to utilise it as part of the strategy to gather evidence against him in the investigation of William Tyrrell's disappearance. Mr Spedding submitted that this suggestion should not be accepted.

45. [87]

    On page 2 of progress report number 7 for the period ending 16 May 2015, Inspector Jubelin lists the duties or tasks that had been carried out regarding the investigation concerning the disappearance of William Tyrrell. He confirmed this in cross-examination. Importantly, the duties carried out in the investigation concerning William Tyrell included, amongst other things, obtaining statements regarding Mr Spedding’s alleged historical sexual assaults and arresting him in relation to them. On page 3 of the report, under the heading “Future Directions”, Inspector Jubelin states:

46. [88]

    It was put to Inspector Jubelin that his reference to "the investigation" in the extracted passage of the report was a reference to the investigation concerning the disappearance of William Tyrrell. His evidence was as follows:

47. [89]

    I should observe, before proceeding, that I do not accept Inspector Jubelin’s italicised answer to be truthful. In coming to that conclusion, I note that it is literally true that Mr Spedding’s arrest had nothing to do with the disappearance of William Tyrrell, but that Inspector Jubelin’s answer was consciously directed to dispelling the suggestion, which I find he well understood was being made, that the arrest was in fact a collateral attack for the purpose of furthering his investigative strategy.

48. [90]

    Inspector Jubelin was then cross-examined in relation to progress report number 8 for the period ending 10 June 2015. Mr Spedding submitted that this report exposes Inspector Jubelin's lie that the arresting and charging of Mr Spedding was not part of the strategy to further the investigation of him as a suspect in the disappearance of William Tyrrell:

49. [91]

    As earlier noted, Inspector Jubelin specified the "strategies" that had been implemented to "gather evidence" against Mr Spedding since the execution of the search warrants at his home and business.

50. [92]

    Paragraph 21 of Inspector Jubelin's statement dated 19 April 2021 is in these terms:

51. [93]

    Mr Spedding maintained that this was an attempt by Inspector Jubelin to overcome the strong suggestion, supported by documentary evidence, that the historical sexual assault allegations were used as part of a strategy. He was cross-examined in relation to paragraph 21 of his statement as follows:

52. [94]

    Mr Spedding submitted that this passage of cross-examination of Inspector Jubelin revealed him to be an evasive witness. He never made a simple request of his superiors to take the historical sexual assault case off his hands. Instead of conceding this simple proposition, Inspector Jubelin gave evidence about his request for additional staff. The evidence was given to deflect attention from the fact that he kept the historical sexual assault allegations within the Strike Force for use as part of the strategy to further the investigation of Mr Spedding as a suspect in the disappearance of William Tyrrell.

53. [95]

    Another suggested example of Inspector Jubelin being evasive and not making basic concessions is to be found in his evidence regarding the importance of considering the failure by Lois to make any reference in her police statement to being sexually assaulted in the caravan:

54. [96]

    Inspector Jubelin also did not concede that a careful consideration of the charges against Mr Spedding would have at least involved him reading the statements of each complainant. Mr Spedding contended that his failure to concede such an obvious matter speaks against Inspector Jubelin's honesty in the witness box.

55. [97]

    It was put to Inspector Jubelin that after the recorded interview on 22 April 2015 concerning the historical allegations, he entered the interview room and said to Mr Spedding, amongst other things:

56. [98]

    Inspector Jubelin responded by saying that he did not threaten Mr Spedding. It was then put to him that in any event, he used the words, "Mr nice washing machine man":

57. [99]

    However, Detective King said in cross-examination that he heard Inspector Jubelin refer to Mr Spedding as "Mr nice washing machine man" although he was not sure if it was in the interview room on 22 April 2015. Detective King said that Inspector Jubelin used a sarcastic and derogatory tone in doing so.

58. [100]

    Importantly, Inspector Jubelin was also complicit in misrepresenting to the Local Court in the Facts Sheet that Lois had disclosed being sexually assaulted at the relevant time and place. He agreed in cross-examination that he would have read the Facts Sheet before it was presented to the Local Court, given his overall responsibility for the investigation of the historical allegations. He also agreed that it would have been appropriate to inform the Local Court that Lois had not disclosed in her statement that she had been sexually assaulted by Mr Spedding at the relevant time and place. Mr Spedding submitted that this revelation also adversely affected Inspector Jubelin’s credibility.

59. [101]

    Mr Spedding also contended that Inspector Jubelin's convictions for illegally recording Mr Paul Savage, another person of interest in relation to the disappearance of William Tyrrell, contrary to s 7 of the Surveillance Devices Act 2007, was a further matter that informed my assessment of his credibility. The commission of the offences involved dishonesty, in the sense of not letting Mr Savage know that he was being covertly recorded. Further, Inspector Jubelin's contraventions of the Act demonstrate his disregard for both the law and police policy in his investigation of a suspect in the disappearance of William Tyrrell. However, I should indicate that I have not had regard to those matters or Mr Spedding’s related submission in forming my conclusions in these proceedings.

60. [102]

    As mentioned above, Detective King said in evidence that he remembered Inspector Jubelin referring to Mr Spedding as "Mr nice washing machine man". Inspector Jubelin conceded that it was possible that he referred to Mr Spedding in those terms. Detective King's evidence was that these words were said in a sarcastic and derogatory tone. Mr Spedding submitted that, in accordance with his own evidence, these words were followed by "I am going to ruin you."

Discussion

1. [103]

   The State of New South Wales admits that if the torts alleged against Inspector Jubelin and Detectives Brennan and Moynihan are proven, it is vicariously liable for those torts pursuant to s 8(1) of the Law Reform (Vicarious Liability) Act 1983. For Mr Spedding to succeed in his action for malicious prosecution against the officers, he must establish that:

   1. (1)

      Proceedings of a kind to which the tort applies (generally, criminal proceedings) were initiated against him by the officers;

   2. (2)

      The proceedings terminated in his favour;

   3. (3)

      The officers, in initiating or maintaining the proceedings, acted maliciously; and

   4. (4)

      The officers acted without reasonable and probable cause: A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1].

Identification of the prosecutor

1. [104]

   In relation to the first element of the tort, it has been said that to incur liability a defendant must play an active role in the conduct of the proceedings, as by “instigating” or setting them in motion: A v New South Wales at [34].

2. [105]

   Mr Spedding submitted that there can be no dispute that Detective Brennan was heavily involved in instigating the criminal proceedings. It appears clearly from Detective Brennan’s statement in these proceedings that he became "formally" aware of the historical sexual assault allegations against Mr Spedding in February 2015, when he was attached to the investigation concerning the allegations. However, Detective Brennan says that he was not the first officer to start investigating the historical sexual assault allegations as, by his reckoning, the investigation had already commenced within Strike Force Rosann and by other officers attached to the Sex Crimes Squad who had made inquiries and obtained statements from Lois and Jeannie.

3. [106]

   Detective Brennan says that he took over the investigation into the historical sexual assault allegations in around early April 2015 and that it was Inspector Jubelin who decided to take the investigation out of the ambit of the Sex Crimes Squad and into the Homicide Squad, specifically Strike Force Rosann. This evidence is at odds with the evidence of Inspector Jubelin, which is to the effect that the investigation of the historical allegations was always under the umbrella of the Strike Force.

4. [107]

   Detective Brennan prepared the Facts Sheet which was put before the Local Court. He began preparing it on 15 April 2015. He updated it five days later. The following day he conferred with Sergeant Clint Nasr and also Inspector Jubelin about the contents of the Facts Sheet. The Court Attendance Notice specifying the alleged offences against Mr Spedding was created by Detective Brennan at 6:46pm on 22 April 2015.

5. [108]

   Although the ODPP had taken carriage of the prosecution by the end of April 2015, Detective Brennan's role as the investigator continued. For example, he was involved in obtaining statements from various witnesses, including Connie Goldstein, Sarnia Richer, Dr Susan Marks, a supplementary statement from Lois and investigator's notes and statements from Tina Mandelbaum (nee Kruger), David, Noreen and Drake Kruger and India Clancy (previously Kruger). Apart from continuing his role as an investigator, Detective Brennan admits to being consulted by the ODPP in relation to what counts to proceed with. He also says that from time-to-time, solicitors from the ODPP requested that he obtain further evidence.

6. [109]

   Detective Moynihan's involvement in the instigation of the criminal proceedings includes being named in the Court Attendance Notice as the "OIC (Prosecutor)". The Facts Sheet names him and Detective Brennan as the informants. Further, Detective Moynihan was involved in arresting Mr Spedding and questioning him concerning William Tyrrell at the police station following his arrest.

7. [110]

   Moreover, in the final document forming part of Exhibit 7, Detective Moynihan is listed as the officer in charge of the investigation concerning the historical allegations. The document is dated 5 March 2018 and is a report concerning the outcome of the criminal proceedings against Mr Spedding. Mr Spedding submitted that this document provides further support for a finding that Detective Moynihan was also a prosecutor for the purpose of the tort of malicious prosecution. It is in these terms:

8. [111]

   There is a lack of objective documentary evidence from Inspector Jubelin establishing his involvement in the institution and maintenance of the criminal proceedings. However, Inspector Jubelin was uncontroversially the officer in charge of Strike Force Rosann shortly after 20 January 2015. Detective Brennan says that it was Inspector Jubelin who decided to take the investigation out of the ambit of the Sex Crimes Squad and into the Homicide Squad. Mr Spedding maintains that this supports an inference that Inspector Jubelin wanted to take control of the investigation concerning the historical sexual assault allegations. Further, the day before Mr Spedding was charged, Detective Brennan conferred with Inspector Jubelin about the Facts Sheet. The inference from this evidence is that Inspector Jubelin exercised a high degree of control in respect of the investigation and was instrumental in the institution and maintenance of the criminal proceedings.

9. [112]

   Part of the evidence in these proceedings included the fact that Inspector Jubelin has recently published a book with the encouraging title "I Catch Killers". Inspector Jubelin writes that he had spoken to both of the alleged victims and that before deciding to act on the evidence he consulted Nigel Warren. Mr Spedding submitted that it is abundantly clear from reading pages 256 to 259 inclusive of Inspector Jubelin's book that he was instrumental, or at the very least highly active, in the institution and maintenance of the criminal proceedings. Some parts of what Inspector Jubelin said in his book warrant recording in these reasons:

10. [113]

    Inspector Jubelin accepted in paragraph 23 of his statement that he had overall responsibility for the investigation of the historical sexual assault allegations against Mr Spedding. He confirmed that in his cross-examination. Additionally, Inspector Jubelin agreed that the words "I'm about to pull the trigger on a guy's life" was a reference to his decision to charge Mr Spedding for the historical sexual assault allegations.

