LANDINI v STATE OF NEW SOUTH WALES & ORS

Henry Charles Landini ( “the plaintiff” ) commenced proceedings on 20 November 2002 by way of statement of claim filed on that date seeking damages for malicious prosecution in respect of two charges on which he was indicted (referred to as “the 1980 charge” and “the 1982 charges” ). Those charges arose from separate and independent events. In summary, they were:- (1) A charge that on or about 15 January 1980 he supplied a prohibited drug, namely, heroin ( “the 1980 charge” ). (2) Two charges that between 1 March and 19 July 1982 he conspired to supply a commercial quantity of a prohibited drug, heroin, and that on 19 July 1982 he was in possession of an unlicensed pistol ( “the 1982 charges” ).

The plaintiff pleads his case in relation to the charges upon the basis of the tort of malicious prosecution. No other cause of action was pleaded to support the claims made.

The plaintiff’s claims were for damages for loss and damage, deprivation of liberty and economic loss, aggravated and exemplary damages.

He is presently aged 64 years (date of birth, 7 July 1944).

In respect of the 1980 charge, the plaintiff appeared before the Central Local Court on 16 January 1980. On that date, he was released on bail upon payment of a surety of $10,000. In 1981, he was committed for trial. On 11 October 1983 and before the hearing of the proceedings in relation to the 1980 charge, the plaintiff was found guilty of the 1982 charges in respect of which he was subsequently sentenced to a period of imprisonment of 16 years with a non-parole period of six years. The term of the sentence was to commence on 19 July 1982, being the date upon which he was arrested and taken into custody in relation to the 1982 charges.

It was the plaintiff’s case that in 1984, having been sentenced for the 1982 charges, he decided to plead guilty to the 1980 charge in the expectation that the sentence imposed with respect to that charge would be made to operate concurrently with the sentence imposed in 1983.

On 7 June 1984, he was sentenced in relation to the 1980 charge to a period of imprisonment for 15 years to date from 19 July 1984 concurrent with the sentence imposed with respect to the 1982 charges with a non-parole of four years expiring on 18 July 1988.

The plaintiff was released to parole on 12 August 1987 having served five years and 25 days imprisonment.

On 2 November 2001, the Court of Criminal Appeal set aside the convictions in respect of the 1980 charge and the 1982 charges and entered an acquittal in respect of each charge. The applications to the Court of Criminal Appeal that led to the acquittals being entered followed upon evidence being given by Mr Trevor Haken and a former Federal police officer referred to in these proceedings as “Mr X” to the Royal Commission into the New South Wales Police Service. The applications to the Court were not opposed by the Crown.

The present proceedings were commenced the next year.

At the hearing of proceedings in this Court, the plaintiff was represented by Mr C Steirn SC, Mr P Barham of counsel and Mr P Strain of counsel. The State of New South Wales was represented by Mr J E Maconachie QC, who appeared with Mr P D Mallon of counsel and in respect of the causes of action based on both the 1980 and the 1982 charges, Ms A Katzmann SC appeared with Mr I F Butcher of counsel on behalf of the Commonwealth of Australia and Mr P M Strickland SC appeared on behalf of the fourth defendant, Mr Dennis Reginald Pattle in respect of the cause of action based on the 1982 charges. The fifth defendant, Mr Glen John Matinca was not represented, apart from a short period when Mr L Tyndall of counsel appeared with Mr G Pulsford of counsel on his behalf. He was called to give evidence in the plaintiff’s case and, at one point, Mr Tyndall appeared on his behalf on a question of privilege.

The statement of claim was amended several times. At an early stage of the hearing application was made for leave to further amend the plaintiff’s claim. That application was strongly opposed by the first defendant, the State of New South Wales.

On 12 October 2006, I granted leave to the plaintiff to amend ( Landini v State of New South Wales & Ors (unreported 12 October 2006). The plaintiff, accordingly, proceeded on the basis of the Fifth Further Amended Statement of Claim.

The plaintiff claimed against the first defendant, the State of New South Wales, in respect of the 1980 charge in relation to the alleged acts of then Detective Sergeant Third Class Les Knox, Detective Senior Constable Glen Ross, Detective Senior Constables Michael Leary, Trevor Haken, Stephen Chidgey and Michael Gardiner. The plaintiff, in relation to the 1982 charges, claimed against the State of New South Wales in respect of the alleged acts of Ray Donaldson and against the Commonwealth of Australia (second defendant), Dennis Reginald Pattle (fourth defendant) and Glen John Matinca (fifth defendant) in respect of the 1982 charges. Pattle and Matinca were at the relevant time police officers employed by the Australian Federal Police.

The proceedings against the State of New South Wales, were, in part, based upon the Crown Proceedings Act 1988. Section 5 of that Act authorises a claim to be brought against the Crown under the title “State of New South Wales” in any court of competent jurisdiction by “any person having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown” . The “Crown” is defined in s.59 of the Act to include the Crown in the right of New South Wales.

The plaintiff also relied upon Police Legislation Amendment (Civil Liability) Act 2003 and the Law Reform (Vicarious Liability) Act 1983 (the “Vicarious Liability Act”) which Act commenced on 28 October 1983.

The Commonwealth of Australia was sued in relation to the 1982 charges pursuant to the Australian Federal Police Act 1979 (Cth).

The hearing of the proceedings commenced on 29 March 2006 and thereafter continued on a number of split hearing dates. Final oral submissions were made on 13 December 2007. (a) The action for malicious prosecution

In order for the plaintiff to establish the tort of malicious prosecution, he has the onus of establishing that:- (1) Actionable proceedings were instituted or continued by the Crown in the right of the State of New South Wales (referred to in this judgment as “The State” ) in respect of the 1980 prosecution and the Commonwealth and the individually named defendants in respect of the 1982 prosecution. (2) The proceedings were terminated in his favour. (3) The proceedings were initiated or continued without reasonable and probable cause. (4) The respective defendants were motivated by malice. (5) Special injury or damage was caused to the plaintiff. The Laws of Australia (Volume 33.8.1630)

The tort of malicious prosecution, it has been observed, involves and protects complex interests. The public interest is safeguarded in not permitting legal procedure to be used for improper motives and without reasonable cause. However, the public interest is also protected in allowing the judicial process to proceed in appropriate cases without fear of a malicious prosecution action: see The Laws of Australia , 33.8.1640.

The absence of reasonable and probable cause is a specific element of the cause of action in an action for malicious prosecution and is a central matter in these proceedings. It is not to be gauged by simply identifying weaknesses in the Crown case or by an analysis directed to establishing a reasonable doubt as to the plaintiff’s guilt of the charges upon which he was indicted. Accordingly, the exposure of inconsistencies or doubt, many years after a trial culminating in a guilty verdict, will not suffice nor will it in many circumstances assist a plaintiff in a malicious prosecution action. A plaintiff will need to go well beyond that.

In the present case, the factual matters concerning the 1980 occurred on one day– 15 January 1980 – whereas the investigation that led to the 1982 charges was more protracted and complex. The plaintiff’s case in relation to the 1980 charge is essentially based on his allegation that particular police officers conspired with one another to fabricate evidence against him by stopping him in his Mercedes vehicle, placing bags of heroin in the boot of his car and then claiming that the bags of heroin were being transported by him. They were found by Mr Ross during a search.

The plaintiff, additionally claims that the same thing happened a little later on the same day when Mr Gardiner, in Mr Ross’ presence, searched the boot of a Ford Landau which belonged to the plaintiff and which was positioned in a carport at his home in Leonay. He claimed that police placed bags of heroin into the well of the boot of that vehicle.

The facts associated with the 1980 charge will be analysed later in this judgment.

In relation to the 1982 charges, the issue of reasonable and probable cause is to be determined by materials that were available to the prosecutor at the time the plaintiff was indicted and during the period in which the proceedings were maintained.

In the submissions for the plaintiff, reference was made on more than one occasion to the contention that the case against the plaintiff in respect of the 1982 charges was no more than guilt by association. A fundamental question is whether, at the relevant times, the prosecutor, in fact, had available material that established an agreement between the plaintiff and others to supply heroin.

An agreement or combination to engage in a common enterprise to that end is the essence or nub of the offence: Ahern v Crown (1988) 165 CLR 87.

Criminal liability ensures once such an agreement is made and it is unnecessary for anything to be done to execute the agreement ( Regina v Rogerson (1992) 174 CLR 268 per Brennan and Toohey JJ at 281) though conspiracy is often proved through inference from evidence of what was subsequently done.

The Crown relied upon circumstantial evidence to establish that the plaintiff had entered into such an agreement. In considering whether or not to prosecute him, it was essential that the prosecutor had admissible evidence to establish his involvement or association in the unlawful enterprise alleged in the indictment.

In the majority judgment in Ahern (supra), it was observed, at 93:- “… Conspiracy is the agreement of two or more persons to do an unlawful act or to do an unlawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must, in almost all cases, be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay …”

The Court in that case referred to the observations in Tripodi v Regina (1961) 104 CLR 1 at 6 wherein the High Court said that proof of the crime of conspiracy “may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment” .

In this case, the Crown’s contention was that the conspiracy involved a sophisticated joint enterprise involving 10 or more persons including persons by the name of Pak, Merle Thompson, Donald Thompson, Waddell, Smittant, Naktrakul, Wong and the plaintiff. For the purpose of investigation, police investigators employed physical and electronic surveillance in detecting the alleged activities and movements of the conspirators over a lengthy period of time especially in the period between 4 July 1982 to 19 July 1982. In the latter period, police investigators gathered materials involving the location, the activities and the communications between various of the participants on various dates which collectively suggested pre-concert or a joint enterprise between them.

The evidentiary materials available to the prosecutor before the plaintiff’s arrest on 19 July 1982 came from a number of sources. Evidence against two or more of the conspirators of separate activities that were close in time indicative of pre-concert was a basis from which a combination could be inferred. Such evidence would be admissible evidence against each alleged conspirator. In Ahern’s case, at 94, it was stated:- “… it would be possible to reach the conclusion, admitting the evidence for the purpose described [proving facts from which a combination might be inferred] and considering it against each accused separately, not only that there was a conspiracy but also that each of the … accused was a participant.”

The High Court in Ahern (supra) cited dicta in Regina & Attorney General (Cth) v Associated Northern Collieries (1911) 14 CLR 387 wherein it was observed that both the fact of combination and the participation of the participant may be proved by the same evidence. In that case, the Court said:- “… though primarily each set of facts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.” (at p.400)

The element of reasonable and probable cause in the tort of malicious prosecution is not a purely objective one. It is not a concept regardless of the knowledge or belief of the prosecutor that there was reasonable and probable cause for a charge to be laid but also involves the issue as to whether the prosecutor had reasonable and probable cause to do what he did: A v State of New South Wales (2007) 230 CLR 500 at 514.

The question as the High Court observed in that case “… involves both an objective and a subjective aspect” .

In establishing an absence of reasonable and probable cause, the High Court in A (supra) emphasised that the relevant circumstances of the particular case must be considered. These include:- (1) The nature of the allegations . In the present case, the allegation in relation to the 1980 charge was that the evidence relied upon was fabricated by “loading” the plaintiff with bags of heroin. In relation to the 1982 charges, he alleged that evidence had been fabricated and particular evidence was falsified. (2) The known facts . In relation to the 1980 charge, Mr Ross claimed that police had received information from a police informer of an intended supply of drugs by the plaintiff. In relation to the 1982 charges, police investigators claimed that the facts establish a liaison between the plaintiff and a Mr Donald Thompson as an integral part of a conspiracy formed for the purpose of supplying heroin. (3) Actual knowledge of the facts . The extent to which the prosecutor was aware of relevant facts. The materials gathered by police were the relevant source of the prosecutor’s knowledge. (4) The particular Prosecutor . The prosecutor’s experience and capacity to form a sound judgment on the known facts are material to his or her capacity to assess the basis and viability of the Crown case. (5) An assessment of the case. The relevant assessment required an opinion be formed as to the strength and reliability of the case based on known facts. (6) An honest belief . The requirement is that the prosecutor formed an honest belief as to the Crown case against the plaintiff before charges were laid. The belief must be a reasonable one based upon identified materials.

The element of reasonable and probable cause is not established by the plaintiff only seeking to prove that he was innocent. In Abrath v The North Eastern Railway Company (1882-1883) 11 QBD 440 at 449 to 450 (cited by the High Court in A v State of New South Wales (supra) at 515, footnotes 30, 31 and 32) Brett MR stated:- “In order to shew that there was an absence of reasonable and probable cause for instituting the prosecution for conspiracy, I cannot doubt that the plaintiff was bound to give some evidence of the circumstances under which the prosecution was instituted, and I wholly differ from the suggestion that it is sufficient for the plaintiff to shew that he was innocent of conspiracy, and that in the end there was no substantial ground for charging him with conspiracy. If the plaintiff merely proved that, and gave no evidence of the circumstances under which the prosecution was instituted, it seems that the plaintiff would fail; and a judge could not be asked, without some evidence of the circumstances under which the prosecution was instituted, to say that there was an absence of reasonable and probable cause. The evidence, which is to determine the question whether there was reasonable and probable cause, must consist of the existing facts or the circumstances under which the prosecution was instituted …”

The issue of reasonable and probable cause, accordingly, requires a court to examine evidence as to the facts and circumstances that were available to the prosecutor at the time or times the charges were laid and maintained and to determine whether reasonable care was exercised by the prosecutor informing himself or herself as to the true state of the circumstances as then known.

The plaintiff’s onus, in the present case, is to establish that the facts and circumstances established in evidence concerning each prosecution instituted in 1980 and in 1982 were inconsistent with the existence of reasonable and probable cause.

A prosecutor, in making an assessment for the purposes of making a sound judgment as to whether to charge an individual with a criminal offence, is entitled to have regard to all information held. This includes both information which constitutes admissible evidence in a criminal trial and other information which, though not admissible as evidence, may nonetheless have value in evaluating or assessing the reliability of evidence that is admissible: Thomas v State of New South Wales [2008] NSWCA 316 at [105] per Gyles AJA, with whom Hodgson and Campbell JJA expressed agreement on the point:- “105 The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate’s decision as to committal for trial or a trial judge’s ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469-471).”

It is a commonplace fact that “police intelligence” and circumstantial evidence are, in combination, utilised in the investigation stage to further investigations and may be examined in the pre-prosecution stage in the decision-making process leading to the laying of criminal charges. I will return below to the role of police intelligence in the assessment of admissible evidence in determining the reliability of evidence.

In Abrath (supra), Bowen LJ observed at 459:- “… The question whether there was want of reasonable and probable cause depended upon the materials which were in the possession of the prosecution at the time it was instituted, and also on the further point whether those materials were carefully collected and considered. Now there might be two views of the materials which were in the possession of the prosecution. It may be said that the materials were evidently untrustworthy, or that they were obviously trustworthy, according as the one view or the other is taken of the facts. The burden of shewing carefulness in the inquiry would be shifted according to the view of the facts adopted. If the materials were admittedly untrustworthy, that would be a strong reason for throwing on the defendants the burden of shewing that they, nevertheless, had been misled, after all their care, into relying upon worthless materials. If the materials were obviously trustworthy, they would be enough prima facie to justify those who trusted to them …”

In the present case, the plaintiff, by virtue of the fact that the convictions against him were set aside, is to be treated as innocent of the charges. However, that, as observed by Brett MR in Abrath (supra), is insufficient to establish the case of malicious prosecution pursued in the present proceedings. Bowen LJ in Abrath (supra), in that respect, also observed at 462:- “Something has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do not think it is. When mere innocence wears that aspect, it is because the fact of innocence involves with it other circumstances which shew that there was want of reasonable and probable cause; as, for example, when the prosecutor must know whether the story which he is telling against the man whom he is prosecuting, is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent, if he exercises reasonable care, it is only an identical proposition to infer that if the accused is innocent there must have been want of reasonable and probable care. Except in cases of that kind, it never is true that mere innocence is proof of want of reasonable and probable cause . It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause …” (emphasis added) (b) The onus of proof on the plaintiff

The onus of proving each of the elements of the tort lies with the plaintiff. In that respect, given the serious nature of the allegations made by him as to fabrication of evidence the relevant principles concerning proof of serious impropriety apply. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 363 Dixon J observed that:- • Reasonable satisfaction is not a state of mind attained or established independently of the nature and consequence of the fact or facts to be proved. • The seriousness of an allegations, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. • “Reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

In the submissions made on behalf of the State, reliance was placed upon the observations of the High Court in Neat Holdings Pty Limited v Karajan Holdings (1992) 67 ALJR 170 to the effect that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. In particular, “cogent or strict proof” was said to be necessary when so serious a matter as fraud is to be found and that a judicial approach requires that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of engaging in fraudulent or criminal conduct.

In Re H & Ors (Minors) [1996] AC 563, Lord Nicholls of Birkenhead at 586 adverted to the fact that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and in deciding whether, on balance, the event occurred. The more probable the event, the stronger must be the evidence that it did not occur before, on the balance of probability, its occurrence will be established. (c) Landini’s background and reputation

The plaintiff’s evidence in chief was that he left school at the age of 14 and three months. He was then in third year of high school. He said that after leaving school he worked as a storeman for approximately a year. He ran away from home as he said he did not have a good relationship with his step-father and went to Western Australia. He was charged there with fare evasion and at some point returned to New South Wales where he said he was in the “Boys’ House” . He was placed there, he said, by reason of “assault and rob and break and enter” matters. He said that his first sentence was served at the age of 15 in the “Boys’ Home” . He agreed he had served the majority of time in custody up until about 1976.

He said that in 1966, he served a three year term of imprisonment. The offence for which he was sentenced did not involve prohibited drugs. At some later time in 1966, he was arrested on a break and enter charge and, on 27 May 1966, he was sentenced by the Sydney Court of Petty Sessions at Darlinghurst to an 18 month term of imprisonment. He was released in November 1968.

Following release, he worked at the Centennial Hotel, Paddington but then spent time in custody apparently in respect of a malicious wounding charge in respect of which he obtained an acquittal.

He said that he worked as a waiter at the Centennial Hotel for approximately 18 months. He subsequently served a further term of imprisonment in about 1969 or 1970. He received a term of imprisonment of two years with a non-parole period of one year and three months in respect of a conviction for malicious wounding.

On 9 April 1971, he was convicted at Central Court of Petty Sessions on a charge of receiving possession of a firearm and was sentenced to six months hard labour.

On 23 April 1971 at the Waverley Court of Petty Sessions, he was convicted of consorting and having goods suspected of being stolen in his custody. He said he served a term of imprisonment in respect of that matter.

His criminal history otherwise included the following:- (1) A charge of stealing at the Cronulla Children’s Court. (2) In April 1961 he was committed to an institution for break, enter and steal and assault and robbery. (3) In 1962 he served a six months sentence of imprisonment for larceny of petrol and illegal use of a motor vehicle. (4) In 1963, he was charged with an offence of stealing and on 28 April 1963 in Brisbane he was sentenced to a term of imprisonment of two years for breaking and entering a dwelling with intent and receiving stolen property. (5) In August 1964, he was charged with an offence of stealing and goods in custody. (6) In 1964, he was dealt with for an offence of living on the earnings of prostitution. (7) In 1965, he was dealt with on a charge of receiving stolen property. (8) In May 1966, he was sentenced to 18 months’ hard labour cumulative on two charges of breaking and entering and stealing. (9) In May 1966, he was charged with receiving stolen goods. (10) In November 1968, he was charged with malicious wounding.

The plaintiff gave evidence that on 20 June 1972 he was convicted at the St Kilda Magistrates’ Court, Victoria in respect of a charge of possession of the drug LSD and a second charge of possession of Indian hemp. He was sentenced in his absence.

On 15 December 1972 at the Central Court of Petty Sessions, he pleaded guilty to being in possession of Indian hemp for which he received a sentence of 10 days’ hard labour.

On 4 May 1978, he was convicted in the Kogarah Court of Petty Sessions of being in possession of Indian hemp and fined $200.

The plaintiff gave evidence that, prior to 1980, he had never been charged with supplying or being in possession of heroin. He said that in the year 2001 he pleaded guilty to being in possession of cocaine for which he received a suspended sentence.

The plaintiff accepted that from 1960, he was convicted in respect of a number of “crimes of dishonesty” .

In cross-examination in relation to his past history of dishonesty, Ms Katzmann, on behalf of the Commonwealth, put to him:- “Q. You are prepared to lie in order to obtain a benefit for yourself, aren’t you? A. I have. I have. Q. You have on many occasions, haven’t you? A. I said I have, yes. Q. And on many occasions? A. On a number of occasions. Q. Most of your life, haven’t you? A. Some of it, yes. Q. Most of it, I suggest to you? A. Well, some of it, yes. …”

It was put to him that at his trial in 1983 he had told the Court that he resided at 48 Parklands Avenue, Penrith with his wife and his three year old son but that he said in the present proceedings the evidence in that respect was false but that there was “… a reason for that” .

It was then put to him by Ms Katzmann:- “Q. You don’t have any problems then about telling lies in court, do you? A. Neither do many others. …”

In later cross-examination, the plaintiff said that he had at different times used a number of different names. Exhibit 9 includes as alias names, Reeves, Charles Medina, Moore, Lando and Little. He accepted that he could have used the names “Danny Reeves” , “Michael Charles Madina” and “Daniel Moore” . When asked why he had called himself by different names, he responded “Well, I, I don’t remember” . He accepted that on 27 February 1982, he represented to police that his name was “Daniel Lando” :- “Q. You represented that your name was Daniel Lando on that occasion because you, yourself, didn’t have a driver’s license, did you? A. That’s correct. … Q. It was a matter of complete indifference to you, wasn’t it, whether you drove a car lawfully or unlawfully? A. I have to answer that as yes.”

The plaintiff rejected the suggestion that whether he complied with the law was a matter of complete indifference to him. He acknowledged the warrant of commitment upon a conviction or order for a penalty recorded against “Daniel Lando” driving with a high PCA at Yalla on 27 February 1982 and agreed that it, in fact referred to a conviction against him. The address on the document 2/16 Duntroon Street, Hurlstone Park, which he acknowledged was Judy Waddell’s address. Ms Waddell was indicted in 1982 with him in relation to the 1982 charges. He acknowledged that he gave “a false license” under that name.

It was put to him by Ms Katzmann in cross-examination that he used different names to avoid arrest:- “Q. I put it to you that the purpose of your different names was in order to avoid lawful arrest; you would agree with that, wouldn’t you? A. Well, I don’t know what for. I know that those names had been there on me record for years. Q. But the purpose of you describing or calling yourself different names was in order to avoid lawful arrest, wasn’t it? A. I don’t agree with that.”

A little later it was put to him:- “I asked you yesterday whether at one stage you called yourself Peter Krysyna; do you remember? A. Yes, I do. Q. I can’t now recall what your answer was. What do you say about that? A. I can remember an incident going back to about 1988 when I just moved down the South Coast where I was stopped by a police officer … Q. … Did you come before the Narooma Local Court on or about 17 September 1988? A. Yes, I did. Q. You came before the court on that occasion because you were up on a charge of fraudulently using a license, weren’t you? A. That was the charge, yes. … Q. The circumstances in which you came before the court were that you produced a license to a policeman which was a license in the name of Peter Krysyna, pretending that it was your license, didn’t you? A. Yes.”

The plaintiff accepted in cross-examination that he had spent an amount of time during his career in gaol for a variety of offences including offences involving violence and dishonesty.

In respect of trading in drugs, it was put to him by Ms Katzmann in cross-examination:- “Q. No, we’re obviously at cross-purposes, Mr Landini. You admit to selling cocaine in a period of time at least up until your arrest in January 1998, don’t you? A. Yes, for about four months prior, yes. Q. Do you accept that at least for that period of time you could be described as a seller of hard drugs? A. Yes.”

The plaintiff, over the years, continued to maintain his association with persons with criminal backgrounds as acknowledged in the Plaintiff’s Submissions (p.22).

Ms Katzmann specifically referred to the evidence that established:- • The plaintiff’s use of aliases over the years. • The likelihood, on the evidence, that he misled a finance company to secure finance for the Leonay property. • Misleading information given to his solicitor, Mr Meakin, and to the Parole Board in order to secure parole. • False evidence given to the jury at his trial as to his place of residence. • The incorrect evidence as to having lodged tax returns for the period 1976 to 1980 and subsequent admissions that he would not have done so (on the premise that he did, in fact, work as claimed). • The possession of a false driver’s license.

Ms Katzmann submitted that, the plaintiff having lied in order to obtain a benefit for himself in the past, there is no good reason as to why he would not do so in the present proceedings when he stands to gain a considerable financial benefit in doing so. The plaintiff’s past dishonesty must be taken into account in assessing his credibility. However, the assessment fundamentally turns upon an analysis of all the evidence called in the plaintiff’s case and that called by the defendants. (2) THE 1980 CHARGE

The plaintiff’s case is premised upon the vicarious liability of the State of New South Wales at common law in respect of the alleged actions by certain police officers on 15 January 1980 in fabricating evidence. In particular, the contention is that the State is liable for actions taken before and after 28 October 1983 (on which date the Law Reform (Vicarious Liability) Act 1983 came into operation). After that date, the plaintiff alleges that the prosecution of the 1980 charge proceeded upon the basis of fabricated evidence. He contended the pursuit of the charge up to the date upon which he was sentenced involved maintaining the prosecution on a false basis.

I will deal, firstly, with the basis relied upon to establish vicarious liability in the Crown in the right of the State of New South Wales in respect of the alleged actions of the relevant police officers prior to the institution of proceedings and subsequently in maintaining them. (a) Questions as to the vicarious liability of the Crown in respect of the actions of police officers before 28 October 1983

The Crown at common law enjoyed an immunity in respect of the exercise of the independent discretion of a constable of police officer in the exercise of powers incidental to his or her office. The relevant principle underpinning this position was that, if the law charges a public officer with a discretion and a responsibility in the execution of an independent legal duty, that public officer is solely responsible for tortious acts which may be committed in the course of the office. The government or body, which he or she serves or which appointed the officer, incurs no vicarious liability for such acts: The Laws of Australia , 33.6.610. This doctrine was enunciated by the High Court in Enever v The King (1906) 3 CLR 969.

The relevant police officers in respect of the 1980 charge were constables appointed under s.6 of the Police Regulation Act 1899. Section 6 of that Act provided as follows:- “6(1) The Commissioner may, subject to disallowance by the Governor, appoint so many sergeants and constables of police, of such grades as are specified by rules made under this Act, as he deems necessary for the preservation of the peace throughout New South Wales. (2) Such constables shall, unless and until their appointments respectively are disallowed by the Governor, have all such powers, privileges, and advantages and be liable to all such duties and responsibility as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any statute now or hereafter in force in New South Wales.”

The State relied upon the principle in Enever (supra) in support of its contention that it was not vicariously liable at common law.

In Enever (supra), the appellant was wrongfully arrested in a public street in Hobart by a police constable purporting to act in discharge of his duty and detained by him upon a false charge that he had committed a breach of the peace.

The appellant brought an action against the Government of Tasmania and a jury returned a verdict in his favour.

In determining whether or not the Government was responsible for the police officer’s wrongful act in arresting a person without a warrant pursuant to the Police Act 1865, it was necessary for the Court to consider the nature of the office of a constable and what, according to the law of Tasmania, was the nature of the relationship between a constable and the Executive Government by whom he was appointed.

In his judgment in Enever, Griffith CJ observed that at common law the office of constable or peace officer was regarded as a public office and the holder of it as being, in some sense, a servant of the Crown. The Chief Justice held that the Full Court of the Supreme Court of Tasmania, had been correct in holding that the constable, in effecting the arrest, was not acting as an officer, agent or servant of the Government of Tasmania, so as to make the Crown responsible for his act.

The analysis that led to this conclusion was based, firstly, upon the nature of the office and, secondly, on the relationship between the Government and the police officer. At common law, constables had large powers that were necessarily incidental to the discharge of their functions as peace officers or conservators of the peace, amongst which the most important was the authority to arrest on suspicion of felony. Griffith CJ observed (at 976), that it was settled law that, although a peace officer was himself responsible for unjustifiable acts done by him in the intended exercise of his lawful authority, no responsibility for such acts attached to those by whom he was appointed.

As to the second aspect, Griffith CJ considered the general doctrine of the law of agency applied in the case of a constable. That was said to lead to the same conclusion as the first of the two bases for his analysis. The Chief Justice observed that the powers of a constable, qua peace officer, whether conferred by common law or statute, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the Chief Justice stated, the suspicion must be his suspicion, and must be one that is reasonable to him.

Accordingly, Griffith CJ concluded that a constable, when acting as a peace officer, is not exercising a delegated authority. His authority is an original one, and the general law of agency has no application.

In the same case, Barton J (at 982), dealt with the argument that the appellant police officer was, on the occasion in question, acting as the servant of the Government in such a sense that the maxim respondeat superior applies. His Honour rejected the proposition and dealt with the question as to the responsibility residing in a superior based upon that maxim. His Honour stated that for it to apply, it was plain that the person to whose act it is sought to attach responsibility to the superior “… must have been under the control of that superior at the time of the doing of the act … It appears to me that in order to establish that position, it must be shown that the control, if any, under which the person acted was that of the Executive Government of the State. The difficulty of sustaining that position was obvious …” (at p.982).

The question of “control” was raised in the submissions for the plaintiff in the present case, in that it was argued that “… from the hierarchical structure of the NSW Police Force, that junior officers were, in preparing statements of evidence in preparing the matter for hearing, were under the direction and control of superior officers. The superior officers were Knox and Ross, with Knox being the superior officer. The planting of the evidence, the planning of the operation, the arrest, the charging, the preparation of witness statements and the prosecution was all done under the direction and control of the superior officers, Knox and Ross, but particularly Knox …” (p.19).

It was submitted on behalf of the State that it had no control, power or authority over the police officers in question in these proceedings for any of the acts that they were alleged to have carried out such as to give rise to vicarious liability.

It was also submitted on behalf of the State that the fundamental proposition as expressed by Lee J in Griffiths v Haines [1984] 3 NSWLR 653 was that a constable of police performed a public duty and exercised an original authority which was not subject to the control of the Government. It was observed in submissions that that independent authority came from the common law and from s.352(1) and (2) of the Crimes Act 1900 (relating to the power to apprehend without a warrant in circumstances referred to in each sub-section).

The State also relied upon dicta of the High Court in New South Wales v Ibbett (2006) 229 CLR 638 in which (at paragraph [4]) reference was made to Enevers case and Griffiths v Haines (supra) and wherein it was stated:- “In former times, the circumstance that police officers often acted in the exercise of common law or statutory powers and according to ‘independent’ discretions would have taken an action such as that of [the appellant] outside the scope of the vicarious liability of the Crown.”

It was, accordingly, argued on behalf of the State that, for there to be vicarious liability, the State must be “the master exercising control over the police officer and not the ‘superiors of the police officers’ (Plaintiff’s Submissions of 25 June 2007, pp.19 and 20) …” ( First Defendant’s Outline of Submissions , paragraph [61]).

I accept the State’s submission on his aspect. The control as alleged by the plaintiff by Messrs Knox and Ross is not, in my opinion, control of a kind that, at common law, would make the State liable under the maxim respondeat superior. For that principle to apply the control under which the police officer or officers acted must be that of the Executive Government of the State. There is, of course, no suggestion of such control in the present case.

In the final submissions for the plaintiff, it was accepted that, where a police officer exercises an independent discretion, the State is not vicariously liable for the wrongful exercise of that discretion (p.19). However, reliance was placed upon what were said to be the observations of Yeldham J in Oriental Foods (Wholesalers) Co Pty Limited v Commonwealth (1983) 50 ALR 452.

However, the passage relied upon by the plaintiff in Oriental Foods (supra) was, in fact, an extract from the text, Liability of the Crown (1971) by Professor Hogg at p.104 to 106 which text was quoted by Yeldham J in his Honour’s judgment.

Oriental Foods (supra) involved an application for summary disposal of the plaintiff’s claim against the Commonwealth of Australia for damage to and loss of food stuffs imported into Australia. Certain goods were opened and examined by Customs officials under the Customs Act 1901 (Cth). It was held that there was no question of the exercise of an independent authority but rather the performance of a purely ministerial and somewhat menial task and this did not involve “special duties’ and discretions of the type considered by the High Court in Baume v Commonwealth (1906) 4 CLR 97. I do not consider that Oriental Foods (supra) is of any assistance to the plaintiff’s case on the question of vicarious liability of the Crown at common law.

On the facts of the present case, even if it be assumed for the purpose of analysis that there were acts by police officers by way of fabricating evidence and otherwise acting improperly in relation to the arrest and charging of the plaintiff at the direction of superior officers, those superior officers, like other officers were themselves subordinate officers, albeit of a higher rank. As I have earlier noted, there is no evidence that any such acts were performed under or by reason of any form of control exercised by the Executive Government.

In Attorney General for NSW v Perpetual Trustee Co Limited (1951-1952) 85 CLR 237 (a case involving injury to a member of the Police Force of New South Wales sustained in a road accident, in which it was alleged that the Crown was thereby deprived of his services by reason of his disability), Dixon J observed at 252 that:- “… in most respects, a member of the Police Force is subject to the direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organisations military and civil, public and private. It is only when, in the course of his duties as a servant of the Crown, he is confronted with the situation involving the liberty or rights of the subject, that the law places upon him a personal responsibility of judgment and action.”

The alleged actions of the police officers in fabricating evidence leading to the plaintiff’s arrest, would involve the liberty or rights of the subject. The power of arrest and charging the plaintiff with a criminal offence in such a case would involve the personal responsibility of judgment and action of the individual officers responsible for the exercise of such powers.