11. [114]

    In summary, Inspector Jubelin directed the Strike Force team in April 2015 to gather evidence against Mr Spedding in relation to the historical sexual assault allegations, compile the brief of evidence and arrest and charge him in respect of the allegations. Inspector Jubelin created Exhibit E, which supports the conclusion that he was instrumental in setting the criminal proceedings in motion.

12. [115]

    With respect to the issue of identification of the prosecutor, the State made the following submissions.

13. [116]

    Proof by Mr Spedding of the identity of the prosecutor is in issue. It is for Mr Spedding to identify each prosecutor "as a discrete issue". That obligation is met if Mr Spedding demonstrates how each identified prosecutor effectively instigated or set the criminal proceedings in motion or maintained them. The question is one of substance rather than form.

14. [117]

    Putting to one side the process of filing an ex officio indictment, the commencement of criminal proceedings is governed by Division 1 of Part 2, Chapter 3 of the Criminal Procedure Act 1986. For present purposes, this occurs by way of a police officer issuing a court attendance notice and filing it in a relevant court registry. Proceedings commence at the time the notice is filed.

15. [118]

    It does not appear to be in dispute that the ODPP had taken carriage of the proceedings by the end of April 2015. Detective Brennan said this occurred by 30 April 2015. Once the ODPP takes carriage of proceedings, the Director is "deemed to be the prosecutor in connection with the prosecution or proceeding concerned": Director of Public Prosecutions Act 1986 s 9(4)(a). It is acknowledged that determining who Mr Spedding establishes was a prosecutor at the time the ODPP had taken carriage of the proceedings requires me to consider the substance of the evidence because the law "looks beyond legal theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor": Davis v Gell (1924) 35 CLR 275 at 282; [1924] HCA 56. However, as Walton J explained in Edwards v State of New South Wales [2021] NSWSC 181 at [60], drawing from the decision in Ea v Diaconu [2019] NSWSC 795, an inquiry should properly be made concerning whether, on the evidence, an officer claimed to be a prosecutor:

16. [119]

    Mr Spedding also maintains that the Director of Public Prosecutions was a prosecutor for the purposes of the tort.

17. [120]

    Detective Brennan’s evidence is that the ODPP took carriage of the criminal proceedings by 30 April 2015. His role as an investigator continued, but from that point Detective Brennan made no decisions on which counts to proceed with, although he was consulted by the ODPP about this matter.

18. [121]

    It is admitted on the pleadings that on 10 June 2016, at the District Court at Campbelltown, an indictment was presented by Crown Prosecutor Ross Howle against Mr Spedding in respect of the charges identified in paragraph 37 of the amended statement of claim, aside from sequence 7 which was in relation to Lois. It is also admitted that on 10 June 2016, Mr Spedding was arraigned on the indictment and pleaded not guilty to each charge.

19. [122]

    The decision to present the indictment to the District Court was taken by the ODPP. The proceedings in the District Court were initiated by the ODPP.

20. [123]

    It is also admitted on the pleadings that on 20 February 2018, in the District Court at Sydney, Crown Prosecutor Rohan Cooley presented an indictment in the terms specified in paragraph 49 of the amended statement of claim. Mr Cooley was the Crown Prosecutor who appeared at the trial.

21. [124]

    Mr Spedding submits that the Director of Public Prosecutions, via his delegates, instituted and maintained the criminal proceedings in the District Court until the proceedings were terminated in favour of Mr Spedding following Sweeney DCJ's decisions of 5 March 2018.

22. [125]

    Neither the then Director nor his delegates involved in the criminal proceedings has provided statements asserting that they believed in the case against Mr Spedding. The Director must be taken to have had available to him at least the material that came to the attention of Detective Brennan and Inspector Jubelin.

23. [126]

    Even assuming that the Director and/or his delegates honestly believed in the case against Mr Spedding in respect of Lois, by the time the first indictment had been presented to the District Court in 2016, there was no objectively sufficient basis for the belief. By the time of trial in February 2018, there was no objectively sufficient basis for an honest belief.

Conclusion

1. [127]

   In my view, it is clear to the point of demonstration, and I find, that Detectives Moynihan and Brennan, Inspector Jubelin and the Director of Public Prosecutions were each, or at any relevant time one of them was, a prosecutor for the purpose of the tort of malicious prosecution. They were actively involved in the conduct of the criminal proceedings in the sense of setting them in motion and maintaining them. Indeed, Detective Moynihan’s summary is an obvious manifestation of his role in monitoring their progress until conclusion.

Favourable termination

1. [128]

   There is no issue in these proceedings that the criminal prosecution of Mr Spedding terminated in his favour.

Absence of reasonable and probable cause

1. [129]

   In A v New South Wales at [58], the majority said that the inquiry about reasonable and probable cause has two aspects in that the material available to the prosecutor must be assessed in two ways: what did the prosecutor make of it and what should the prosecutor have made of it? There is a temporal dimension to the element of absence of reasonable and probable cause: the court has to look at the state of affairs when the prosecution was commenced and at times when it was maintained: A v New South Wales at [59]. The majority said this at [77]:

2. [130]

   Further, in cases where the prosecutor acts on material provided by third parties (as in the present matter), the majority in A v New South Wales said at [80]:

3. [131]

   Each of the charges against Mr Spedding must be separately considered. It is well established that where an indictment contains several charges, proof that some of them lacked reasonable cause, and were laid maliciously, warrants a verdict for the plaintiff: A v New South Wales at [96].

4. [132]

   When Detective Brennan commenced proceedings by charging Mr Spedding on 21 April 2015, he had the following material:

5. [133]

   A copy of the judgment of Gee J was seized by police officers during the execution of the search warrant at Mr Spedding’s business premises at Laurieton on 20 January 2015.

6. [134]

   As earlier noted, the judgment contained information which strongly suggested that the allegations against Mr Spedding had been concocted and that there were serious issues as to both the credibility and reliability of Cynthia Heyman and Connie Goldstein.

7. [135]

   Detective Brennan said in his statement in these proceedings that he read the judgment of Gee J on a plane from Sydney to Melbourne on 5 May 2015, after the charges had been laid. He said that he remembers at some stage during the investigation thinking "There may be issues here with Cynthia Heyman". Further, Detective Brennan said that he was aware that the issues regarding coaching of children and speaking about sexual assault within the household had been ventilated in court previously. Even though he did not possess the evidence, Detective Brennan would have known from a reading of the judgment that the findings of Gee J were based on evidence received in the Family Court. Accordingly, his Honour’s findings were matters properly to have been considered by Detective Brennan when deciding to institute and maintain the criminal proceedings.

8. [136]

   Mr Spedding has submitted that Detective Brennan, Inspector Jubelin and Detective Moynihan never held an honest belief in the case against him in respect of Lois for the following reasons.

9. [137]

   First, Lois did not say in her statement dated 14 April 2015 that Mr Spedding had sexually assaulted or assaulted her in the caravan on the Turner property.

10. [138]

    Secondly, Detective Brennan had not spoken to her prior to charging Mr Spedding despite agreeing in cross-examination that it was important to speak to a complainant in a sexual assault case before deciding whether or not to arrest and charge the perpetrator in order to make an assessment of the complainant's credibility.

11. [139]

    Thirdly, the investigation was done in extreme haste. Neither Detective Brennan, Inspector Jubelin nor Detective Moynihan took time to reflect upon the material that was before them: their real and only concern was to gather evidence against Mr Spedding inculpating him in the disappearance of William Tyrrell. The investigation was not in any way "professional, careful and moderate" as suggested by counsel for the State in his opening. Instead, the investigation was, in accordance with Inspector Jubelin's progress report number 8, a central part of the investigation into the disappearance of William Tyrrell that was "complex and aggressive".

12. [140]

    Finally, before charging Mr Spedding, Detective Brennan knew that Ross Spedding was in the caravan at the relevant time and, according to the FACS records, did not have knowledge of the events.

13. [141]

    Mr Spedding submitted that it is clear from his evidence in cross-examination that Inspector Jubelin barely read any of the material gathered during the investigation. He did not even read the statement of either complainant before Mr Spedding was charged. He relied on the investigation carried out by his subordinates and the information imparted to him during the investigation. Many of the matters concerning the investigation of the historical allegations were not brought to his attention. Mr Spedding contended that the only rational inference to draw from this evidence is that Inspector Jubelin could not have held and did not hold an honest belief in the case against Mr Spedding.

14. [142]

    Mr Spedding maintained that even if he could not establish that the officers did not hold an honest belief in the case against him at the point of institution of the criminal proceedings, any honest belief held by them did not have an objectively sufficient basis for the following reasons.

15. [143]

    First, and fundamentally, Lois did not say in her statement that Mr Spedding had sexually assaulted her in the caravan on the Turner property.

16. [144]

    Secondly, Shalyn Heyman said in her statement dated 15 April 2015 that on an afternoon in either 1985 or 1986, Lois kept tossing and turning in bed and touching her vagina.

17. [145]

    Thirdly, in his statement dated 21 April 2015, Brett Heyman said that Mr Spedding turned up to his house at Seven Hills and dropped off Lois. He noticed that Lois was touching herself on the vagina on the outside of her clothing. He thought that Lois had a urinary tract infection.

18. [146]

    Fourthly, there are numerous references in the FACS file, including in the Child Protection Intake and Folios 7 and 8, to Lois staying with Edna and Donald Heyman at the Dundas residence on 24 to 25 April 1987 while Cynthia Heyman and Drake Kruger returned the Kruger children to Victoria following an access visit over Easter. This directly contradicts Cynthia Heyman's police statement that she observed injuries to Lois.

19. [147]

    Fifthly, Folio 51 in the FACS file contained a file note made by Hilary Wilson on 5 May 1987 at 5:20pm in relation to a conversation she had with Cynthia Heyman. The file note reads in part:

20. [148]

    Sixthly, Folio 49 in the FACS file contained a file note made by Ms Wilson in respect of a telephone conversation she had with a Constable Jervis from Ballarat Police Station. According to the file note, the telephone conversation occurred on 5 May 1987 at 4:00pm. The file note reads, in part:

21. [149]

    Seventhly, Constable Jervis’ assessment of Cynthia Heyman was amply supported by the judgment of Gee J. For example, as already quoted in these reasons, Gee J said:

22. [150]

    In his statement in these proceedings, Detective Brennan quotes parts of the FACS material which support his assertion that he believed in the case against Mr Spedding. He fails to mention the information within the FACS file tending to suggest that the allegations had been falsified, in particular Ms Wilson's note that Cynthia Heyman had told her that Jennanne Scott had spoken to Ross Spedding and that he had not revealed any knowledge of the events in the caravan. The statement also omits any reference to the FACS documents which directly contradict Cynthia Heyman’s statement as to her presence at the Heyman home to make the alleged observations concerning Lois. Further, there is the file note of Ms Wilson recording Constable Jervis' assessment of Cynthia's character which seems to be similar to the assessment of Gee J, as referred to above.

23. [151]

    The Facts Sheet drafted by Detective Brennan clearly stated that Ross Spedding was in the caravan when the alleged offences occurred. Detective Brennan did not speak to Ross Spedding before Mr Spedding was charged. According to the investigator's note purportedly made by Detective Brennan on 7 June 2015, he and Detective Moynihan met with Ross Spedding at Michel's Patisserie at Stanhope Gardens Village. The note records, amongst other things, the following:

24. [152]

    However, what Detective Brennan recorded in his investigator's note is contradicted by what is said by Ross Spedding in his 28 April 2020 affidavit filed in these proceedings. Ross Spedding says that during the conversation at Michel's Patisserie, Detective Brennan, referring to his father, said words to the effect of "We had enough for an arrest at this point, but not enough for a conviction. Now we need to build the case and that is what they were working towards." This contradicts that part of Detective Brennan's investigator's note which records him telling Ross Spedding that he "considered" Mr Spedding to be guilty of the offences with which he had been charged. Mr Spedding maintained, in effect, that references by Detective Brennan to “building” a case were best understood as references to constructing it from scratch, rather than improving upon it.

25. [153]

    Furthermore, during the conversation in June 2015, Ross Spedding says that he said to Detective Brennan words to the effect of "I was there” and “I'm very surprised you haven't spoken to me before the arrest", in reference to him being present in the caravan when the alleged offences occurred. Ross Spedding also said words to the effect of "I've seen what's listed on the charge sheet, it states my name as being listed at the scene of the alleged offence."

26. [154]

    Detective Brennan also made a note of a further telephone conversation he had with Ross Spedding on 27 January 2016. According to the note, Detective Brennan said that he considered Ross to be a victim in the matter and that he would like to speak to him further about the current charges. The note also records that Ross again enquired from Detective Brennan as to why he was not spoken to prior to his father being charged. The note, in part, reads:

27. [155]

    Detective Brennan's 24 February 2017 Investigator’s Note also records that on 15 February 2017 he sent a text message to Ross Spedding requesting unavailable dates in the event of a trial being set. In the course of the text message communication, Ross Spedding said "I find it very interesting that you have never officially interviewed me”. Detective Brennan replied that he had made such attempts a number of times.

28. [156]

    On 24 February 2017, Detective Brennan again texted Ross Spedding to inform him that the trial date had been set. Ross Spedding replied saying "Would have been nice if you had spoken before this”. According to Detective Brennan's note, he had further discussions with Ross Spedding which allegedly revealed that Ross was confused as to the investigation/court process. Ross Spedding complained that he was still upset that he was not spoken to prior to charges being laid against his father. According to the investigator's note made by Detective Brennan, he responded by saying that there "is/was" sufficient evidence to charge his father.

29. [157]

    Ross also said during his discussion with Detective Brennan on 24 February 2017 that as far as he was concerned his mother "should be charged with mental assault" for what she did to him and his sisters. Detective Brennan's investigator's note also records:

30. [158]

    Detective Brennan does not elaborate upon this. However, paragraph 15 of Ross Spedding's affidavit sheds light on the issue. He told Detective Brennan that he had been abused, not by his father but by his mother, and that the story about the caravan was "rammed down our throats the whole way through".

31. [159]

    Mr Spedding submitted that by 27 January 2016, Detective Brennan could not honestly have believed in the case against Mr Spedding in respect of Lois, or indeed Jeannie, given that Ross Spedding had informed him that he was in the caravan and the allegations had been concocted by his mother.

32. [160]

    Mr Spedding submitted that Ross Spedding's statement to Detective Brennan on 27 January 2016, in combination with the findings of Gee J, in particular that the children had been tutored to make allegations of sexual assault, together with the FACS file notes recording that Ross Spedding had not revealed any knowledge of the events, and the fact that Lois had not disclosed being sexually assaulted by Mr Spedding in the caravan in her first statement to police, establishes that the officers not only did not have an honest belief in the case against him but also that any honest belief on their part did not have an objectively sufficient basis.

33. [161]

    Detective Brennan did take a further statement from Lois on 5 September 2015 in which she said that she had suddenly remembered the events inside the caravan in circumstances where on 23 August 2015 she was lying awake in her bed, looking out the window when the memories came "flooding back" to her. She then described being sexually assaulted in the caravan. Curiously, at paragraph 45 of her statement, Lois says that it was only upon making the statement that Detective Brennan had informed her that a caravan was relevant to the charges against Mr Spedding. At paragraphs 34 and 35, Lois makes it clear that she had been told throughout her life by Jeannie and her family about the alleged assaults committed by Mr Spedding, and that Jeannie had mentioned the caravan on a number of occasions, including about 2 years earlier.

34. [162]

    The evidence given by Lois at Mr Spedding’s trial on 27 February 2018 plainly reveals that when she was describing to Detective Brennan where the alleged sexual assaults occurred, he suggested that the events took place in a caravan or what sounded like a caravan. In cross-examination, Detective Brennan denied this.

35. [163]

    Further, Lois’s statement as to the circumstances of the alleged sexual assault in the caravan was entirely inconsistent with the circumstances described by Jeannie in her statements. Lois alleged a sexual assault during the day, in the presence of another man, and in the absence of Jeannie and Ross. Jeannie's statement alleged a sexual assault by Mr Spedding at night in the caravan, where Lois and Ross were present, being followed by what she believed was an alleged sexual assault of Lois.

36. [164]

    The judgment of Gee J turned on his findings that the children in the Kruger and Spedding households had been "tutored" to make false allegations. Mr Spedding submitted, if that and/or his findings were not enough for Detective Brennan seriously to question the credibility of Cynthia Heyman and Connie Goldstein and the allegations of Lois and Jeannie, then his own conversations with each of the Kruger children, and Drake Kruger and India Kruger, ought firmly and independently to have established in his mind that the Kruger and Spedding children had been coaxed into making allegations that were false.

37. [165]

    In cross-examination, Detective Brennan was taken to various parts of Gee J's judgment.

38. [166]

    Detective Brennan was firstly taken to page 2980 of the court book where Gee J set out India Kruger' case that Cynthia and Connie had implanted into the minds of the Kruger children that they had been sexually abused. He agreed that in reading the judgment he got the impression that the allegations relating to the Kruger and Spedding children were made in the context of an acrimonious family law dispute and that this played on his mind "to a degree".

39. [167]

    Detective Brennan was also taken to that part of the judgment where mention was made of Cynthia Heyman's assertion that Jeannie and Lois had informed her that they had been sexually abused by Mr Spedding in April 1987, and to the earlier quoted passages that read as follows:

40. [168]

    Detective Brennan agreed in cross-examination that these extracts caused him to have concerns in relation to Cynthia Heyman's credibility.

41. [169]

    He also agreed in cross-examination that it would have been of "extreme concern" if Cynthia Heyman and Connie Goldstein had tutored the children into making allegations that they had been sexually abused by Mr Spedding and India Kruger. Gee J made such a finding, which is found at page 57 of the judgment.

42. [170]

    Finally in this respect, Detective Brennan was taken to page 63 of the judgment where Gee J dealt with the opinion of Professor Brent Waters that it was possible for the allegations to be not only false or malicious but evolving over a period of interrogation precipitated by innocent incidents and cross-fertilisation of ideas between the stepsiblings on the Spedding side. Detective Brennan agreed that this passage of the judgment caused him concern.

43. [171]

    Detective Brennan was next taken to the various affidavits in the Family Court files in Spedding v Spedding and Kruger v Kruger and to Connie Goldstein’s affidavit of 15 January 1988 in the Kruger v Kruger proceedings. That affidavit contains evidence of Connie Goldstein coaxing allegations from Noreen and Tina Kruger, with the assistance of Jeannie. Detective Brennan was reluctant to agree with the suggestion that the affidavit provided compelling evidence of such reprehensible concoction of false allegations against Mr Spedding.

44. [172]

    Detective Brennan was then taken to the affidavit of India Kruger filed 20 January 1988 in Kruger v Kruger, which referred to the allegations against Mr Spedding of sexual abuse of the Kruger children being investigated and found to be without substance. Detective Brennan said he was not concerned by this. Mr Spedding submitted that on any reasonable view he should have been.

45. [173]

    On 6 May 2015, Detectives Brennan and Semken travelled to Victoria and spoke with Tina Mandelbaum (nee Kruger). Detective Brennan completed an investigator's note in relation to the meeting on 18 May 2015. Amongst other things, a note was made of Tina telling these detectives that she did not believe that she had ever met Mr Spedding and did not allege that he had sexually abused her. Further, Tina expressed her belief that Mr Spedding had been used as a tool in the Family Court proceedings concerning the Kruger children. More importantly, Tina told Detective Brennan that she had a vague recollection of being "coaxed" into making allegations against him and her mother involving the use of dolls by members of the Heyman family. The reference to the use of dolls was also consistent with findings in the judgment of Gee J. Tina told Detective Brennan that she did not believe that she had been sexually abused and the allegations made in 1987 were false.

46. [174]

    Despite Detective Brennan speaking with Tina on 6 May 2015, a formal statement was only taken from her by Detective Moynihan on 13 December 2016, following requests from Mr Spedding’s legal representatives in the criminal proceedings. Paragraph 12 of her statement is as follows:

47. [175]

    Detective Brennan's conversation with Tina's twin, David Kruger, was similarly recorded in an investigator's note on 18 May 2015. A statement from him was not obtained by Detective Brennan until 12 December 2016, following requests from Mr Spedding’s legal representatives. David said that he had never met Mr Spedding, that he had no memories of him, that Cynthia Heyman would sometimes use Mr Spedding as a scare tactic with him and his siblings if they were misbehaving, that he did not have any memories of making allegations of sexual assault against any person throughout his life and that he simply did not believe that his mother or any other person had sexually abused him as a child.