Professor Hogg, in his text quoted by Yeldham J in Oriental Foods (supra), footnoted (footnote 45) a number of cases concerning with the commission of torts by policemen performing general police duties under the direction and control of superiors. That footnote cites a South African article entitled The Vicarious Liability of the State for the Delicts of the Police (1967) 84 SALJ 25 by J L R Milton. The learned author of the article considered the question of control exercised by the State over police officers. Two types of “control” are identified. The first is the control which a master exercises over his servant. The legislature may lay down circumstances in which police officers may be said not to be acting as servants. The other source lay in State control of police by virtue of the fact that they are members of the relevant police force. The South African Police Acts of 1958 and the Regulations thereunder were said to create an obligation in a member to obey all lawful orders given by superiors in the Police Force. The learned author continued quoting from a South African case, Union Government (Minister of Justice) v Van der Vlies [1931] OPD 79 at 85 to 86 in which it was stated:- “Here is a servant who is acting under a legal duty of such a nature as to deprive the Crown of the power to direct or control the carrying out of the duty, but, in spite of that, the Crown intervenes by means of a direct order to the servant (who is still a servant in the Crown’s employ even though acting under a legal duty) … now it seems to me, if the Crown intervenes and … issues a direct order to the servant and if the servant then acts under that order , in obedience to that order, and not in obedience to his legal duty , then the Crown becomes liable under the ordinary principles of the law of master and servant.” (emphasis added)

That analysis, in my opinion, emphasised the distinction between “control” of the Executive Government and “control” as exercised by superior officers over subordinate officers in the performance of police functions.

Although, as earlier noted, the written submissions for the plaintiff relied upon the abovementioned passage which has been attributed to Yeldham J (but, as I have said, was in fact an extract from Professor Hogg’s text) an examination of the authorities referred to by Professor Hogg does not support the proposition contended for the plaintiff in this case, namely, that, at common law, if superior police officers at an intermediate level in the hierarchy, direct or involve other officers in unlawful activity or misconduct in the arrest and charging of a citizen, that that thereby constitutes an exception to the principle enunciated by the High Court in Enever’s case.

It is clear from the authorities to which Professor Hogg refers that an exception to the Enever principle at common law may arise where there is a lawful order issued by the Crown requiring police officers to act in obedience to the direction or order given. However, as I have stated above, that is not the case here.

In Griffiths v Haines (supra), Lee J similarly observed that, in terms of vicarious liability, “control” referred to control by the Government as distinct from any control exercised by subordinate officers. See also, in this respect, the observations of O’Connor J in Enever (supra) at 993 to 994 wherein his Honour referred to the arrest made by a police officer in the discharge of his duties as a holder of the officer of constable and “… not by the direction or under the control of the Government” .

As earlier indicated, the submissions for the plaintiff, with respect, incorrectly proceeded upon the basis that, for the purposes of applying the abovementioned common law exception, those alleged to have fabricated incriminating evidence was acting under the orders of “superior officers” , namely, Messrs Knox and Ross. Even if it could be said those two officers, who were higher in the police hierarchy, gave such “orders” it could not be said, for the purposes of the common law, that they did so as agents of the Government or State of New South Wales.

Finally, as to the submission made on behalf of the plaintiff in the Plaintiff’s submissions in reply , paragraph 5, to the effect that the State “through the Attorney-General, could have no billed the prosecution at any time” any action taken in that respect by the Attorney-General could not provide a basis for retrospectively converting the earlier alleged actions of the police officers involved in the plaintiff’s arrest and prosecution into actions for which the State can then be said to be vicariously liable. Any failure to exercise the power to no bill, in my opinion, could not, in law, create a basis for such vicarious liability. A failure to exercise the power to no bill a prosecution could not, in other words, impose either a direct or an indirect liability in the State.

Accordingly, I am of the opinion that prior to the Vicarious Liability Act, there could not arise at common law in the State of New South Wales liability in respect of the alleged fabrication of evidence leading to the plaintiff’s arrest on 15 January 1980. (b) The Vicarious Liability Act – operative 28 October 1983

The State’s fundamental contention was that it cannot be vicariously liable after the Vicarious Liability Act came into operation on 28 October 1983 in respect of the alleged manufacture of evidence against the plaintiff. It conceded that each of the relevant officers were constables appointed under s.6 of the Police Regulation Act 1899 and that officers Michael Leary, Trevor Haken, Glen Ross, Stephen Chidgey and Michael Gardiner were Detective Senior Constables. Mr Les Knox and Mr Ray Donaldson (the latter in respect of the 1982 charges) were Detective Sergeants, Third Class (Exhibits W and AD).

The Vicarious Liability Act was assented to on 22 April 1983.

Section 2 provides that ss.1 and 2 commence on the date of the assent to the Act.

Section 2(2) provides:- “Except as provided by sub-section (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.”

Section 3 importantly provides:- “This Act does not apply to or in respect of a tort committed by a person or arising out of a wrongful act or omission occurring before the day appointed and notified under s.2(2).”

The date appointed under s.2(2) was 28 October 1983.

Section 6 provides that, for the purposes of the Act, a member of the Police Service shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

Section 7, Vicarious liability of masters , provides that, notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by his servant in the performance or purported performance by the servant of an independent function whether performance or purported performance of the function:- “(a) is in the course of his service for his master or is an incident of his service (whether or not it was a term of his contract of service that he perform the function); or (b) Is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of his master.”

Section 8, Further vicarious liability of the Crown , provides as follows:- “(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:- (a) is in the course of the person’s service with the Crown or is an incident of the person’s service (whether or not it was a term of the person’s appointment to the service of the Crown that the person perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown. (2) Subsection (1) does not apply to or in respect of a tort committed by a person in the conduct of any business, enterprise, undertaking or activity which is:- (a) carried on by the person on the person’s own account, or (b) carried on by any partnership, of which the person is a member, on account of the partnership.”

The State has pleaded, in its defence, not only that vicarious liability cannot arise at common law but also that there were no active steps by way of prosecution that occurred after 28 October 1983 that could make it vicariously liable under the Vicarious Liability Act.

In the State’s Outline of Submissions , reference is made to the written submissions for the plaintiff which contended that there was “uncontroverted evidence that various of the first charge officers attended court proceedings after the introduction of the Vicarious Liability Act and as such they took ‘active steps’ in relation to the prosecution of the plaintiff after 28 October 1983” .

In the defendant’s Outline of Submissions , it is recorded:- “71. It is respectfully submitted that evidence of merely ‘attending court’ after 28 October 1983 could not satisfy this Court to the requisite standard that there was any active step of prosecution by any one of the police officers post 28 October 1983. 72. It appears from the record of 31 October 1983, that it was a date set for the trial of the plaintiff. There is no evidence to suggest that Mr Knox was present to ‘instruct’ the Crown Prosecutor. At the highest, on that date, he was to give evidence, but never did so. Accordingly, there was no actual prosecution by Mr Knox on that day. 73. Again on 19 March 1984 there is a reference to ‘all police present’ but there is no evidence to suggest that any of the police officers ‘instructed’ the Crown Prosecutor on that day as is alleged. Again, the plaintiff had been remanded for trial on that day and, if anything, any police officers who were present were there to give evidence, but this never occurred. Accordingly, there was no act of prosecution by them on that day. 74. There is also a record of 19 March 1984 that facts and antecedents were tendered. There is no evidence to suggest that the ‘facts’ tendered was a ‘fact sheet’ prepared by Mr Knox and was tendered in his presence. …”

In the fifth amended statement of claim, the plaintiff alleges that after 28 October 1983, the relevant police officers “failed to inform the police prosecutor or anyone else in a position to cause the prosecution of the plaintiff to be terminated” that statements made by them contained false evidence or otherwise failed to cause the termination of the prosecution.

In the State’s Outline of Submissions , reliance was placed upon dicta of Harvey ACJ in Daniels v Telfer (1934) 39 SR (NSW) 99 in answer to the plaintiff’s case “… that the police officer should have ‘come clean’” (see paragraph 52 of the Plaintiff’s Submissions of 27 July 2007 and paragraph 75 of the State’s Outline Submissions ).

I will return to consider Daniels (supra).

It was submitted for the State that, in the present case, “inactivity” by the State after 28 October 1983 was insufficient to support a claim for malicious prosecution.

Mr Maconachie submitted for the State that the only inference that could be drawn from relevant court notations on the court file (Exhibit W) commencing 23 February 1983 was that whilst police had attended on various listings of the matter, the only conclusion available was that they had attended merely for the purpose of giving evidence at the trial (first defendant’s outline of submissions , paragraph 77).

When the matter was listed for trial on 19 March 1984, the Crown Prosecutor was noted as appearing on the record and “all police present” . A plea of guilty was then entered. The circumstances which are said to have given rise to the guilty plea are referred to below. There then followed the tender of facts and antecedents by the Crown. The police officers, it was contended for the State, were there only in the capacity of witnesses for the purpose of giving evidence if required. Issue was taken with the submission for the plaintiff that the relevant police officers were present to assist the prosecutor in the performance of his function. It was contended that the evidence of Mr Ross - that he had secured the presence of a member of the arrest team on “each adjournment” in order to assist the prosecutor - was evidence related merely to the position in the lead up to the committal proceedings and that these listings took place well prior to 28 October 1983. There was no evidence given in the present proceedings by Mr Ross, it was contended, which related to the position after that date.

Exhibit W comprises the documents relating to the prosecution in the then Court of Petty Sessions. The documents within that exhibit confirm the following matters:- (1) The apprehending officers were Detective Sergeants Ross, Knox and Chidgey from the Drug Squad. (2) That the plaintiff was charged on 16 January 1980 with supplying a prohibited drug, namely, heroin “… in that he did have in his possession a quantity of such prohibited drug in excess of the quantity prescribed in respect of that drug” . (3) On 20 August 1980, the proceedings were listed before the Court on which occasion Mr Conomos of counsel appeared for the plaintiff. The proceedings were adjourned by consent, bail to continue. (4) The proceedings were again listed on 2 April 1981 when a committal hearing commenced. (5) On 3 April 1981, the plaintiff was committed to the Sydney District Court for trial on which occasion bail was continued. (6) On 6 January 1983, the Secretary of Justice advised the solicitors for the plaintiff, Messrs Colin W Love & Co, that the Attorney General had directed that the case against the plaintiff was to proceed to trial. (7) The proceedings in the District Court were listed for mention on a number of dates in 1983 and 1984 as follows:- (a) 28 February 1983: proceedings stood over to 25 July 1983. (b) 25 July 1983: on an application by the defence stood over by consent to 5 August 1983 (noted Supreme Court drug conspiracy trial to commence on 5 September 1983). (c) 5 August 1983: proceedings fixed for trial on 31 October 1983. (d) 14 October 1983: application to vacate trial date by accused. The application was refused and the trial date confirmed. (e) 31 October 1983: the hearing was vacated. A note “possibly plea?” . Remanded for trial on 19 March 1984. Detective Knox was present. (f) 19 March 1984: plea of guilty entered. Facts and antecedents tendered. Noted that “all police present” . (g) 29 March 1984: stood over. (h) 7 June 1984: sentence – a term of imprisonment of 15 years to date from 19 July 1984 concurrent with existing sentence. Non-parole period to expire on 18 July 1988. Noted Detective Sergeant Knox present.

It was contended for the plaintiff that there was evidence that the relevant police officers, including in particular Mr Ross, had attended court proceedings after the Vicarious Liability Act had come into operation on 31 October 1983 and, that by attending court, they had taken “active steps” in relation to the prosecution of the plaintiff after that date.

It was submitted for the State, as earlier noted, that the evidence of “attending court” could not constitute the taking of an active step by way of prosecution by any one of the police officers after 28 October 1983.

For reasons set out in paragraphs [71] to [74] inclusive of the Outline of Submissions for the State (extracted in paragraph [116] above), it was contended that there was no act by way of prosecution by the relevant police officers after 28 October 1983. (c) Interpretation and application of the Act

In s.5(1) of the Vicarious Liability Act, Definitions , the following expressions are defined:- “ Independent function , in relation to a servant or a person in the service of the Crown, means a function conferred or imposed upon the servant or person, whether or not as the holder of an office, by the common law or statute independently of the will of the servant’s master or the Crown, as the case may require. Office includes the office of special constable within the meaning of Part 4 of the Police Offences Act 1901. Police tort claim – see s.9B(1).”

Section 5(2) provides that a reference in the Vicarious Liability Act to “a function” includes reference to a power, authority and duty and the “performance of a function” includes a reference to the exercise of the function and the failure to perform or exercise the function.

Section 6, as earlier noted, provides that, for the purposes of the Vicarious Liability Act, a police officer shall be deemed to be a person in the service of the Crown and not a servant of the Crown.

Part 2 of the Vicarious Liability Act entitled Vicarious Liability of Masters for independent functions contains s.7 which is set out in paragraph [112].

In Part 3 of the Vicarious Liability Act entitled Vicarious liability of Crown for persons in its service , the Crown is made vicariously liable in respect of a tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function falls within the provisions of s.8(1)(a) or (b).

In Part 4 of the Vicarious Liability Act entitled Legal proceedings for damages for torts by police officers , s.9B provides as follows:- “9B(1) A police tort claim is a claim for damages for a tort allegedly committed by a police officer (the police officer concerned ) in the performance or purported performance of the officers’ functions (including an independent function) as a police officer, whether or not committed jointly or severally with any other person. (2) Except as provided by this Part, a person may not in any legal proceedings make a police tort claim against the police officer concerned, but may instead make the claim against the Crown. (3) A person who makes a police tort claim against the Crown in any legal proceedings may join the police officer concerned as a party to the proceedings only if the Crown denies that it would be vicariously liable for the alleged tort if it were established that the police officer concerned had committed the tort. (4) …”

I have earlier set out the provisions of s.3 (paragraph [109], which states that the Vicarious Liability Act does not apply “to or in respect of a tort committed … or arising out of a wrongful act or omission occurring before the day appointed and notified …” .

It was contended for the plaintiff that, in attending court, the police officers who participated in the plaintiff’s arrest on 15 January 1980 assisted the Prosecutor and that their attendance was part of the performance or purported performance of a police officer’s function (written submissions, p.20).

Mr Steirn, for the plaintiff, specifically relied in this respect upon submissions made on behalf of the plaintiff in support of the application to amend the statement of claim and upon final written and oral submissions made in the substantive proceedings concerning the application and operation of the Vicarious Liability Act.

In paragraph 38 of the last-mentioned submissions, it was contended, in relation to both the first and second charges, that the Crown was vicariously liable for the commission of a tort committed by a “… large number (of) police officers, and not in the exercise of an independent discretion whilst arresting somebody, but while performing general police duties under the direction and control of superiors in the action of planting false evidence upon the plaintiff, manufacturing cases against the plaintiff and then prosecuting the plaintiff …” (p.18).

Insofar as the plaintiff relied upon the Vicarious Liability Act as supporting the action against the State, reliance was also placed upon what was said to be a failure by police officers after 28 October 1983 or an omission “… to inform the police prosecutor or anyone else in a position to cause the prosecution of the plaintiff to be terminated” . This referred to a failure to advise the police prosecutor that evidentiary statements were fabricated or “concocted” evidence. It was also claimed that this constituted conduct by omission in failing to cause the termination of the prosecution.

Section 8 of the Vicarious Liability Act makes it clear that the plaintiff cannot rely upon the provisions of the Act with respect to the vicarious liability of the Crown with respect to either a “tort committed” by a person or one “arising out of a wrongful act or omission” occurring prior to October 1983.

The tort of malicious prosecution may arise from either the institution of proceedings or the maintenance of proceedings. That is evident in the High Court’s judgment in A’s case where consistent reference is made by the Court to “instituting or maintaining” or “commencing or maintaining” proceedings.

Further in A’s case, the Court expressly referred to the temporal dimension in the tort of malicious prosecution:- “… the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution . Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution not whatever material may later have come to light.” (at p.520) (emphasis added)

The temporal dimension in the present case concerns (a) the alleged absence of reasonable and probable cause as at the date Mr Ross laid the charge (15 January 1980) and (b) the absence of reasonable and probable cause in the period during which the proceedings were maintained up to 7 June 1984, being the date on which the plaintiff was sentenced. The maintenance of proceedings would, in my opinion, include all acts by “the prosecutor” after October 1983 in maintaining and pursuing the proceedings including the re-listing of them for ultimate hearing and disposal by conviction and sentence.

The significance of later steps in a prosecution independently of the preferring of an indictment in constituting the same as malicious proceedings has been established long ago. In Fitzjohn v Mackinder (1861) SC 30 LJCP 257; 142 ER 199, M sued F in the County Court for a debt. F claimed a set-off in answer to which M produced his ledger containing an acknowledgment signed, as he swore, by F. F denied the signature, which he averred to be a forgery. However, the trial judge, induced partly by the statement of M and partly by the conduct of F when giving evidence, disbelieved F’s denial. The judge committed him for trial for perjury and bound M over to prosecute. M did pursue the prosecution but F was acquitted. F then brought an action against M for maliciously and without probable cause causing him to be prosecuted on an unfounded charge.

The Court held on appeal, by majority, that the action was maintainable. Bromwell B noted, at p.205, that the action was not one for damages for preferring the indictment. The proceedings were only for what was referred to as “the residue of the prosecution and the damage consequent upon it” . Bromwell B then observed (at pp.205 to 206):- “… Where an action is maintainable in respect of the whole prosecution, including the preferring of the bill it is in part maintainable for the subsequent stages and conduct of it , - then why should it not be maintainable for those parts, even where it is not for the mere preferring of the bill …” (emphasis added)

Similarly, Cockburn CJ stated (at p.208):- “Without, however, going thus far – assuming that the defendant ought not to be held responsible for the act of the judge in directing the prosecution of the plaintiff, I am still of the opinion that the defendant is liable in this action …”

At 208 to 209 it was further observed:- “But the main argument relied on in favour of the defendant is that he did not originate the proceedings or, as the phrase is, set the law in motion … I do not feel at all pressed by this argument … a prosecution, though in the outset not malicious … may nevertheless become malicious in any of the stages through which it has to pass , if the prosecutor, having acquired positive knowledge of the innocence of the accused, preservers malo animo in the prosecution with the intention of procuring per nefas a conviction of the accused …” (emphasis added)

Similarly in Daniels (supra), observations were made as to the significance to an action of malicious prosecution of the co-existence of the element of malice at a time, after proceedings commenced, with active steps taken in the pursuit of the proceedings. Harvey ACJ observed at p.102:- “In my opinion, malicious prosecution connotes an active prosecution of the plaintiff. It must be shown that at some time when the defendants took some steps towards pressing on the prosecution they were actuated by malice … They must at the time when they do something by way of prosecution of the defendant be actuated by malice and without reasonable and probable cause … Had they taken any steps such as by giving evidence in support of the prosecution, had they actively prevented the giving of evidence by persons who were qualified to give evidence, had they suppressed evidence , then I think on the authorities … I think the Court is justified in saying that they took an active step actuated by malice without reasonable and probable cause sufficient to establish malicious prosecution; but mere abstaining from doing or taking any action at all is not, in my opinion, malicious prosecution …” (emphasis added)

In Coleman v Buckingham’s Limited [1963] SR (NSW)171, Heron CJ at Walsh J discussed the principles that apply to the institution and to the continuation of proceedings as an element of the tort. Their Honours, at 178 observed:- “… we think that this question should be answered as a matter of principle by saying that an action of this kind will lie if active steps are taken in furtherance of the proceedings by a defendant who is, at the time when he takes them, acting maliciously and without reasonable and proper cause within the meaning of these expressions as understood in this form of action. See Daniels v Telfer … Fitzjohn v Macinder … But once the view is taken that an action will lie, subject to proof of relevant damage, for maliciously instituting civil progress, in principle it seems that it will lie also for maliciously continuing a civil proceeding.” (emphasis added)

Their Honours later also observed (at 180):- “The principles to which we have referred cannot be questioned and they were accepted as valid in Cabassi v Vila … But in our opinion, it is consistent with those principles and is in accordance with authority to hold, that an action may be maintained for instituting or pursuing legal proceedings (criminal or civil), maliciously and without reasonable and probable cause, notwithstanding that the facts are such that the plaintiff will inevitably seek to support his case by proving a swearing of a false affidavit by or at the behest of the defendant. If the action is founded simply on the false swearing it does not lie. But if it is alleged and proved that there was an instigation of proceedings or an active prosecution of them by the defendant and that this was done maliciously and without reasonable and probable cause, and damage of the requisite kind followed, and if the false swearing is merely a means by which the defendant did these things, the action will lie …”

Returning to the facts of the present case and to the provisions of s.3 of the Vicarious Liability Act, the restriction specified in that section does not apply to steps taken after October 1983, being steps taken in the proceedings by the prosecution with a view to obtaining a conviction and ultimately the imposition of a sentence. In the event that findings were made that police fabricated the evidence leading to the plaintiff’s arrest on 15 January 1980, then any and all steps taken after October 1983 to maintain or continue the proceedings using such tainted evidence would plainly be taken “malo animo” . A finding to that effect would necessarily imply that the police officer or officers, as prosecutor(s), though knowing the true position, suppressed their knowledge of the true facts thereby falling within that category of case referred to by Harvey ACJ in Daniels (supra).

If it be that the prosecution for the 1980 charge was based on fabricated evidence, the prosecutor(s) responsible for its manufacture would be under a duty to disclose it. Suppression of the truth where a duty exists to disclose false information is “conduct” in the maintenance of proceedings as is a specific step taken in pursuing them. Similar concepts arise in other areas of the law. Failure to provide information in trade practices law (s.52, Trade Practices Act 1974 (Cth)) can be actionable as misleading and deceptive conduct. See for example Costa Vraca Pty Limited v Berrigan Weed & Pest Control Pty Limited (1998) 155 ALR 714 per Finkelstein J at 722.

If a finding were to be made that police “loaded” the plaintiff with heroin and then charged him on the basis of such fabricated evidence (a matter considered below), the police officer or officers responsible, as prosecutor(s), would thereafter be subject to a duty to disclose his/their wrongdoing and not allow the prosecution to go forward based on manufactured evidence. On such a finding in this case, by pursuing the proceedings including attending court from time to time up to sentence, they would be maintaining a prosecution with respect to the 1980 charge prior to and beyond 28 October 1983.

I turn to s.8(1) of the Vicarious Liability Act. In considering whether that section entitles the plaintiff to rely upon that Act for the purposes of suing the State on the basis of maintaining the prosecution based on fabricated evidence, as the plaintiff contends, the provisions operate on satisfaction of three matters:- (1) That the person concerned committed a tort “… in the service of the Crown” . (2) That the person was actually or purportedly performing a “function” . “Function” is defined in s.5(2)(a) as including “… a reference to a power, authority and duty” . (3) That the “function” must be in the course of the person’s service with the Crown, or incidental to his service: see Prior v State of New South Wales (CA 40615/96 unreported, 2 September 1998, Meagher, Handley and Sheller JJA at pp.3 to 4).

As I understand it in the present case, the State contends that, at the time leading up to and including the plaintiff’s arrest, if it were found that the arresting police officers, as contended by the plaintiff, fabricated evidence against him, they could not be said to have been performing a function and, accordingly, in those circumstances it could not be said that the tort occurred in the course of their service with the Crown or incidental to that service.

The argument in this respect advanced on behalf of the State was, in substance, that actions involving the fabrication of evidence against a person could not be considered to be a “function” being so obviously foreign to a police officer’s duty that it could not be considered as being in the course of his or her duty or incidental to it.

In the present case, the evidence, which I accept, was that prior to 15 January 1980, the plaintiff had been the subject of police investigation, including observation. He had, according to the evidence, been “targeted” for investigation prior to 15 January 1980. This occurred at least over several weeks in the 12 months before his arrest. In that factual context, I consider that it would be open to a jury to conclude (or a trial judge to find) that the alleged illegal activity of police in fabricating evidence, if true, arose in the context of and in the course of an ongoing investigation into the plaintiff’s activities.

In Prior (supra), the police officers concerned were “… guilty of an outrageous and disturbing assault on an elderly man for no apparent reason” : per Meagher JA at p.2. The assault occurred in the context of the performance by the relevant police officers of a breath-testing operation. Although such conduct by police officers, involving as it did, an assault or trespass, nonetheless was held to fall within the provisions of s.8(1) of the Law Reform (Vicarious Liability) Act . The State was, accordingly, held liable in respect of the tort committed by the police officers in question.

Similarly, in Knight v New South Wales [2004] NSWSC 791, liability arose in circumstances in which a finding was made that certain police officers had assaulted the plaintiff. The issue was whether or not he had sustained injuries whilst climbing a wall and falling or whether the officers concerned had assaulted him causing grievous injury, including a fracture of the skull. In those proceedings, the only defendant was the State of New South Wales, the police officers not themselves being parties to the proceedings.

In State of New South Wales v Eade [2006] NSWSC 84, the plaintiff signed a handwritten statement in which admissions were made concerning the sale and use by him of heroin. He was charged with supplying and administering a prohibited drug (heroin). He pleaded guilty and was sentenced to a term of imprisonment.

In 1996, the plaintiff in that case gave evidence before the Wood Royal Commission to the effect that the confession signed by him had been procured by Mr Eade (the cross-defendant) through a series of threats, the threats being that he would be “loaded up” with heroin if he did not confess.

On 28 February 2002, the Court of Criminal Appeal quashed his conviction accepting his evidence that he signed the confession statement because of the threats made by Mr Eade.

In its defence to the amended statement of claim relied upon by the plaintiff, the State admitted vicarious liability for the conduct of Mr Eade and another police officer. Hoeben J stated that he assumed that this had been done in accordance with the provisions of s.8 of the Law Reform (Vicarious Liability) Act . His Honour referred to the judgment of the Court of Appeal in Prior (supra) and observed:- “31. The torts relied upon by the plaintiff were wrongful arrest, wrongful imprisonment and malicious prosecution. At the heart of each of those torts was the conduct of the cross-defendant in arresting the plaintiff on a false basis and then subsequently proceeding to charge him. It seems to me that those activities involved the performance of a function as defined by a police officer.”

His Honour went on to state that the particular vice associated with the police officer’s conduct was that it involved the exercise of his power and authority as a police officer in the purported performance of his duty, but in a corrupt way ([32]).

Hoeben J referred to dicta in Tiger Nominees Pty Limited v State Pollution Control Commission (1992) 25 NSWLR 715 at 721, and noted that in that case vicarious criminal responsibility attached to an employer. His Honour then stated:- “34. … Accordingly, it seems to me, that the actions of Mr Eade in wrongfully arresting and wrongfully imprisoning the plaintiff and in maliciously bringing charges against him, can be properly characterised as incidents of a police officer’s function but carried out in an improper manner. 35. I am of the opinion that for the purposes of s.5(3A) of the Law Reform (Miscellaneous Provisions) Act 1946 the State was vicariously liable under s.8 of the Law Reform (Vicarious Liability) Act 1983 for the actions of Mr Eade.”

It is, in my opinion, clear that the application of s.8 is not to be determined simply by asking the question as to whether the acts of a police officer (such as assault, false imprisonment, obtaining admissions under duress or using fabricated evidence for the purpose of maintaining a prosecution) were “so foreign to a police officer’s duty” . Its application depends upon whether, on the facts of the particular case, it can be said that, though they be actions that are contrary to the sworn duty of a police officer and involve criminality, they nonetheless, on the facts, attract the operation of the provisions of s.8 because they can be said to be “ in the performance or purported performance of a function” .

In the above cases, the tortious conduct occurred during the course of exercising a function, in particular, a power. The present case is not as clear cut. However, it is not too distant from the circumstances in Eade (supra). In that case, the extraction of a confession under duress can be characterised as having falsely created evidence by way of a purported admission for the purposes of charging the plaintiff to those proceedings where a search warrant had been executed on the plaintiff’s premises but no heroin was found. Subsequently, possibly on the same day, the plaintiff was taken to Gosford Police Station where he was further interviewed and it was there that the impugned confession statement was made. Accordingly, the statement was not produced during the actual exercise of a power (the power to execute a search warrant) but followed not long afterwards during an interview.

In the present case, as I have earlier stated, the asserted “loading up” of the plaintiff, if it is shown to have occurred, arose in the context of an ongoing investigation by police into the plaintiff’s activities and is alleged to have occurred immediately prior to Mr Ross and other officers exercising their power of arrest.

Accordingly, by reference to the principles and approach in the above authorities, I am of the opinion that, if the alleged facts concerning the fabrication of evidence are proved to the applicable standard, then the provisions of s.8 of the Law Reform (Vicarious Liability) Act would operate to render the State vicariously liable for the maintenance of the prosecution.

I turn to consider the fundamental question of fact, namely, whether the evidence in the plaintiff’s case does establish to the applicable standard that police fabricated evidence by “loading” the plaintiff with heroin. (d) The evidence of events leading to the 1980 charge

The plaintiff’s case in relation to the 1980 charge essentially rests upon his own evidence and that of Mr Trevor Haken. The State has submitted that the credibility of both the plaintiff and of Mr Haken is such that the Court, applying the relevant standard of proof, could not find that the plaintiff’s allegation that police manufactured evidence has been made out.

I have, as previously indicated, necessarily proceeded on the basis that the fact of the plaintiff’s past history including, in particular, his involvement in acts of dishonesty requires appropriate caution to be exercised in evaluating his evidence.

As the discussion of the events of 15 January 1980 later in this judgment will indicate, I have not relied upon the plaintiff’s evidence as to what occurred on that date unless and to the extent that it is corroborated by other evidence. The issue of corroboration in that respect directs attention to and is dependent, to a significant extent, upon findings to be made in respect of evidence given in these proceedings by Mr Haken.

The plaintiff stated that in 1980 he lived at 48 Parklands Avenue, Leonay near Penrith. He was, at that time, living with his de facto wife, Joy Catherine Moore. Ms Moore died on 2 October 2004. His evidence was that on the day of his arrest, he and his wife were planning to travel to the Spanish Club in the city.

The plaintiff said that on 15 January 1980, he was at his Leonay home. It was a hot afternoon and at some point he said he noted a green Falcon vehicle parked 30 or 40 yards up the road from his house. This is consistent with the evidence of Mr Chidgey. He saw three people in the vehicle. He said that they were in the car for over an hour during which time he was out at the front of his premises washing his car. He thought it was strange that they remained in the car, given that it was such a hot day.

He said that he first noticed the vehicle at about 4.00 pm. It was about 6.00 pm when he and his wife got into his Mercedes car. He said that when they drove off, he noticed that the green Ford car followed them. After entering the F4 Freeway, the plaintiff said that they travelled over the Nepean River following which the car travelling behind them accelerated and held up a “police” sign.

Mr Landini said that he pulled the car to the side of the road and stopped. A police car parked in front of him and Detective Sergeant Knox walked towards him. The green Falcon car had pulled in behind his car.

The State, admitted that the officers in question who were involved in the investigation were then officers in the New South Wales Police Service.

Mr Knox, according to Mr Landini said, “we have reason to believe that you have got drugs at your place and we would like you to accompany us back” .

The plaintiff said that he replied that he had seen the green car parked near his place and asked “Why didn’t you come and see me then?” . Mr Landini said he added “I reckon you are going to try and load me up here, that’s why you pulled me up here” .

He said that he was then pulled out of the car and he repeated to police that they were going to try and “load him up” . He claimed he was pushed down to the ground and handcuffed. The officers involved in his arrest maintained that he was not placed in handcuffs.

The plaintiff said that he saw someone open the boot of his car. He thought the officer was Detective Gardiner. He said that Detective Gardiner said “Look what we’ve got here” . He turned around and saw one of his running shoes had a plastic bag or bags which contained white powder. Mr Landini said that the police then took his wife and put her in another car and said to him “We are going to go back and search your house” .

I note at this point that Mr Ross, in his statement dated 16 January 1980 (Exhibit 30) stated that it was he and not Gardiner who found bags of heroin in the running shoe in the boot of the Mercedes vehicle.

Mr Landini said that, apart from the boot, he did not see police search the Mercedes vehicle either when it was stationary on the F4 or later at his home. The evidence of Mr Ross and Mr Chidgey was to the contrary.

He was placed in the green car with Detective Ross and travelled back to his home. The garage doors were open and three officers went through the garage. Detective Gardiner went to the back of a Ford Landau vehicle which was in the garage and opened the boot. The plaintiff said that he noticed that he moved something from under his shirt, and that Gardiner then made out that he was searching the boot of the car and in the next minute he had some bags and said “Oh, look, look what we’ve got here” and was “dancing up and down” . He said that he added “We’ve got you now. Look at this” .

The plaintiff said that Detective Gardiner had walked straight to the Ford Landau car. He did not see him search any other part of the garage before going to that vehicle. He said that he did not see police search any other part of the garage before Detective Gardiner approached the Ford Landau. He did not see any search of the garage after the drugs were allegedly found in the boot of the Landau.

The plaintiff said he was then taken upstairs. He saw his wife sitting down. He said that he was abusing police and said to his wife “They haven’t shown you a search warrant” . He said that he asked police whether they had a search warrant. He said that he knew that the police officers were going to “do something else in here as well” . He said the police told him to “shut up” . The plaintiff said that the next thing that he was aware of was police stating that they had found some hash “or something in our bedroom” . However, he said he was not shown any drugs.

The plaintiff said that at no stage was he shown a search warrant. He said that the search lasted for about half an hour.

He said he was still handcuffed when placed back in the police car and taken to Central Police Station and charged. He was then placed in the cells and remained there overnight. The following day, he appeared in the Central Local Court.