48. [176]

    An investigator's note made by Detective Brennan records the fact of a conversation he had with Drake Kruger on 7 May 2015. On 15 October 2015, a Detective Sergeant Tim Bell in Victoria took a statement from Drake Kruger. In his statement, Drake Kruger referred to the judgment of Gee J and said that, looking back, he now believed that the children had been coached into making allegations. He described Cynthia Heyman as a "very manipulative person". Importantly, he said, at paragraph 22 of his statement:

49. [177]

    On 11 May 2015, after charging Mr Spedding, Detectives Brand and I'Anson attended the Family Court at Parramatta and obtained documents related to the Spedding v Spedding and Kruger v Kruger proceedings. Detective I'Anson said in her statement that Detectives Brand and Semken had also attended the Family Court on one occasion the week before she had. Detective I'Anson says that she skim read the documents which included affidavits, subpoenas, the judgment (presumably that of Gee J) and the transcript. She recollects that she and Detective Brand copied the documents and that in May, August and September 2015, they scanned and uploaded the numerous Family Court documents to e@glei. The extensive material that was copied by her is specified in paragraph 38 of her statement.

50. [178]

    Importantly, the material accessed by Detective I'Anson included the affidavits from Cynthia Heyman and Connie Goldstein dated 26 May 1987. These affidavits contradicted what they had each said in their police statements, dated 21 April 2015 and 24 July 2015 respectively, and what was recorded in the FACS file.

51. [179]

    In her statement dated 21 April 2015, Cynthia Heyman says that she agreed to Mr Spedding having overnight access with the children over the Easter break, presumably in 1987. She then says that she put Lois on the lounge at her parents' place. Lois was allegedly asleep and "patting herself on her fanny and crying". Cynthia Heyman's mother, Edna, asked if she had taken a look at Lois to see what was going on. Cynthia Heyman then says that she pulled Lois's pants down and observed her genital region, describing the region as a "mess". She said that Lois was "gaping open and she was bruised all around her vagina area and it was like black jelly and her legs were bruised". She said that she put some cold packs and applied some Am-o-lin cream on Lois's genital region. She asked Lois what happened and Lois allegedly said, "Bill did it." Cynthia Heyman stated that Lois had never called her father Bill and this was the first time she had done that.

52. [180]

    In her affidavit sworn on 26 May 1987 and filed on 27 May 1987 in the Spedding v Spedding proceedings, Cynthia Heyman said that Mr Spedding collected Ross, Jeannie and Lois from her father's office at Auburn for access on the weekend of 11 and 12 April 1987. She said that when the children came back they were upset and did not look well. Lois had been vomiting but she had no other symptoms. Cynthia Heyman said that after weekend access with Mr Spedding, Lois started to slightly wet her pants and whenever she went to the toilet to urinate she complained "it hurts down there." Cynthia Heyman said that she then applied an antiseptic cream thinking that Lois had picked up a slight infection. The following Saturday night, a week after Mr Spedding had overnight access to the children, Cynthia Heyman noticed Lois was whinging in her sleep and patting her vagina. She says that she and her mother then looked at Lois's vagina and observed "A lot of bruising inside her labias" [sic]. Further, Cynthia Heyman described the area as "very red and sore".

53. [181]

    Cynthia Heyman's affidavit was inconsistent with her police statement in a very significant respect. Whereas in her affidavit she said that she had applied an antiseptic cream on 12 April 1987, when Lois was returned after weekend access, she says nothing about Lois's genital area being a "mess" or "gaping open". Nor did she say in her affidavit that Lois's genital area was like "black jelly" or that her legs were bruised. The examination findings of Dr Dus were also inconsistent with the horrific injuries said to have been observed by Cynthia Heyman in her statement.

54. [182]

    Mr Spedding submitted that in these circumstances by May 2015, when Detective Brennan had access to the Family Court affidavits and other material, there was plenty of evidence before him comprehensively establishing that Cynthia Heyman was a witness totally lacking credibility. However, more importantly, by the time Detective Brennan had spoken to Ross Spedding and had statements from each of the Kruger children, the last of those statements coming from Tina on 13 December 2016, following investigator's notes taken in 2015, the evidence was clear that Cynthia Heyman had coaxed and tutored the Kruger and Spedding children to make allegations of sexual assault against him.

55. [183]

    Mr Spedding submits that by 6 May 2015, at the latest, there was no objectively sufficient basis for Detective Brennan, Inspector Jubelin or Detective Moynihan to hold an honest belief that the case against him was a proper case for prosecution. On 6 May 2015, members of the Kruger family effectively informed Detective Brennan that Gee J was correct in finding that the Kruger children had not been sexually abused by Mr Spedding and instead that the allegations had been coaxed from the children. Further, by mid-May 2015, when Detective Brennan had in his possession certain material from the Family Court, in particular the 26 May 1987 affidavits of Cynthia Heyman and Connie Goldstein, the evidence of the coaxing or tutoring was readily apparent. In January 2016, Ross Spedding had informed Detective Brennan that the allegations had been concocted by his mother.

56. [184]

    Mr Spedding submitted in these circumstances that the case against him in respect of Lois should never have been commenced. Alternatively, it should have been brought to a swift end in May 2015 when police gained access to the wealth of Family Court material.

57. [185]

    In her statement dated 1 April 2015, Jeannie said that she remembered in early 1987 being picked up after Christmas by Mr Spedding with Ross and Lois and taken to a house somewhere near Campbelltown. She remembered staying in the caravan and sharing a bed with Mr Spedding and Lois and waking up in the night with her pants being taken off by him and him putting his fingers inside her vagina. She said that Mr Spedding was lying on top of her and that she kicked her legs and carried on. Mr Spedding pushed Jeannie aside and grabbed Lois. Jeannie said that she did not watch what happened to Lois, but she could hear her crying and screaming.

58. [186]

    Mr Spedding submitted that Detective Brennan did not honestly believe in the case against him in respect of Jeannie and relies on those matters raised above concerning Lois. Alternatively, even if Detective Brennan did have such a belief, the evidence overwhelmingly establishes that he did not have an objectively sufficient basis for such a belief.

Conclusion

1. [187]

   I am satisfied that there was no reasonable or probable cause to institute or maintain the criminal prosecution against Mr Spedding.

2. [188]

   The sexual assault allegations against Mr Spedding arose out of a malignant contest between embittered protagonists in the Family Court in 1987. They were exhaustively explored and considered in that setting by a well-respected and experienced judge. His conclusions were unambiguous. The material to which he made reference made it clear that the allegations of sexual assaults upon Mr Spedding’s daughters were the result of poisonous attempts by various people to manufacture heinous allegations against Mr Spedding for a collateral purpose.

3. [189]

   I observe immediately that it is no part of a prosecutor’s function to usurp the role of the jury. Prosecutorial discretion does not extend to the making of decisions not to prosecute where there exists good evidence from which a jury might reasonably conclude that an offence has been committed. That includes the fact that the decision of a judge in unrelated proceedings, such as Gee J in the Family Court, is not binding upon putative prosecutors.

4. [190]

   However, the material available to the prosecutors in this case, considered as a whole and not in a piecemeal or disconnected manner, supported an overwhelming inference that the allegations of sexual assault upon his daughters against Mr Spedding were concocted and false and could not be supported. I accept that the question is whether the prosecutor had reasonable and probable cause to do what he did, not whether, regardless of his knowledge or belief, there was reasonable and probable cause for a charge to be laid. In the present case, I am satisfied not only that Detective Brennan and Inspector Jubelin, and thereby the Director of Public Prosecutions, were armed with evidence that did not objectively support the institution or maintenance of the criminal proceedings against Mr Spedding but also that if they honestly held any such frail belief, they could not have done so, and did not do so, on reasonable grounds.

5. [191]

   Even accepting somewhat charitably for the purposes of the argument, that the decision to prosecute was taken quickly “in order to protect the community from Mr Spedding as a suspected child sexual offender”, and not because it suited the strategy surrounding the investigation of the disappearance of William Tyrrell, by the time the matter eventually came on for hearing before Sweeney DCJ, if not well before, the officers had material that must, and certainly should, have led them to doubt the viability of the case. Ross Spedding was in the caravan and was emphatically telling them what he had for years consistently been telling anyone who cared to listen, that his mother made it all up. That assertion coincided entirely with Gee J’s conclusions three decades before. The intervening years only served to confirm the utter hopelessness of the prosecution case.

6. [192]

   It is timely in this context to record part of Inspector Jubelin's somewhat forthcoming acceptance of propositions put to him concerning the viability of the charges against Mr Spedding. These were offered when I interrupted his cross-examination to ask him the following questions:

7. [193]

   I am satisfied that the criminal proceedings were instituted and maintained against Mr Spedding without reasonable or probable cause.

Malice

1. [194]

   The State made the following submissions.

2. [195]

   It is for Mr Spedding to prove a dominant purpose of a prosecutor "other than the proper invocation of the criminal law - an ‘illegitimate or oblique’ motive": A v New South Wales at [91]. This Court summarised the position in State of New South Wales v Abed (2014) 246 A Crim R 549; [2014] NSWCA 419 at [150]-[152], as follows:

3. [196]

   The State submitted that it is clear that mere proof of absence of reasonable and probable cause does not equate to proof of malice. On drawing inferences, in State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185, the Court stated at [231]:

4. [197]

   The State submitted that Mr Spedding appears to be relying upon what inferences can be drawn from a claimed lack of reasonable and probable cause to demonstrate malice. In that regard, the State drew attention to the remarks of Walton J in Edwards v State of New South Wales at [32]:

5. [198]

   Mr Spedding made cognate submissions on the applicable law. To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91] and State of New South Wales v Abed at [135]. Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice: A v New South Wales at [40] and State of New South Wales v Abed at [150].

6. [199]

   The State’s submission, that Mr Spedding “appears to be relying upon what inferences can be drawn from a claimed lack of reasonable and probable cause to demonstrate malice” is, with great respect, difficult to understand. If nothing else were clear in this case, it is beyond argument that Mr Spedding asserts that the prosecution against him had absolutely nothing to do with the proper invocation of the criminal law. On the contrary, it is patently Mr Spedding’s case that he was charged for the dominant, if indeed not the sole, purpose of furthering the police investigation of the disappearance of William Tyrrell. Mr Spedding became a suspect as a result of having visited the home where William was last seen. His visit there was innocent but his alibi was unreasonably and inexplicably ignored. It quickly became obvious that it was innocent. Indeed, Mr Spedding was never charged with anything even remotely concerned with that investigation. But as the evidence to which I have in detail earlier referred reveals, Mr Spedding was arrested on discredited historical allegations, and placed in a cell with a known offender, in order to obtain evidence, if possible, of his involvement in that disappearance. None was forthcoming.