He said that he had never seen the drugs said to have been found in his Mercedes vehicle or the drugs said to have been in the back of the Landau vehicle.

In relation to the hash which it was claimed by police was found in the house, Mr Landini’s evidence was that at the time there were two brothers and their girlfriend who had stayed in the house for a week or so. He referred to them as Fred and Abdul Cako. He said that the last time he saw Mr Cako was three days after he was arrested and had not seen him since. He said he did not know where he lives. He observed that they would have been in the house and denied that the hash found in his bedroom was his. He also denied that the hash said to have been found in his pocket by police belonged to him.

In cross-examination, the plaintiff agreed that there were six detectives involved in the investigation leading to his arrest. He said that they were at his home for about an hour and a half.

On 16 January 1980, he was granted bail and said that he was subsequently represented by Mr Graham Berry, solicitor, and Mr J Conomos of counsel.

The plaintiff, initially said that he did not return to his home at Leonay after the grant of bail as he said he felt “uneasy going back there” by reason of what had happened to him the day before. He said “… I was scared that something else could happen, might happen” . He explained that he meant by this that police “could load him up again” . In other evidence, however, he said that he remained in Sydney until June 1980 until his son, Daniel, was born. He could not recall when the family moved to the South Coast into rented premises. In cross-examination, he said he remained at the premises in Leonay for some three or four months and then rented out his home. He recalled that the premises were leased for a six month period. He said that his de facto wife and son, in due course, moved back into the premises. He said that he later sold the property for financial reasons.

The plaintiff said that between January 1980 and July 1982 he lived on the South Coast. In that period he was coming to Sydney every week and would attend at the Etna Club. He said, in some weeks, he might go there two or three times a week.

He said that he had no prior association with the officers involved with his arrest on 15 January 1980. He denied that Detective Sergeant Knox had advised him that they had received information that he would be taking heroin to the city that day.

In refuting the suggestion that on 15 January 1980 he was engaged in taking drugs to Sydney from his home, he stated that, having seen persons whom he suspected were police in a car near his home, he would hardly have embarked upon a trip involving taking drugs to Sydney.

In relation to the search of his car on the freeway, Mr Landini denied that he was standing at the boot of his Mercedes car when the shoe and the drugs were produced. He denied that he walked to the rear of the car with Detective Ross and Detective Chidgey as they stated in their statements dated 16 January 1980. He said he did not open the boot for the police at any stage and rejected the suggestion put to him in cross-examination that he saw police search the interior of the Mercedes.

The evidence given by Mr Ross and Mr Chidgey at the committal hearing was that they went with the plaintiff to the rear of the vehicle (Exhibits 30 and 31) before the search of the boot commenced.

The plaintiff denied making any admissions to police. In particular, he denied that he said “who gave me up?” . He denied that Detective Ross said “Is this heroin?” . He denied saying “You know what it is, you’ve got it, don’t expect me to say anything about it” .

He denied Detective Ross said that police had a search warrant to search his home. He said he had no recollection of being shown a search warrant.

Mr Landini said when stopped on the F4, Detective Sergeant Knox said to him “we’ve information received that you have drugs at your premises and we’d like you to go back there with us” . However, he rejected any suggestion that Mr Knox said that he had information that the car was carrying heroin. He would not accept that Knox said that he intended to search the car and denied that he, the plaintiff, said “do you best” . To his recollection, there was no search made of the front portion of his vehicle.

He denied that Detective Ross said “I’m going to search the boot of the vehicle. I want you to come with me when I do” .

The plaintiff agreed that Mr Meakin of O’Connor Bellamy, solicitors, later acted for him on his application for parole. In respect of a submission Mr Meakin prepared on 7 October 1986 for the plaintiff, Mr Landini said that Mr Meakin had said to him that in his experience he had found that if a prisoner admitted his guilt he would be more favourably looked upon for the purposes of parole then if he did not. He had previously been told that he would not be considered for parole for another year after his initial application. Mr Meakin’s advice was that if he admitted his guilt, then in his experience, parole would be granted. Mr Landini said that he decided to tell the Parole Board that he had been involved “which wasn’t the case, to obtain parole for my release” . (e) Mr Haken’s evidence

In 1980, Trevor Dale Haken was a detective attached to the New South Wales Drug Squad. As at that date, he had been in the Police Service for 11 years. He gave evidence that he was approached by Detective Senior Constable Glenn Ross who said to him that he was intending, with other police, to lock up Henry Landini and ask him whether he was willing to be a party to locking him up or whether he would rather not join in. Mr Haken said he was new to the team and Detective Ross was giving him the opportunity to say if he did not want to be involved. He gave evidence in chief as follows (transcript, p.643 to 645):- “Q. Mr Haken, what did Mr Ross say to you when he first approached you in relation to Mr Landini? A. Mr Ross said that he was intending to lock up Henry Landini with other police and asked me whether I was willing to be a party to locking Mr Landini up or whether I would rather not join in … … Q. Did Detective Ross say anything to you as to how Mr Landini was to be locked up? … Q. Can you answer that question Mr Haken? A. Yes, certainly. Mr Ross told me that he had a quantity of heroin and that Mr Landini was going to be loaded up and charged. Q. Was anything further said as to how that was to be done, at that stage, we are talking about? A. I don’t think it was said at that early stage. It was carried on fairly quickly and the matter was put into progress. … Q. What conversation was had as to who the names of those police present – wrong, mentioned by Mr Ross? A. He mentioned that his team, that being myself and Steven Chidgey and Glen Ross’ team – sorry. Lez [sic] Knox’s team, being Lez [sic] Knox, Tony Gardiner and Michael Leary, would be the police involved in this operation … Q. Either at that stage or a later stage were you shown anything in relation to what Mr Ross had told you was going to happen? A. Yes, I was. Q. What were you shown? A. I was shown a plastic bag containing white powder. … Q. And were you told anything about the white powder? A. Yes, I was. … Q. I withdraw that. A. I was told that it was a bag. Q. Go on? A. I’m sorry. Q. I interrupted you. Go on. A. It was a bag of heroin. It was a bag of heroin which had been located on a roof of a building in the eastern suburbs and had been handed in by a civilian. Q. Who told you that? A. Glen Ross. Q. And did he in fact produce a bag of heroin to you? A. Yes, he did. Q. And were you given any instructions as to what to do with it? A. Yes, I was. Q. What instructions were you given? A. I was given the task of cutting the heroin, that is, diluting it into a larger quantity and placing it into small plastic bags to give the effect of being bagged heroin. … Q. Were you given any instructions in relation to diluting the heroin? A. Yes I was. … Q. And by whom? A. I was told by Mr Ross and Mr Knox to dilute the powder down to a quantity where it could be bagged up and made into a sufficient number of 5-gram bags. I believe it was 5-gram bags that we made up. Q. And you said that Mr Ross gave you the heroin, who else was present at the time you were given the heroin to bag? A. Certainly Mr Knox was there. I can’t recall, I can’t recall if any of the others were there in the room at that stage. ”

Mr Haken gave evidence of having a number of conversations in relation to what was referred to in evidence as the “methodology” for the operation with “all six officers, that’s Knox, Ross, Chidgey, myself, Gardiner and Leary, had a number of conversations in relation to the methodology of the operation carried out …” .

He was asked where the conversations took place. He replied:- “I don’t believe I am in a position to answer that question. They were in varying places. This is a long time ago and I have not got the wherewithal in memory to tell you where or when those conversations took place.”

He was asked:- “Q. Could you give us your best recollection of the discussions had between you and the other police as to the methodology to be utilised in relation to fabricating evidence against Mr Landini? A. Certainly. The methodology was that we were to drive to an area close to Landini’s home, in Leonay I think, and wait for him to leave his home and drive on to the expressway where he would be stopped and he would be found to be in possession of the quantities of heroin. … Q. Was there anything discussed as to why you would wait till he left his home first? A. My recollection is that it would appear that he was leaving his home to go somewhere to supply a quantity of heroin that would be found in his car. Q. Was there any other reason discussed that you recall? A. There may have been, but nothing that I can bring to mind at the moment. Q. Was there anything discussed as to where the drugs were to be found, in inverted commas? A. There was a discussion and, to my recollection, the drugs were to be found in the boot of the car driven by Mr Landini. Q. Was anything discussed as to who was to actually find the drug or drugs? A. There may have been, but I have no recollection of that, either that conversation or who actually found the drugs in the boot.” (f) Mr Haken’s observations of events leading to the plaintiff’s arrest

Whilst Mr Haken said that he participated in the execution of the operation in re-bagging the heroin and was part of the team that travelled to Leonay, he did not say that he actually handled the heroin at Leonay.

He said he travelled to Leonay with five other police and there were two police cars involved in its execution. He said he was in a car with Glenn Ross and Stephen Chidgey. He could not recall the time of leaving or arriving at Leonay but said he attended at the Leonay Golf Course clubhouse first. He said the clubhouse was frequented by Les Knox and it was “close by to the area where Landini would drive past” . He could not recall how long they remained at the clubhouse. He said police pulled the plaintiff up when on “the western freeway” . At that point he did not think that he personally had possession of the heroin and had no recollection of who did.

As to when he next saw the heroin, he said:- “I saw it located in the running shoe which had been located in the boot of the Mercedes car driven by Mr Landini.”

When asked which officer located the heroin in the boot, he replied:- “Q. No. I have given a great deal of thought to that, but the time factor between then and now has clouded the issue and I can’t be specific as to who that person was.”

He said he could not recall anything else being produced from the boot of the car. He said he recalled the shoe being held up “… in the format of ‘we’ve found it’, but nothing more than that” . He said he could not recall anybody “specifically” saying anything. He was asked:- “Q. Did you recognise those drugs as being the same drugs that you had placed in the separate bags? A. When I did examine them they certainly appeared to be the same packages that I had prepared.”

Mr Haken’s evidence was that Mr Landini was then taken with two cars of police to his premises at Leonay. He said he searched a room in the premises and other police searched outside. He did not recall being present when the garage was searched. He said “once the search had been concluded and all items of interest taken into custody, Mr Landini was transported to the police station where he was charged” .

Mr Haken said that he was not able to say whether the making of his police statement about the matter was discussed with other police:- “At this point I am not able to say I recall whether there was or was not statements with others. The matter is a long time ago and I can’t be clear whether there was or was not.”

He confirmed that he could not recall whether he conferred with other police in making his statement. He later said he had “discussions” with police before his statement was made but that he could not be more explicit “as to the exact nature of those discussions” .

In cross-examination, he agreed that he had spoken of the events in question on a number of occasions:- “A. I’ve spoken of this event on a number of occasions at the time when the arrest took place and obviously at subsequent court matters and then not again until 1994 I would suppose when I was associated with the Royal Commission.”

He also agreed that he had spoken about the matter when he provided an account to an author, Sean Padraic, for a book entitled “Sympathy for the Devil” .

Mr Haken further agreed that before giving evidence at the Royal Commission hearings “about this incident at Leonay” he had spoken to Commission investigators and had provided a statutory declaration. He also said he conferred with counsel assisting the Commission about the matter.

In cross-examination, it was put to Mr Haken’s that there was, in effect, a conventional motivation for police attending at Leonay, being the investigation of police intelligence against Mr Landini:- “You were told before you went to Leonay that Mr Knox and/or Mr Ross had received intelligence from an undercover police officer that Mr Landini would be transporting drugs to Sydney on 15 January 1980? You were told that weren’t you? A. No, I don’t recall being told that.”

It was put to him that the “methodology” which Mr Haken said was discussed at the Drug Squad offices (at the CIB) to stop Mr Landini on the freeway could not have occurred unless police had advance information that he would use it. He replied “that was a matter that I had no knowledge of” . He conceded that it was likely police had some information as to Mr Landini’s use of the freeway travelling east. He added “… but I can’t take you any further with that matter” . He, however, rejected that the receipt of such information was “completely inconsistent” with an agreement to “load up” Mr Landini on the freeway.

In cross-examination on the issue of “methodology” , Mr Haken said that he did not recall there having been any discussion at CIB headquarters of any plan to search Mr Landini’s home following his planned detention on the freeway. Nor, according to him, did he have any recollection of any search warrant having issued for such a search. (g) Mr Haken’s Royal Commission evidence

Mr Haken said that he was approached by Royal Commission officers in September 1994. From that time on he commenced work in an undercover role for the Royal Commission. He agreed that he went on sick leave in about August 1994. He was told by a Dr Cook that he was suffering from depression and was referred to Dr Barclay, psychiatrist. He was prescribed anti-depressant medication by Dr Cook.

He said he received an indemnity from prosecution in 1995.

The transcript of Mr Haken’s evidence to the Royal Commission at p.48, line 4 to p.50, line 40 of Exhibit X was admitted without objection. The tender of the segments of transcript at p.50, line 42 to p.51, line 25 and that at p.52, line 30 to line 37 of Exhibit X was objected to. Those segments were admitted. In light of the majority judgments of the Court of Appeal in Thomas (supra), the ruling on admissibility in relation to the last two mentioned segments of transcript was contrary to the ruling of the majority in that case in relation to s.69(3)(a) of the Evidence Act 1995.

The segment of transcript (Exhibit X) not objected to concerned Mr Haken’s evidence as to what he said were Mr Ross’ statements to him and his claimed response, including the preparation of the heroin.

The abovementioned transcript of Mr Haken’s evidence to the Royal Commission, had it been the subject of objection, would have been admissible on the credibility of Mr Haken, a matter of central importance. The fact that he disclosed to the Royal Commission in 1995 that he, and others (on his version of events), participated in a criminal enterprise raised the following issues:- • Why, amongst the several issues disclosed by Haken to the Royal Commission, the Landini matter was amongst them? • Why would Haken implicate himself in criminal conduct if he was not in fact involved? • If no motive can be established for Haken to have lied to the Royal Commission, then his credibility must be assessed accordingly.

On 21 August 1995, he was called to give evidence by counsel assisting the Royal Commission and during the course of his evidence he was asked for his best recollection of events as follows:- “Q. Let’s deal with the Landini matter – it’s probably a good one. This is a matter which occurred early on, as you can recall, to the best of your recollection, in your time at the Drug Squad? A. Yes, it was. Q. How did you come to be involved in it? A. At that stage, I was working, as I said, with Detective Senior Constable Glen Ross and Steve Chidgey. Glen Ross actually approached me and asked me if I wanted to be involved in the arrest of Landini and certainly offered me the opportunity of not being involved if it didn’t want to. He explained to me that Landini was going to be locked up by planting drugs on him and that that would be done in conjunct [sic] with the team of Les Knox, which was Les Knox, Tony Gardiner and, I think, Mike Leary at that stage. Q. I think Les Knox was at the time a Detective Sergeant … A. Yes, he was. Q. … of Police, who went on to be a senior officer of police at Penrith before resigning? A. He went to Parramatta, I think. Q. Sorry, Parramatta? A. Yes. Q. Was he a member of the Drug Squad at the CIB at this time? A. Yes, he was. Q. What was your response to Mr Ross when you were asked whether you wanted to take part in the arrest of Mr Landini? Q. I told him that I wanted to take part in the arrest. Q. Was Mr Landini a notorious, fairly long-term target of police involved in drug investigation? A. I’m not sure that he was a long-term target, but he certainly was a notorious drug supplier at that stage. Q. So you worked with another team, that is a team with Detective Sergeant Knox, is that right? A. Yes, that’s correct. Q. What did you do, what was the operation? A. The operation was, was that a quantity of heroin, which had been located prior to me arriving at the Drug Squad, as I understood it, was diluted to form a greater quantity, and that function was performed by myself. Q. Where did you get the heroin from to do that? A. That was given to me by Glen Ross and Les Knox and it was done in the Drug Squad office. Q. Were you told where the heroin had come from? A. I was told that the heroin had been found on a roof top of a block of flats in the eastern suburbs and that it had been handed in by a resident at the premises. Q. Were you told that by the same persons who gave you the heroin? A. That’s correct. Q. So, in the Drug Squad office, you then prepared the heroin to be used in the arrest of Mr Landini? A. That’s correct. It was cut, for want of a better term, placed into plastic bags in the form of being ready for sale, and with both teams – that’s Glen Ross’ team, including myself, and Les Knox’s team – we went to the Leonay Golf Club, where Les Knox at that time was President, I think. We waited there until Landini left his home, which is not far distant from that club, and then followed him on the expressway leading to Sydney. He was pulled over, and at that stage he was driving a Mercedes sedan. The vehicle was searched and the drugs were placed into the boot of the car, I believe into a running shoe, and he was subsequently charged with possession and supply of the substance. Q. He came to plead guilty to that matter when he was at court? A. I understand that he pleaded guilty to that matter. …

The transcript of his cross-examination before the Royal Commission was not the subject of objection. During the course of it, Mr Haken said that he was unable to recall how many bags of heroin were prepared. It was then put to him as to whether he was able to say it was less or more than 10 bags, to which he replied:- “My recollection is it was in the vicinity of 10, perhaps less than 10, but not a great deal more. Q. Anyway, there were the 10 bags you say were secreted in the running shoe in the boot of Landini’s vehicle, is that correct? A. Not necessarily 10 bags, but the bags which were prepared were certainly placed into the shoe. Q. And you had, do you say, some of these bags of heroin on yourself. A. No, I didn’t say that. Q. Did you indeed, have any of the bags of heroin yourself? A. At the time they were placed into the vehicle? Q. Yes. A. No. Q. You didn’t conduct the search of the vehicle, you say? A. No, I was present when the search was conducted. I didn’t locate the drugs. Q. You were present, were you not, thereafter when Landini was returned to his home address? A. Yes, I was. … Q. You don’t assert that there’s any other corrupt activity in respect of the arrest of Landini other than the planting of the heroin in the boot of the Mercedes, do you? A. No, I haven’t made that assertion. Q. The position is this, is it not, that you were present when Landini’s other motor vehicle at his home address was searched on his return to his home after his arrest in the Mercedes, weren’t you? A. I was certainly present at the house, yes. Q. You were aware then that heroin was also found after a search of his other motor vehicle, a Ford Landau, is that correct? A. No, I wasn’t aware that heroin was located in the Ford Landau, by recollection. … Q. You were aware of the fact that his premises were then searched? A. Yes. Q. You were aware of the fact that his motor vehicle was then searched, that’s the Ford Landau, the residential premises after the Mercedes incident? A. I have no recall of the Landau being searched. …” (h) Assessing Mr Haken’s credibility

In cross-examination on his police service prior to joining the Drug Squad, Mr Haken admitted to having engaged in corrupt practices, to stealing money, “verballing” people, and he accepted that he had given false evidence. He said he disclosed these matters to the Royal Commission in 1994/1995. He accepted that in a trial of persons by the name of Fish and Swan it was “quite likely” that he had admitted to committing perjury and agreed that he had in fact done so.

He was cross-examined about an application he made for a medical discharge from the police service. He said that, although he worked in an undercover capacity for the Royal Commission, the work was different from “police work” . He said he considered that he was no longer able to “run a general detectives’ office, being able to guide junior staff in the way that they should be guided to take control of a normal operative detectives’ office” and to make judgments. He said he was on medication at the time of performing the undercover work. He considered that taking medication would have rendered him a danger in performing police work.

Mr Haken’s credibility was sought to be challenged upon the basis that, a successful application for a discharge would result in financial benefits to him, the inference being that, if he was able to perform work for the Royal Commission, this was inconsistent with him suffering from a disability as claimed in the application for a medical discharge. It was put to him that the application was, accordingly, improperly made.

The evidence does not permit a finding that by participating in undercover work Mr Haken thereby demonstrated a capacity that was inconsistent with the disability relied upon in support of his application for a discharge from police service. Whilst the undercover operations were, no doubt, stressful, I accept Mr Haken’s evidence that the conditions attaching to that work differed sufficiently from the full-time work required within the discipline of the Police Service. The evidence does not, in my opinion, support a conclusion that the basis for the discharge application was misrepresented or dishonestly propounded. The evidence given by Mr Haken as to his need for medical treatment by a general practitioner and specialist was not established in these proceedings to have been in any way false or inaccurate.

In evaluating his evidence, it is plainly necessary to have appropriate regard to his admissions as to his past dishonesty and, in particular, having, inter alia, given false evidence in other proceedings many years ago. It is also necessary in evaluating Mr Haken’s evidence in these proceedings to have careful regard to the circumstances attending his police service over many years, in particular, to his engagement in corrupt conduct.

An attempt was made in cross-examination to discredit him by suggesting that his co-operation with the Royal Commission was motivated by personal benefit, namely, the benefit of an indemnity from prosecution. However, the grant of an indemnity would not, in my mind, in itself rationally lead to the conclusion that he is to be considered an unreliable or dishonest witness so far as his account of events concerning Mr Landini is concerned.

There is no evidence or suggestion that law enforcement authorities (other than officers involved in the plaintiff’s arrest) or the Royal Commission investigators were aware of the events as related by Mr Haken until he voluntarily disclosed them. In other words, but for Mr Haken’s disclosure in 1995, there was no basis for concluding that he was at risk of prosecution over the plaintiff’s arrest. It has not been suggested that the indemnity was offered to him on the basis that police or the Commission had already suspected or had information about the Landini matter.

It was further suggested that his evidence may have been affected or motivated by ill-will, having been dismissed from the Drug Squad by Inspector Williams and by the termination of his service with the Joint Taskforce ( “JTF” ). Mr Haken maintained that he was not “bitter” and had, what he considered to be, a “good time” at the Drug Squad where he had made many friends.

He admitted that at the time he became involved with the Royal Commission, he felt that he was the victim of the “hierarchy” of the Police Service. It was put to him that his attitude/feelings against the police hierarchy “fuelled the evidence that you gave to the Royal Commission about that which happened on 15 January 1980” . He responded “No, not at all” . He subsequently repeated his denial of the proposition. There is no evidence of any falling out with Mr Ross or Mr Knox or the existence of any ill-will towards them.

I do not consider that it has been established by way of rational inference or otherwise that he falsified his account to the Royal Commission concerning the events of 15 January 1980 by reason of the way he felt about “the hierarchy” . His superior officers, Knox and Ross, were not shown to have formed part of “the hierarchy” to which the witness referred. There was no suggestion put to him that there was any personal ill-will or disaffection between him and Ross and Knox. Neither Mr Ross or Mr Knox or any other of the other former officers gave evidence that suggested there was any personal animosity between Mr Haken and any one of them.

It was further put to Mr Haken that, by 1988, he had a drinking problem and had “nervous symptoms” . He admitted to drinking heavily but denied that he was an alcoholic. He said he had a “similar problem with alcohol that most detective had in those days …” . He agreed that the recollection of events of 1980 were clouded by the passage of time (a matter volunteered by him in evidence in chief). He denied, however, that the time factor, alcohol and family issues had clouded his mind.

I do not consider that the evidence established that Mr Haken’s claimed recollection of relevant events concerning the plaintiff’s arrest in 1980 was affected by any claimed impairment specifically associated with his drinking or “nervous symptoms” in the period that intervened between 1980 and 1995 or thereafter.

In re-examination, he said that he had not referred to the presence of Mr Landini’s de facto wife, Ms Joy Moore, in the Mercedes car either in evidence before the Royal Commission or in his evidence in chief in the present proceedings as he had no recollection of her, adding “It wasn’t the most important part of what I recalled about the incident” .

As to his police statement, Exhibit 8, Mr Haken said in re-examination that there was no reference to the “methodology” discussed in evidence as “that additional information was never going to be included in a statement. The limited amount of information contained within the statement is correct. But it is not the entire truth in that there was a deletion of the complete evidence” .

In assessing Mr Haken’s evidence, I take into account the following matters:- (1) The plaintiff had given instructions to counsel who represented him at the committal hearing which took place approximately eight months after his arrest that evidence relied upon by the Crown had been fabricated. Mr Conomos of counsel, who appeared on his behalf, conducted the committal upon the basis that the plaintiff had been “loaded” with the drugs allegedly “found” in the Mercedes and Ford Landau vehicles. (2) Fifteen years after the plaintiff’s arrest (in 1995), having been a member of the arresting team, Haken provided an account to the Wood Royal Commission which was to similar effect. It is to be borne in mind that the repercussions on him, if he provided misleading information to the Royal Commission, were extremely grave for him. Any indemnity in respect of his serious conduct over past years would be placed in jeopardy should he be caught out misleading the Royal Commission about the Landini matter. (3) Haken’s disclosure to the Royal Commission in 1995 is not to be regarded as an unguarded out-of-court comment or statement. He had been interviewed by Royal Commission investigators about the matter, verified his account by statutory declaration and gave sworn evidence to the Royal Commission about it. (4) No motive or reason has been established in evidence in these proceedings as to why Haken would have invented the specific account given by him of a planned “load-up” as related to the Royal Commission and in these proceedings. That account on the evidence was not prompted by any knowledge investigators may have acquired about the Landini matter and involved him in making admissions against his own interest. (i) Assessing the evidence

In making factual findings concerning alleged criminal conduct (fabricating evidence and giving false evidence based on the same) occurring so many years ago (1980), it is essential for the evidence to be assessed in accordance with relevant principle. In that respect, the following matters are noted:- (1) The absence of corroboration of a grave allegation does not, in itself, necessarily affect the quality of the evidence given: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [47]. However, it is a matter to be borne in mind. (2) Particular evidence in itself may be inherently credible or incredible. The work of corroborative evidence is to support the evidence of a particular witness. A witness’ evidence may require support before it is accepted because of some feature of the evidence itself. This is so, for example, in relation to events that occurred many years ago (as in the present case) or the witness may have proved so unsatisfactory that the trial judge may determine that the witness’ evidence would not be accepted unless supported by other evidence: Marsden (supra) at [47]. The “antiquity” of grave allegations is, accordingly, a factor relevant to the consideration to be given to the evidence. (3) The need for a cautious approach to the acceptance of uncorroborated evidence in the criminal sphere is not based upon the “kind of evidence but on the circumstances of the case” : Lane v The Queen (1996) 66 FCR 144. The same applies to allegations of criminality in civil proceedings. (4) In particular, it is necessary in civil cases involving grave allegations to scrutinise the evidence with care: Murray v The Queen (1987) 11 NSWLR 12 at 19. Whilst that observation was made in the context of a criminal case, it is a general principle of prudence to be applied in civil proceedings where allegations of criminal conduct are alleged. (5) There may be good reason for a judge to approach the evidence of a witness with a degree of caution, perhaps considerable caution, bearing in mind evidence about his or her credibility and creditworthiness: Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187 at Sheller JA. (6) However, as Sheller JA there also observed that it is not appropriate to assess a witness’ evidence on the basis of a pre-determined formula for, as His Honour stated, “even proven liars may give truthful evidence which is inconsistent with the evidence of other apparently more credible witnesses. There is a danger that such evidence may be wrongly rejected because of the application of a pre-determined formula” : Cureton (supra) at [23].

In the consideration of Mr Haken’s evidence, I propose to have close regard to the matters referred to in the preceding paragraph. They are also to be brought into account in evaluating the plaintiff’s evidence.

I will return to the application of principles pertaining to the making of findings concerning criminal conduct in civil proceedings below.

As recorded above, Mr Haken stated in evidence:- “Mr Ross told me he had a quantity of heroin and that Mr Landini was going to be loaded up and charged.”

Haken said there was nothing said “at that early stage” as to how that was to be done. He did not specify a particular or approximate date when this approach was allegedly made. The phrase “early stage” does suggest a time before 15 January 1980, being an initial stage or at the beginning of an unspecified period of time. I have considered the lack of specificity in this respect in assessing the reliability or accuracy of Haken’s evidence.

Mr Haken did, however, say that “it” (presumably a reference to the plan to “lock up Landini” ), “was carried on fairly quickly and the matter was put into progress” .

He said that Ross said that “his team” would be involved in “the operation” (being Chidgey, Haken and Ross) along with “Les Knox’s team” (Tony Gardiner and Michael Leary).

There was implicit in Mr Haken’s account more than one conversation, for he said the “initial conversation” when Ross first approached him was “at an external place that I can’t recall” . Mr Haken said that “further conversations took place within the Drug Squad office” . He did not elaborate on how many “conversations” there were, where precisely they took place, who was present or who was party to each of them or what was said in each or any of the “conversations” or the time frame over which they took place relative to 15 January 1980.

He was asked whether “at that stage or at a later stage he was shown anything in relation to what Mr Ross had told you was going to happen to Mr Landini?” . In answer, Mr Haken said he was, but not precisely when, other than saying it was “later” , which implies some point in time after the first “approach” , when he said he was shown a “plastic bag containing white powder” .

He said he was “given the task of cutting the heroin, that is, diluting it into a larger quantity and placing it into small plastic bags to give the effect of being bagged heroin”. He said the reason for “diluting” it was “to increase the bulk of the heroin”. He said he was told by Mr Ross and Mr Knox to dilute the powder into five gram bags.

Mr Haken said other officers were present when he placed the heroin in the bags. These included, he said, Mr Ross and Mr Knox, but he did not or could not identify any other person or persons who were said to have been present. He said he “actually mixed the compound and I believe I did the measuring but I believe I had help from the other two at that time” , that is, Knox and Ross. He said he had access to scales to measure five gram quantities. He said the packaging took place in the “Drug Squad office” .

Whilst he said he was given equipment by Ross and Knox to make up the bags of heroin – scales, a bowl, a spoon, a “cutting agent” , in cross-examination he stated he had no recollection of who had actually placed the items on the table in the office.

He agreed that packaging the heroin into five gram bags as he said occurred in the course of the “Landini operation” would be consistent with the heroin being for distribution to those who might repackage the drug for street sale.

He agreed that if the level of seriousness of the offence depended upon the amount of heroin and not the bulk with a cutting agent, there would have been no point in diluting the drug.

Mr Haken said that, as he understood it, the “weight of the drug is relevant to determine the penalty which may be imposed” . See Regina v Stanbouli (2003) 141 A Crim R 355 (Hulme J) in relation to matters of heroin usage, quantities, price and purity.

Asked why each bag was to have five grams in it, he said “… I understood that it would make the bag appear to be a large scale single sale item …” . A five gram bag, together with a number of other such bags would, he said, “be cumulative and when found together would increase the quantity of drug considerably” .

After the re-bagging operation, Mr Haken said that the bags of heroin were “locked away somewhere in the Drug Squad office and I don’t believe I had possession of them again after that time” .

Mr Haken said that the operation was intended to make it appear that the plaintiff was going somewhere to supply a “quantity of heroin that would be found in his car” . He said his recall was that “the drugs were to be found in the boot of the car driven by Mr Landini” . He could not recollect who would find the drugs in the boot.

When he was then taken to the events of 15 January 1980, his recollection of who said what prior to that date was confined to Mr Ross with only a couple of references having been made by him to Mr Knox in the planning or the “initial” stage. His recollection was given in a general form rather than in terms of an account of specific statements made in direct speech. Mr Haken’s evidence did not establish that Gardiner, Chidgey and Leary were present or involved in any particular discussion, although he gave evidence that the “methodology” had been discussed with the officers who were to carry out the operation.

After the packaging of the heroin, the next occasion he said he saw the bags was when “I saw it located in the running shoe located in the boot of the Mercedes car driven by Mr Landini” . He did not recall which officer claimed to have located the heroin. When he said he saw “it” in the running shoe, he was clearly making a reference to the bags which he said were similar to those he packaged. He said when he examined the bags “they certainly appeared to be the same packages that I had prepared” . He did not recall how many packages were found.

He was asked about how police witness statements were subsequently produced but he said he could not recall how the statements that were used in the committal proceedings were drawn up. He later added “I can’t be more precise than I’ve been today in this particular instant, in that we’re talking about a matter 25 years ago, and exactly what took place is clouded in my mind” .

It is apparent from the cross-examination that Mr Haken’s recollection of events, unsurprisingly, was essentially limited to the matters disclosed to the Royal Commission on 21 August 1995 (Exhibit X). He said he had refreshed his recollection from that transcript before giving evidence in the present proceedings. Mr Haken, on a number of occasions, frankly referred to a complete absence of recollection on a number of matters. He could not, for example, recall when he was told the “operation” would be carried out, the content of the conversations between Mr Landini and police on the expressway, could not recall the Ford Landau being searched at all or drugs being found in it. When he gave evidence before the Royal Commission, he also said in cross-examination he did not recall the Ford Landau being searched

He was asked where he was standing when the boot of the Mercedes was searched and he said “Again, Mr Maconachie, I have no independent recollection of where I was at that particular time …” .

At this point, I record that I closely observed Mr Haken during the course of his evidence. The extent to which demeanour is of value in assessing the truthfulness of a witness has, of course, been the subject of discussion in academic and other literature. It is sufficient to state that, in at least some cases, it will be of limited value.

In these proceedings, he gave evidence by video link from a remote location. That too is to be taken into account for it can impact on the ability to assess a witness in those circumstances as against one who is present in the court room. That said, there was nothing that I noted that made it difficult to see or hear Mr Haken on the occasions he gave evidence.

The assessment I made of him was a favourable one. On several occasions, he emphasised the limitations on the extent of his recollection and did so in a manner that clearly conveyed that he was not prepared to go further than his recollection permitted. In that respect and generally, he conveyed an impression of objectivity and appeared to give evidence in a reasonably measured and reasonable fashion and without any signs of embellishment or partiality to the plaintiff or any form of animus towards his former colleagues.

It was put to Mr Haken in cross-examination that intelligence had been received by police that Mr Landini was going to transport drugs to Sydney on 15 January 1980. He said he did not recall being told of any such information. When it was suggested to him that it was on the basis of such information that it was anticipated that Landini would use the expressway, he repeated that he had no knowledge of such intelligence but was prepared to concede that it was possible.

In the statement of Mr Ross, there is reference to information having been received on the morning of 15 January 1980 of an intended drug supply involving the plaintiff. It is, of course, necessary to consider whether there is a reasonable possibility that such an account was false and formed part of a plan to fabricate evidence. On the other hand, a “tip-off” , whilst it may be seen as a fortuitous event, is not a fanciful possibility, police sometimes receiving valuable information from informers. (j) Evidence called by the State of New South Wales

The evidence of Ross, Leary, Gardiner and Chidgey was based on the statements each prepared in 1980. The cross-examination dealt with the following matters:- (1) The planning and lead up events to the arrest. (2) The persons present and their roles and participation. (3) The events involving the detention of the plaintiff’s car on the freeway and the search of the boot of the Mercedes and the claimed finding of six bags of heroin. (4) The events at the plaintiff’s home including the search of the premises, the persons there present and the search of the Ford Landau and the claimed finding of four bags of heroin in the boot of the Ford vehicle. (5) The statements attributed to the plaintiff including statements in the nature of admissions. (6) The compiling of notes (Exhibit W) of events by police. (7) The question as to whether a search warrant had been issued. (8) The source of information that precipitated the operation leading to the plaintiff’s arrest. (9) The events surrounding the committal proceedings and the plaintiff’s later change in his plea. (k) Mr Gardiner

The first defendant called Mr Gardiner who originally joined the Police Force in 1969. At the time of giving evidence, he had changed occupation and was a lorry owner/driver operating a concrete truck at Boral.

In 1979, he was transferred to the Drug Squad and remained there until early 1981. He said he was transferred in February or March 1981 from the Drug Squad which he took as a “downward move” . He said Mr Leary was also transferred. Although he did not hold Mr Knox responsible for the transfer, he said when he confronted him about the transfer he said he denied knowledge of the reasons for it. He resigned from the Police Force in December 1982 when he purchased a brewery truck to take up his present occupation.

He said that, as at January 1980, he was very happy at the Drug Squad but that he did not have a clear recollection of all events occurring in January 1980. He said he recalled the plaintiff and he recalled his arrest in January 1980.

He said he only became aware of Mr Haken’s allegation about the plaintiff’s arrest in 1980 to the Royal Commission when interviewed in 2005 for the purposes of the present proceedings.

He said that prior to the arrest, he had over some weeks or possibly for a month, been involved in surveillance on numerous occasions of the plaintiff’s residence at Leonay pursuant to orders given to him. The purpose of the surveillance was to record comings and goings of vehicles and people to the plaintiff’s premises. He recalled running past the plaintiff’s premises on at least one occasion in order to make observations.

He said he could only vaguely recall the plaintiff’s arrest. He said that he only became aware that an arrest of the plaintiff would be attempted when the plaintiff’s vehicle was pulled over the freeway. He had no recollection prior to that time of any plan to arrest him.

He said that he recalled being in the police car which was parked in proximity to the plaintiff’s house. He said he believed that he was with Detective Sergeant Knox and Detective Senior Constable Leary at that time.

Mr Gardiner said that he recalled that after some time whilst maintaining surveillance he saw a cream or white coloured car leave the plaintiff’s driveway. The police car then moved off and followed the plaintiff’s vehicle. He said that these events occurred in the afternoon on the day in question. He recalled the plaintiff’s vehicle being stopped and that the passenger seat of it was occupied by a female and the driver’s seat by the plaintiff.

He said that he did not recall anything being said at this early point in time. The plaintiff, according to him, was wearing a light coloured open necked sports shirt, trousers and lightly coloured soft casual type shoes. He could not recall anything being done in terms of the interior of the car whilst it was parked on the F4 but did recall the boot of the vehicle at some stage in the upward position.

His next recollection was being at the back of the plaintiff’s house. He said he recalled being confronted by a large dog which he described and that it was “not very friendly” .

Mr Gardiner said that he recalled seeing in a carport what he described as an American style black sedan sports car and he recalled entering the house for the purposes of undertaking a search. He said he could not recall anything about a search warrant. He recalled that there were people at the house but could not recall how many.

Mr Gardiner said that there were six officers involved in the operation in January 1980, being Knox, Leary, Ross, Chidgey, Haken and himself. He said they constituted two teams. He said that Mr Ross was the leader of what he described as the second team and Mr Knox was the leader of his team. He said that he was the most junior officer on the team of which he was a member and that Mr Knox was then Detective Sergeant Third Class and Mr Ross a Senior Constable who he described as “bordering on third class sergeant” . Next in line in seniority on his team was Haken, himself and Chidgey.

He said that he had worked with Mr Knox for about seven months prior to the plaintiff’s arrest.

Mr Gardiner gave evidence of the practice followed in the Drug Squad in 1980 with respect to recording events occurring in the course of investigations. He explained that he had a notebook but not everybody invariably made their own notes. He said there was a system whereby notes were typed as to the recollection of events that had occurred at the time of arrest and the circumstances surrounding the arrest. He said there was one set of notes and that these would stay with the brief and respective officers would make their statements from the notes.

He was shown a copy of the notes (p.26 in Exhibit W) entitled “Notes re Landini” and bearing dated “15.1.80 – 11.40 pm” .

Mr Gardiner said that the notes would be made from the recollection of events of those involved and that somebody would collate all of that into one document.

In cross-examination, Mr Gardiner was questioned on a number of matters including:- (1) The practice in relation to notebooks and the production of statements for use in proceedings. (2) Mr Gardiner’s recollection of events concerning the surveillance of the plaintiff’s home and the events leading to his arrest. (3) The search of the Ford Landau and the plaintiff’s home. (4) The production of facts sheets for use on bail applications. (5) The circumstances surrounding the plaintiff’s car being stopped on the freeway and the events leading to the claimed discovery of drugs in the boot of the plaintiff’s car. (6) The question of the “loading” of the plaintiff.

In cross-examination, he was asked (t.2316):- “Q. … is it your recollection that the reason that two groups of police were going to Landini’s home was because of information received by Detective Senior Constable Ross? A. That’s correct.”

Mr Gardiner said that he had never dealt with the plaintiff prior to his arrest on 15 January 1980. He agreed when it was put to him that the only information he was aware of had come through other police.

He said he had no recollection of the plaintiff saying, whilst standing by the freeway, that he had seen officers in a car parked near his home and did not recall him saying “I reckon you’re going to try and load me up here. That’s why you pulled me up here” .

In relation to the plaintiff’s case that there was, in effect, a conspiracy involving the six police officers to “load” the plaintiff, the cross-examination of Mr Gardiner was brief and in the following terms:- “Q. In the way you have told us. Could I suggest to you earlier in the day or the day before there were discussions between you and Mr Haken and the 3 or 4 officers in relation to the loading of Mr Landini? A. No. Q. Prior to going to Penrith? A. I said no.”

Mr Gardiner denied in cross-examination that police had a number of bags of heroin in their possession prior to the plaintiff’s arrest and that they intended to use them to “load” the plaintiff.

The plaintiff’s recollection of events was that, after he had been pulled over on the F4, he said that he thought it was Mr Gardiner who had opened the boot of his Mercedes vehicle and that after he did that Mr Gardiner said “Look what we’ve got here” . That account, according to Mr Ross and Mr Chidgey is not correct. In Mr Ross’ statement of 16 January 1980 (Exhibit 30), he said that he was he and Detective Chidgey who carried out the search of the boot and that it was he, Ross, who found six plastic bags containing white powder in the toe of a running shoe. Mr Chidgey’s statement of the same date (Exhibit 31) gave the same account.

In cross-examination it was not expressly put to Mr Gardiner that it was he and not Mr Ross who took the plastic bags from the running shoe. It was, however, in cross-examination the following matters were raised:- “Q. What happened then was that one of you pulled out a running shoe and said words to the effect, ‘look what I’ve got’, do you recall that? A. I don’t recall it, but I’ve read it. Q. Tell us again what you recollect about the drugs being produced? A. I didn’t say anything about the drugs being produced. What I said was in my evidence earlier at some stage, I had the impression that the boot of the Mercedes, white or cream, being opened. Q. And you recall, don’t you, that shortly thereafter, drugs were produced? A. I don’t recall that.”

In his statement (Exhibit 41), Mr Gardiner had recorded that after arriving at the plaintiff’s home, he opened the boot of the Ford Landau and that Mr Chidgey commenced searching inside the car whilst he searched the boot area. He said he recorded that in a well at the side of the boot he found four plastic bags containing white powder and handed them to Detective Ross who was standing behind him. Detective Ross, according to Mr Chidgey’s statement, said to the plaintiff “this looks the same as the other” to which the plaintiff said “I’m not saying anything about it” .

Mr Gardiner was cross-examined on police procedure. He did not know whether or not the plastic bags in question were capable of retaining fingerprints but accepted that, given the potential seriousness of the offence by reason of the quantity of heroin “found” , police would start the procedure of fingerprinting materials seized and that an experienced officer would not handle such materials.

It was also put to Mr Gardiner that he was not making a genuine attempt to recall events leading to and following the arrest of the plaintiff. He totally rejected that proposition.

Mr Gardiner made it clear that although his statement recorded the fact that he had located drugs in the boot of the Ford Landau, he, at the time of giving evidence, had no recollection of those events, adding:- “The difference between what you remember now and what’s in your statement is the difficulty I am in.”

Mr Gardiner agreed in cross-examination that the events on the F4 and at the plaintiff’s home and any admissions made by him could have been entered in an official notebook at the scene, adding “… should someone have produced a notebook I guess they could have recorded it. I would assume that would have been at the direction of one of the bosses” . He repeated that recollections were later recorded in the notes referred to above and that statements were then prepared by reference to the notes. (l) Mr Leary

Mr Michael Leary joined the Drug Squad in 1980. As at that time, he had been in the Police Service for some 11 to 12 years. He said, in all, he spent approximately 20 years in the Police Service and before he joined the Drug Squad, he was with the Armed Hold Up Squad.

As at January 1980 he had only been with the Drug Squad for some days. He was from that time working with Detective Sergeant Knox and Detective Gardiner.

He had left the Police Service many years ago and, at the time of giving evidence, he was the general manager of a rugby league club.

Mr Leary said that he recalled the plaintiff’s arrest.

On the day of the plaintiff’s arrest, he had been at Parramatta Court and was picked up by car by Detective Sergeant Knox and Gardiner and travelled to Leonay. He said that the purpose of picking him up was “to do observation on the premises of Landini” . He repeated that, as he understood it, the only purpose of them travelling to Leonay was to carry out observations on the premises. He indicated on Exhibit 26B the position taken up for the purpose of making observations.

He saw the plaintiff’s vehicle leave and drive along the expressway and at some point a police car pulled the plaintiff’s vehicle over to a stop. He said this occurred in the late afternoon of 15 January 1980.

He said he got out of the car and saw a search of the plaintiff’s vehicle being undertaken. He could not recall who searched it but recalled that the boot of the car was searched. He said that the front seat and the rear of the vehicle were also searched.

He recalled seeing a police officer (he could not recall who it was) had bags of white powder. He said he did not hear anything said at the scene at the expressway.

Thereafter, the police drove to the plaintiff’s home. He said that he saw a female in the passenger seat of the plaintiff’s car and that she had remained in the motor vehicle whilst it was stationary on the freeway.

At the plaintiff’s home, he saw a vehicle parked in the garage and saw police search it and find plastic bags of white powder. He said that police then gained entry to the premises and he participated in a search of them. He said that he had been told to search the bedrooms or anywhere where he thought it was necessary to search. He said that he did not find anything. He also said that he could not be certain as to whether a search warrant had issued and he did not see one. Some time later, Mr Knox, Mr Gardiner and himself returned to the CIB. Mr Leary said that he did not find anything having searched the bedrooms in the house.

When asked, Mr Leary said that he was not certain as to whether a search warrant had issued as at this time. He said that he did not see a search warrant.

In evidence in chief, he was shown his statement dated 28 June 1983 (Exhibit W). He said that he could not recall making the statement. He said that his “practice” in making statements was to refer to his diary which he wrote up each day. The detective’s diary was sometimes called “a duty book” . He said that he had also had access to the police brief held at the Drug Squad when making a statement. It had all other police officers statements on it as well as the charge sheet, the facts sheet and the criminal information report.

He identified “notes re Landini” at pp.26 and 27 of Exhibit W as being the type of document to which reference would be made when preparing statements.

Mr Leary was shown Exhibit 27 which is a copy of a Crime Information Report dated 15 January 1980 and referring to Mr Leary by name. The document indicated the plaintiff was arrested at 6.00 pm on 15 January 1980 and recorded the names of Messrs Ross, Knox, Leary, Gardiner, Chidgey and Haken from the Drug Squad as being the persons who effected the arrest. The report records as “information” the following:- “ INFORMATION shortly prior to 6.00 pm on 15 January, 1980 the offender was observed driving his Mercedes Benz motor vehicle on the F4 Freeway, Penrith. His vehicle was stopped by above members of the Drug Squad and upon making a search of the boot area of the car, 6 bags of heroin were located. As a result, the offender was then taken to his residence at 48 Parklands Avenue, Emu Plains where upon making a search of another vehicle in the garage a further four bags of heroin were located. The offender was then conveyed to the Drug Squad Office, and further interviewed and charged with the abovementioned matters. Quantity of heroin ceased 111.97 grams. Quantity of Hash. 24.85 grams.”

Mr Leary said that he typed the last-mentioned document from information that he had been given by police involved in the arrest.

In cross-examination, Mr Leary said that he resigned from the Police Force in 1985 and he then took up a business opportunity in the transport industry.

Mr Leary agreed that if a suspect was being interviewed at the scene of the arrest, he would soon after make notes of anything that was said by him or her and that the record in his book would both form an important record of events and an attempt would be made to have the suspect sign the record as to its veracity. This, he agreed, would operate in fairness to the defendant but would also provide safeguards to police. He said that the notes in the book could be completed upon return to the CIB and then provided to the suspect to read through.

Mr Leary said that Mr Landini was interviewed at the CIB by Mr Knox.

When asked as to whether he understood the trip to Leonay involved merely a “surveillance operation” or something more, he said that it was “similar to what I had done previously as a surveillance operation” . When asked as to why the routine surveillance operation would require two cars and six police he stated that he did not know. He agreed that the Drug Squad had access to “observation police” who were specially trained.

He agreed that wherever possible in drug investigations, police endeavoured to obtain corroboration of anything relevant found in the course of investigations. He agreed that this would include objects from which fingerprint evidence might be obtained. He further agreed that a plastic bag, a pane of glass or something with a smooth surface was capable of carrying a print. He said, however, that he was not certain whether prints could be obtained from plastic bags.

In relation to his statement made in 1983, there was no reference in it to having seen the Ford vehicle searched at the plaintiff’s home and drugs produced from it. He was unable to explain why there had been no such reference in his statement.

Mr Leary was questioned as to why police would intervene to stop Mr Landini in his vehicle rather than follow him with a view to determining the intended recipient of any supply of drugs. He agreed that one object of police work was to “catch as many people as you can supplying drugs” . He did, however, later qualify his evidence by saying that there had been occasions when suspects had been followed but had been lost. He also agreed that the number of bags of heroin found indicated a major supply operation.

When it was put to him in cross-examination that he had been given a briefing by either Mr Knox or Mr Ross in relation to the matter, he replied “no I didn’t” . He said, as he had said earlier, that “my only thoughts were that we were going to Leonay to do observations” .

Mr Leary confirmed that he did not see a search warrant in relation to the search of the plaintiff’s premises. He said that if a warrant had been in existence, there would be some reference in the records to that effect and that there would be expected to be a reference to the fact that a search warrant had been executed if that had been done. He agreed that reference could be expected to be found in the narrative contained in the relevant criminal intelligence report. He agreed that there was no reference in the relevant criminal investigation report to such a matter.

It was put to him:- “The position was that the raid on Mr Landini’s home at Leonay was a planned raid by yourself and the other five police, wasn’t it? A. No. Q. And not only was it planned, it was also part of the plan to fabricate evidence by planting drugs on Mr Landini? A. No.” (m) Mr Ross

Mr Glen Ross had served with the New South Wales Police Service from 1965 until he retired on 31 December 2001. At the time of his retirement, he was a Detective Inspector of Police.

He stated that he had, during his career, inter alia, worked at the Northern Beaches for a while, Manly, Collaroy and Dee Why, and was transferred to the Drug Squad at the CIB in late 1973 or early 1974. He undertook a detective’s course in 1973. He remained working there until 1980. In all, he worked as a member of the Drug Squad for about seven years. He said that, so far as he recalled, he left in late 1980 or early 1981 and went to Central Detectives as a Detective Sergeant. In 1985, he returned to the CIB.

In 1995, he was promoted to the position of Detective Inspector attached to Crime Agencies and remained in that position until 2001. Towards the end of his career, he undertook liaison work with Corrective Services for a period of time.

He said that in 1980 he was a Detective Senior Constable in the Drug Squad. There were three members in a team. In January 1980, the team comprised himself, Detective Senior Constable Chidgey and Haken.

In early January 1980, he said he knew Mr Landini but he had not met him. He said he was well-known as a drug dealer and drug runner and had a criminal record. He said that there was a fair amount of “intelligence” on him.

Mr Ross said that he had refreshed his memory from a statement prepared by him and from a copy of the depositions of his evidence given in committal proceedings. He said that he recalled that on the morning of 15 January 1980, he took a phone call in the Drug Squad office from a person who wished to speak to Sergeant Knox. Sergeant Knox was not available at that time and the person concerned asked to speak to him, Mr Ross.

He said that he believed he remembered who the person (a male) who phoned was. He said he knew the person. When asked what he told him, he said:- “As far as I can recall, he told me that a drug transaction was to take place that afternoon. I think there was a particular time mentioned that I can’t remember what it was, that Mr Landini was the person supplying the drugs and I don’t believe that there was a location mentioned or known of where it was about to take place.”

He said that prior to the telephone call he said he had no knowledge of any event such as had been referred to in the telephone call.

He said that as far as he could remember, that when Sergeant Knox became available he discussed the matter with him. He said that although his memory was vague “… it was arranged that we – Sergeant Knox asked for my group to give him some assistance to take observations of Mr Landini’s then premises and with a view to, if he left there at a particular time of the day to stopping the vehicle and searching it” .

In cross-examination, Mr Ross was asked:- “Q. Did you glean from that conversation that ordinarily the man who you spoke to on the phone was an informant of Sgt Knox’s? A. Yes. Q. But was prepared to give you the same information? A. Yes.”

Mr Ross said in cross-examination that he imparted what he had been told by the informant to Sergeant Knox and the day on which the informant rang.

Mr Ross was also cross-examined on evidence that Sergeant Knox had given about the matter in the committal. The transcript of the committal proceedings held on 20 August 1980 was admitted as evidence in the plaintiff’s case and marked as Exhibit AU. Mr Knox gave evidence in cross-examination that he had received information on the morning of 15 January 1980. He said the information had been received by another police officer.

Mr Ross said that he thought that he had originally met up with Mr Knox and his team in the car park at the Leonay Golf Club. He said that they were in radio communication with one another. He said that the only independent recollection he had of being anywhere else was when Mr Knox signalled for the Mercedes car, driven by the plaintiff on the F4, to pull over. He then gave the following account:- “I can recall Sergeant Knox signalling for the Mercedes car to pull over. I can recall that it was driven by the plaintiff. I can recall there was a female passenger in the car. I can recall standing at the open boot of the Mercedes with another detective, who I think was Detective Chidgey. I can remember locating white powder in a training shoe in the boot of the vehicle. I can remember being at the premises then occupied by the plaintiff and being in either a carport or a garage of some kind and seeing Detective Gardiner locate some white powder in the boot of another vehicle. I can remember that at those premises there was at least one other male person. I can remember there was a committal proceedings held, I think it was then the Central Court of Petty Sessions or might have been the Local Court … and during the course of cross-examination at the committal proceedings there was an allegation put that the drugs had been planted, that was denied and is still denied. And I can remember that a group of us, I couldn’t tell you the date, went to the District Court prepared for a trial and the plaintiff pleaded guilty. That’s about the extent of what I can remember.” (transcript 12 March 2007, p.2482 to 2483)

Mr Ross gave evidence in the committal proceedings, the transcript of which is Exhibit AU in the present proceedings. Mr Ross, in those proceedings, said that he placed the six bags of heroin found in the running shoe in the boot of the Mercedes in his right hand side pocket of the jeans that he was wearing and that they remained there until he took the plaintiff to Central Police Station to charge him and then handed them to the station sergeant. The lack of precautions to preserve the integrity of the bags for fingerprinting was relied upon by the plaintiff in these proceedings as but one fact said to support the proposition that this was an operation that was not conducted with the precautions that would be expected with a legitimate police operation.

Mr Ross gave evidence as to his practice in note keeping. He said that he was not in the habit of making contemporaneous notes “so far as conversation was concerned because I didn’t have the ability to write shorthand or anything else. So usually I made notes as soon as practicable, as soon as possible after any conversation took place or any event to place. And on some occasions that would be in a notebook, if that was the most convenient place to make it or, as I said before, if a typewriter was available I might make it on a typewriter” (at p.2484).

He said in evidence that he recalled an allegation being made during the committal proceedings that the drugs had been planted, which he said was denied and “is still denied” .

Mr Maconachie on behalf of the State put to Mr Ross evidence given by Mr Haken (transcript p.634, line 38) in which he alleged that Mr Ross had said that the plaintiff was going to be loaded up and charged. When asked as to whether he said that to Mr Haken, he replied “No. That’s nonsense” .

Mr Ross also denied that he had given Mr Haken a plastic bag containing white powder at the Drug Squad prior to the arrest. He denied saying to Mr Haken that a bag of heroin had been located on a roof of a building in the Eastern Suburbs and had been handed in by a civilian.

He denied telling Mr Haken or hearing anyone tell Mr Haken to dilute white powder and place it into small plastic bags. He specifically denied telling Mr Haken to produce five gram bags nor did he hear any such instruction given to Mr Haken. He further said that he did not see Mr Haken in the offices of the Drug Squad before the arrest of Mr Landini on 15 January 1980 preparing bags of white powder.

Mr Ross confirmed that Mr Knox at the time was his superior and had been in overall charge of both teams, although he, Mr Ross, was the leader of one team on the day of the plaintiff’s arrest. He said that he gleaned from the conversation with the person on the phone who had asked to speak to Mr Knox that that person was an informer of Mr Knox. He said, however, that the person had been prepared to give him, Mr Ross, the “information” .

In cross-examination, Mr Ross agreed that the sale at street level was often in small amounts placed in foils or some similar packaging. The plastic bags said to have been found in the plaintiff’s boot were of a quantity that suggested that it was more likely intended for an intermediate seller or supplier. He agreed that if police were able to follow Mr Landini to the recipient, then the intermediate supplier could be identified. This, of course, is not what happened, the plaintiff having been stopped on the freeway.

Mr Ross said that he did not himself make any surveillance observations on the plaintiff from the police car and that if any officer undertaking surveillance that day had noted Mr Landini open the boot of his car and place anything in it he would have expected that such an observation would have been recorded in the notes in Exhibit W, pp.26 to 27. He agreed that there had been no note made of such an event occurring.

He agreed that if no observation had been made of the plaintiff placing anything in the boot of his car, he would not be able to assume at the time the Mercedes was stopped on the freeway that there were drugs in the boot of the car. He agreed that at the time of pulling the plaintiff’s car to a stop, he did not know whether there were drugs in the car. It was put to him:- “Q. Well Mr Ross, if you couldn’t assume that why would you pull his car over before it travelled to Sydney? A. Well I think the reason it was pulled over was that we had no ability to follow the vehicle for any distance. There was no – as far as I can recall – there was no surveillance teams available, it was short notice, the plaintiff had a reputation as being very difficult to follow and ultimately, the decision how the operation was carried out would have been made by Mr Knox.”

Mr Ross denied that he and or police had placed the heroin in the plaintiff’s car. (n) Mr Knox

Mr Knox was not called in the present proceedings to give evidence. The first defendant tendered medical evidence which was not challenged. Mr Knox, by reason of a psychological disability, was not in a position to give evidence. It is noted that he had, at an early stage of the proceedings, attended Court and was, for a time, present in the hearing room before being requested to wait outside.

The medical evidence was not challenged by the plaintiff and, accordingly, I proceed upon the basis that the failure to call Mr Knox was explained as wholly related to his medical condition.

Mr Knox did give evidence at the committal hearing on 20 August 1980. The depositions in relation to his evidence were tendered in the present proceedings (Exhibit AU). On that occasion, he gave evidence that when the plaintiff was stopped on the freeway, he said to him “I am Detective Sergeant Knox, we are from the Drug Squad, we have received information this car is carrying heroin, and I intend to search it” . Mr Knox said that he received the information through another police officer and he believed that police officer had received information from another person, not being a police officer. He said that other person, he believed, was an informant of Mr Ross.

Mr Knox said in the committal proceedings that he had been aware that Mr Landini had resided at the Leonay address as he had seen him there previously “over a number of months” by which he clarified he meant of a 12 month period before then. He knew that that plaintiff had a criminal record.

Mr Knox’s evidence was that he had never previously met the plaintiff. Mr Knox additionally said that he did not see the bags of heroin removed from the boot but saw them shortly thereafter. Mr Conomos of counsel put to him in cross-examination at the committal hearing that there were only two explanations for the presence of the bags of heroin in the boot. The first was that police planted the bags there and pulled them out or the second was that Mr Landini had them in the boot of his car. Mr Knox agreed. He said that over a period of months, the plaintiff and others had been the subject of inquiries. In the course of cross-examination, Mr Conomos put to Mr Knox:- “Q. I put it to you that you police had made up your minds that on this particular day he was going to be arrested and he was going to be brought into the CIB. What do you say about that? A. That is not true … Q. I put it to you officer that you had in your possession or under your control the heroin which is exhibited here under MFI A and B when you left the CIB on 15 January 1980 to go towards the defendant’s premises at Emu Plains, what do you say about that? A. No, I think it is ridiculous.”

At the hearing on the first day, Mr Conomos called for the search warrant said by Mr Knox to have been taken out for the purposes of searching the plaintiff’s premises. Mr Ross, in the course of his evidence, said that he had inquiries made to locate the search warrant. He said that, to his knowledge, no warrant had been found. He said that he was not sure whether a warrant had been taken out on 15 January 1980. He said inquiries had been made at the Central Court of Petty Sessions to see if a duplicate of the information was present but as far as he was aware, the inquiries were fruitless. He said he did not know whether any warrant was sworn at the Central Court of Petty Sessions, although he said it was normal for search warrants to be sought from there. (o) Mr Chidgey

Mr Chidgey, at the date of giving evidence in the present proceedings, held the position of Superintendent of Police. He has been the Regional Operations Manager attached to the South West Regional Crime Squad, Bankstown.

He stated that his present position involves various local area commands.

He joined the Police Force in February 1968 at the age of 16 years. He was initially posted to Redfern on general duties for about three years and then commenced as a plain clothes officer in relation to criminal investigation duties. He went to 21st Division and in about 1979 was designated as a detective. He said that he worked for a short time, about six months, at the Drug Squad whilst at 21st Division.

He said that he had been with the Drug Squad approximately 18 months before the plaintiff’s arrest.

After leaving the Drug Squad he was in charge of the detectives’ office at Campsie then holding the rank of Senior Sergeant. He was there for about two years.

He was then posted as Duty Officer at Newtown holding the rank of Inspector and was there for approximately two years. He then went to Campsie as the Crime Manager of Campsie as Chief Inspector. He held that position for approximately six years.

He then went to the Central Metropolitan Regional Office as Operations Manager for a short period holding the rank of Superintendent before being transferred to the position of Operations Manager held at the time of giving evidence.

Mr Chidgey gave an account of events leading to the arrest of the plaintiff. He said he had been told, either by Knox or Ross, that police had an operation in the Emu Plains area. He was told the target’s name and that they would travel to Emu Plains where the briefing would take place and observations undertaken. He said that he was told that the plaintiff would be travelling towards Sydney and that “the information” was that he would have a quantity of heroin with him at the time. He went out to Leonay with Knox, Leary, Gardiner, Haken and Ross. Observations were conducted by other police but not by himself. He said that:- “As a result of information we received the vehicle was stopped containing Mr Landini … a search was conducted of the vehicle, a quantity of white powder believed to be heroin was located in that vehicle in the boot”. He was taken back to a house at Emu Plains, a search warrant was executed there, a further quantity of heroin was located in another vehicle, in the garage, a search was also conducted at the house and himself, I think …”

The evidence referred to in the preceding paragraph is more detailed than that contained in his statement dated 16 January 1980 (part of Exhibit W). He said that he had seen his statement made in 1980. There is no reference in it to being told that the plaintiff would be travelling towards Sydney and that the information received indicated that the plaintiff would have heroin with him. He did refer in the statement of Mr Ross that police had received information to that effect.

He stated that parts of the statement were pointed out to him in conference but he did not believe that that had assisted in refreshing his recollection. He said he had not seen any other documents made by him at the time apart from his statement of 16 January 1980.

In relation to the plaintiff’s Mercedes vehicle, he said “I was in the vicinity of the boot, or certainly the back of the vehicle. I recall white powder being found, who found it or if in fact I found it, I can’t recall” .

Although he mentioned the search warrant in the course of his evidence, he said that he did not remember anything about a warrant. He said, however:- “My recollection is we had a search warrant, it’s 27 years have passed and I just can’t remember if I saw it or not. At that time we could execute up to three or four search warrants a day. I just can’t remember.”

Mr Chidgey said that the officer in charge of the operation was Mr Ross and that, in relation to the six officers involved in the operation, he was “right at the bottom” .

In cross-examination, he said his recollection was that Mr Ross had been given the task of looking at the activities of the plaintiff and from that the particular operation evolved “… from information given to, I believe, Knox at the time and possibly Ross” . He added “Landini, as far as the New South Wales Police were concerned at that particular time, was very, very well known and certainly there was a lot of information in relation to his involvement in organised crime” .

In relation to information that had been received by police that he understood led to the operation involving the plaintiff, he said “… at that particular time, being the most junior person on the team, it would have been a need to know situation and I would have been told at the latest possible time” .

Mr Chidgey refuted the suggestion that his statement was other than as a record of his own observations:- “Q. Was it your position to blindly record in your statement precisely what another officer told you to say or gave you to type up? A. In answer to that question, I can say I wouldn’t do that. I’ve never done it and I didn’t do it on this occasion. Q. I suggest to you that what you did, in fact, was to blindly type in your statement precisely what Detective Ross had given you to do, that’s correct isn’t it? A. Sir, I didn’t do that. I’ve never done that. I type my own statement, sign my own statement. What I put in that statement is my recollection of what I saw and what I did and what I heard.”

He acknowledged that he may have used Mr Ross’ statement in compiling his own but that “… if it wasn’t a true reflection of what I did or what I heard, I obviously wouldn’t have put that in my statement” . His statement, when compared to Mr Ross’ statement, reveals that much of it is word for word the same as Mr Ross’ statement. Mr Ross being the more senior officer, it is reasonable to assume that Mr Ross made his statement first and it was used to help Mr Chidgey prepare his own statement.

Mr Chidgey rejected when put to him that the plaintiff had been “loaded up” :- “Q. You see, the search of the Mercedes where Mr Landini was pulled over was really to create a situation to load him up with heroin, was it not? A. No. Q. Heroin was taken out to Leonay that day, wasn’t it? A. No certainly not. Q. Some 10 bags? A. No Sir. Q. It was divided up more or less. Correct? A. No. Q. And either you or Ross placed that heroin in a running shoe in the boot of Mr Landini’s car? A. I certainly didn’t do that and the time Ross was in my presence there was -- (QUESTION RE-READ) WITNESS: A. I didn’t see him do that either. Q. Either you or Ross placed the heroin in the shoe for Ross to find. That’s true isn’t it? A. No. Q. Because you have decided amongst yourselves that Landini was a target and had to be taken off the streets? A. He certainly was a target. If the evidence was there to charge Landini, well that was the objective of the day, yes. Q. It’s equally possible that Gardiner or any other police officer who was near the boot could have planted the heroin? A. Anything is possible. Q. In your presence? A. In my presence, I didn’t see any police officer do that. That’s the only evidence I can give to the court here today.”

Mr Chidgey rejected the suggestion that the plaintiff had, from the outset, maintained that he had been “loaded up” :- “Q. The truth of the matter is from the moment Mr Landini was arrested until the time he was charged whilst in your presence, he continually complained and asserted that the police present were loading him up at every opportunity? A. Not at all. In fact, I’ve never had that allegation even put to me by Mr Conomos at the committal. Q. Well I’m putting it to you now. I’m suggesting to you that you, together with those other police, insisted on loading up Mr Landini with the heroin and other articles found? A. It is totally untrue, sir.”

Mr Chidgey said that the plaintiff had been a target of the New South Wales Police “for quite a period of time” . (3) SUBMISSIONS (a) The submissions of the plaintiff in relation to the 1980 charge

In the written submissions for the plaintiff, it is stated (at p.3):- “… Despite his claims of gross fabrication of the evidence by police in relation to the first charge, the plaintiff pleaded guilty in order to serve both sentences concurrently and to avert the risk of a much lengthier sentence.”

It was contended on the plaintiff’s behalf that his evidence was “… a clear and coherent account of events which occurred on 15 January 1980” .

The plaintiff stated that he decided to enter a plea of guilty some four years plus after he was charged in 1980. He said he came to the view, having discussed the matter with someone whose identity he could not recall (he suggested at one point the person was a police officer), after having decided that a plea would be likely to result in a concurrent sentence.