7. [200]

   If the institution of the criminal proceedings appears in such circumstances to have been malicious, their maintenance appears to be even more so. The frenetic and poorly conceived arrest of Mr Spedding could never in my view have been justified and was clearly malicious. Although Inspector Jubelin disavows any knowledge of who informed the media outlets that Mr Spedding was to be arrested, I am satisfied that despite his denial, either he or an officer under his command and in accordance with his direct instructions, let the television stations and other news organisations know that a suspect in the disappearance of William Tyrrell was to be apprehended or arrested and that Mr Spedding’s address at the relevant times was given to them. That arrest was transparently unrelated to the so-called subject matter of the charges and unarguably related to the perceived collateral advantage of pressuring Mr Spedding in a quite different context. Public attention in the media was in my finding a specific and intentionally engineered aspect of creating that pressure. However, the continuation of the prosecution as the years passed, as the opportunity calmly to examine the glaringly obvious realities presented itself, serves in my mind only to underscore and emphasise the fact that the prosecutors improperly declined to terminate the proceedings when they should have. That time was long before Sweeney DCJ dismissed them.

8. [201]

   I am satisfied that the institution and maintenance of the criminal prosecution was malicious. It was borne of malice directed to Mr Spedding and unrelated to the proper pursuit of the criminal law. As Inspector Jubelin so many years later cynically reflects, it was his view that Mr Spedding was “hiding something” and that “maybe this [meaning the pressure of the charges against him] will be enough to crack him open”.

9. [202]

   Quite apart from any debate concerning the interpretation of certain passages in Inspector Jubelin's book, about which Mr Spedding contends there can hardly be a doubt, Exhibits D and E contain highly persuasive, if not conclusive, support for my conclusion that the criminal proceedings were brought for the dominant purpose of furthering the investigation of Mr Spedding as a suspect in the disappearance of William Tyrrell. I am satisfied that the criminal proceedings were instituted and maintained for the dominant purpose of furthering the investigation of Mr Spedding as a suspect in the disappearance of William Tyrrell and to punish him for his suspected involvement.

10. [203]

    With respect to the proof of malice on the part of the Director, Mr Spedding alleges that he and/or his delegates persisted in prosecuting him to justify the public resources that had been expended upon his suspected role in the William Tyrrell investigation, to justify his public identification as a person of interest in the disappearance and the ongoing media attention surrounding his apprehension.

11. [204]

    In my view, this is one of those cases where malice can also be inferred from the absence of reasonable and probable cause. By the time of Mr Spedding’s trial, it was clear that the case against him was hopeless and doomed to fail. The fate of the case was further confirmed, if confirmation were required, with the receipt of Ross Spedding's statement on 22 February 2018. The inference of malice can be more readily drawn in circumstances where the then Director and/or his delegates involved in the prosecution have not provided evidence addressing the allegation of malice, or any allegation for that matter.

Misfeasance in public office

1. [205]

   The elements of the tort of misfeasance in public office are unsettled: Ea v Diaconu (2020) 102 NSWLR 351; [2020] NSWCA 127 at [48] per Payne JA. Nevertheless, the case law to date, including High Court authority, establishes that the tort involves proof of the following elements:

   1. (1)

      An invalid or unauthorised act;

   2. (2)

      Done maliciously;

   3. (3)

      By a public officer;

   4. (4)

      In the purported discharge of his or her public duties; and

   5. (5)

      Which causes loss or harm to the plaintiff: Ea v Diaconu at [36] and [137] citing Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 370; [1995] HCA 65.

2. [206]

   The third element of the tort is not in issue. The police officers held public office as members of the New South Wales Police Force.

3. [207]

   The fourth element was considered in Ea v Diaconu. As explained by Simpson AJA at [140], the preponderance of authority suggests that for the fourth element of the tort to be satisfied, the public officer must be exercising, or purporting to exercise, a power conferred or discharging a duty. The arresting and charging of Mr Spedding constituted an exercise of public power attaching to the public office held by the officers.

4. [208]

   Further, s 48 of the Criminal Procedure Act 1986 empowers a police officer to commence committal proceedings against a person by issuing a court attendance notice and filing that notice in the Local Court. Detective Brennan exercised this power.

5. [209]

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

6. [210]

   The unauthorised act in the present matter was the institution and maintenance of the criminal proceedings against Mr Spedding to further the officers' investigation of him as a suspect in the disappearance of William Tyrrell and to punish him for his suspected involvement.

7. [211]

   Inspector Jubelin believed that Mr Spedding was a paedophile involved in the abduction of William Tyrrell, as discussed above. I infer from this evidence that because of this belief Inspector Jubelin intended to harm Mr Spedding by committing the unauthorised act of bringing the criminal proceedings against him, not to bring him to justice in relation to the offences, but to punish him for his suspected involvement in the disappearance of William Tyrrell. The exercise of the power to arrest and charge was used for this improper purpose.

8. [212]

   Mr Spedding relies on the evidence and submissions put forward in respect of the element of malice in his claim for malicious prosecution.

9. [213]

   Proof of material damage is required for the tort to be established. Psychological injury is enough: De Reus v Gray (2003) 9 VR 432; [2003] VSCA 84, as is injury to reputation: Cornwall v Rowan (2004) 90 SASR 269; [2004] SASC 384 at [729]-[734].

10. [214]

    In the present matter, there is evidence, which I accept, of Mr Spedding sustaining a psychological injury as well as significant damage to his reputation.

11. [215]

    The State submitted that the pleading of this tort seems to add little or nothing. In the manner that Mr Spedding has argued his case on this tort, its proof is entirely dependent upon findings of improper purpose by the police. The allegations are not relevantly distinguishable from the allegations of malice that make up the claim in malicious prosecution. The State submitted that no additional damages would be available for success on this cause of action.

12. [216]

    The State submitted that, on the findings contended for by it, Mr Spedding should fail in his claim in misfeasance in public office.

Collateral abuse of process

1. [217]

   To establish this tort, proof is required of the police officers using the machinery of the criminal law to achieve a purpose outside the ambit of the criminal proceedings: Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 at 91; [1911] HCA 46.

2. [218]

   Mr Spedding submitted that this element is proven in circumstances where the criminal proceedings were used as a vehicle to further the investigation of him as a suspect in the disappearance of William Tyrrell and to punish him for his suspected involvement, as opposed to punishing him for committing the crimes alleged in the criminal proceedings against him.

3. [219]

   The State submitted that while the elements of the tort of collateral abuse of process are different to those of malicious prosecution, the facts and incidents under consideration are the same. On one view, the pleading of this tort adds nothing in circumstances where the only charges presented against Mr Spedding resolved in his favour.

4. [220]

   Furthermore, if Mr Spedding succeeds in proving malice and absence of reasonable and probable cause, he may succeed with respect to the first element of collateral abuse of process, namely improper use of court process. According to this submission, it remains unclear what overt act or threat distinct from the proceedings themselves could be relied upon to satisfy the second element of the tort.

5. [221]

   No additional damages would be available for success on this cause of action. On the findings contended for by the State, Mr Spedding should fail on his claim for collateral abuse of process.

False imprisonment

1. [222]

   Mr Spedding alleges that on 20 January 2015 he was taken by Detectives Moynihan and King from his Bonny Hills residence to Port Macquarie Police Station. The State says that he did so voluntarily and participated in an interview which commenced at 2:25pm and concluded at 8:33pm. The central issue in the claim for false imprisonment is whether Mr Spedding was in fact imprisoned.

2. [223]

   A restraint brought about by an involuntary submission to an assertion of authority is enough if a person feels under an obligation to submit to the instruction of the defendant: R P Balkin and J L R Davis, The Law of Torts (4th ed, 2009, Butterworths) at [3.29] citing Attorney-General v Niania [1994] 3 NZLR 106 (HC) at 108; Roman v Commonwealth (2004) 16 NTLR 80; [2004] NTSC 9 at [10].

3. [224]

   In my opinion, without adverting to the evidence and the competing submissions on this cause of action, I am satisfied that Mr Spedding’s liberty was not under total and direct restraint nor was he led to believe that if he attempted, for example, to leave, he would be compelled by force to remain in the company of police. It is in my view quite clear from the evidence, especially Mr Spedding’s evidence, that if only by reason of his personality, he was content at all relevant times to assist and cooperate with the police and was not led to believe that he would be compelled to stay had he attempted to leave.

Conclusions on liability

1. [225]

   I am satisfied that Mr Spedding has established that, with the exception of the claim for false imprisonment, he is entitled to damages on the causes of action pleaded in his amended statement of claim.

2. [226]

   Mr Spedding gave the following evidence that was relevantly not the subject of challenge:

Damages submissions – Mr Spedding

1. [227]

   Having regard to that evidence, Mr Spedding made the following submissions.

2. [228]

   In addition to not being cross-examined on damages issues, Inspector Jubelin conceded that the criminal proceedings have destroyed Mr Spedding and that after he was charged he was seen as a paedophile:

3. [229]

   Mr Spedding was held in custody on remand for approximately 58 days prior to being granted bail by this Court on 19 June 2015. He had not previously ever been in custody. He was kept in the cells at Port Macquarie Police Station for approximately a week after being refused bail. He was then transported to Kempsey Correctional Centre. However, that correctional centre declined to receive him and so he was taken back to Port Macquarie Police Station where he remained for a further few days. It was whilst at Port Macquarie Police Station that Mr Spedding was kept in solitary confinement. A Corrective Services Officer removed additional bedding from the cell and informed him that "we are not allowed to put anyone else in with you".

4. [230]

   Mr Spedding was then moved to Cessnock Correctional Centre. Upon arrival at Cessnock, he was strip searched by Corrective Services Officers in body armour. During the strip search, one of the officers put his night stick up against Mr Spedding’s neck and behind his left ear and said to him words to the effect of "Don't you turn around. Don't you eyeball me. You listen to what I've got to say. We want you to talk, you know what we want you to say, we want you to talk, and I'd shove this up your arse, except I'd have to clean it afterwards. You just remember, we want you to talk".