The circumstances of a plea in this case have some resemblance to Eade (supra). Hoeben J recorded in that case:- “12. In relation to his plea of guilty … the plaintiff told the Royal Commission … the Magistrate was not interested in him being tricked into making a confession. According to the plaintiff, the Magistrate stated that he did not care if the plaintiff was tricked into signing the confession, he was a drug dealer and he would be sentenced …”

Eade (supra) abandoned his conviction appeal. He said he was worried he would end up with a larger sentence.

In the present case, the applicant had been convicted in 1983 of conspiracy to supply a prohibited drug after a six week trial. He said he was concerned that if he contested the 1980 charge, he would be likely to receive an additional sentence. As in Eade (supra), I consider that the plaintiff’s account is a plausible one. He had from the outset maintained his account of being “loaded” . The change in his plea only came after his conviction in September 1983.

A number of matters were identified in the submissions for the plaintiff directed to establishing how unlikely it would have been that the plaintiff would have driven his car with drugs in the boot. In particular, it was contended that he would hardly have driven the vehicle with a large quantity of drugs when he himself (according to his account in evidence) had observed the men in the car parked near his home “in unusual circumstances for an extended period …” (p.4).

It was also contended that a number of aspects of the events involving police conduct exhibited unusual features which together suggest that the police operation was not a normal one. The submission was that it would be expected that “proper police procedures” in a matter of such significance would be followed at all times but they were not. In particular:- • A failure to ensure that the plastic bags containing the heroin were preserved in a condition to enable them to be tested for fingerprints. • A failure to safeguard or secure the bags of heroin and not, as Mr Ross did, simply handle them and place them in the pocket of his jeans. • There was no “frisking” of the plaintiff, even though he was known to police. • The inability of police to find and produce the search warrant when sought at the request of Mr Conomos at the committal.

It was contended that a finding would be made that the officers involved in the operation planted the heroin in the boot of the Mercedes vehicle. Subsequently it was contended the evidence established that, at the plaintiff’s home, Detective Gardiner was seen by the plaintiff taking something from under his shirt, pretended to search the boot, then placed the bags of heroin in it and pronouncing that he had found them in the boot of the Landau.

In relation to the evidence of Messrs Gardiner, Ross, Chidgey and Leary, a number of broadly stated submissions were made on behalf of the plaintiff as to:- • Vagueness of recollections and inconsistencies on certain matters. • Some contact having been made between Knox, Ross and Chidgey prior to giving evidence in the present proceedings. • The former practice by police officers (that is prior to reformed procedures following the Wood Royal Commission) to preparing statements in consultation or by reference to the notes or statements made by other officers. • The failure to make contemporaneous notes which, it was said, “… would assist in fabricating evidence” .

In respect of Mr Gardiner, it was submitted that statements by him to the effect that he could not recall events indicated that he was “not making a genuine effort” and that this was “because the evidence he had previously given in his statement and at committal was false” . Submissions of that kind made in such broad terms without identifying an adequate factual basis constitute mere assertions and do not assist the process of fact-finding made in proceedings heard approximately 25 years after the event.

Similarly, in respect of Mr Ross, it was submitted that, in circumstances in which he gave evidence that information concerning the plaintiff had come from an informant of a police officer and not from a police officer as he had said in previous proceedings, together with his admitted poor recollection of events, his failure to make contemporaneous notes, that he gave evidence in committal proceedings in accordance with the original brief all are said to be matters that indicate “… as such the court could not accept him as a witness of truth” .

In relation to Mr Chidgey’s evidence, the criticism was that his witness statement had been a verbatim repetition of Mr Ross’ statement and that that, of itself, was consistent with collusion to fabricate. Without more, the submission is made:- “As with Knox, Ross and others, his evidence is tainted with having colluded with other police officers in the original investigation, having previously given false evidence in relation to the Landini matter and with being a friend of Ross …”

The fact that his recollection of events of 15 January 1980 was, as was asserted in the submissions, “poor” and that he adopted the approach or methodology of producing typed notes rather than notes maintained in the police notebook of themselves are not, in my opinion, sufficient to support the statement made in that respect “the court would not accept him as a witness of credibility” .

In relation to the submission that Mr Chidgey’s witness statement for the 1980 charge was a verbatim repetition of Mr Ross’ statement, that fact alone, unless supported by other evidence, does not establish impropriety. The exchange of witness statements between investigating police officers was, prior to recommendations of the Royal Commission, a common occurrence. Reference was made to the observations of Sheller JA in Day v Perisher Blue Pty Limited [2005] 62 NSWLR 731 at 746 [30] (as to proper practice by legal practitioners to take proofs from lay witnesses separately). The circumstances in which he made his statement does not, in itself, advance the plaintiff’s case. The former practice of police officers preparing statements by reference to the statements of others was a poor one but it does prove in this case improper collusion.

The evidence of Mr Leary was partly criticised on the basis that he had remained “good friends” with Gardiner and had discussions with Mr Gardiner in recent times. There was no basis established of any impropriety in their discussions.

The strength of the plaintiff’s case as to the alleged fabrication of evidence is, in my opinion, dependent upon an assessment of the matters to which I have referred above and, in particular, of the evidence given by the plaintiff and Mr Haken.

The written submissions for the plaintiff in relation to the 1980 charge recite the factual circumstances giving rise to it and correctly submitted that “… much turns upon credibility of individual witnesses” .

It was contended that the plaintiff gave “… a clear and coherent account of events which occurred on 15 January 1980. His recollection, befitting one who had been unjustly wronged and who had had a lot of time to mull the events of that day over in his mind, was sharp and his evidence was coherent” (written submissions p.4).

Emphasis was given in submissions to the conduct of Mr Ross in allegedly handling the plastic bags, placing them in his pocket after they were removed from the Mercedes vehicle and not ensuring that the bags were preserved for fingerprinting. It was contended that, given the amount of drugs allegedly found and their street value, one would expect proper police procedures to have been followed at all times.

The submissions also focused upon the alleged conduct of Mr Gardiner who it is said went straight to the Ford Landau vehicle in the garage and opened the boot. Reliance was placed upon the plaintiff’s evidence in which he said he saw Mr Gardiner move something from his shirt and pretended to search the boot. I am not prepared to accept the plaintiff’s evidence on this alleged observation by him. It was not expressly put to Mr Gardiner at the committal hearing and there is an absence of any corroborative evidence.

It was submitted that a finding would be made that no search warrant had ever been issued and that this had been the subject of considerable attention by Mr Conomos of counsel at the committal. In the written submissions it was contended (p.6) that there was never an adequate explanation as to why the search warrant was not produced. This was said to support an inference that no search warrant had ever been applied for and issued. In this respect, reliance was placed upon Exhibit W, pp.26 to 27 being notes made of the investigation in which there is no reference to a warrant or to one having been shown to the plaintiff.

The evidence of Mr Ross was that it should not have been difficult to ascertain whether a warrant had been issued. This and the evidence of Mr Leary that he had never seen a search warrant it was argued all go to support the inference that no search warrant had ever been issued. It was submitted that, insofar as the evidence of the witnesses called for the State asserted that a search warrant was or would have been issued, they should not be accepted.

It was also contended that the evidence of Mr Haken would be accepted and that it provided “the real explanation for how the heroin came to be in the running shoe in the boot of the plaintiff’s car and in the boot of the Landau” (p.7). It was contended that his evidence should be accepted and that a finding accordingly be made that the evidence against the plaintiff in relation to the 1980 charge was fabricated. In assessing Mr Haken, it was contended that his evidence in the present proceedings was essentially to the same effect as that which had been given by him before the Royal Commission.

It was submitted for the plaintiff that the Court would not accept the denials of Messrs Knox, Ross, Leary, Gardiner and Chidgey unless there was corroboration.

In respect of Mr Haken, it was submitted:- “The protection given to Mr Haken both during his Royal Commission evidence and his evidence at the trial does not extend to perjury. Although Mr Haken was obviously a rogue policeman, having ‘rolled over’, there is no credible reason why Mr Haken would deliberately lie upon such a scale to the Royal Commission or to this Court. Had the Royal Commission wanted to do so, Haken could have been faced with contrary allegations by the five officers involved. It could have been alleged that he was lying under oath to the Royal Commission. Actuated by the terms of his indemnity, he obviously told the truth to the Royal Commission and to this Court. He did not give evidence at the committal. It would be an extraordinary coincidence that the selfsame matters that Mr Landini claimed, through his counsel at the committal, having been fitted up, dovetailed exactly with the claims made 15 years later by Mr Haken. The Court cannot only be satisfied, but can be satisfied on the Briginshaw standard, that the heroin was indeed planted on Mr Landini.”

The credibility of the State’s witnesses was also challenged upon the basis that no precautions were taken as one would expect with a “planned operation” . In this respect it was observed that there were no photos taken of “the crime scene” , no photos of the arrest or search and that if it was a “genuine arrest” , the police would have allowed Mr Landini to have proceeded to see to whom he was delivering the heroin.

It was also observed that police had no way of knowing whether the plaintiff had prohibited drugs in his car when he left home. He might, for all they knew, have been intending to collect drugs en route. Accordingly, so the argument went, if police intervened and there was a “bust” before the plaintiff actually had received drugs for transportation to a particular person “… then (that) would have been an embarrassing disaster” (p.11).

It was also observed that, although there was evidence given at the committal that it was customary to search a person who had been arrested, the evidence (of Messrs Ross, Gardiner and Chidgey) revealed that the plaintiff was not even frisked at the time of his arrest. It was submitted “he was not frisked precisely because the police knew that the heroin was not on his person because they were planting it in his vehicle …” (p.11). It was observed that it was only after some hashish was allegedly found that he was subjected to a full body search.

The credibility of the State’s witnesses was also challenged on the basis that the shoe in which the bags of heroin were allegedly found in the boot of the Mercedes was not preserved as evidence. The evidence at committal was that the shoes had been lost. It was further observed that the plaintiff was not asked if the shoe belonged to him. There was no attempt to see if the shoe fitted his foot.

The statements attributed to the plaintiff said to have been by way of admissions were also challenged. In this respect, it was submitted that for someone believed to be a “clever criminal” , the plaintiff made a “series of clumsy admissions” (p.12).

Senior counsel for the plaintiff sought to argue that an additional indicator that there was something abnormal about the operation was the absence of an attempt to ascertain from the plaintiff who was supplying him and who the plaintiff intended to supply. It was observed that, notwithstanding admissions, police simply took the plaintiff’s statement that he did not talk to police at face value. It was contended that “the entire scenario is ridiculous” (p.12).

It is not necessary here to detail the criticisms made of each of the State’s witnesses. In some respects, criticism was levelled upon the basis of answers given that a particular witness could not remember certain details and that this was indicative of them not making a genuine effort. This criticism, however, must be evaluated having regard to the very long period of time that has elapsed since the events in question. It is hardly surprising that many of the details have now gone from the recollection of those who participated in the operation and in the plaintiff’s arrest. The same point applies to Mr Haken.

In relation to the evidence of Mr Leary, a number of observations and criticisms were made of his evidence including, in particular, faulty recollection, claimed deficiencies in his account and a contention of him having “a memory of convenience” . I do not consider that the criticisms made of Mr Leary assist in resolving the important issue as to fabrication of evidence. The criticisms made, even if accepted, fall well short of establishing any form of corroboration of Mr Haken’s account.

In relation to Mr Ross, in particular, it was submitted that in the light of the fact that that he had spoken to Mr Knox after he was notified of the present proceedings that this was evidence of them “… getting their stories straight one more time” . I consider this criticism, as previously stated, to be unfounded. There is no evidence which would support an inference or a conclusion that Mr Knox and Mr Ross did anything by way of collusion in preparing to give evidence in the present proceedings. That same applies to the conversation Mr Ross says he had with Mr Chidgey on 12 March 2007.

A general attack was made upon Mr Knox, it being alleged that he had colluded with other police officers in the original investigation and given false evidence at committal. The broad nature of these allegations, in my opinion, can only be accepted if the evidence of Mr Haken that Knox and Ross conspired to fabricated evidence is accepted. I will separately consider that important question below. (b) Submissions on behalf of the State of New South Wales

In the submissions on behalf of the State on the events of 15 January 1980, it was contended that Mr Haken should not be accepted and that his evidence did not corroborate the plaintiff’s version of events of having been “fitted up” : Outline of Submissions , paragraph 139.

It was submitted, in effect, that there was an inherent improbability about the account given by the plaintiff as to the circumstances in which police would attend at Leonay, wait for a considerable period of time on the possibility of the plaintiff leaving his home and not knowing in what direction he might travel, rather than, if intent on “planting” fabricated evidence, simply doing so at his home. In this regard, the submission was as follows:- “The fundamental flaw in Mr Haken’s evidence, with respect to the ‘methodology, is simply this. How did the plaintiff officers know that Mr Landini would get into his car at all on 15 January 1980, never mind drive on to the expressway … It is simply nonsense that six police officers would travel out to Leonay and wait for however long it took before Mr Landini got into his car and then drive on to the expressway. Mr Landini could have gone in any direction according to the so-called ‘methodology’. This is particularly so in circumstances where, according to the plaintiff, the police officers already had the drugs and could have simply planted them on him at his home and, in particular, his room if necessary.” (Outline Submissions, paragraph 145)

In relation to this submission, it is not to be left out of account that, on the evidence, police had been conducting surveillance and monitoring the plaintiff at his home for some weeks prior to 15 January 1980, and had the benefit of information that that provided as to any pattern to the plaintiff’s movements.

The State also pointed to Mr Haken’s complete lack of knowledge or memory of any “loading up” of the Ford Landau vehicle or of drugs allegedly found on the plaintiff’s person or in his room.

A further matter, said to constitute a “fatal flaw” in Mr Haken’s evidence was “the absurd suggestion that the heroin that he was allegedly given by Mr Ross and/or Mr Knox had to be ‘diluted’ into smaller quantities using ‘icing sugar’” .

Why the heroin, which Mr Haken said was given to him by Mr Ross for re-bagging as he claimed was to be diluted was not explained or the subject of any specific explanation attributed to Mr Ross. However, one possible inference is that there was an advantage in using a lesser quantity of heroin through diluting it. An offence under the Poisons Act was based on gross weight. Under the provisions of Appendix E to the Act, for the purpose of then s.45A(4), the “prescribed quantity” was 2.00 grams. The quantity of heroin said to have been “found” was well above the prescribed amount – the first six bags having a total gross weight of 54.7 grams, a sample of which was found to contain 29.5% diamorphine (heroin). The remaining four bags had a weight of 37.3 grams of which a sample was found to contain 28.7% diamorphine.

When gross weights were relevant in determining the prescribed quantity, “diluting” an original batch of the drug was consistent with an economical approach which would see only a portion of the original quantity of heroin being used and still result in sufficient gross quantities of re-bagged heroin that would be well above the “prescribed amount” .

In the State’s submissions in this respect, it was said that what would determine the charges that would be laid against the plaintiff would be the weight of the heroin found in his possession in circumstances where it was suggested that the purported sale was to another dealer “… there is no reason why anything should have been added to the heroin to achieve the purported aim of fitting the plaintiff up with a large amount of ‘heroin’” : Outline Submissions , paragraph 147.

Next it was submitted, that if, as the plaintiff contended, the drugs had been planted on him, there would be no point in re-searching the Mercedes car in Parklands Avenue outside Mr Landini’s home nor in searching his house. It was put that police knew that the plaintiff had been home during the afternoon in question and that it stood to reason that they “would have had a search warrant” . Accordingly, so the submission went, having a search warrant, police would be intent on searching the house whilst the plaintiff was there “… because he might have all of the drugs with him, they might lose him, and the opportunity to arrest him for having drugs in the house would be lost” ( Outline Submissions , paragraph 149(c)).

The State also relied upon the evidence that there had been no prior relationship between the plaintiff and Knox or Ross or anyone else involved in the arrest.

It was further submitted for the State that the Court should not accept the evidence of the plaintiff and Mr Haken over the evidence of the four former police officers who gave evidence. In particular, Officers Gardiner, Leary, Chidgey and Ross were said to be citizens “without a stain on their record” and that Mr Chidgey went on to achieve the rank of Superintendent in the Police Service and Mr Leary obtained a senior position in a football club.

On the other hand, the State submitted that the plaintiff had a motive to lie and with his long criminal history he should not be believed. It was further submitted that his evidence did not “dovetail” that of Mr Haken ( Outline Submissions , paragraph 154).

Finally, in this respect, it was also submitted that Mr Haken had a particular motive for lying “to preserve his indemnity and the protection he received” (Outline Submissions , paragraph 155). (4) EVALUATING THE EVIDENCE

The central factual issue, namely, whether the bags of heroin that constituted the evidence relied upon in the prosecution were “planted” by police as part of the pre-arranged plan essentially depends upon whether Mr Haken’s is to be accepted as a credible witness. It is, therefore, critical that the specific content of Mr Haken’s evidence be carefully analysed with a view to determining its cogency. That is a matter to be evaluated along with the credibility (including the reliability) of Mr Haken himself.

Mr Haken’s evidence raises allegations of criminality against officers involved in the 1980 operation. Those allegations are particularly focussed upon Mr Ross and Mr Knox. I will address the position that arises on the evidence concerning the other four former police officers below.

The State, relying upon the evidence called by it, strongly denied the allegations made against Mr Ross and the other officers in question. In doing so, it relied, inter alia, upon their written statements which were utilised for the purposes of the committal proceedings and on the evidence they have given in the present proceedings.

The two accounts of Mr Haken – his evidence to the Royal Commission in 1995 and his evidence in the present proceedings – both given on oath - must each be given close attention. The circumstances in which Mr Haken first went on record about the matters concerning the 1980 charge, namely, disclosures to Royal Commission investigators, verified by statutory declaration and sworn evidence to the Royal Commission, indicate that the disclosures were made on solemn occasions in the knowledge that they would receive the close attention of the Royal Commissioner. His accounts, both in 1995 and in these proceedings, of course, relate to events occurring many years ago and for that reason alone require careful scrutiny before any assessment of their truthfulness and accuracy or reliability can be made. The fact of the antiquity of events does not, of course, in itself, mean that the accounts given by Mr Haken cannot or should not be accepted.

In assessing his evidence, there are two particular matters of significance. Firstly, Mr Haken did not, either in his account to the Royal Commission, or in his evidence in these proceedings, state that he saw Mr Ross or any other officer actually place the bags of heroin into the running shoe located in the boot of the plaintiff’s Mercedes. There is no other evidence (other than the plaintiff’s evidence as to what he said he saw in relation to the Ford Landau, as to which see discussion below) to confirm that either Mr Ross or some other officer did so. That, of course, does not mean that Mr Haken’s account of what he says Mr Ross said to him concerning the intention to “load up” the plaintiff and the directions he said Mr Ross gave to prepare bags of heroin for that purpose could not, together with other circumstantial evidence, ultimately lead to the conclusion or support an inference that Mr Ross did so. The question is whether it does.

Secondly, close attention is to be given to what Mr Ross and Mr Knox said about these events at the committal hearing and in evidence in the present proceedings. In that respect, they referred to specific circumstances that were said to have been the catalyst for Mr Ross on 15 January 1980 instructing two teams of police to travel to Leonay on that day, namely, information said to have come from an informer. I will deal with this second matter first.

Mr Ross gave evidence as to having received information from a source or an informer. The evidence is important and, accordingly, is reproduced here:- “Q. What do you recall happening early that day? A. I took a phone call in the drug squad office from a person who wanted to speak, I believe, if my recollection is right, wanting to speak to sergeant Knox who wasn't available at that time and so when sergeant Knox wasn't available, I think he asked to speak to me. Q. Do you remember who that person was? A. Yes, I think I do. Q. I don't want you to tell us his name, but was he known to you? A. Yes. Q. And what did you believe him to be? A. I'm not sure I understand the question. Q. All right, I won't concern myself with that. I will go on. What did the person tell you? A. As far as I can recall, he told me that a drug transaction was to take place that afternoon. I think there was a particular time mentioned that I can't remember what it was, that Mr Landini was the person supplying the drugs and I don't believe that there was a location mentioned or known of where it was about to take place. Q. Prior to receiving that telephone call or having that conversation, had you any knowledge of the event that was spoken of in the telephone conversation? A. No sir. Q. What did you do, as best you can remember? A. As best I can remember, I, as soon as sergeant Knox become available I discussed it with him. Q. What was done then? A. Well, although my recollection of it now is very vague, it was arranged that we - sergeant Knox asked for my group to give him some assistance to take observations of Mr Landini's then premises and with a view to, if he left there at a particular time of the day to stopping the vehicle and searching it. Q. Did you go to the Leonay area some time that day? A. Some time that day, yes sir.”

The evidence given by Mr Knox and Mr Ross at committal on this aspect of the matter is recorded in the transcript which is, in these proceedings, Exhibit AU.

The significance of the evidence by Mr Ross on this aspect, of course, is that, if true, it provided a specific and rational explanation for the police operation which led to the plaintiff’s arrest, and finding of heroin in the boot of the Mercedes.

A contrary finding, namely, that the drugs were “loaded” on the plaintiff, however, could only be made if I were satisfied that it was more probable than not that Mr Haken’s account was correct and, accordingly, the accounts given by Mr Ross and Mr Knox including, in particular, the information claimed to have been given by an informer, were not.

It was contended for the plaintiff that Haken having, according to his evidence:- • been approached with the “loading-up” of the plaintiff proposition; • having agreed and in preparation, participated in the re-bagging of the heroin; • having been a participant in the operation at Leonay, and similar bags having been allegedly “found” in the plaintiff’s cars, are all factual circumstances that support the conclusion that he was “loaded” with the bags. The fact that Haken did not say that he actually saw the bags placed in the boots of the respective vehicles is not fatal to the plaintiff’s case if the circumstantial evidence, taken in conjunction with Haken’s evidence, leads to the conclusion that they were probably “loaded” on the plaintiff. In evaluating the circumstantial evidence, I propose to briefly outline the principles governing the use to which such evidence may be put. (5) APPLICATION OF THE BRIGINSHAW STANDARD

Mr Haken’s evidence essentially fell into two parts. The first was concerned with the initial stage in which he said he was approached with the proposal to “load” the plaintiff, agreed to participate and then undertook the re-bagging preparations preliminary to the proposal or plan to “load” him. The second concerns the actual events that occurred on the freeway at the time of the plaintiff’s arrest and later at his home with the Ford Landau.

In determining whether the evidence, in particular, circumstantial evidence in a civil case, meets the applicable standard, in proving an inference of fraud or other criminal conduct, the following propositions are relevant to such a determination:- (1) As earlier discussed, the Briginshaw standard is concerned with the circumstances in which the obligation falling upon a moving party requires proof to the “reasonable satisfaction” of the judicial decision-maker. That question will be informed by the “seriousness” of the allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding: Gianoutsos v Glykis (2006) 65 NSWLR 539 at [46] per McClellan CJ at CL and Briginshaw (supra) at 362. (2) The Briginshaw standard requires in a case such as the present that the affirmative of an allegation(s) be made out to the reasonable satisfaction of the tribunal of fact. (3) When allegations being investigated or pursued in civil litigation involve a finding that a crime has been committed in applying the “Briginshaw test” , weight must be given to the presumption of innocence and exactness of proof is expected: Gianoutsos (supra) at [47]. (4) The cogency of the evidence necessary to discharge the onus of proof will depend upon the circumstances of the case. (5) Nothing in Briginshaw (supra) detracts from the proposition that a serious allegation might be proved by circumstantial evidentiary facts and inference and circumstances: Shellharbour City Council v Stewart [2008] NSWLEC 151 per Biscoe J at [10]. (6) When a lesser standard of proof than beyond reasonable doubt will suffice, “the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved” : Doney v The Queen (1990) 171 CLR 207 per Deane, Dawson, Toohey, Gaudron and McHugh JJ at 211. (7) The relevant authorities and s.140 of the Evidence Act 1995 indicate that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said by the High Court in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (supra), have the allegations been proved on a balance of probabilities: Palmer v Dolman [2005] NSWCA 361 per Ipp JA at [47]. (6) CIRCUMSTANTIAL EVIDENCE IN A CIVIL CASE IN RELATION TO FINDINGS OF CRIMINAL CONDUCT

The approach, in a civil case, in determining whether circumstantial evidence leads to an inference of fraud have been well established. The principles underpinning that approach are instructive in relation to an allegation, as here, of criminal conduct in fabricating evidence. They were discussed by Ipp JA in Palmer (supra) at [41] as follows:- (1) The jury must consider “the weight which is to be given to the united force of all the circumstances put together …” . (2) The onus of proof is only to be applied at the final stage of the reasoning process: “[I]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case” : per Winneke P in Transport Industries Insurance Co Limited v Longmuir (1997) 1 VR 125 at 129. (3) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (4) When the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw v McEwans Pty Limited (1951) 217 ALR 1. (5) Finally, in Palmer (supra), Ipp JA, in discussing Sir Owen Dixon’s well-known statement at 361 to 362 in Briginshaw (supra) referred, inter alia, to later dicta of Dixon J in Plomp v Regina (1963) 110 CLR 234 at 242 quoted in Chamberlain v Regina (No 2) (1984) 153 CLR 521 at 536. In examining the question as to the authoritative weight that today attaches to the abovementioned observation of Dixon J in Briginshaw (supra), namely, where a serious allegation is made “reasonable satisfaction” should not be produced by “inexact proofs, indefinite testimony or indirect inferences” , Ipp JA referred to the observations of Gibbs CJ and Mason J in Chamberlain (supra) at 536 that in a civil case “the circumstances must raise a more probable inference in favour of what is alleged” .

The facts as to when, how and who placed the drugs in the car, of course, together constitute what might be considered to be an indispensable link in the chain of reasoning by way of inference. The issue concerning the 1980 charge is whether the evidence is sufficiently cogent to support the conclusion that the events leading up to the plaintiff’s arrest support the conclusion, as the more probable inference, that there was a plan to fabricate evidence which was implemented on 15 January 1980. Expressed slightly differently, the issue is: does the evidence relied upon by the plaintiff establish a reasonable and definite inference of fabrication? The answer to that question is, as earlier noted, heavily dependent upon an acceptance of Mr Haken’s evidence.

Accordingly, in determining whether the applicable standard of proof has been met concerning criminal conduct, the subject-matter of in a civil case, and where circumstantial evidence is partly or wholly relied upon to prove it, while the plaintiff need only establish circumstances raising a more probable inference in favour of what is alleged “… in questions of this sort, where direct proof is not available, it is enough that the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture …” : Bradshaw (supra) at 5.

In relation to civil cases, in Jones v Dunkel (1958-1959) 101 CLR 298 at 305, following references to Bradshaw (supra) and Holloway v McFeeters (1956) 94 CLR 470, Dixon CJ, referring to conclusions drawn from circumstantial evidence in a civil case, observed that the evidence must permit a positive inference to be drawn (in that case an implication of negligence). The Chief Justice stated that the inference is to be one that arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. He added “… the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied” (at 305).

A central part of the plaintiff’s case is that part of Mr Haken’s evidence concerning an alleged statement of intention by Mr Ross to “load” the plaintiff with heroin. If that evidence is accepted as being truthful and cogent, it is then necessary to consider the nature and significance of what are statements of intended action in deciding whether what was done or what happened was the outcome of an intention expressed by a person at an earlier point in time.

The principle that a person’s own statements of intention to do a particular act amount to admissible evidence of the existence of a design or plan to do the act in question is well-established: Regina v Morex Meat Australia Pty Limited (1996) 1 Qd R 418, 436 (McPherson, Pincus JJA and White J). In the present case, such statements as were alleged by Mr Haken to have been made by Mr Ross are admissible as evidence to prove a fact in issue, namely, the fact of “loading-up” the plaintiff: Pollitt v The Queen (1992) 174 CLR 558, 564, 565, 585, 593, 609, 623. It does not, of course, in itself prove that the intention was carried out. It is a question of fact as to whether, if it be accepted that a statement of intention was made by Mr Ross, as Mr Haken claimed, and that the statement was reasonably contemporaneous with the events of 15 January 1980, that it, together with other matters proven in evidence establish, to the applicable standard, the fact that, as the plaintiff claimed in 1980 at the committal and in the present proceedings, that the heroin taken from the boot of each car had been placed there by one or more of the attending police officers.

The alleged statement made by Mr Ross as recounted by Mr Haken is then admissible evidence to prove his alleged intention at that time. If proved, it, linked with other circumstantial evidence, it may go to support an inference that there was, in fact, a plan, made by two or more police officers, to “load” the plaintiff and that such a plan was implemented on 15 January 1980. In that way, the evidence as to what Mr Ross allegedly said (if accepted as having, in fact, been made) is both circumstantial as well as testimonial: Walton v The Queen (1988-1989) 166 CLR 283 at 288 per Mason CJ.

As discussed earlier, Mr Ross stated that police went to Leonay because of a “tip-off” from an informer. If that evidence were ultimately accepted, whilst it would not positively exclude the possibility that police placed heroin in the boot of the plaintiff’s cars, it would support the proposition that their presence was not necessarily motivated by a criminal objective to fabricate evidence. (7) CONSIDERATION

The difficulty in making critical findings in this case is compounded by a number of factors. These include the length of time that has elapsed since the plaintiff’s arrest in 1980, matters of dishonesty arising from the plaintiff’s past history and Mr Haken’s involvement in police corruption in the years of his service. These all indicate the need for extreme caution in evaluating the evidence.

There are additional matters calling for consideration. These include the plaintiff’s plea of guilty and the submissions made on his behalf in seeking parole. There is also the evident incentive in the plaintiff to distort the true facts in his own self-interest, the denials by each of the witnesses called for the State that there had been any fabrication of evidence supported by statements they prepared on 16 January 1980. Against those matters are the confessional nature of the statements and evidence given by Mr Haken to the Royal Commission (and in these proceedings) that the evidence against the plaintiff was fabricated and, as discussed below, the absence of any apparent motive or incentive in him to wrongly implicate the other officers in wrongdoing.

Accordingly, in relation to Mr Haken, there arises for assessment important issues as to his credibility (in terms of his truthfulness) and otherwise as to his reliability in assessing his evidence.

The denials made in evidence by the witnesses for the State put in issue each and every factual matter recounted by Mr Haken to the Royal Commission and to this Court. In particular in that respect:- (1) The account by Mr Haken of an approach and statement by Mr Ross to the effect that he, Ross, intended to “load up” the plaintiff was denied by Mr Ross. (2) The inquiry which Mr Haken said Mr Ross made of him as to whether he wanted to be involved in the arrest of Landini and offering him the opportunity of being involved in it was denied by Mr Ross. (3) Mr Haken’s account that Mr Ross and Mr Knox said the plaintiff was going to be locked up by planting drugs on him and provided with a quantity of heroin was all denied by Mr Ross. (4) The account given by Mr Haken of a request by Mr Ross to him to undertake the packaging of the heroin in plastic bags and in being provided with equipment for that purpose was similarly denied by Mr Ross.

There were, however, matters about which there was no dispute. There was no dispute that Mr Haken was a serving officer at the relevant time at the Drug Squad (January 1980). There was no dispute that he was one member of the team of officers who was involved in the operation leading to the plaintiff’s arrest. There was no suggestion that Mr Haken was excluded from any discussions amongst police who travelled to Leonay and the inference, in fact, is that he was involved in them. There is no dispute that he travelled in the same vehicle as Mr Ross to Leonay on 15 January 1980. There is no dispute that he was standing in the vicinity of the Mercedes vehicle at the time the boot of it was searched. There is no dispute that Mr Haken was present at the time of the plaintiff’s arrest on the freeway, nor that he was present at the plaintiff’s house at the time it and the Ford Landau were subject to a search.

It is clear that Mr Haken’s account of events omits reference to certain matters referred to in the evidence both of the plaintiff and of the witnesses called for the State. In that respect, he did not refer to any search of the Ford Landau either in the Royal Commission proceedings or in these proceedings and the claimed finding of a number of bags of heroin in the boot of that vehicle. He said that he quite simply had no recollection of that occurring.

There has been no suggestion that Mr Haken had any previous association with the plaintiff before his arrest on 15 January 1980. There is no suggestion that he has ever had any personal association with the plaintiff since the date of his arrest. There was no suggestion that Mr Haken had any motive or inclination to assist the plaintiff in any respect so far as the present litigation is concerned.

Further, there is no suggestion that Mr Haken has ever had any personal dislike, hostility or other motivation against Mr Ross or in respect of any of his former colleagues who were called by the State as witnesses in the present proceedings.

Mr Haken was subjected to a searching cross-examination and extensive written and oral submissions on the plaintiff’s behalf and on behalf of the State have been made in relation to the events leading to the arrest made and the charge laid against the plaintiff in 1980.

No plausible explanation has emerged in the evidence as to why Mr Haken would have misled Royal Commission investigators or the Royal Commission itself in disclosing that he himself, along with others, were parties to the criminal activity of fabricating evidence against the plaintiff. In this respect, I will deal separately with the question of his indemnity against prosecution below.

Insofar as Mr Haken implicated himself in the events that he said led to the plaintiff’s arrest, it does not accord with human experience that a rational person admits to committing a crime that he or she did not commit. In submissions on behalf of the State, it was suggested that Mr Haken may have been motived to invent his account in order to enhance his prospects of obtaining the broad indemnity against prosecution that he, in due course, was given. However, that submission does not, in my opinion, withstand scrutiny. It is clear from the evidence in this case that Mr Haken admitted to the Royal Commission serious wrongdoing in respect of a number of other unrelated matters not connected with the Landini matter. Having done so, he then worked in an undercover capacity for the Royal Commission. The indemnity which he secured afforded protection for him in respect of the many matters to which he had admitted wrongdoing. The indemnity, of course, carried the risk of being revoked if he was exposed for giving false evidence and information to the Royal Commission on any matter.

On this aspect, it is relevant, in my opinion, to have regard to the relevant statutory provisions (s.165(1)(d) of the Evidence Act ) concerning the issue of the unreliability of evidence given in criminal proceedings by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. Although the present proceedings, of course, are civil and not criminal proceedings, those provisions and the principles that may be derived from the case law are instructive in relation to the process of fact finding in the present case.

The reasons why the evidence of a person who has or might reasonably be supposed to have been criminally concerned in events giving rise to proceedings may be unreliable have been identified as falling within recognised categories which conventionally include the following:- (1) Such a person may wish to shift the blame from himself or herself onto others and to justify his or her own conduct. In the process, the witness may construct untruthful stories which tend to play down his or her own part in the crime and play up the part of others in the crime even going so far as to blame quite innocent people. (2) False claims can be made from motives out of revenge or a feeling of dislike or hostility. (3) A person may be motivated to give false evidence in order to qualify for a reduction in his or her own sentence.

In relation to the question of accomplice warnings, the effect of s.164 to s.165 of the Evidence Act was the subject of interpretation by the High Court in Conway v The Queen (2002) 209 CLR 203. In that case, in the joint judgment of the Court (at 223), it was noted that the provisions of s.164(1) and (3) abolished the necessity for corroboration and the necessity for a warning about acting on uncorroborated evidence. However, the provisions do not prohibit” a trial judge from warning a jury that it would be dangerous to convict on uncorroborated evidence.

The present position, accordingly, is that, having regard to the provisions of s.164 and s.165, it is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated. Prudence, of course, indicates the need for careful scrutiny of the evidence in determining its reliability.

In the present matter, Mr Haken’s evidence, of course, is contradicted by the State’s witnesses. In assessing his reliability, it was not put to him, for example, that he may have been confusing the Landini case with some other case. That is understandable, given the very specific facts leading up to the plaintiff’s arrest on 15 January 1980 and there being no issue but that Mr Haken was involved in the operation and events leading to the plaintiff’s arrest and was actually present at Leonay on 15 January 1980.

The incentive operating in the present case, on the evidence, was not one that would impel Mr Haken to lie to the Royal Commission. Indeed, there was much at stake for him in maintaining the benefit of the indemnity that had been granted and he must be taken to know that his account of the events leading to the plaintiff’s arrest would potentially put him a position of being challenged by the other officers who were involved in the operation conducted on 15 January 1980. If, as I have earlier stated, the view was formed that he was falsifying evidence to the Royal Commission, he ran the grave risk of losing the protection afforded by the indemnity operating in his favour in respect of all matters that he had disclosed to the Commission.

Quite apart from his position as an indemnified witness, no credible motive was established that would impel him to disclose his own part in the Landini matter.

On the basis that there is no evident motive or reason why Mr Haken would voluntarily confess his own involvement in fabricating evidence if it were not the case, or expose himself to the risk of losing his indemnity, there remains the need otherwise to assess his general credibility. In that respect, appropriate attention is to be given to the evidence, which is referred to above, namely, that Mr Haken’s time in the Police Service was marked by personal difficulties including the stress associated with his own past wrongdoings, and heavy drinking. The evidence does not, however, establish that he was incapacitated by any of those circumstances such, for example, to have required significant time off work or confinement or hospitalisation or that any of those matters impaired his capacity. In his later years of police service, he demonstrated a capacity to perform police duties and then at a later time to operate in an undercover capacity for the Royal Commission.

The evidence of the information said to have been provided by an informer was evidence of an out of court statement made by a person who was not called to give evidence.

The statement said to have been made by the informer was not evidence relied upon testimonially but for the limited purpose of explaining why police attended at Leonay on that date. The evidence, accordingly, was relevant to a fact in issue in that it was said to be evidence that, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.

That fact was whether the police attendance at Leonay was for the purpose of implementing a plan to “load” the plaintiff with drugs or for a legitimate purpose, namely, the investigation of a criminal offence and the apprehension of any offenders.

The issue about the statement said to have been made by a third party raises a question of reliability, not admissibility. One of the shortcomings in the receipt of evidence of out of court statements by third parties is that their truthfulness and accuracy cannot be tested as fully in cross-examination in the way in which it would be tested if the party to the conversation gave the evidence: Pollitt (supra) per Mason CJ at 566.

There was in this case no means by which the existence and information said to have been supplied by the “informer” could have been proved or disproved or his out-of-court statement tested. Mr Ross could be cross-examined about it but otherwise was no other means of testing its existence or accuracy.

There was no evidence of any informer contact report having been made by Mr Ross either on 15 January 1980 or on a later date. Information supplied by informants is, of course, notoriously easy to fabricate and difficult to corroborate. Documentary accountability in the management of informants is, of course, one means of minimising such risks.

The assessment of the evidence in this case, including that of Mr Haken, to be evaluated in light of all of the objective circumstances established by the evidence. Matters to be taken into account include the following:- (1) The plaintiff raised at an early stage his allegation that he had been “loaded” and that was the issue run at the committal. (2) The plaintiff had been, for some time, suspected by police of having engaged in drug trafficking. Mr Ross, himself, held that suspicion. (3) Investigations, including surveillance of the plaintiff, had been underway for some time, over a period of at least some weeks prior to the plaintiff’s arrest on 15 January 1980. (4) There is no evidence to suggest that in the period of those investigations/surveillance, any evidence or “intelligence” had come to light which would support a reasonable basis for a suspicion that the plaintiff had indeed been engaged in drug trafficking operations. (5) The events of 15 January 1980, accordingly, arose in the context of ongoing police inquiry of the plaintiff. Although the evidence in these proceedings indicates that surveillance had been maintained on the plaintiff’s home for some weeks prior to the latter date, there was no suggestion that investigations or, in particular, the surveillance had produced incriminating evidence sufficient to charge the plaintiff. (6) The evidence was that observations were maintained on the plaintiff’s home on 15 January 1980, for a period, according to Mr Ross, of up to three hours. He agreed that, had the plaintiff been seen going to the boot of either the Mercedes vehicle or the Ford Landau, he would have expected that that fact would have been mentioned. There was, he said, no record made of the plaintiff having done so. Contemporaneous notes in Exhibit W do not record any observation of the plaintiff placing anything in the boot of either vehicle during the period of surveillance on that day. (7) The quantity of heroin said to have been found located in the two vehicles was well in excess of the prescribed quantity under Appendix E for the purposes of s.45A(4) of the Poisons Act (2.00 grams), namely, a total gross weight of 92.0 grams. In a case involving criminal activity of that magnitude, one might expect arresting police to be astute enough to follow basic precautions directed to preserving the integrity of physical evidence. The conduct of police involved in his arrest, however, reveals a lack of appropriate precautions. (8) The total gross quantity of heroin (92.0 grams) would, in itself, be evidence of a serious indictable offence consistent with drug trafficking at a high level in the distribution chain. (9) The evidence indicates that the bags containing the heroin were not submitted for fingerprint analysis. There was evidence that indicated that it may have been possible to have taken fingerprints from plastic material. However, the evidence was not certain in that respect. There was simply no attempt made to do so. A positive result from fingerprinting, of course, had potential evidentiary significance to the issue of possession which was a matter highlighted during consideration of the submission made by the solicitor for the plaintiff that a no bill should be filed. In that respect, the supporting memorandum of Mr O’Grady, legal officer, dated 23 July 1982 (part of Exhibit B) identified a potential difficulty on the issue of possession wherein he stated (at p.2):- “… the quantity of heroin found is well above the prescribed quantity and the chief area of dispute is possession, the defence alleging the drugs were planted. Even though that allegation may not be accepted by a jury, there is difficulty in possession in that all the heroin was found in vehicles and not on the person of the accused or in his bedroom. He is caught driving one vehicle but there will be some doubt over the ownership of the shoe. While he had possession of the keys of the other vehicle, that would not solve any doubt about possession of the drugs. Nevertheless, there are some admissions that assist.” (10) In those circumstances, it could reasonably be expected that police investigating a suspect and locating large quantities of prohibited drugs would take standard or basic precautions to preserve the integrity of the evidence associated with the discovery of large quantities of bagged heroin. (11) There was evidence (from Mr Gardiner) that it would be reasonable to expect that an implement would be used to remove plastic bags of heroin from the object in which they were found rather than a police officer who found them himself or herself handling the bags, thereby potentially interfering with any future investigations, in particular, fingerprint examination. The evidence was, however, that Mr Ross did not adopt any such precautions but took hold of the bags and simply put them in the pocket of his jeans. (12) The evidence of Mr Ross indicates that the bags containing the heroin were not submitted for fingerprint examination. He was asked:- “Q. Would fingerprinting be one such investigation? A. Well, it’s something that would be open to you, yes. As I said sir, I don’t believe it took place on this occasion. Q. I suppose the question being asked is, why not? A. I don’t have any idea sir.” (13) The evidence then in the present proceedings indicates that rather fundamental precautions were not followed. This aspect, by itself, however may be equivocal. It may simply be consistent with incompetent or inadequate police procedures or it could be indicative of a circumstance pointing to conduct that exhibits either a high-handed or over-confident belief in those in charge of the arrest that the plaintiff had little hope of explaining his way out of the situation. The judgment as to which of these alternatives is the more probable is best made in the context of all the factual circumstances in the case.

Whist the evidence of Mr Haken, if accepted, implicates Mr Ross, Mr Knox and Mr Gardiner, there is no evidence given by him in these proceedings of any specific occasion when he said that Mr Chidgey or Mr Leary were present and participated in any planning or preparations for the arrest of the plaintiff. Although Mr Chidgey and Mr Leary were part of the team that travelled to Leonay on the date in question, the evidence does not clearly establish that they had been made privy to any plan to load the plaintiff. Mr Chidgey’s evidence was that being the most junior person on the team, that information would only have been given to him on a “need to know situation” and he added “I would have been told at the latest possible time” . In Mr Leary’s case, he said that he had only started with the Drug Squad a few days before January 1980. He too was a junior officer. The position is that, whilst it might be thought that all six officers who participated in the operation were party to any plan made to load the plaintiff, it does not automatically follow that everyone, including the most junior officers, were made privy to relevant planning discussions. Accordingly, I am unable to make any adverse finding specifically against Mr Chidgey or Mr Leary that they were privy to or party to the planned operations the subject of Mr Haken’s evidence.

Mr Gardiner played an active role in retrieving the bags of heroin from the Ford Landau. The evidence as to circumstances in which he did so is sufficient to support a suspicion of his involvement in what I have determined on the evidence in these proceedings was a planned operation to “load” the plaintiff. An evidentiary basis for suspicion, of course, is not sufficient for a finding as to what the involvement was. Mr Ross was, on his evidence, present whilst the boot of the Ford Landau was searched. Mr Gardiner was an officer who was subordinate to both Mr Knox and Mr Ross. I do not consider that the evidence permits a precise determination of his role in the operation. In those circumstances, I do not make any specific adverse finding against him such as would constitute him, for the purpose of these proceedings, a “prosecutor” with Mr Ross and Mr Knox.

In determining the factual matters in issue, it is necessary, firstly, to determine whether or not Mr Haken’s evidence is credible evidence. That evaluation is to be made having regard to the evidence itself and the surrounding circumstances concerning the events on 15 January 1980. It is also to be evaluated in the context of the evidence given by the witnesses for the State. It is only after all such evidence has been carefully examined that the conclusion may be drawn. The plaintiff’s case does, to the extent discussed earlier, rely upon circumstantial evidence. In that respect, the assessment to be made is whether evidence as to such circumstances gives rise to a reasonable and definite inference. In this process, it is necessary for a conclusion to be reached that the facts proved do form a reasonable basis for a definite conclusion affirmatively drawn as to the truth of the facts relied upon in support of the plaintiff’s cause of action.

I have earlier stated that I was impressed by the manner and general demeanour of Mr Haken during the course of his evidence. It is, of course, important that undue weight is not placed upon demeanour, particularly in the recounting of events occurring so many years ago. I also record that there was nothing that could be said to have amounted to an adverse demeanour in Mr Ross who retired some years ago or in Mr Gardiner, Mr Chidgey or Mr Leary during the course of their evidence. Accordingly, all the subjective and objective circumstances surrounding the central factual issues in contest are to be taken into account in determining whether or not the applicable standard of proof has been met.

Having done so, I am satisfied that the evidence of Mr Haken is credible evidence. I have referred to the matters in my consideration above that lead to that assessment. I am of the opinion that the plaintiff has discharged the onus of proof to the Briginshaw standard and that, as he contended, the evidence relied upon against him was manufactured or fabricated.

I consider that the evidence establishes that Mr Ross and Mr Knox were involved to an extent that their actions in relation to the plaintiff on 15 January 1980 meant that, for the purposes of the tort of malicious prosecution, they were “prosecutors” of the proceedings commenced in 1980 within the extended meaning of that term as explained in Commonwealth Life Assurance Society v Brain (1934-1935) 53 CLR 343, 379 at 380. (8) DAMAGES (a) Principles

The assessment of damages requires consideration of the categories of damages that are recoverable in a malicious prosecution action and the principles upon which aggravated and exemplary damages may be awarded.

It has long been accepted that damages may be recoverable for damage to a plaintiff’s reputation, damage to the plaintiff’s person (in particular, for deprivation of liberty) and damage to the plaintiff’s property: Savile v Roberts (1698) 1 LD Raym 347 at 378; (1698) 91 ER 1147 at 1149-1150; Little v Law Institute of Victoria [1990] VR 247 (Kaye and Beach JJ).

It has been observed that once damage under any one or more of those three heads is proved, the award of damages is at large subject only to the condition that the damages must not be grossly disproportionate to the losses or injuries sustained: Noye v Robbins [2007] WASC 98 at [755] per E M Heenan J.

The 1980 charge laid against the plaintiff plainly involved a potential risk of imprisonment, in the event that he was convicted and this is sufficient to provide a basis for an award of damages under the second of the three abovementioned categories: Houghton v Oakley (1900) 21 LR (NSW) 26 and Noye (supra) at [757]. The circumstances in the latter case have a similarity to the present in which it was observed:- “… In fact, Noye's liberty was curtailed by these charges. Having been charged on complaint, when he came before the Magistrates Court he was placed on bail in respect of all the charges in an amount of $10,000. That bail was renewed from time to time but the fact that he was subject to bail is itself a restriction upon his liberty.”

The foundation of the action in malicious prosecution lies in the abuse of the process of the system of justice by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose: Amin v Bannerjee [1947] AC 322.

The heads of damage which can be recovered include matters which do not arise out of what might be classified as personal injury, but they include injury to a person’s reputation and the emotional upset, anxiety and distress caused by the commission of the tort: Houda v State of New South Wales [2005] NSWSC 1053 at [359]. As the Court also there observed, the cause of action on malicious prosecution arises out of injury to a person’s civil rights and, in particular, the right not to be unlawfully arrested or wrongfully imprisoned or to be made the subject of a malicious prosecution.

The availability of aggravated and exemplary damages provides both a measure of compensation as well as an opportunity for registering the condemnation of the flagrant abuse of legal process.

In Lamb v Cotogno (1987) 164 CLR 1, the High Court (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ) at 8 stated:- “… Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by the insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding in the future, and as a proof of the detestation of the jury in the action itself.’”

It has also been observed that, the formal distinction between aggravated and exemplary damages masks overlapping concepts by reason of the fact that aggravated damages may serve punitive and deterrent functions at the same time as providing “aggravated compensation” : Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [96] per Mason P.

In that case, Mason P noted at [98] that aggravated damages have been awarded in a range of torts including defamation, intimidation, trespass to the person and malicious prosecution. In relation to the latter, see Thompson v Commissioner of Police of Metropolis [1998] QB 498.

Aggravated damages are a form of general damages: New South Wales v Ibbett (2006) 229 CLR 638 at [31]. As the High Court there stated, they are awarded for injury to the plaintiff which may be intangible, resulting from the circumstances and manner of the wrongdoing.

If in a case where, in addition to an award of damages for injury to feelings, aggravated damages are to be awarded, it is important to avoid double counting: State of New South Wales v Riley [2003] NSWLR 496 at [130] per Hodgson JA, with whom, on the issue of damages, Sheller JA and Nicholas J agreed, his Honour there referred to a number of propositions or principles to guide such an assessment. These included the following:- (1) In cases of hurt feelings caused by wrongdoing of a kind consistent with ordinary human fallibility, the Court must assess damages for hurt neutrally, and aim towards the centre of the wide range of damage that might conceivably be justified. (2) However, in cases of hurt to feelings caused by wrongdoing that goes beyond ordinary human fallibility, serious misconduct by a defendant may give rise to a situation where it is difficult to quantify appropriate damages. Accordingly, the Court should be astute to avoid the risk of under-compensating the plaintiff, so the Court is justified in aiming towards the upper limit of the wide range of damage which might conceivably be justified.

Hodgson JA also referred to the approach detailed by Lord Reid in Cassell & Co Limited v Broome [1972] AC 1027 at 1085 in assessing damages for mental distress or damage to reputation where the person has been held up to hatred, ridicule or contempt. In such assessments, the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort. Lord Reid observed:- “That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”

Both aggravated and exemplary damages may be awarded. But it is necessary for a court that awards both to observe that the matters that justify an award of exemplary damages are also pertinent to an award of aggravated damages: State of New South Wales v Ibbett (2005) 65 NSWLR 168 per Spigelman CJ. The Chief Justice there observed that the difference is that in the case of aggravated damages, the assessment is made from the point of view of the plaintiff. In the case of exemplary damages, the focus is on the conduct of the defendant. Spigelman CJ further observed that it is necessary to determine the heads of compensatory damages before deciding whether or not the quantum is such that a further award is necessary to serve the objectives of punishment or deterrence or, if it be a separate purpose, condemnation.

As the High Court observed in Ibbett (supra) at [35]:- “In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damage and no element more than once.”

In relation to the award of exemplary damages, the High Court in Ibbett (supra) observed:- “… what is well established is that an award of exemplary damages may serve ‘a valuable purpose in restraining the arbitrary and outrageous use of executive power’ and ‘oppressive, arbitrary or unconstitutional action by the servants of the government’. The words are those of Lord Devlin, no supporter of the general use of this remedy …”

Lord Hutton (in Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122; [2001] 3 All ER 193 added at [79]:- “In my opinion the power to award exemplary damages in such cases serves to uphold and vindicate the rule of law because it makes clear that the courts will not tolerate such conduct. It serves to deter such actions in future as such awards will bring home to officers in command of individual units that discipline must be maintained at all times.” (b) Assessment of damages

I turn to the individual categories of damage. (c) Damage to reputation

The State strongly argued that the plaintiff, by reason of his past criminal history and general reputation, could not establish material damage to reputation by reason of the laying of the 1980 charge and its prosecution.

In the plaintiff’s written submissions, it was contended that the plaintiff’s reputation was tarnished by both the 1980 and the 1982 charges. It was observed that his previous convictions did not include any conviction for an offence in relation to the trafficking of heroin. The charge laid in 1980 involved serious offences and was said to have been likely to diminish his reputation.

It is necessary to consider the question of damage to reputation in this case not only in light of the plaintiff’s past criminal history but also having regard to his conviction on the 1982 charges which I have determined did not amount to or constitute a malicious prosecution.

The interval of time between 15 January 1980 and his charge on the 1982 charges was approximately two years and six months and almost four years between them and his conviction on the 1982 charges in September 1983.

There is no specific evidence led in the plaintiff’s case as to reputation additional to his own evidence and the evidence as to his past history. I do not consider that the plaintiff has established an entitlement to damage for loss of reputation. He had a lengthy criminal history and, without evidence from third parties who could establish that he nonetheless held a good reputation in the community, I do not consider any assessment is possible. There was no evidence of that kind called in the plaintiff’s case. The claim under this head must, in my view, fail. (d) Economic loss

The plaintiff did not establish any basis for a loss of earnings or specific damages occurring between 15 January 1980 and his arrest in relation to the 1982 charges on 19 July 1982. He thereafter remained in custody.

The plaintiff has claimed the cost of legal expenses for being represented at the committal proceedings. There is no evidence available by way of to accounts rendered by his solicitors or counsel.

The plaintiff engaged a solicitor to appear for him on 16 January 1980 and the proceedings were listed subsequently on 20 August 1980 (for mention), 2 and 3 April 1980 on which dates Mr Conomos appeared for him. The proceedings were subsequently listed on 28 February 1983, 25 July 1983, 5 August 1983, 14 October 1983, 31 October 1983, 19 March 1984, 29 March 1984 and 7 June 1984.

The plaintiff’s evidence by way of an estimate was that he paid legal costs in respect of Mr Berry, solicitor, and Mr Conomos between $8,000 and $10,000.

I consider that allowing for preparation and appearance over two days and other appearances an amount of $5,000 to be a reasonable amount and should be awarded for legal costs including counsel’s fees. The absence of any confirmation of any amounts paid over that amount does not justify any higher award for costs incurred . (e) Damage by deprivation of liberty

The plaintiff, having been arrested and taken into custody on 15 January 1980, was released on bail on 16 January 1980. According to his evidence, his reporting conditions were varied allowing him, for a time, to live on the South Coast.

The period he was on bail is a period in which his liberty was curtailed. From 16 January 1980 to 19 July 1982, on which latter date he was arrested in relation to the 1982 charges and placed in custody, a period of two years, six months and three days, the plaintiff was on bail.

The 1980 charge plainly involved a potential risk of imprisonment if convicted. That is sufficient to provide a basis for an award of damages under the second category: Hougton v Oakley (1900) 21 LR (NSW) 26; Attorney General v Radloff (10 Ex at 101 Platt B). See also Noye v Robbins [2007] WASC 98 at [757], discussed below.

Although the plaintiff was sentenced to a term of imprisonment in respect of the 1980 charge, the practical reality is that he had lost his liberty upon his arrest on 19 July 1982 and thereafter, by reason of the sentence of imprisonment imposed in respect of the 1982 offences, he was continuously in custody by virtue of that latter sentence.

The fact that he was sentenced in 1984 to a term of imprisonment for the 1980 charge did not itself deprive him of his liberty. His liberty was lost upon the sentence imposed on him in December 1983. The fact that he was serving the two sentences concurrently does not alter the reality that the loss of his liberty on an after 19 July 1982 was occasioned by the conspiracy offence for which he was convicted following the jury’s verdict in relation to that offence.

In summary, therefore, although the plaintiff was subjected to two concurrent sentences on the basis of two separate offences, the full-time custodial sentence (backdated to the date of his arrest in 1982) meant that the deprivation of his liberty arose from the imposition of the sentence imposed in relation to the 1982 offences.

A restriction on the liberty of a person who is charged and then placed on bail is a restriction that entitles the person to damages under this heading: Noye v Robbins & Anor [2007] WASC 98 at [757].

In respect of the period in which the plaintiff was on conditional liberty by reason of him being subject to a bail order up until his arrest on 19 July 1982, I assess damages in the amount of $35,000. (f) Aggravated damages

The plaintiff, I accept, did experience significant mental distress and agitation in having, on the findings made in these proceedings, been wrongly arrested and charged. This occurred:- • In the presence of his partner. • It involved his detention and forcible return by police to his home. • The search of his home and invasion of his personal right to privacy and that of his partner.

It is essential, of course, as earlier noted, that the plaintiff not be awarded aggravated damages for that which he is to be compensated under the previous heading. I consider that, in this case, the conduct of police went beyond “ordinary human fallibility” as Hodgson JA described the relevant wrongdoing in Riley (supra) at 528, [131].

The ongoing attempt by the plaintiff to resist the proceedings in order to establish his innocence of the charge and his appearance at the committal on 2 and 3 April 1981, I accept would have caused him a significant level of agitation.

The plaintiff’s evidence was that when he asked police present in his home whether they had a search warrant he believed they were going to do something in his house “as well” , and at that time he said they were laughing at him and told him to shut up. He said he was never shown a search warrant. I accept that, on the probabilities, he was not shown a warrant.

Police were present in his home for about half an hour. He said he was handcuffed and put in the back of the police car which he said was uncomfortable. He was charged at Central Police Station. He was then placed in the cells. He was granted bail the following day. He said Mr Graham Berry represented him.

There was some confusing evidence as to when the plaintiff left Sydney and why. It appears that he went to live on the South Coast after his son was born in June 1980. At one point he said this was about Christmas 1980 or early January 1981.

The plaintiff’s evidence was that he, at first, was uneasy about returning to Leonay because he thought he might be loaded up again.

He gave evidence that following the laying of the 1980 charge, he underwent a lie detector test with a Mr Bill Glare. He said the test cost $500.

In the history recorded in a report dated 15 July 2003 (Exhibit F), Dr Westmore opined on his assessment of the effects of both the 1980 and 1982 charges. He referred to the plaintiff’s “extreme anger” about what had occurred. Dr Westmore accepted he had suffered in the past symptoms of anxiety and depression.

Although the medical evidence does not seek to delineate between the impact of the 1980 charge from that resulting from the 1982 charges, it is reasonable, in my opinion, to accept that the plaintiff would have suffered anguish and distress at having been charged on 15 January 1980 on the basis of fabricated evidence.

During the period 3 April 1981 to 7 June 1984, the prosecution, having been stood over until the 1982 prosecution concluded in December 1983, a period of approximately three years and two months, the plaintiff had the proceedings for the 1980 charge hanging over his head. I accept that the stress and uncertainty of being wrongly accused would have been operating for a period but that it would have reduced over a two year period 1980 and 1981 and certainly before his involvement in the 1982 conspiracy.

I propose to allow the amount of $30,000 for such mental distress in the form of an award of aggravated damages. (g) Exemplary damages

The fabrication or manufacture of evidence against any citizen with a view to charging that person with an extremely serious offence involving the prohibited drug, heroin, amounts in itself to an extremely grave criminal offence. Such conduct is calculated to undermine the rule of law and is inimical to the administration of criminal justice.

The conduct in the present case, as I have found it to be, involved careful planning and execution. The inference can be readily drawn from the evidence that police had been investigating the plaintiff for suspected offences over some weeks before 15 January 1980. On the finding I have earlier made and expressed, the investigations moved to a point when a decision was taken to “load” the plaintiff and charge a person (the plaintiff) who they considered to be guilty of drug trafficking.

Conduct of police that seeks to undermine the rule of law by orchestrating the basis for criminal proceedings by fabricating evidence constitutes a species of criminality at the extreme end of the spectrum of official corruption.

Conduct of that nature involves, from the individual’s perspective, conscious wrongdoing in contumelious disregard of his rights, not the least of which is the fundamental common law right to the presumption of innocence which is to be displaced only by a jury verdict reached according to law. The impact upon the victim to which I have referred is not a reference to the impact upon him in terms of his feelings or mental distress. That has been taken into account, in particular, in the award of aggravated damages and, as earlier indicated, caution must be exercised to ensure there is no double counting or double compensation. The impact on the individual’s legal rights is but a facet or aspect of an objective of exemplary damages in a case such as the present, namely, to uphold and vindicate the rule of law as discussed in the authorities to which reference has been made.

I have given close consideration to what is an appropriate award of exemplary damages in this case. Whilst, in a sense, it might be said such an award is at large, it is not to be made upon a basis that is either arbitrary or extravagant. A judge is to ensure that an award is appropriate having regard to the nature of the conduct that warrants the award and is not excessive. A sense of moderation and proportion must guide the exercise of the discretion. Observations to that effect were expressed in XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1984-1985) 155 CLR 448 at 463 per Gibbs CJ. In that case, the circumstances were that XL sued for damages for trespass which involved an employee of Caltex instructing the other tortfeasor to the proceedings to spike XL’s underground tanks, XL being a smaller competitor. The tanks were filled with water and holes were made in each tank. The jury awarded XL exemplary damages of $400,000, reduced by the Court of Appeal to $150,000.

A majority of the High Court considered the award of exemplary damages of $400,000 to have been excessive but was not prepared to interfere with the reduced award made by the Court of Appeal of $150,000.

In the XL Petroleum case, Brennan J observed that there is no necessary proportionality between the assessment of compensatory damages and exemplary damages. His Honour referred, by way of illustration, to Merest v Harvey (1814) 5 Taunt 442 (128 ER 761) in which substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage. I, accordingly, proceed upon the basis that there is no necessary proportionality between an award of aggravated damages, which are compensatory in nature, and exemplary damages imposed for the reason stated above. Certainly, no authority suggests otherwise.

There is evident difficulty in comparing cases, especially where the circumstances of the conduct is markedly different. The conduct in the XL case was punished by the exemplary damages award upon the basis that it was intentional tortious conduct. In the present case, the conduct was not only intentional and by design, but was criminal.

In Eade (supra), pursuant to a settlement with the plaintiff, he was awarded the sum of $358,536. Counsel’s opinion was tendered on the contribution claims which included an assessment of damages likely to be awarded by judgment. Hoeben J noted at [21] that a significant amount of the settlement would inevitably have been awarded for exemplary damages given the nature of the conduct of Eade and the consequences to the plaintiff. There was no specific amount identified in the judgment as to the amount attributed to exemplary damages.

I consider that an appropriate award of exemplary damages is the amount of $160,000. (h) Summary

I make the following awards under each head of damages as follows:- (1) Consequential economic loss (legal expenses) $5,000.00 (2) Injury to person and restriction of liberty $35,000.00 (3) Aggravated damages $30,000.00 (4) Exemplary damages $160,000.00 Total $230,000.00

I will deal with orders as to damages, interests and costs at the end of this judgment. (9) THE 1982 CHARGES

On 20 July 1982, the plaintiff was indicted on a charge that between 1 March 1982 and 20 July 1982 he was party to a conspiracy with a number of others to supply a prohibited drug, diamorphine, commonly known as heroin. He was also charged with the lesser offence of carrying a pistol, not being the holder of a pistol licence.

The conspiracy charge related to 1.1 kilograms of pure heroin emanating from Thailand, the importation of which, it was alleged, was organised by Hong Kong residents by the name of Peter Wong and Benny Au. In the trial judge’s remarks on sentence, it was observed that, if broken down to about 10% of the heroin, it would have been the equivalent of street heroin with a value estimated at about $1 million.

The charges were the culmination of an operation of the Joint Drug Task Force. The JTF investigation was known as Operation Pickaxe. The plaintiff and his co-accused (except for Donald Stanley Thompson who pleaded guilty to the conspiracy charge) entered not guilty pleas.

The conspiracy trial commenced on 6 September 1983 before Slattery J and a jury. On 11 October 1983, the jury returned a guilty verdict against the plaintiff. He was sentenced on 15 December 1983.

The plaintiff’s case was that he had no criminal association with his co-accused including, in particular, Mr and Mrs Thompson or Ms Waddell. Such meetings and other contact that he had with Waddell and Thompson in the period 5 July 1982 and 19 July 1982 was, according to him, wholly based upon an old friendship he had with Ms Waddell and a newly established relationship between himself and the Thompsons. The relationship with Donald Thompson was said to relate to an arrangement with the latter to help Thompson recover a debt. There was no evidence to corroborate this association with Don Thompson. Neither Thompson or Waddell gave evidence in the present proceedings.

The plaintiff’s case included a general attack upon surveillance evidence gathered in the course of the operation and reliance upon the evidence of two former police officers, Mr X and Mr Matinca, to establish a conspiracy between certain police officers, in particular, Mr Donaldson, Mr Matinca and Mr Pattle, being an alleged conspiracy to fabricate evidence against him. In the case of Mr Matinca, the false evidence was said to relate to surveillance material. In the case of Mr Donaldson and Mr Pattle, the allegedly false evidence was said to relate, in particular, to the events that occurred at the KFC premises on the night of 19 July 1982 preceding his arrest. Mr X’s evidence was relied upon to establish a general conspiracy to fabricate evidence against the plaintiff.

Although Mr X and Mr Matinca were witnesses in the plaintiff’s case, it is a fact not without significance that evidence given by Mr X said to support the fabrication of evidence was contradicted in material respects by Mr Matinca, the fourth defendant, who was called as a witness in the plaintiff’s case.

The Joint Drug Taskforce ( “JTF” ) commenced operations on 1 July 1979 and it was wound up in 1988. It was established following the Woodward Royal Commission into Drug Trafficking and in consequence of the Williams Australian Royal Commission of Inquiry into Drugs.

The JTF was defined in the Joint Taskforce Manual (Exhibit BK) as a group of investigators “… assembled from the New South Wales Police Force and the Australian Federal Police and supported by persons having expertise in other related disciplines (eg accounting and taxation investigation)” .

The objectives of the JTF were stated in the manual as follows:- “To investigate the identity of persons in the State of New South Wales engaged in drug trafficking or engaged in the commission or omission of acts of an unlawful nature designed to assist drug trafficking, to evaluate the value of co-operation between law enforcement agencies and to secure the conviction of persons engaged in trafficking in drugs.”

The JTF command hierarchy, in addition to its leader and deputy leaders, included an Operations Committee. The committee would select targets and generally oversee and guide investigations.

The relevant operations, so far as the present proceedings are concerned were named Operation Snooker and Operation Pickaxe.

According to Mr Donaldson, Operation Snooker was focused upon a group of people who were living at Maroubra and who were reputedly importing heroin and distributing it. Operation Pickaxe had been a Federal Police investigation which had focused on a “husband and wife team” who, according to Mr Donaldson, were reputed as heroin traffickers. They were Donald Stanley Thompson and his wife, Merle Thompson, who were Maroubra residents.