5. [231]

   Mr Spedding was placed into protective custody whilst at Cessnock. He heard other inmates yell out to him from their cells words to the effect of "Where's William?" and "What have you done with William?". He was threatened and abused by fellow inmates.

6. [232]

   Mr Spedding’s time in custody was a frightening ordeal, compounded by the nature of the allegations against him and being publicly named as a person of interest in the investigation into William Tyrell's disappearance.

7. [233]

   The conditions of Mr Spedding’s bail were also onerous. They included, amongst other things, a condition that he report once daily to Port Macquarie Police Station and that he not leave the State of New South Wales. The reporting conditions were reduced to three days per week and eventually to one day per week in September 2015. The onerous bail conditions contribute to his damages for non-economic loss.

8. [234]

   Mr Spedding was also subjected to a bail condition that he not approach any child under 18 years of age. As a consequence of this condition, he was not able to have any contact with any children in his family until after his acquittal by the District Court on 5 March 2018. This resulted in his missing his son Ross's wedding, his son George's wedding, the birth of his first great grand-daughter in Queensland, the later birth of Ross and Rosanna's first child, the birth of his grand-daughter Emily's child, a funeral for Margaret's cousin Billy McMahon, the funeral of Margaret's cousin Kitty Black and three years of birthdays, Easters and Christmases.

9. [235]

   Mr Spedding’s time outside gaol awaiting trial was in some ways just as bad as being locked up. In addition to spending time in custody in difficult circumstances and having to obey onerous bail conditions upon release, Mr Spedding has sustained a psychiatric condition, namely an adjustment disorder with anxiety and depression, partly as a consequence of the criminal proceedings. Dr Anthony Samuels and Dr Alex Apler have produced a conclave report for the Court in which they opine that Mr Spedding’s psychiatric condition has been caused by three factors:

   1. (1)

      Execution of the search warrant on 20 January 2015 with the consequences that followed;

   2. (2)

      The criminal proceedings from 22 April 2015 to 5 March 2018. Dr Samuels and Dr Apler note that Mr Spedding described adverse experiences whilst incarcerated, the requirement to comply with strict bail conditions and the adverse publicity and hostility from members of the public. Further, the doctors refer to his "stressful trial in March 2018" leading to his acquittal on all charges; and

   3. (3)

      After March 2018, the ongoing proceedings before the Coroner's Court in relation to the disappearance of William Tyrrell which has been an additional source of stress.

10. [236]

    Dr Samuels and Dr Apler consider each of the above factors to be of equal significance in their contribution to the development of Mr Spedding’s adjustment disorder, although they say that the overriding stressful factor was the adverse publicity and the public perception as the perpetrator in the William Tyrrell matter.

11. [237]

    That public perception was engineered by Strike Force Rosann. The criminal proceedings portrayed Mr Spedding as a paedophile and strengthened the public perception of him being the person responsible for the disappearance of William Tyrrell.

12. [238]

    The assessment of damages for non-economic loss is at large. Mr Spedding acknowledges that there is an overlap among the claims for misfeasance in public office, malicious prosecution and collateral abuse of process, in terms of the assessment of damages under this head. Mr Spedding claims the sum of $600,000.00 for damages for non-economic loss for these torts. Mr Spedding submits that even if he succeeds in establishing only one of the torts (putting aside the claim for false imprisonment), for example malicious prosecution, damages for non-economic loss should still be assessed at $600,000.00 because the circumstances giving rise to non-economic loss were caused by a course of conduct, as opposed to distinct courses of conduct establishing separate torts.

13. [239]

    Reputational damages may be recovered as a separate head of damage: Beckett v State of New South Wales [2015] NSWSC 1017 at [745]-[748] and the cases cited therein. The intensity and ferocity of the media attention in this case, and the damage occasioned to Mr Spedding’s reputation as a result, warrants a separate and substantial award for reputational damages.

14. [240]

    It is Mr Spedding’s case that the public's perception of him as the perpetrator in the William Tyrrell matter was engineered by Strike Force Rosann. The criminal proceedings portrayed him as a paedophile and strengthened the public's perception of him as being the person responsible for the disappearance of William Tyrrell. The public perception reflected Inspector Jubelin's belief that Mr Spedding was indeed a paedophile, and he wished to bring media attention upon Mr Spedding to exert maximum pressure. Without the criminal proceedings Mr Spedding was simply a person of interest. With the criminal proceedings he became the likely perpetrator.

15. [241]

    There was a high level of media attention surrounding Mr Spedding following the execution of the search warrant at his home on 20 January 2015. The media referred to children being removed from his care, that he and his wife had been questioned days before by FACS, that the grandchildren's mother wanted answers from FACS as to why the children were living with him, the large police presence and the fact that he was a local white goods repairman. The media releases also depicted Mr Spedding and his wife on multiple occasions. The media coverage continued into March 2015, including outlets detailing further occasions when Inspector Jubelin arrived at or returned to the house.

16. [242]

    On 17 April 2015, three days prior to Mr Spedding’s arrest, the Sydney Morning Herald and the ABC were reporting on the suspicions of police that a paedophile ring was involved in the disappearance of William Tyrrell, including naming Mr Spedding as a person of interest in that coverage.

17. [243]

    On 22 April 2015, there was a significant media contingent at Mr Spedding’s home several hours before his arrest. His arrest was reported locally and nationally. When he was released from custody at Cessnock on 19 June 2015, the media was once again in attendance. Articles were also published regarding his release.

18. [244]

    The coverage of Mr Spedding’s historical sexual assault charges was widespread, from local news referring to him as an alleged paedophile, to national news networks reporting on his being refused bail by Port Macquarie Local Court and extensively citing the Police Facts Sheet, his grant of bail, variations to his bail conditions, his waiving his right to committal and the application for a permanent stay of proceedings.

19. [245]

    After 22 April 2015, there was further widespread media reporting concerning the disappearance of William Tyrrell in which Mr Spedding was named, and sometimes also pictured. The media reports referred to purported contact between him and "convicted paedophile Tony Jones" and his family, police lines of inquiry concerning potential involvement by a paedophile ring and that his former brother-in-law, Jerry Heyman, was a paedophile and convicted murderer. The media coverage following 22 April 2015 concerning the disappearance of William Tyrrell in most cases also refers to Mr Spedding having been charged with unrelated historical child sex offences.

20. [246]

    The publicity referring to Mr Spedding both as a person of interest in the William Tyrrell disappearance and as having been charged with historical sexual offences in New South Wales and/or Victoria continued even after his acquittal in March 2018.

21. [247]

    Mr Spedding submitted that the widespread, continuing and negative media attention concerning the historical sexual assault charges and his being a person of interest in regard to the disappearance of William Tyrrell was the product of a police media strategy adopted, specified or referred to in Exhibits D and E.

22. [248]

    The arresting and charging of Mr Spedding substantially intensified the media spotlight on him. He “became” a paedophile and the likely abductor of William Tyrell. That perception is alarmingly and graphically portrayed in a video recording of one of Mr Spedding’s neighbours who came to his front door and demanded in a most undignified and regrettably spiteful outburst that he not leave his house to be near any of her children who were playing in the street. It is evident that that malicious attitude is not only held by the woman concerned but is a view largely accepted as the truth by a significant section of the population.

23. [249]

    Mr Spedding claims the sum of $300,000.00 for reputational damage.

24. [250]

    Aggravated damages are given by way of compensation for injury to a plaintiff which results from the circumstances and manner of the defendant's wrongdoing: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 129-130 cited in State of New South Wales v Zreika [2012] NSWCA 37 at [60]. Aggravated damages may also be awarded in circumstances when the defendant does not express regret for past wrongs: Walter v Alltools (1944) 61 TLR 39 cited in Beckett v State of New South Wales at [717].

25. [251]

    Further, aggravated damages can be awarded for injury to a plaintiff's feelings caused by insult or humiliation: Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47. All the circumstances of a particular case must be taken into account: Nye v State of New South Wales (2004) AusTorts Reports 81-725; [2003] NSWSC 1212 cited in Beckett v State of New South Wales at [717].

26. [252]

    Mr Spedding’s distress, embarrassment and humiliation were amplified to a very large degree by the intense media interest which followed his arrest and charging. As mentioned above, the media's interest in his arrest was undoubtedly fuelled by him being a person of interest in the investigation concerning the disappearance of William Tyrrell.

27. [253]

    Mr Spedding received threatening voice and text messages on his mobile phone and on social media. He was branded a paedophile and a child rapist. Some of the voice messages left on his phone are chilling.

28. [254]

    Mr Spedding’s image was shown on all forms of media, making him easily recognisable in public. On 2 August 2016, he was refused service by Douglass Hanly Moir Pathology in Laurieton for an important blood test when a member of staff recognised him. On 7 January 2017, he was assaulted in Kew by a man who grabbed him around the throat with both hands.

29. [255]

    The historical sexual assault allegations resulted in FACS removing his grandchildren from his care. The bail conditions imposed prevented any access or contact between him and his grandchildren until after his acquittal in March 2018.

30. [256]

    Neither the officers nor the ODPP has apologised for their actions. Further, Mr Spedding submitted that the State’s conduct of the litigation, in particular the late service of Inspector Jubelin's statement and the provision of Exhibit E on the final day of the trial, when the document was called for on the third day of the trial, should lead to an increase in the award of aggravated damages.

31. [257]

    Mr Spedding submitted that it is difficult to imagine a more compelling case for an award of aggravated damages at the absolute highest end of the scale. He submitted that his aggravated damages for the torts of malicious prosecution, misfeasance in public office and collateral abuse of process, or any one of them, should be assessed in the sum of $400,000.00.

32. [258]

    Exemplary damages are awarded to punish and deter similar conduct in the future: Lamb v Cotogno. Generally speaking, what is required for an award of exemplary damages is “conscious wrongdoing in contumelious disregard of another's rights”: Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [22].

33. [259]

    Mr Spedding submitted that using the criminal proceedings to further the investigation of Mr Spedding as a person of interest in the disappearance of William Tyrrell, and to punish him for his suspected involvement is “outrageous conduct” and requires the denunciation of this Court in the strongest terms.

34. [260]

    Mr Spedding claimed the sum of $400,000.00 for exemplary damages for malicious prosecution, misfeasance in public office and collateral abuse of process. For the reasons expressed in relation to the claims for the other heads of damage regarding these torts, the sum assessed for exemplary damages should still be the same regardless of which of the torts are established.