Whilst the two operations had developed independently later police investigations indicated that “the same group of players” were involved in each operation. Accordingly, the two operations became one.

The JTF took over investigations that had already been undertaken. The commander and the two deputy commanders to whom reference has already made, constituted the executive and had the overall control of the operations undertaken by the JTF. The evidence established that (then) Detective Donaldson was the case officer in relation to the events that led to the arrest of the plaintiff and his co-offenders. He was, as at 19 July 1982, a senior member of JTF. Mr Donaldson, together with Mr Pattle, were involved in the plaintiff’s arrest on that date. Mr Donaldson also preferred the charges against the plaintiff. It was accepted in the Outline of Submissions of the First Defendant (at [160]) that, on the evidence, Mr Donaldson played the most “sufficient role in the institution of proceedings” and that “he is the person by whom responsibility or accountability was accepted” . The operation leading to the plaintiff’s arrest from and including 15 July 1982 to 19 July 1982 inclusive was under the ultimate control and command of persons who were senior to Mr Donaldson, in particular, the Commander and Deputy Commanders.

The Crown case was that the plaintiff and Mr Donald Thompson, who prior to July 1982 did not know each other, came together in the context of a network or association of various persons for the purpose of importing and supplying heroin. According to the plaintiff’s evidence, he was introduced by his friend, Judy Waddell to the Thompsons.

The plaintiff’s account at trial and in the present proceedings was, in essence, that he met the Thompsons by a chance encounter on 5 July 1982. On that day, he said he had travelled from the South Coast to Sydney. He had gone to the home of Ms Waddell who was an old friend. In his dock statement at trial, he said “I had gone to Judy Waddell’s home to return a zipper jacket to her that she had altered for me, which was too large …” . In the present proceedings, he said “I had called up Judy Waddell’s place and had a jacket with me that had two lapels on the side … and I asked her to make them tighter for me which was to move the button so that when done up it would be tighter. She had a sewing machine there” .

In cross-examination in the present proceedings by Mr Strickland, senior counsel for the fourth defendant, Mr Pattle, the plaintiff said that he did not go there for that express purpose. He said he “just called in” . When asked by Strickland as to the purpose behind doing so, he responded “I had no purpose” . He said it was Ms Waddell who introduced him to the Thompsons.

In the Crown case it was contended that the association between the plaintiff, the Thompsons and Waddell, far from being the result of a random or a fortuitous event, was part of a planned international operation for the importation and supply of a substantial quantity of heroin.

The Crown case was, in part, that surveillance evidence, which was introduced both at committal and at the trial, linked the activities of the plaintiff, the Thompsons and Waddell and through them to another group that included Mr Peter Wong and Ms Yuen Ling Pak and others. Ms Pak, at the time, was working for or on behalf of Wong, both being Hong Kong residents. As discussed further below, Pak travelled to Sydney from Hong Kong in early July 1982.

In the trial and in the present proceedings, the Commonwealth and the fourth defendant placed considerable reliance upon evidence derived from surveillance observations on the activities of the plaintiff and others. That evidence was said to establish the plaintiff’s participation in the conspiracy to supply heroin with Donald Thompson and Ms Waddell and through Thompson with Pak and Wong and others. In the present proceedings, the surveillance evidence was relied upon as establishing important facts relevant to the issue of reasonable and probable cause.

It was contended on behalf of the second defendant, the Commonwealth and the fourth defendant, Mr Pattle, that the surveillance evidence, not having been challenged at committal or at trial, may be taken to be reliable evidence. Such evidence, it was contended, linked the plaintiff to the Thompsons and others in incriminating respects. It was only during the course of the present proceedings, the defendants maintained, that, for the first time and some 25 years later, the plaintiff sought to challenge aspects of the surveillance evidence.

Mr Strickland on behalf of Mr Pattle, contended that the submissions for the plaintiff provide no credible answer as to why the surveillance evidence had not been the subject of any challenge at the trial. The only explanation for the absence of a challenge, he contended, was that the evidence, in fact, accurately recorded relevant events and that counsel appearing for the plaintiff in the criminal proceedings had no instructions to suggest otherwise.

In this latter respect, it was contended for the State at [174] of the Outline of Submissions of First Defendant that the plaintiff’s case did not proceed upon the basis of seeking to identify any deficiency in the material available to the prosecutor. Rather, it was contended, the plaintiff’s case involved an attempt to “re-run the criminal trial cross-examining witnesses about method, practice, habit and the like, to attempt to establish a reasonable doubt about the guilt of the plaintiff. That is the very antithesis of everything that an action for malicious prosecution is about” .

The focus in cross-examining the defendant’s witnesses on the accuracy of observations and materials gathered during the course of police investigations was to lay a foundation for the proposition that evidence was fabricated and for the Court to accept the plaintiff’s account of events, including, in particular, his version of events at the KFC premises at Burwood.

The plaintiff specifically sought, in particular, to demonstrate that evidence given by Messrs Donaldson, Matinca and Pattle at the trial and in these proceedings involved false or fabricated accounts. The ultimate objective in this regard was to establish an absence of reasonable and probable cause for the charges being brought against him.

The evidence as to the surveillance observations, which I accept as reliable evidence, is relevant in at least two respects. Firstly, they provide a factual account of the plaintiff’s movements and activities in the critical period between 5 and 19 July 1982 against which to gauge the factual accuracy of his own account of what he said he did in that period. Secondly, it established quite an intense relationship or association between him and Donald Thompson with frequent meetings between them over the 15 day period leading up to the arrests made on 19 July 1982. Meetings between them on occasions in that period occurred on days when Thompson was also having frequent telephone contact and/or meetings with Pak who was staying at the Hilton Hotel, Sydney.

By any assessment, the surveillance material constituted significant circumstantial evidence in the Crown case. The surveillance was undertaken as part of an ongoing police operation that had commenced well before 5 July 1982. Police, before that date, had in their possession intelligence that alerted them to a prospective drug importation.

The facts established by the surveillance evidence were later augmented by the events that took place on the evening of 19 July 1982 including those that occurred at the KFC premises at Burwood. That evidence was elucidated by admissions subsequently made to police by Donald Thompson and Pak. Although those admissions were not admitted against the plaintiff at trial, they were, on the basis discussed later in this judgment, relevant on the question of reasonable and probable cause. The truthfulness of Pak’s account to police of events preceding 19 July 1982 was, in material respects, corroborated by the surveillance observations.

The position, therefore was that, before the events of 19 July 1982, police were in possession of a substantial body of incriminating material against the plaintiff.

The plaintiff did not provide police on or after 19 July 1982 with an account of what he, in due course, contended at trial was the real purpose for meeting with Donald Thompson at the KFC premises. That purpose, according to him, was to pursue the recovery of a debt allegedly owed to Thompson by a person referred to as “Chris Howe” . The material available for the prosecutor’s consideration, accordingly, did not include any such exculpatory explanation.

The submissions for the plaintiff in reply to those made on behalf of the second defendant in paragraph 79 of the Commonwealth’s written submissions contended that the plaintiff’s mere presence at the KFC premises on 19 July 1982 was not sufficient to support an adverse inference against him.

Thompson was, of course, the other person who was in a position to corroborate the purpose of the meeting on the night of 19 July 1982. However, he did not provide police with any information that supported the plaintiff’s later account of meeting him in relation to a debt recovery matter. To the contrary, Thompson’s disclosures to police following his arrest implicated the plaintiff. I will return to the relevance of the admissions of Pak and Thompson below. (a) The plaintiff meets Donald and Merle Thompson

During the course of the visit on 5 July 1982, the plaintiff said that Ms Waddell asked him to go to a hotel on the corner of Crystal Street and Parramatta Road, Leichhardt to pick up two friends (the Thompsons) and bring them back to her home. He said that, at that time, Ms Waddell told him that her daughter had recently vacated a flat and she had decided to give the Thompsons the opportunity of looking at the premises.

The plaintiff, according to his account, then drove down to the hotel where he introduced himself to the Thompsons. There was no explanation as to how he managed to identify them. His account is contradicted by (then) Detective Senior Constable Paynter’s surveillance observations. Paynter said he saw the Thompsons “leave the hotel, cross Crystal Street and enter a white Mazda sedan No LJA 291. I saw that the vehicle was driven by a person whom I know as Henry Charles Landini …” . The plaintiff said:- • He dropped Merle Thompson back at Duntroon Street. • He found the unit Ms Waddell had referred to in George Street, Marrickville and showed the premises to Don Thompson. He said they were there for about five minutes. Ms Waddell had beforehand given the plaintiff a key to the premises to be able to show Mr Thompson through. • The plaintiff then brought Mr Thompson back to Duntroon Street. He remained there for five to 10 minutes and then left.

Police contended that this had been an occasion upon which there was a supply of heroin made.

The next relevant event according to the plaintiff occurred on 9 July 1982 when he again travelled from out of Sydney to Ms Waddell’s premises at 16 Duntroon Street premises. She told him that she had spoken to the Thompsons and they were at the Clarence Hotel where he had first met them. She said they had mentioned to her that some money was owed to them and Mr Thompson wanted the money retrieved.

The plaintiff then said he subsequently went to the Clarence Hotel but found that the Thompsons were getting ready to leave for dinner. Mr Thompson said to him “listen, make a night of it with Judy and I’ll have a couple of things to discuss with you” . The Thompsons then left. The plaintiff then went back to Ms Waddell’s place.

The plaintiff said he again saw the Thompsons at Ms Waddell’s house on 12 July 1982. They then set off for the La Rustica Restaurant in Leichhardt.

At the restaurant, the plaintiff said that Mr Thompson asked him if he knew a man called Chris Howe. The plaintiff said that he did not. There was no evidence as to why Thompson could possibly believe that he would have known “Howe” .

According to the plaintiff, during the conversation Don Thompson said that he, Thompson, had carried out some tiling work for Howe on his roof. According to the plaintiff, Thompson led him to believe that he, Thompson, had been a roof tiler in the past, had become ill and had considerable difficulty retrieving the money owed by Howe in the amount of $12,000.

The plaintiff responded that he would help him recover the money but that if he did recover it from Howe he would want an amount of $3,000. He said on that basis that they agreed to meet on 19 July 1982.

In relation to the events on 5 July 1982, Mr Strickland cross-examined the plaintiff as to his movements:- (1) The plaintiff said he could not recall leaving Ms Waddell’s house shortly after 1.35 and returning with a yellow shopping bag before going to pick up the Thompsons. (2) It was put to him that evidence was given at his trial that at 2.25 pm a taxi cab stopped in front of 16 Duntroon Street and the taxi driver appeared to hand something to the plaintiff and then left. The plaintiff could not recall, although he did not dispute it happening. He could not recall receiving from the taxi driver a Commonwealth Bank employees salary envelope. (3) The plaintiff confirmed that he had never before met the Thompsons and claimed that Ms Waddell described them for him. He said he did not wonder why Ms Waddell wanted him to meet them at the Clarence Hotel rather than elsewhere. (4) The plaintiff agreed that he dropped Merle Thompson at Waddell’s home and that he took Thompson to a unit at 35 George Street, Marrickville. The plaintiff rejected the proposition that he was lying when he said that Don Thompson wanted to go to Waddell’s unit because he was considering renting it. (5) After leaving the unit, it was put to him that he took Mr Thompson to Elswick Street, Petersham where Mr Thompson left the vehicle. The plaintiff did not accept that occurred. However, evidence given by Detective Paynter at the committal and at the trial confirmed that fact. He agreed that evidence was not challenged on either occasion. (6) The plaintiff agreed that Elswick Street was close to the Etna Club being a place he frequented. (7) It was put to the plaintiff that he again met up with Don Thompson at Elswick Street, the plaintiff being seated in his Mazda car and that Thompson entered the vehicle, the vehicle then being driven to 35 George Street, Marrickville, that being the second trip to the unit that address on that day. The plaintiff accepted that Detective Paynter gave evidence to that effect at the trial and had not been challenged on it and that there had been no contradiction of those facts in his dock statement. (8) The plaintiff rejected the proposition that he knew the Crown case was that he had received a large quantity of heroin on 5 July 1982 (approximately one kilogram of heroin). He, however, acknowledged that he appreciated that that was an element of the Crown case. (9) The plaintiff denied that the first meeting on 5 July 1982 with Mr Thompson was to discuss the purchase of a large quantity of heroin and that the second was to meet up with him at Elswick Street and then on to George Street to collect the heroin. (10) He denied knowing that Merle Thompson went to Judy Waddell’s place on 5 July 1982 because she was “security” for the delivery of the heroin. (b) Arrivals from Hong Kong and Sydney meetings

The activities of Thompson, Pak and the plaintiff and others as established by surveillance observations in the period 4 to 9 July 1982 are detailed below. The evidence established that in that period the police investigation obtained evidence as to the arrival in Sydney in July 1982 from Hong Kong of Pak, Smittant, Naktrakul and Ho. Investigations also identified the hotels in which they stayed, telephone and face to face meetings, and the frequent attendance by Donald Thompson at the Hilton Hotel and other places where meetings took place between him and Pak, Pak’s communications with Wong and the posting of cash by Pak to Wong.

The investigations in this period also revealed that meetings took place between Thompson and the plaintiff at Waddell’s home and at other places. The meetings between Thompson and the plaintiff were of short duration and took place in cars, hotels, Waddell’s house, the empty unit at 35 George Street, Marrickville as well as at the La Rustica Restaurant. The last occasion on which the plaintiff and Thompson were together before travelling to the KFC premises on 19 July 1982 where they were arrested was in the plaintiff’s car. On that occasion, Thompson was seen taking a multi-coloured plastic bag when alighting from the plaintiff’s car. The bag was later located by police in Pak’s room in the Hilton Hotel after Thompson had taken it to the hotel. The bag was found to contain $40,000. (c) The plaintiff’s account of events preceding his arrest

The plaintiff gave an account of his movements on 19 July 1982. They were, in summary:- (1) That he left the South Coast in the afternoon. (2) That he saw Don Thompson at about 4.00 pm that day at Leichhardt. He said that he had previously arranged to meet him at the Caltex garage in Crystal Street, Leichhardt. (3) Don Thompson, according to the plaintiff, said that he would meet him at 9.00 pm outside the La Rustica Restaurant and that “we’ll take it from there” . (4) The plaintiff came back at 9.00 pm when it was raining and parked his car across from Parramatta Road. (5) He saw Don Thompson standing outside the La Rustica Restaurant and spoke to him. Mr Thompson said that he had to go to Strathfield to see the man, Chris Howe, because that was where he lived but in the meantime he had to go elsewhere. (6) The plaintiff said “what about I see you at 10.30 pm at Kentucky Fried Chicken at Burwood …” . Mr Thompson replied “that’s fine …” . (7) According to the plaintiff, Mr Thompson asked him if the plaintiff would drop his wife, Merle Thompson, off at Ms Waddell’s place. The plaintiff said that he did not mind doing that. (8) They got into the car. Merle Thompson was in the front with him and he said that Don Thompson was in the back seat. The plaintiff said that he had borrowed this particular car from Judy Waddell. (9) He said that as they proceeded, Don Thompson pulled out a multi-coloured plastic bag which happened to be in the car and said to the plaintiff “have you got any use for this?” . The plaintiff said he said that he did not. Mr Thompson then is alleged to have said to his wife “I will take you out for dinner when I get back in a couple of hours” . The plaintiff said this followed an episode in which Merle Thompson was displeased at the idea that Mr Thompson was going elsewhere. (10) The plaintiff said he later proceeded to the KFC premises where he waited. He got out of the car, walked a short distance away and looked at cars at a nearby car dealer. (11) He returned to the KFC premises and then described the events leading up to his arrest that evening. (12) He said that when he returned to the KFC premises, he saw a mustard coloured Holden parked on the right hand side and two European or Mediterranean young men get out of it and walk in the direction from which he, the plaintiff, had come. He got into his car and switched the radio on and listened to music for five or 10 minutes. (13) He then saw a taxi pull in to the KFC premises and stop 30 to 40 feet away from his car. He saw the door fly open, the light in the car come on but he could not see who was in it. He said that a number of men jumped out of the car. He also saw the cab driver jump out and point at his hand and he heard what sounded like two or three loud “bangs” . (14) The plaintiff said he jumped out of the car to look. He said that, at the time that this happened, there was a blue Falcon that drove in and came sideways to his car, stopping about 10 feet away. He said that a man jumped out of that car, ran around and put his hand up on top of the roof and pointed the car in the direction of where the cab driver was.

The plaintiff then gave evidence of the events as follows (transcript, p.44):- “… as I said, he jumped out of the car, run around it, put his hand on top of the roof and pointing the gun in the direction where the man had run and the cab driver was chasing that fired the shots. As I got, as I opened the door to the car to get a better look and stood up, he spun around and said to me: ‘Get up against the car or I'll shoot you’ which I immediately done. He run over and stuck the gun in my back and said: ‘What's your name?’ I said: ‘Henry Landini’. He started pulling me hands behind me back and putting handcuffs on me and I said: ‘What are you doing this to me for?’ Right. He turned around and pushed me on the ground, then stuck his foot on top of me head.”

He said he was “patted down” whilst lying face on the ground. He had $60 in his pocket which he said was taken from him.

After lying face down on the ground, he said that a detective who he now knows to be the fourth defendant, Dennis Pattle, grabbed him by the throat. He said people were kicking him from both sides. He said he had difficulty breathing and blacked out.

He said on the second occasion that he regained consciousness, Pattle pulled his head up. He said, at that time, he saw a woman standing there with jeans and a white jumper on and she kicked him in the face. He said that Pattle had hold of him around his throat. He said he was still on the ground at this time.

In cross-examination, the plaintiff agreed that he had previously asserted that the woman who allegedly kicked him in the face was a Detective Brewster. In particular, he agreed that he had written a letter in May 1983 asserting that Constable Brewster had kicked him. However, he said he now knew that Brewster had not been at the KFC premises that evening. It was put to him in cross-examination that, in fact, there was no woman police officer present that night. He insisted that there was.

He said that he was then dragged over to the blue Falcon and put in the back seat of the car and his seat belt was done up. He said that the police officer, Donaldson, said to Pattle (who was sitting in the front of the car) “if he moves, shoot him” .

The plaintiff said that he was handcuffed at this time. He said that a short while later, the back door of the car flew open and a policeman punched him in the jaw and hit him with his elbow. The car door was closed and he said it happened again a minute later from another policeman. He claimed that the door was opened again and he received a punch in the stomach two or three times.

In all, the plaintiff said that he was in the police car at the KFC for about 15 minutes. He said Donaldson got into the back seat with him and told Pattle to drive into town. He said on the way he grabbed hold of him, shaking his head around. He said he held him by the hair and punched him in the stomach, saying, “we’ve got you now” .

The plaintiff claimed that Donaldson also said to him “a wog can’t drive in a Mercedes” .

He was taken to the CIB Headquarters in the Remington building in Liverpool Street, Sydney.

The plaintiff said that as he walked towards the lift of the building, he saw two other people “with a Chinese person” get into the lift. He said that he found out later that one of those persons was Dent (a State police officer) and the other, Taciak (a Federal police officer), and the other person later became known to him as a co-accused, Smittant.

He said that he was taken to the fourth floor of the building and there was asked by Donaldson “are you prepared to make a statement now?” . This, he said, was in the presence of Pattle. The plaintiff said that he replied “yes, I am persuaded to make a statement now as to what happened” . He said that Donaldson stated “the only statement you’ll be making is you won’t be denying anything” . The plaintiff said that he responded “well in that case I’ll wait till me solicitor comes” . He said that Donaldson responded “I’ll get you one later” .

The plaintiff said he was not permitted to have any contact with a solicitor but that, at some point, a solicitor did come. He said he remained in the interview room for about half an hour or more.

He said that Donaldson and Pattle came into the room and took him to another room where they showed him “… some large amount of money and I remember Pattle saying ‘what have you got to say about that?’” . He said he replied “well what am I supposed to say? … I don’t know what you’re talking about” .

He said that the police officers showed him some cardboard rolls with white powder “… some white powder in there that was in a bag” . He said that he told the police officers that he didn’t know what it was. He added that he had never seen the money before that day and had not seen the cardboard rolls before that day.

He said subsequently Pattle came back and took down particulars as to his date of birth, where he lived and other details. He said he was in the room for another couple of hours before he was taken away early in the morning to Central Police Station. He said he recalled at some point being fingerprinted and put in a cell. He said that he was not allowed bail.

On the day following his arrest, he went to the Central Local Court and heard a number of charges read out. One of them related to the importation of heroin.

In relation to the charge of being in possession of an unlicensed pistol, he said that he had never had a pistol in his possession at any time and, in particular, not at the KFC premises. (d) Criminal proceedings

The plaintiff said he did not apply for bail. He said there were a number of reasons behind the decision not to do so. The first, he said, was that he had no money. Secondly, he said he was fearful in seeing what occurred to him “the first time” (presumably referring to the 1980 charge). He thought he would be better off in custody for his own safety. He stated:- “Well, I was fearful that I could get loaded up again or worse if I was to obtain bail. Bail wasn't in me mind at the time.”

He said in due course he faced committal proceedings and engaged lawyers to appear for him. At this stage, he retained Mr Colin Love, solicitor, who retained a barrister.

In due course, the plaintiff said he was committed for trial along with the other alleged co-conspirators. At his trial, as earlier indicated, he made a dock statement.

Following his conviction on 15 December 1983, he was sentenced to a minimum term of imprisonment for six years and a maximum term of imprisonment for 16 years.

The plaintiff then gave evidence that he served a term of imprisonment between 19 July 1982 to 12 August 1987. (10) THE INVESTIGATION

Exhibit 20 comprises copies of a large number of surveillance reports and records in relation to contemporaneous police investigations into the activities of a group of persons in Hong Kong and in Sydney. As earlier indicated, there is no evidence in the present proceedings that establishes that the documents were falsified or that the events recorded in them were fabricated.

These investigation materials and statements of evidence of officers who undertook the physical surveillance and the reports on their observations constituted primary source materials available for the prosecutor’s consideration in determining whether there was a proper basis for charging the plaintiff with conspiring to supply heroin.

Exhibit 20 comprises police investigation records in relation to Operation Snooker commencing 22 June 1982. The documents record the inquiries, movements and background information concerning each of the persons under investigation. It is clear, as earlier indicated, that entries from June 1982 onwards indicated that police were alerted to the prospective importation and supply of heroin into Australia involving Wong, Pak, the Thompsons and others. Surveillance

The analysis of surveillance records established relevant associations, liaison and planning leading up to the importation and supply of heroin. The relevant entries commencing 27 June 1982 to 19 July 1982 reveal the progressive accumulation of evidence consistent with the conspiracy later the subject of the criminal charges. By 19 July 1982, police were in a position of having acquired sufficient material to anticipate that the conspiracy would be implemented on that date. They, accordingly, put in place a co-ordinated operation involving a large number of officers.

Surveillance on the dates set out below established the following matters:- (a) 27 June 1982

Pak in Hong Kong contacted Mona Mansfield – advised her that heroin was in Sydney and was for sale. She said she would fly to Sydney.

Mona Mansfield immediately contacted Don Thompson. (b) 30 June 1982

Wong rang Don Thompson from Hong Kong – stated that it was “okay to do business with Pak and Benny” . Wong told Donald Thompson that there were “20 houses” involved and Thompson should give them “45” , ie, $45,000 and Thompson should keep “five” , ie, $5,000 as “broker’s commission” and “five for me” (ie, Wong). The term “house” was code for “heroin” .

Wong told Thompson not to say anything to the “Benny” group about Wong’s intended importation. (Benny, referred to above, is identified in the document as a “well-known international drug trafficker with convictions in Hong Kong and Malaysia” .)

In early July 1982, Ho Cheung Ying travelled from Hong Kong to Sydney. He booked into the Hampton Court Hotel with another male. That other male booked out of the hotel on 6 July 1982. Ho left Australia on 4 August 1982. (c) 2 July 1982

Further phone contact between “Benny” and Thompson. (d) 4 July 1982

Arrival card (Exhibit 20, p.128) records Pak arriving in Sydney and staying at the Hilton Hotel. Pak stayed at the Hilton Hotel until 9 July 1982.

A record of telephone calls records, inter alia:- • Pak contacting Donald Thompson • Four calls by Pak to Hampton Court Hotel • Waddell rang the Thompsons suggesting a meeting on 5 July 1982 (e) 5 July 1982 • Two calls by Pak to Thompson on 5 July 1982 • Pak call to Hampton Court Hotel on 5 July 1982 • Pak call to Wong on 5 July 1982

Thompson telephoned Waddell and travelled by taxi to her home. Surveillance established that the plaintiff also travelled to Waddell’s home that day (see below).

Waddell contacted “Jimmy Lewis” and requested him to come to her place by 12 midday on 5 July 1982.

There was surveillance by Paynter in which he observed Donald and Merle Thompson at 2.30 pm enter a cab in Maroubra and later saw them leaving the taxi in Crystal Street, Petersham and enter the Clarence Hotel.

A short time later, two people were seen entering a white Mazda, LJA 291, driven by Mr Landini. The vehicle was followed to Duntroon Street, Hurlstone Park where Merle Thompson alighted from the vehicle and entered 16 Duntroon Street. Mr Landini and Thompson, as noted earlier, were seen leaving the vehicle and entering units at 35 George Street, Marrickville.

They were both seen a short time later leaving in the Mazda vehicle which was followed to Elswick Street, Petersham where Don Thompson left the vehicle. He was followed to George Street opposite the Hilton Hotel and entered the hotel.

On the leaving the hotel, Don Thompson was followed to Crystal Street, Petersham where he left the taxi and walked to Elswick Street and again met up with Mr Landini who was seated in his Mazda vehicle which was driven off and followed to George Street, Marrickville where both left the vehicle and entered a unit at 35 George Street (the second visit that day).

At 4.45 pm, Don Thompson and Mr Landini left the unit and re-entered the Mazda sedan. It was followed to Duntroon Street, Hurlstone Park where the vehicle was left and they entered premises at 16 Duntroon Street.

At 6.15 pm, Don Thompson left the last-mentioned premises and walked to the other Duntroon Street premises and Don Thompson was seen at 8.15 pm in the Maroubra Junction area.

Mr Landini was seen by Detective Senior Constable Hardiman (Exhibit AT) at Waddell’s home at 16 Duntroon Street, Hurlstone Park. At 2.25 pm he was seen approaching a taxi that stopped at the front of the premises and take something from the taxi driver.

At 3.17 pm, Mr Landini was seen driving Mazda vehicle, LJA 291 with Mr and Mrs Thompson as passengers. (f) 6 July 1982

Ho met Pak and accompanied her back to the Hilton Hotel.

Paynter observed Judy Waddell driving a Fairlane vehicle. It was driven to the Ampol Service Station. Don Thompson was seen to walk over to the vehicle and enter it where he and Waddell had a conversation for about 20 minutes.

Don Thompson left the vehicle and walked towards Parramatta Road and caught a taxi. Thompson was followed and was seen entering the foyer of the Hilton Hotel where he met Pak. They went to a restaurant and engaged in conversation for 20 minutes and Thompson was followed back to his home in Maroubra.

At 4.35 pm, Thompson left the premises carrying a large white envelope which he took to the Maroubra Junction Post Office.

Inquiries at the post office revealed that it was addressed to Peter W L Wong. (g) 7 July 1982

Ho met Pak and Thompson outside the Hilton Hotel.

Paynter observed Thompson at 10.15 am take a taxi to George Street, Sydney opposite the Hilton Hotel and was seen entering the hotel and meeting Pak. They met “an unknown Chinese male” and had a conversation.

At 11.55 am, Thompson was seen returning to his premises.

Paynter attended at the Redfern Mail Exchange where two letters were removed, both addressed to Mr Peter Wong (Hong Kong) (h) 8 July 1982

Don and Merle Thompson followed from Maroubra to the GPO in Martin Place where Merle Thompson removed a large white envelope from her bag and handed it to a staff member. Subsequent inquiries at the post office established that the letter was addressed to Mr P W L Wong. (i) 9 July 1982

Paynter, at about 5.50 pm followed the Thompsons and travelled by taxi to Crystal Street, Petersham and entered the Clarence Hotel. Mr Landini was seen crossing Crystal Street and entering the lounge bar and he left at 7.35 pm. (j) 10 July 1982

Mr and Mrs Thompson were seen with Pak in a Chinese Restaurant in Dixon Street. (k) 12 July 1982

Paynter followed Don and Merle Thompson from their Maroubra premises to 16 Duntroon Street, Hurlstone Park and at 8.40 pm saw the Thompsons, Mr Landini and Waddell leave the premises and enter a Fairlane vehicle, LWL 243. The vehicle was followed to La Rustica Restaurant which they all entered. (l) 14 July 1982

Smittant arrived in Australia. Ho contacted Smittant on that date. (m) 15 July 1982

Ho contacted Smittant and told him to contact Pak.

Paynter followed the Thompsons to the Hilton Hotel and saw Pak enter the restaurant where the Thompsons were located.

At 3.40 pm, Don Thompson and Pak walked from the restaurant. (n) 17 July 1982

Naktrakul arrived in Sydney on a Thai passport. Smittant and Naktrakul booked in at the Hampton Court Family Hotel.

On this date, Pak met with Smittant and a little later Thompson and Pak met for approximately 45 minutes. (o) 19 July 1982 – 2.15 pm to 9.35 pm

At 2.15 pm, Paynter followed Don Thompson who travelled by taxi to Crystal Street, Petersham. He stood outside the Ampol Service Station near Queen Street and a short time later Paynter saw a blue Commodore, LRC 982, driven by Mr Landini. The vehicle stopped outside the Ampol Service Station and Thompson entered the vehicle. It was then driven to Fort Street, Petersham. There, Thompson and Mr Landini remained in the car conversing for about 20 minutes.

Thompson was seen to leave the vehicle and enter a telephone box and a short time later return to the vehicle and there was then a further conversation. The vehicle was followed to Crystal Street where Thompson left it and entered a taxi which was followed by Paynter to the Maroubra address.

At 7.00 pm, Don and Merle Thompson were followed by Paynter by taxi to Parramatta Road, Leichhardt where they left it and crossed the road. At 9.00 pm, the blue Commodore, LRC 982, driven by Mr Landini stopped and the Thompsons entered it. Don Thompson was carrying an umbrella.

The vehicle was driven a short distance and turned into Renwick Street and became stationary. The three persons remained there for a short time and then Thompson left the vehicle carrying the umbrella and a multi-coloured plastic carry bag. He was seen to walk to Parramatta Road and hailed a taxi which was followed to George Street and Thompson was seen entering the Hilton Hotel.

At 9.35 pm, Thompson was seen leaving the Hilton Hotel without the multi-coloured plastic bag but still in possession of the umbrella. (p) 19 July 1982 – 9.35 pm to 10.00 pm

Don Thompson was followed to the Newcrest Hotel and Thompson entered the hotel, where Naktrakul was a guest. Thompson and Naktrakul were seen entering the Hampton Court Hotel. A short time later, Thompson left the hotel and hailed a taxi. He was carrying an umbrella and a brown carry bag. Paynter approached in an undercover capacity as a driver in his taxi. Thompson entered it and gave the destination as “the Kentucky Fried Chicken place, Burwood” .

The account given by police officers in their statements and in evidence as to the relevant events leading to the plaintiff’s arrest are set out below. The evidence of Mr Paynter and of Mr Donaldson play an important part in the plaintiff’s case in the present proceedings. The plaintiff claimed that Mr Donaldson fabricated evidence against him as to what occurred at the KFC premises and, additionally, and also that Donaldson had others fabricate evidence for the purposes of the trial.

The evidence of Mr Paynter, Mr Donaldson, Mr Matinca and Mr Pattle is separately examined below. (11) THE EVIDENCE GIVEN BY POLICE OFFICERS AND FORMER OFFICERS (a) Mr Paynter

Richard James Paynter as at 1982 held the position of Detective Senior Constable in the New South Wales Police Force.

He commenced service in May 1968 and left the Police Service in February 1989. In 1970, he had joined the Observation Squad with the then Central Intelligence Bureau and remained there until 1975. He was seconded in 1978 to the JTF and remained there until 1985. He had training and experience as a surveillance officer.

I found Mr Paynter to be an impressive witness who gave his evidence in a straightforward and unembellished manner.

He was involved in surveillance duties in relation to Operation Snooker on 4, 5, 6, 7, 9, 12, 15 and 19 July 1982 and was actively involved in the undercover operations before the arrests at the KFC premises on 19 July 1982.

He said in evidence that he had had the opportunity of reading his statement dated 23 July 1982 (Exhibit A), the transcript of his evidence in the committal proceedings (Exhibit 2) and the transcript of his trial evidence (Exhibit C).