35. [261]

    Mr Spedding incurred legal fees in the sum of $270,516.60 in defending the criminal proceedings. He has only received the sum of $161,224.90 pursuant to the certificate issued to him under the Costs in Criminal Cases Act. The agreed shortfall is $109,291.70. This amount is claimed, together with interest at the rate prescribed under UCPR 36.7(1).

36. [262]

    The incurring of legal fees was the natural and probable consequence of the torts of malicious prosecution, collateral abuse of process and misfeasance in public office. Mr Spedding is therefore entitled to the agreed shortfall: State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320.

37. [263]

    Dr Samuels and Dr Apler recommend ongoing psychological counselling at fortnightly intervals until the Coronial Inquest into the disappearance of William Tyrrell is resolved. The likely cost is $300.00 per consultation.

38. [264]

    The William Tyrrell matter may never be resolved. Deputy State Coroner Grahame has stated that the investigation into his disappearance remains ongoing, and there is no current timetable for the conclusion of the Inquest. Even if the matter is at some point resolved, or the Inquest is suspended or terminated, Mr Spedding is very likely to continue experiencing the symptoms of his adjustment disorder with anxiety and depression. This is of particular concern in light of his unfortunate notoriety as a result of the intense and ongoing media attention concerning him and the William Tyrrell investigation.

39. [265]

    Mr Spedding submitted that it would be reasonable to award him the present value of $300.00 per fortnight over the next 10 years, discounted at 5%. The amount claimed is $150.00 per week x 412.9 (5% multiplier for 10 years) = $62,000.00 (rounded up).

40. [266]

    Interest is claimed on damages for non-economic loss and aggravated and exemplary damages at the rate of 2% per annum from April 2015 to the date of judgment: MBP (SA) Pty Limited v Gogic (1991) 171 CLR 657; [1991] HCA 3 recently applied by this Court in Haynes by her tutor Karen Lindley v Haynes [2022] NSWSC 581 at [62].

Damages submissions – the State

1. [267]

   The State submitted that if Mr Spedding is not successful in his claim for malicious prosecution, he ought not be successful in his claims for misfeasance or collateral abuse of process. Further, if he is successful in his malicious prosecution claim, he is not entitled to damages for misfeasance or collateral abuse because they are based on the same facts.

2. [268]

   For Mr Spedding to recover damage under this head, he must fall within one of the categories identified in Savile v Roberts (1698) 91 ER 1147, namely:

   1. (1)

      Damage to reputation or fame;

   2. (2)

      Damage to person or liberty;

   3. (3)

      Damage to property, usually but not only, consisting of legal defence costs.

3. [269]

   The State submitted that Mr Spedding is not entitled to damages for injury to his person, liberty, reputation or fame due to being identified as a person of interest in the disappearance of William Tyrell. Whilst at times one may be forgiven for thinking his claim is based upon him being identified as such a person of interest, that is not the nature of the claim as pleaded. Mr Spedding was never prosecuted for any aspect of his involvement in that disappearance and no such involvement is suggested.

4. [270]

   The State agrees that reputational damage may be recovered as a separate head of damage.

5. [271]

   Should Mr Spedding succeed with respect to his claim in malicious prosecution, the State submits that a difficult process like unscrambling an egg is required. That is because it is unclear on the evidence what injury to his reputation has been occasioned by his status as a suspect in the disappearance of William Tyrrell as opposed to the prosecution which is the subject of these proceedings.

6. [272]

   Whilst the State has admitted that images and videos were broadcast across media organisations, Mr Spedding’s references to some of the media articles do not make it clear where or to whom they were published. Mr Spedding contends that his arrest was reported locally and nationally. However, it is not possible to determine which media article the published photographs he relies upon relate to. Moreover, by way of example, the article from a website from the United Kingdom includes "Officers from Strike Force Rosann stressed that the arrest was not related to the disappearance of the four-year-old-boy …".

7. [273]

   The State submitted that any damage to Mr Spedding’s reputation or fame due to the malicious prosecution/misfeasance/collateral abuse claims should be considered in the context of his having already been identified as a suspect in the William Tyrell disappearance at the time the proceedings were instigated: how much more reputational damage did he suffer as a result of being charged with the historical child sexual assault offences, if any? This question should be considered in light of the police efforts to indicate that the historical sexual assault charges laid were not connected to the William Tyrell investigation.

8. [274]

   There is no evidence in this case that there is or has been any pervasive view in the community as to Mr Spedding’s guilt for the child sexual assault offences or for abducting William Tyrell. Nor is there any basis to suppose that it would be proper to place weight on a perception that such a community of opinion may exist. The Court should be slow to place any weight on the impact of media reporting on rational members of the community. See Beckett v State of New South Wales at [824]:

9. [275]

   As at 8 June 2015, Inspector Jubelin came to the view Mr Spedding was no longer a suspect in the disappearance of William Tyrell. His book makes this abundantly clear at page 258:

10. [276]

    Mr Spedding’s submissions are misguided in that they appear to rely in part on things that occurred prior to his prosecution which is the subject of the claim and which relate to matters other than that prosecution.

11. [277]

    Roseanne Beckett was awarded $120,000.00 for damage to reputation arising out of malicious prosecutions for perjury and soliciting to murder, both extremely grave offences. She had been referred to by the Crown during her criminal proceedings as "an evil woman". It is hard to conceive of a good reason to award Mr Spedding 2.5 times more than that awarded to Ms Beckett for any injury to his reputation. A far more modest figure is warranted. Any injury to Mr Spedding’s reputation caused by the prosecution in question has been dwarfed by the impact on his reputation of being a suspect in the disappearance of William Tyrrell.

12. [278]

    The State agrees with the approximation that Mr Spedding was held in custody on remand for 58 days.

13. [279]

    Mr Spedding claims $600,000.00 for non-economic loss. In terms of a comparison with other cases, it is not stated what the basis is, if any, for that submission. Included in the claim for that amount are issues related to public perception. However, Mr Spedding also claims $300,000.00 for damage to his reputation as part of his malicious prosecution case. The State submitted that I should be alert to the prospect that Mr Spedding’s claims may include double counting when considering public perception issues under separate categories or heads of damage.

14. [280]

    Mr Spedding was refused bail for offences unconnected to the William Tyrrell investigation. Against the exhaustive list of considerations within s 18 of the Bail Act 2013, there is no evidence that the magistrate/authorised justice who granted bail inappropriately took into account that Mr Spedding had been identified as a person of interest in that investigation. Mr Spedding’s time spent on remand is not connected to the investigation.

15. [281]

    Mr Spedding has emphasised his negative experiences with Corrective Services officers and other inmates. In Beckett, I related the evidence as to the experience of imprisonment, including in that matter an assault. In evaluating experiences of custody, I said:

16. [282]

    The point of this head of damage is to compensate for loss of liberty, not for a particular kind or quality of loss of liberty.

17. [283]

    Ms Beckett was awarded a total of $1,825,200.00 for loss of liberty, made up of $1,314,000.00 for a three year period served only for count 2, and $511,200.00 for a period of three years and six months served concurrently with other terms of imprisonment. This equated to $1,200.00 per day. The number of days spent in custody by Mr Spedding is not comparable. However, noting my comments at [806] in Beckett relating to a calculable sum for a day in custody, the State conceded there is no reason not to utilise a daily rate in the present case. Were the Court, for example, to allow a figure of $1,300.00 a day as appropriate, that would give an award for injury to liberty of $75,400.00. A figure of that order might be thought appropriate should Mr Spedding succeed in his claim for non-economic loss deriving from injury to liberty.

18. [284]

    The State takes no issue with the quantum of the shortfall of $109,291.70 as reflecting the difference between the amount spent by Mr Spedding on his legal representation and the amount recovered following the award of a certificate under the Costs in Criminal Cases Act.

19. [285]

    However, the State submitted that a question arises as to the ability to recover such an amount in circumstances where there has been an award of costs pursuant to the constraints of a statutory scheme. Beazley P seems to suggest in State of New South Wales v Cuthbertson at [65]-[66] that such a recovery is impermissible. There appears to be no difference in principle between the provisions of the Costs in Criminal Cases Act and the Crimes (Appeal and Review) Act 2001. A contrary position appears to have been taken by Brereton JA in Rock v Henderson [2021] NSWCA 155 at [18].

20. [286]

    If proven, Mr Spedding is entitled to have any mental anguish sound in damages. That is subject only to the restrictions on the recovery of damages for personal injury imposed by Part 2 of the Civil Liability Act 2002 and the Limitation Act 1969.

21. [287]

    The State agrees with the joint recommendation of Dr Samuels and Dr Apler. Precisely when the Tyrrell inquest will conclude is unknown. The doctors’ joint report indicates that Mr Spedding’s emotional state has improved and will continue to do so, suggesting a period of ten years treatment is unreasonable. The State submitted that a period of two years treatment is reasonable and amounts to $15,600.00. That quantum is agreed.

22. [288]

    Damages under this head are compensatory and are awarded for insult or humiliation constituting injury to feelings. They can be, but are not invariably, awarded for the tort of malicious prosecution.

23. [289]

    The State submitted that while on the face of it one might think that there was inevitably a degree of double counting in awarding aggravated damages for a tort that requires findings of malice and damage to reputation, liberty or property to succeed at all, the High Court appears to suggest that there is no double counting involved: New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57. Aggravated damages can be awarded as a single sum combined with general damages.

24. [290]

    The concept of insult relates to insult arising from the tort, not arising from a third party insulting Mr Spedding. In this context, the threatening voice messages are not relevant to this head of damage. Further, it is far from clear that any of those messages in fact relate to the subject of the prosecution as opposed to Mr Spedding’s status as a one-time suspect with respect to the disappearance of William Tyrrell.

25. [291]

    Mr Spedding may have been upset and concerned about FACS removing his grandchildren, but there is no evidence that he was insulted or humiliated by this. Of more basic importance is that it cannot be said on the evidence that the breakdown of the foster family relationships visited upon Mr Spedding were the result of his prosecution, as opposed to the allegations underlying the prosecution.

26. [292]

    Roseanne Beckett was awarded $100,000.00 for aggravated damages. The factual basis for that award is stated at [811]-[815] and included needless handcuffing during the execution of a search warrant, initial media attention at the behest of the informant officer and improper opposition to bail on one occasion. The State contended that nothing comparable has arisen in the present case.

27. [293]

    If an award of aggravated damages is to be made at all it should be far more modest than that awarded to Roseanne Beckett. It cannot be said that the matters expressly relied upon by Mr Spedding put him in a stronger position than Ms Beckett with respect to this head of damages, let alone four times better.

28. [294]

    Exemplary damages can be available for malicious prosecution: State of New South Wales v Quirk [2012] NSWCA 216; Beckett. Such an award is intended to punish. For such an award to be made, something more than "human fallibility" is required: State of New South Wales v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208.

29. [295]

    Mr Spedding seeks $400,000.00 with respect to exemplary damages for malicious prosecution. The State maintains that the availability of exemplary damages is highly dependent on particular factual findings being made.

30. [296]

    There is no basis in principle for an award of exemplary damages consisting of many multiples of the award of general damages. In Beckett, very serious findings of misconduct by police were made, with an award of exemplary damages of $200,000.00. In State of New South Wales v Landini [2010] NSWCA 157, a matter in which police were found to have fabricated or manufactured evidence, an award of $160,000.00 for exemplary damages was reduced to a sum of $50,000.00 on appeal. A sense of proportion must be maintained. In this case, that would mean an award of exemplary damages both appropriate on the facts found, and proportionate to the award of damages for injury to reputation and liberty.

31. [297]

    Mr Spedding has claimed interest on exemplary damages. Interest on exemplary damages is not available: Murray v Commonwealth of Australia (1985) 5 NSWLR 83 per Wood J.

32. [298]

    The State has pleaded the application of Part 2 of the Civil Liability Act.

33. [299]

    Section 3B of the Act excludes some kinds of claims from the operation of the Act. None is presently applicable, the torts pleaded involving various allegations of deprivation of liberty, tortious abuse of process or knowing excess of power. Each cause of action has nothing to do with an intention to cause injury or death.

34. [300]

    Section 11A of the Act applies Part 2 to any award of personal injury damages regardless of the cause of action. Section 11 defines personal injury damages as damages that relate to the death of or injury to a person. The question is whether and to what extent Mr Spedding’s claim is one for damages for personal injury.

35. [301]

    At [64](vii) of the amended statement of claim, Mr Spedding has alleged that the malicious prosecution caused a need for psychological counselling. No similar pleading is made with respect to false imprisonment, misfeasance in public office or collateral abuse of process.

36. [302]

    Mr Spedding has particularised his injuries as consisting of Major Depressive Disorder and Anxiety and Depression. His disabilities are described in similar terms. Mr Spedding has qualified a psychiatrist, Dr Samuels. His report is dated 14 April 2020. Mr Spedding’s claim for damages is at least in part one for personal injury damages. The joint report of the psychiatrists relates the need for counselling and treatment to the events on 20 January 2015 and his later arrest, the impact of the prosecution and the unresolved inquest. The first two at least are part of this claim.

37. [303]

    It may be the case that the application of Part 2 makes no difference given that any award of damages under the torts pleaded would be primarily for loss of liberty (false imprisonment) or for injury to property, reputation and liberty (malicious prosecution). However, the State submitted that, given the operation of s 16 of the Civil Liability Act and absent any evidence that the severity of Mr Spedding’s non-economic loss is at least 15% of a most extreme case, there should be no award of damages for non-economic loss arising from the personal injury part of the claim.

38. [304]

    The State relies on a defence under the Limitation Act. That defence related only to Mr Spedding’s claim for false imprisonment. As I have rejected that claim, the issue of the Limitation Act no longer requires consideration.

Damages – consideration

1. [305]

   Mr Spedding is entitled to general damages for non-economic loss in the amount of $550,000.00 for the torts of malicious prosecution, collateral abuse of process and misfeasance in public office. The two latter torts operate in combination with Mr Spedding’s claim for malicious prosecution to contribute to the amount of damages that I have awarded.

2. [306]

   Mr Spedding was subjected to a long and painful ordeal. It never should have occurred. The allegations for which he was prosecuted were old and discredited. They were frail and notoriously so. Notwithstanding those facts, Mr Spedding’s experience left him distressed, confused, wrongly imprisoned and separated from his family. His release from custody, which I find to have been extremely distressing and painful, did not restore to him the family from which he had been so improperly removed. Nor has it recovered even now. He remained subject for three years to the ignominy of reporting to the police in a small community alive with suspicions about him.

3. [307]

   Mr Spedding was the subject of a harsh and cynical strategy to further an unrelated investigation. It was never viable, nor was it proper. Mr Spedding remains to this day traumatised by the whole unnecessary ordeal. His pain continues. As a result of these things Mr Spedding finds it difficult to concentrate, his level of social activity remains severely attenuated, he feels isolated and socially uncomfortable and his enjoyment of life remains diminished.

4. [308]

   I have included in the amount of $550,000.00 a sum calculated at the rate of $1,300.00 per day for the period during which Mr Spedding was detained in custody.

5. [309]

   Mr Spedding’s reputation was comprehensively destroyed as the result of his arrest and prosecution on the historical sexual assault allegations. It is doubtful that it will ever be restored. For what it is worth, I take Inspector Jubelin to have accepted that fact. Mr Spedding had until the time of his arrest been living an unexceptionable existence in quiet circumstances in coastal New South Wales. He was never a man of means and wealth never found its way to him. His business as a washing machine repair man could hardly have been described as a path to enormous prosperity, but it depended upon his acceptance as an honest and reliable individual. That humble employment was somewhat ironically critical to his selection as a person of interest in the disappearance of William Tyrrell.

6. [310]

   There can be no doubt that Mr Spedding was a suspect in that disappearance. That is what led the police to him in the first place. It is in my view erroneous to suggest, as the State suggests, that damages for injury to his person, his liberty, his reputation or fame due to being identified as a person of interest in that disappearance are not available because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested. It is clear, as I have found, that Mr Spedding’s prosecution for the alleged historical child sex offences was inextricably woven into the police strategy to investigate that crime. The fact that Mr Spedding was never charged with it is entirely beside the point. Mr Spedding became associated with the disappearance of William Tyrrell as the direct and inevitable result of his arrest and prosecution on unrelated matters. The public perception of Mr Spedding as the perpetrator or prime suspect in the disappearance was directly engineered by the Strike Force.

7. [311]

   Despite the submission that Mr Spedding was not entitled to damages for injury to his reputation because he was never prosecuted for any aspect of his alleged involvement in that crime or that no such involvement is suggested, the State submitted in complete contradiction of that submission that any damage to his reputation or fame due to his malicious prosecution should be considered in the context of his having already been identified as a suspect in the disappearance of William Tyrrell at the time the proceedings against him were instigated. The State has asked the rhetorical question, “How much more reputational damage did he suffer as a result of being charged?” As I have attempted to make clear, the distinction is an illusion. Mr Spedding’s arrest on the charges brought against him carried not only the risk that he would be associated with the disappearance of William Tyrrell but were almost sardonically instituted and maintained purposefully to take advantage of that very ambiguity.

8. [312]

   Mr Spedding is entitled to an award of $300,000.00 under this head. In arriving at that sum I have specifically adverted to the State’s submission that I should be alert to the prospect of double counting when assessing damages for loss of reputation.

9. [313]

   I consider that Mr Spedding is entitled to aggravated damages as compensation for the insult and humiliation constituting injury to his feeling for having been maliciously prosecuted. I award $200,000.00 under this head of damage.

10. [314]

    In forming that view, I consider that the State’s insistence that the notion of “insult” is not apt to include the effects upon Mr Spedding of “insults” directed at him by members of the public is too narrow and I do not accept it. A consequence of the inappropriate prosecution must be taken to include, among other things, the opprobrium and unfair treatment directed at him by members of the public as an obvious result of the commission of the tort. Mr Spedding’s experience with the patently rabid neighbour captured on video at his front door and the incident he related about the reaction he received when seeking pathology services speak loudly in support of an insidious level of vitriol directed towards him.

11. [315]

    I also consider that Mr Spedding is entitled to damages in the sum of $300,000.00 under this heading, calculated so as to punish the State for prosecuting him where there was no warrant for doing so and when the decision to do so was not merely the result of a well-intentioned but mistaken appreciation of the true facts. It is in my view difficult to imagine a more seriously improper tactic in the purported exercise of legitimate police powers than to arrest and charge a man in order to put pressure upon him in relation to an ongoing but unrelated investigation, and even then to persist with the prosecution long after the desired strategic advantage has patently evaporated. In a paraphrase of Inspector Jubelin’s published recollections, it was inevitable that Mr Spedding would be damaged but such was the price of his search for a killer. I reject that sentiment as illegitimate, wholly unacceptable and inappropriate. Its repetition should be disavowed and deterred in the strongest possible terms.

12. [316]

    Mr Spedding is entitled to unrecovered legal costs in the amount of $109,292.00.

13. [317]

    In my view, Mr Spedding is entitled to future treatment expenses in an amount of $25,000.00.

14. [318]

    The State has submitted that each cause of action pleaded by Mr Spedding has “nothing to do with an intention to cause injury or death”. I agree with Mr Spedding’s submission that this is plainly incorrect because it appears to be based on an assumption that the word “injury” in s 3B(a)(a) of the Civil Liability Act is limited to “personal injury” as defined in s 11. The definition is not limited in this way: State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 at [5]-[11].

15. [319]

    The deprivation of liberty, anxiety, distress, embarrassment and humiliation flow from the torts which have been pleaded, particularly malicious prosecution. Those who committed these torts intended to do so. For example, Detective Brennan intended to arrest and charge Mr Spedding, acts that necessarily involved depriving him of his liberty and in that context causing him anxiety and distress. These are things falling within the definition of “injury” in s 3B(1)(a) of the Act and at least in part led to Mr Spedding sustaining a psychiatric condition.

16. [320]

    The fact that the police officers intended to prosecute Mr Spedding and in that context deprive him of his liberty, resulting in his psychiatric condition, is sufficient to satisfy s 3B(1)(a) with the consequence that Part 2 of the Act does not apply: s 11A provides that Part 2 applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of the Part by s 3B.

17. [321]

    Section 16 of the Act therefore does not apply to the assessment of Mr Spedding’s damages for non-economic loss.

18. [322]

    Mr Spedding is entitled to interest on some but not all of the damages I have awarded. I will require the parties to agree upon the interest calculations and to provide me with a minute of an order that specifies the appropriate sum.

19. [323]

    I make the following orders:

    1. (1)

       Judgment for the plaintiff for $1,484,292 plus interest on those heads of damage that attract interest.

    2. (2)

       I direct the parties within 7 days to provide my Associate with a minute of an order calculating interest in accordance with these reasons.

    3. (3)

       I order the defendant to pay the plaintiff’s costs.