In his statement, Mr Paynter, who acted in an undercover capacity of a taxi driver, recorded events of the evening of 19 July 1982:- “30. A short time later I again saw Don THOMPSON walk from the entrance of the Hampton Court Hotel. I saw that he was carrying an umberalla [sic] and a brown plastic carry bag. He walked in a westerly direction to Bayswater Road. I then drove my vehicle, a taxi, west in Baysawater [sic] Road. As I approached Darlinghurst Road Don THOMPSON hailed me, I stoped the taxi, THOMPSON walked over to the taxi, entered it and said, ‘The Kentucky Fried Chicken place, Burwood.’ I said, ‘You mean the one on Parramatta Road? He said, ‘Yes’ Don THOMPSON placed the bag that he was carrying between his legs on the front floor of the taxi, I then proceeded towards the destination and during this time I said, ‘I think you have left it a bit late to get a meal there.’ He said, ‘I am not going to eat, I’ve got to meet a mate there then I’ll get you to drive me to Maroubra. Is that alright driver?’ I said, ‘Yes, that suits me.’ 31. On arrival at the Kentucky Fried Chicken restaurant at Burwood I drove into the car park. I again saw the Commodore sedan LRC 982, the headlights of the taxi shone on the Commodore and I saw that the defendant LANDINI was seated in the driver’s seat. Don THOMPSON said, ‘Just near this car thanks driver, there’s my mate. I won’t keep you long.’ At this time I saw LANDINI get out of his vehicle and walk to the passenger side of the taxi. During this time Don THOMPSON wound down the passenger side front window and leant down and picked up the brown carry bag off the floor and started to hand it out the window. LANDINI put out his hands and at the same time I said on the police radio, ‘Now.’ With this I saw a car approaching across the car park at a great rate of speed. LANDINI said, ‘You cunt.’ He then started to run from the taxi. Don THOMPSON jumped out of the taxi and ran across the car park carrying the bag. He then threw the bag onto the ground and ran across Parramatta Road. I chased after him and grabbed hold of him in the school grounds. I said to him, ‘We are from the police. I want you to come back to the taxi with me.’ He said, ‘Alright.’ I then escorted him back to the car park where he had thrown the bag on the ground and I said, ‘Why did you throw that bag away?’ He said, ‘It was slowing me down.’ I said, ‘I believe that there is Heroin contained in those rolls’ (indicating to the bag) He said, ‘I know. Give me a go will you. I said, ‘Where did you get it from?’ He said, ‘Off a chow at Kings Cross.’ …”

Mr Paynter described in evidence the methodology employed in producing evidentiary statements. In this regard, he said that there were usually discussions as to who would give evidence concerning surveillance and work out “who saw what and who would give that evidence” . He said that information was taken from running sheets and from surveillance sheets. Mr Paynter said that the only “direction, request or advice” given to him in relation to Operation Snooker was at an early stage in respect of Neddy Smith. He said that, by reason of the stage that investigations concerning Smith had reached, he was told that there should be no reference in his statement to him in the context of observations carried out upon the targets of Operation Snooker.

In the course of his cross-examination by Mr Steirn, the following matters were put to him:- (1) The evidence as to a second meeting between the plaintiff and Mr Thompson at 35 George Street, Marrickville on 5 July 1982 was a fabrication. Mr Paynter responded “that is not correct, Mr Steirn” . (2) A statement he attributed to Ms Waddell to the effect that the plaintiff was “a customer of mine” was a fabrication. Mr Paynter denied the statement was fabricated. (3) That “… you, together with Donaldson, Mr Matinca and Mr Pattle, fabricated evidence against Mr Landini” . Mr Paynter responded “that’s not correct” . (4) That his evidence as to observations he said were made in relation to events on 5, 7 and 19 July 1982 involving the plaintiff were “false observations” and “done for the sole purpose of convicting Mr Landini?” . Mr Paynter responded, “no, that’s not right” .

Mr Paynter agreed that he did have “a very good recollection” of the events at the KFC premises. He denied firing his revolver that night at any stage including his pursuit of Mr Thompson.

He said he prepared his statement and handed it in to the case officer or whoever was compiling the brief. He said that he did not ever recall “… sitting down and doing all our statements together and him (the case officer) walking around the room” .

When it was put to him that on one such occasion involving a gathering of police following the arrests on 19 July 1982, the case officer required statements in relation to one aspect or another, Mr Paynter replied “no, I don’t want to be hard to get on with, but I’m saying you would go to that individual and say ‘I need a statement to say that you picked the drugs up from the laboratory’. We wouldn’t have a meeting for that” .

When it was then put to him:- “Q. So there would have been a time where a case officer may speak to a number of officers involved in a particular matter? A. Yes, but it didn’t happen in my case . ”

In relation to what was termed a “scrum down” or meeting held after the arrests at the KFC premises in which Mr Donaldson was present, he said that whilst he could not suggest that there was no meeting, he said he had no recollection of it occurring.

A number of questions were put to Mr Paynter based upon the evidence given by Mr X. He denied that Detective Donaldson said at any meeting “who heard Landini’s admissions?” . He said there was no meeting at which that was said. He repeated that he no recollection of ever attending a meeting with other police after the arrest of Mr Landini.

He had no recollection of Donaldson saying, “there’s to be no mention that any shots were fired at the scene of the arrest” .

He had no recollection of hearing Donaldson say “who heard Mr Landini’s admissions?” . He denied hearing Pattle say “I heard the admissions” .

He had no recollection of hearing Donaldson say “who saw Landini in the possession of the gun? Who corroborates who here?” . He had no recollection of Donaldson ever saying in his presence “How did you assault him again?” , referring to Mr Landini.

He had no recollection of Donaldson saying “there is to be no mention of any assault taking place on Mr Landini at the time of his arrest” .

He said he had no recollection of Donaldson saying to Mr X that he would need to change his statement or that there was to be no mention of any assault and no recollection of anything said to him and Brewster about changing their statements. When it was put “Was anything like that said in your presence?” , Mr Paynter responded in the negative.

Mr Paynter was an important witness both in relation to the surveillance observations undertaken by him during the operation and in relation to the particular events that occurred after he drove the taxi into the KFC premises. He was a highly experienced surveillance officer. He said he maintained running sheets and surveillance sheets from which his statement was partly constructed. No basis was established as to why he ought not be accepted in relation to the accuracy of his observations on the abovementioned dates in relation to the plaintiff and Thompson.

In relation to his observations at the KFC premises, he was in a position to observe at close range the activities of the plaintiff and of Thompson. The evidence does not, in my opinion, establish a foundation or reason for not accepting his evidence in relation to what he said he saw on 19 July 1982 both before and at the KFC premises.

Mr Paynter only become involved with Operation Snooker on 4 July 1982. There is no evidence that establishes any motive for him to fabricate evidence against the plaintiff. Furthermore, there is no evidence of any relationship between Mr Paynter and Donaldson or any other member of the JTF which would support the allegation that he falsified his statement or evidence at the request of any officer with the JTF. There is simply no evidence that is adverse to him. The evidence rather establishes that he was a professional and skilled police officer without any blemish in the period in his 21 years of service.

Accordingly, having considered the evidence, including the plaintiff’s evidence, I have no hesitation in accepting Mr Paynter as both a reliable and otherwise credible witness. (b) Mr Matinca

For a limited time early in the proceedings, Mr Matinca was represented by Mr L Tyndall and Mr G Pulsford. He was unrepresented thereafter and did not appear at the hearing to represent himself, although he lodged written submissions dated 15 August 2007. He was called, as earlier noted, as a witness in the plaintiff’s case.

Mr Matinca was formerly a member of the Australian Federal Police ( “AFP” ) from 1980 to 1995. In 1982, he was attached to the JTF on Drug Trafficking in Sydney.

He originally commenced employment with what was then the Narcotics Service in the early 1980s which subsequently was disbanded. The function of the Narcotics Bureau was taken over by the newly formed AFP.

Mr Matinca was with the JTF for approximately four years and in the period up to 19 July 1982 his duties were predominantly involved with surveillance work.

Mr Matinca was involved as a surveillance team member and was assigned to surveilling Mr and Mrs Thompson. During the course of his surveillance, he observed meetings taking place between the plaintiff, Ms Waddell and the Thompsons. Most took place in the Marrickville and Leichhardt area, in particular, in Duntroon Street, Hurlstone Park and George Street, Marrickville and in Crystal Street, Petersham.

Mr Matinca gave evidence in the plaintiff’s trial as to the surveillance operations that he was involved in. Many of the meetings between the Thompsons, Waddell and the plaintiff occurred either at Ms Waddell’s premises or, for short periods, in car parks, streets and in hotels.

In accordance with his evidence, Mr Matinca, in his written submissions (dated 15 August 2007) contended that, apart from the preparation of his statement for the purposes of the criminal proceedings, he was not involved in the preparation of the charges relating to the plaintiff and his co-accused. The evidence confirms his contention that he was not a “case officer” in relation to Operation Pickaxe nor did he act in such a role. The evidence, as he has submitted, supports the proposition that he was not involved in the preparation of the brief of evidence apart from the preparation of his own statement.

In relation to his involvement on 19 July 1982, Mr Matinca followed Mr Thompson from Maroubra to Leichhardt and then to Kings Cross and finally to the KFC premises at Burwood. He was soon after involved in joining in the pursuit of Mr Thompson and assisted in the arrest of Mr Thompson in the school yard opposite the KFC premises.

In relation to allegations made against him that he had fabricated evidence, he said:- • He has never given evidence at any time to the effect that the plaintiff had a knife at the KFC premises or that he saw a knife. • He has never said that he heard any conversation or admissions by the plaintiff either at the time of his arrest or after his arrest. • That he had no knowledge of the plaintiff being in possession of a pistol at the KFC premises. • That he has never given evidence that the plaintiff was in possession of a “pink note” .

In relation to the alleged fabrication of evidence, Mr Matinca has maintained that he did not attend a meeting at which Mr Donaldson conspired with other members of the JTF to fabricate evidence against those arrested during Operation Pickaxe. In his written submissions, he contended that it would be fanciful to suggest that a senior member of the NSW Police (such as Donaldson) would hold a meeting with other police officers, many of whom he did not know or knew for only a short period of time and request them to fabricate evidence (p.16).

In his submissions, Mr Matinca denied that he was a “prosecutor” in relation to the 1982 charges. In that respect, he contended:- • That he was not involved in the plaintiff’s arrest. • He did not charge the plaintiff with any offence in 1982. • He was not present when the plaintiff was charged with any offences. • He did not compile or assist in compiling any charge sheets, indictments or other documentation relating to the charges brought against the plaintiff. • He had no authority to charge anyone with offences under New South Wales law or statute other than that vested in an ordinary citizen. • The plaintiff was charged by New South Wales Police officers attached to the JTF.

Mr Matinca gave evidence as to observation duties undertaken by him on 6 July 1982. He said on that occasion he saw a silver coloured Ford Fairlane sedan parked in the Ampol Service Station in Crystal Street, Petersham. His evidence was (transcript, pp.530 to 531):- “I saw the number of this vehicle was LWL-243 and I saw that the vehicle contained the defendant, Thompson, in the passenger’s seat. Q. Which Thompson? A. Don Thompson and a person who I now know to be the defendant Alice Emma Waddell in the driver’s seat. I took a number of photographs of that vehicle. Q. (Shown Ex Q) Are they six of the photographs that you took on that occasion? A. Yes. Shortly after taking some photographs I left my vehicle and I walked past the Fairlane sedan and I went to a telephone box just opposite. On the day, as I was walking past the vehicle, I saw that the defendant, Don Thompson, had a small piece of paper in his hand which was resting in the console of the vehicle and I saw that he appeared to be in conversation with the defendant Waddell. Q. Did you notice anything on the paper? A. Yes. I noticed at that time that it had a number of figures written on it and one particular group of figures in the top centre of the page had an oval shaped circle around it. Q. I show you Exhibit BQ1? A. Yes, that’s the piece of paper I am referring to. Q. Were Thompson and Waddell sitting there or what were they doing? A. They were sitting in the car. They appeared to be talking.”

He gave evidence of returning to the CIB offices. After the arrests made at the KFC premises, he was asked (transcript, pp.535):- “Q. Did you there see Detective Meredith? A. Yes, I did. Q. Did he give you anything or show you anything? A. Yes. He showed me a small piece of white paper which had certain writings on it. Q. (Shown Ex. BQ1) I think you have already identified a piece of paper as the piece of paper you saw in the car? A. Yes. Q. Would you have a look that? What do you say in relation to that and Detective Meredith? A. This is the piece of paper that Detective Meredith showed me at the CIB on the night of 19th.”

Mr Matinca gave evidence in chief in relation to his statement dated 19 July 1982 which, at that time, was marked as MFI 54 (the document subsequently became Exhibit 23). He was asked whether the statement was true and correct and he replied that it was not. He was asked to read through the statement and highlight those portions of it which he said were not correct and he did so by highlighting the relevant passages in yellow. When asked as to how he came to include those segments he said “I included it there following a conversation I had with Ray Donaldson” . He said this occurred within a few days of the plaintiff’s arrest.

He said that Mr Donaldson had with him his (Mr Matinca) draft statement and some other papers and asked him to change the draft. He gave evidence on this aspect under the protection of a certificate under s.128 of the Evidence Act . When he asked him to change it, he initially said he would not and said he argued with Mr Donaldson. He said there was some reference to surveillance observations in his statement which Mr Donaldson wanted him to leave out. This related to an aspect in which Mr Donaldson said there was insufficient evidence about the other person and he did not want to reveal that person was involved at that stage. His evidence, in cross-examination, confirmed that the reference was to Neddy Smith. Mr Matinca agreed, in cross-examination, that he regarded Mr Donaldson’s request in that respect to be a legitimate one.

Mr Matinca said that Mr Donaldson asked him to say that he took photographs of people under surveillance. He asked him why and Mr Donaldson replied to the effect that the officer that had taken the photograph did not want to give evidence and JTF would be giving all the surveillance evidence.

In relation to the insertion of an additional paragraph (paragraph 10), there was a considerable amount of evidence. The first sentence in that paragraph was highlighted in yellow as indicating that it was included by Mr Matinca at Mr Donaldson’s direction. The additional paragraph read:- “A short time later I left my vehicle and walked past the Fairlane, LWL-243. At that time, I saw that the defendant, Thompson, had a small white piece of white paper in his hand which was resting on the console of the vehicle.”

Mr Matinca said that that was incorrect evidence and that he did not make those observations. When asked why he included it, he said “because Donaldson asked me to include it” . He said that the effect of what he said was that he did not want to do it because he did not think it was possible. Mr Matinca went on to explain:- “I was a surveillance officer for about eight years and I didn’t think it’s possible for anyone in a fleeting second to walk past a car, look in a window and be able to identify a piece of paper, particularly when there’s two suspects in the car. I’m not going to stand there alongside the car for a couple of minutes and try and see what the paper was.”

Mr Matinca said, however, that he eventually agreed to include the statement in his report.

In cross-examination, Mr Matinca said that he had never discussed the changes to his statement with Mr Pattle.

In cross-examination by Mr Maconachie on behalf of the State, Mr Matinca said that he had said to the Wood Royal Commission that he did not think that the evidence that he falsified was of much assistance. He agreed that he was of that view because of the other evidence available concerning the plaintiff. In that respect he said, “I believed that there was overwhelming evidence” .

It was submitted on behalf of the plaintiff that the evidence of Mr Matinca concerning the white piece of paper was evidence of significance in the trial. Mr Matinca’s admissions that his evidence on the point at committal and during the trial concerning the white piece of paper were false were the basis for the submission. It was further submitted that the same piece of paper, containing “incriminating information” was subsequently allegedly located in Judy Waddell’s flat and that she allegedly identified it as belonging to the plaintiff.

The trial judge, Slattery J, in his summing up to the jury (pp.182 to 183) referred to the evidence concerning Exhibit BQ1 and the evidence that had been given about it by Mr Matinca. The trial judge stated:- “He was shown Exhibit BQ1 which he identified as the piece of paper he saw resting on the console of the vehicle. You will remember the evidence, members of the jury, that that piece of paper was later found, according to the police evidence, in the premises of this accused [a reference to Ms Waddell]. On 12 July, a party of four, according to police surveillance, and including this particular accused, dined at the La Rustica Restaurant. On 19 July, Detective Paynter, along with Detective Tunnicliff and other members of the Task Force went to 16 Duntroon Street, Hurlstone Park. There was evidence from Detective Paynter as follows:- ‘I knocked on the front door and a female voice answered, ‘Who is it?’. I said, ‘We are from the police. Can you open up please?’. The front door was then opened by the accused Waddell. I said, ‘My name is Detective Paynter. I am from the Joint Task Force. These other men with me are also police officers. I have a search warrant to search these premises and I intend to do just that. Do you understand?’. Waddell said, ‘Yes, come in’. I said, ‘What is your name?’. Waddell said, ‘Judy Waddell’. I said, ‘I am looking for a woman named Rose. I believe she lives here’. Waddell said, ‘Yeah, that’s me. They call me Rose. What is it about?’. I said, ‘Henry Landini was arrested with a large amount of heroin earlier this evening in his possession and I believe you know something about this’. Waddell said, ‘Danny’s a fool. I told him we were hot’. I said, ‘What do you mean’. She said, ‘Nothing. Are you going to search the premises or not?’. I then handed a search warrant to the accused Waddell and said, ‘Would you read this through, please?’. She said, ‘Yes’. She then appeared to read the contents of the search warrant and she said, ‘You won’t find any drugs here’.’ Then he told her he was going to ask her some questions and he gave her a caution.”

A little later in the summing up, Slattery J told the jury:- “I remind you further that Detective Senior Constable Tracey gave evidence of his presence on the evening of 19 July 1982 at this accused’s premises and his evidence confirms Detective Paynter’s evidence. I will not read it. I think it was during his evidence that the Victorian Police Journal, with Exhibit BQ inside it, was found inside the premises. Mr Baker asked:- ‘Q. (Shown MFI 15) Could you assist me with this. The piece of paper there, can you tell the jury where in relation to the police magazine that paper was when you first saw it? A. I saw Meredith remove it from the folder. Q. So it was inside the folder? A. Yes.’ That piece of paper is now Exhibit BQ. There was also evidence from Detective Meredith as to his presence at the accused’s premises on 19 July. He told you he found the Victorian Police Journal which contained a piece of paper with a number of words and figures upon it. He showed it to the accused and said:- ‘Who owns this?’ and she said, ‘Where did you find it?’. I said, ‘In the bottom drawer’. She said, ‘It’s Danny’s. It’s got something to do with the property he’s getting.’”

In written submissions on the admissibility of Mr Matinca’s evidence (8 March 2007), it was said that Ms Waddell’s statement “it’s Danny’s, it’s got something to do with the property he’s getting” was incriminating in the context in which the word “house” was a code word for heroin.

In those written submissions, it was stated:- “9. Given that Matinca, Paynter and Tunnicliff undertook the surveillance concerning the white paper, they are all implicated in the false evidence of Matinca concerning its identification and in not having taken photographs. Donaldson, having directed the false evidence concerning the identification of the white paper and the photographs, is obviously also deeply connected. Of course, it is Donaldson who, together with Paynter and Pattle, who then gives damning evidence concerning the alleged drug transaction on 19 July.”

It is noted in the written submissions for the plaintiff (paragraph 11) that Slattery J in his summing up did not specifically refer to Exhibit BQ1 in the case against the plaintiff, nor in the case against the other co-accused except for Waddell:- “… but the jury no doubt had it in the jury room and would not be likely to remember from its admission on day 12 on 21 September 1983 until when the summing up concerning that piece of paper occurred on 11 October 1983, that [sic] did not relate to Landini. The judge never informed the jury that that piece of paper was [sic] to be used only against Landini, it was only stated upon its admission that was evidence against Waddell. The jury delivered its verdict many days after it had been admitted into evidence.”

In the plaintiff’s submissions dated 27 July 2007, it was contended that Mr Matinca “aided and abetted Landini being charged. Matinca adopted and continued the proceedings by his deliberate participation in the provision of false material for inclusion in the prosecution brief” (paragraph 20). This submission was advanced in support of the proposition that Mr Matinca was a person to be regarded as having initiated the proceedings in respect of the 1982 charges.

In relation to the question of reasonable and probable cause, it was contended in the plaintiff’s last-mentioned submissions (paragraph 32) that:- “… Matinca was not as involved as Donaldson or Pattle, however, the purport of the false information contained in Matinca’s statement was that an incriminating piece of paper linking Landini with Waddell had been identified by him and had also linked Waddell to Thompson. The paper was to be linked to statements by Waddell that it belonged to Landini. Matinca’s evidence in these proceedings was that he knew that all of that evidence was false. If he knew that the evidence was false, he could not have had reasonable cause for the whole of the prosecution.”

Before dealing with these submissions, I note that in the Outline of Submissions of the First Defendant , paragraph 190, it is contended that Mr Matinca’s evidence “… is incapable of supporting the finding that he was overborne by Mr Donaldson and thereby gave inaccurate or false evidence” .

In relation to Mr Matinca, Mr Donaldson said that he regarded him favourably “… but I always had certain reservations about Mr Matinca” . He said that he did not ever recall Mr Matinca displaying any ill-will towards him. He said he was a competent police officer. Mr Steirn put to him:- “… you approached him, did you not, and asked him to change his evidence, did you not? A. I did not.”

I was impressed by Mr Matinca in giving evidence, in particular, in giving evidence by way of admission as to his own wrongdoing and I was otherwise favourably impressed with him as having given truthful evidence. I, accordingly, do not accept the submissions made on behalf of the first defendant referred to above.

I, accordingly, accept his evidence as reliable and that it does establish, to the requisite standard, that Mr Donaldson did improperly influence him to give false evidence in the terms detailed by Mr Matinca in evidence in the present proceedings.

It follows that, as earlier recorded, I do not accept Mr Donaldson’s denials of the substance of the evidence given by Mr Matinca.

In the Outline of Submissions for Commonwealth (paragraph 185), it was contended that the false evidence which Mr Matinca said he gave at the behest of Mr Donaldson related to a subject that “… did not touch upon the charges laid against the plaintiff. Even if his evidence is accepted, it does not assist the plaintiff’s case. Matinca believed the evidence against the plaintiff was overwhelming. The honesty of his belief was never called into question” .

In Mr Strickland’s submissions on behalf of the fourth defendant (paragraph 43), it was contended that if Mr Matinca’s evidence was accepted, then the Court would accept “… that Donaldson fabricated evidence concerning BQ1 was only fabricated against Thompson and Waddell ”.

Mr Strickland observed that Exhibit BQ1 was only tendered against Waddell and that Ms Waddell’s statement “It’s Danny’s, It’s got something to do with the property he’s getting” could not have been admitted against Mr Landini. It could only have been admissible, he submitted, if the plaintiff consented to its admission which he did not. Additionally, it was submitted, it was not a statement “in furtherance of” a common purpose that Waddell had with the plaintiff or anyone else, nor was it a statement accompanying an act done pursuant to some criminal purpose (paragraph 46).

The element of reasonable and probable cause has been referred to earlier in this judgment. In evaluating the material that was available to the prosecutor arising from the above investigations, relevant principle requires that the objective sufficiency of the material available must be considered by the prosecutor and assessed in light of all of the facts of the particular case: A v New South Wales (supra) at [87]. In relation to the “objective standard of sufficiency” [84] referred to by the majority in A (supra) it was noted at [85]:- “Because the question in any particular case is ultimately one of fact, little useful guidance is to be had from decisions in other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiry should have been made.” (emphasis added)

Even if, as I have concluded was the case, certain of the evidence given in the trial by Mr Matinca was fabricated, the question becomes whether or not any such fabricated evidence could be said to have influenced the prosecutor’s decision to prosecute.

The fact of tainted evidence does not, in my opinion, lead to the conclusion that such evidence instigated or persuaded those responsible for the conduct of the prosecution. Mr Matinca’s false evidence was not admissible against him and the summing up did not suggest otherwise. Further, the fact that such evidence was admitted does not establish the absence of reasonable and probable cause.

Mr Matinca held a relatively junior position and was primarily involved in surveillance work. It is not possible to conclude that he had a sufficient grasp of the case against the plaintiff for him to determine that his false evidence, as referred to above, was essential to the sufficiency or viability of the Crown case against the plaintiff. It clearly was not.

The evidence does not, in my opinion, establish that Mr Matinca played any role in instigating or maintaining the prosecution and, accordingly, it follows that, for the purposes of establishing the tort of malicious prosecution, he was not a prosecutor in relation to the proceedings brought against the plaintiff. I am, accordingly, of the view that there should be a verdict entered in his favour.

I will refer separately to the evidence concerning the alleged fabricated evidence given by Mr Pattle later in this judgment. (c) Inspector Langford

Ms Langford joined the New South Wales Police Service in 1979. At the time of giving evidence, she held the rank of Inspector.

Ms Langford stated that she recalled on 19 July 1982 attending at Kings Cross close to the Hampton Court Hotel. Having read the transcript of the trial, she recalled that she went to Ms Waddell’s premises later on the evening of 19 July 1982 but she said she did not attend at the KFC premises. She specifically denied at any time ever assaulting the plaintiff or seeing any other person assault him.

Following the arrest of the plaintiff, Ms Lanford said she did not recall whether there was a debriefing meeting. She stated from her experience that there would always be a debriefing session, but she simply had no recollection of the position in this matter.

Ms Langford stated in cross-examination by Mr Strickland that she did not have any recollection of attending a meeting with Detective Donaldson after the arrest of Mr Landini. She said that she did not attend any meeting where Mr Donaldson said “there is to be no mention that any shots were fired at the scene of the arrest” .

She had no recollection of any reference being made to whether anybody heard admissions by the plaintiff.

She denied any recollection of Mr Donaldson making statements attributed to him by Mr X.

Ms Langford said she gave evidence at the committal hearing on 14 December 1982 and had read the transcript of those proceedings, a copy of which forms part of Exhibit BA, Volume 2.

Ms Langford agreed in cross-examination by junior counsel for the plaintiff that her role in Operation Pickaxe was “rather minor” . Ms Langford said at the time that her day to day activities were involved in the Nugan Hand Inquiry.

Ms Langford was cross-examined about her attendance with other police at Ms Waddell’s home on the evening 19 July 1982. She believed that police held a search warrant. She stated, however, that she had no independent recollection of being at Ms Waddell’s home and that she did not recall making a statement in relation to any such attendance. She stated “I don’t recall any of the evidence that I have given. It was correct at the time I gave the evidence, but I don’t recall it now” . (d) Mr Donaldson (i) Career details and involvement in Operation Pickaxe

Mr Donaldson gave extensive evidence in chief and in cross-examination. He was retired as at the date of giving evidence. He said his contract with the then New South Wales Police Force expired in February 1996 and “it wasn’t renewed” . Mr Donaldson said he was born in 1942 and joined the New South Wales Police as a cadet on 5 January 1959 and was attested on 19 April 1961. He continued with the Service until his retirement in 1996.

In 1979, he was transferred as a foundation member of the JTF and then held the rank of Detective Sergeant Third Class. He said the unit actually commenced work on 1 July 1979. After the JTF was wound up, he said he was in charge of the New South Wales Police Drug Squad and at that stage was a Superintendent of Police.

Mr Steirn for the plaintiff cross-examined Mr Donaldson about his retirement in February 1996. Mr Donaldson said that he anticipated his contract would not be renewed and that he made a decision not to seek renewal. He said that the basis for his belief that his contract would not be renewed was “… that there would be problems with my contract because of media I attracted as a result of evidence given to the Wood Royal Commission” . He denied that he understood that the Commissioner of Police had lost confidence in him as a result of allegations before the Commission. When asked as to whether it was his belief that he had been “publicly slandered” at any time, he said “in my view, I was fairly badly treated” . It was put to him:- “Q. The conclusion that you draw that you were fairly badly treated, what was that based on? A. It was based on evidence given to the Commission and the way it was interpreted in the media.”

Mr Donaldson said that, as a consequence of the Woodward and Williams Royal Commissions, a number of persons emerged as targets for investigation as possible drug traffickers. He said that Mr Landini had been mentioned in the Woodward Royal Commission Report and he had been aware of him as far back as the early 1970s.

In the early stages of the JTF, he said that Operation Snooker involved a group of people in the Maroubra area by the name of Mansfield. He said that Operation Pickaxe had been a Federal Police investigation and, as has been noted earlier, it had focused attention upon Donald Stanley Thompson and his wife, Merle Thompson, also Maroubra residents, and who he said were reputed heroin traffickers.

As the two operations developed independently, he said it became apparent that the same group of people were involved and the two became one operation, primarily controlled from the JTF, although the Australian Federal Police still maintained a role in the operation.

Over time, Mr Donaldson said he was kept abreast of developments in Operation Snooker/Pickaxe. In due course, he said his role became “brief compiler” whereby police statements and other materials would be put together into a brief.

Although he had not been actively involved in any surveillance operations, he had read running sheets and surveillance sheets and listened to broadcasts over the internal radio system. These had been the primary sources of his information on the operation. (ii) 19 July 1982 – events leading to plaintiff’s arrest

On 19 July 1982, he became directly involved in the planned operation for that evening. He said he recalled being near the Hampton Court Hotel. He said that this must have arisen following a conference with other police and, in particular, Mr Travers. He said:- “… I went there with an enormous amount of information. There was an enormous amount of information given to me which caused me to go there …”

He said that he had held an expectation which was that Donald Thompson would go there and collect a shipment of heroin. He recalled seeing other police in the Hampton Court area including, in particular, Detective Paynter, who he know was driving a cab in an undercover capacity. He recalled seeing Thompson come out of the Hampton Court Hotel. He said he noticed that he was carrying a rather large parcel in a fawn coloured bag. He said that he saw Thompson walk down Bayswater Road and saw Paynter move the cab close to the front of the hotel and then Thompson enter it.

He said that he followed the cab through the city and was in communication with other police officers. His recollection was that Mr Travers was operating from the base office.

Mr Donaldson said that it was “a terrible night in the middle of winter and it was cold and raining and windy” .

Donaldson said he also held the expectation that Thompson was taking the parcel for the purposes of delivering it to another party. He said he did not know who it would be, but he had “a reasonably strong suspicion who it might be” .

He said that his task was to arrest at the point of delivery and to seize the heroin which he anticipated was going to be delivered. That function had been delegated to him by Inspector Travers.

He was asked as to who he had in mind as the likely recipient of the parcel from Mr Thompson. Mr Donaldson said “I had one person specifically in mind” which he said was the plaintiff, Henry Charles Landini. He said that he was aware that early in the night, Mr Landini had been seen on a number of occasions driving a light blue coloured Holden Commodore, LRC-982.

He said that he had followed the cab at a distance until it arrived at Burwood. He knew from radio transmission that other police were in very close vicinity following the cab.

He said that when he was about 50 to 75 metres from the KFC premises, he saw the cab turn into those premises. He saw it come to a stop. He said he also saw a light coloured Holden Commodore parked towards the rear of the establishment facing Parramatta Road. From descriptions that had been provided to him, he thought that it was probably Mr Landini’s car.

He said that he passed the premises and turned left into a side street, turned around and came back towards Parramatta Road and travelled down the footpath. He said he travelled down it slowly, extinguished the headlights and was resting on the handbrake when he got to about 15, 20 or 25 metres from the exit of the food bar he heard Paynter’s voice on the radio saying “go now” or “now” or something of that nature. He said that he immediately accelerated and entered the KFC car park via the exit.

He said he saw the cab stationary just inside the entrance at about a 45 degree angle towards the rear of the premises. He saw a person who he subsequently ascertained was Mr Landini. He said:- “I saw him standing at the left hand side front window of the cab and I saw the parcel which was the same parcel that I saw Thompson earlier at the Hampton Court Hotel. I saw that parcel protruding from the left hand side front window of the cab and I saw Landini’s left hand above waist level in such a height as to cause me to believe that he was about to receive the parcel.”

He then added:- “I accelerated across the car park. Landini was still at the car and I got my car between the taxi or Landini in the blue Commodore at the back of the premises.”

He said he stopped and alighted. By this time, Mr Landini had moved towards his car. He said he immediately commenced to run across the car park towards the Commodore. He said he saw him open the driver’s door. He then said:- “He turned in my direction and, as he did so, he put his right hand into the right hand pocket of the overcoat and he withdrew what I thought at that time was a hand gun. I saw the handgun come up generally in my direction and also in the direction of Pattle. He was also approaching but much closer than me. I saw Pattle strike Landini. I only saw him strike him once. I saw Landini fall to the ground. I saw the firearm fall from his hand and at that stage I arrived where Landini was. I saw Pattle roll Landini onto his stomach and handcuff his hands behind his back.”

He said he saw Pattle search Landini and remove a large pocket knife from Mr Landini’s left side coat pocket and a piece of paper from his right coat pocket.

Mr Donaldson said that he made his statement on 21 July 1982 and that the facts were then fresh in his mind and that they were true. He identified Exhibit AE as a copy of that statement.

Mr Donaldson recorded in his statement the following observations:- “3. Upon arrival at the last mentioned location I saw Holden Commodore sedan, No. LRC-982, parked towards the rear of the car park facing Parramatta Road and I saw the man who is now the defendant Henry Charles LANDINI standing at the front passenger side window of the cab, No. T1977. At that stage LANDINI was facing the nearside front window of the cab and the defendant THOMPSON, who was still seated in the front passenger seat of the cab, appeared to be in the process of handing a light coloured, rather large, cylindrical parcel to LANDINI, via the window. The parcel was partly protruding from the vehicle and LANDINI appeared to be just about to receive it from THOMPSON. 4. I drove to a position near the rear of the cab and at that stage LANDINI, without taking the parcel, ran from the location I have described, towards the driver’s side door of Commodore sedan, No. LRC-982. I alighted from my vehicle, commenced to approach LANDINI and at the same time I saw Detective Senior Constable PATTLE, also of the Joint Drug Task Force, drive to a position close to the driver’s side front door of Commodore sedan, No. LRC-982, and alight. 5. At that stage LANDINI had reached the driver’s front side front door of the Commodore. He then opened that door of the vehicle after which he reached into the right hand side pocket of his overcoat with his right hand, remove an object which appeared to be a revolver and commenced to raise it in the general direction of Detective PATTLE and myself. At almost the same instant, Detective PATTLE reached LANDINI and struck him on the chin with a punch, knocking him to the ground. At the same time the object fell from LANDINI’s hand, onto the ground beside him. I then saw that the object was in fact a .38 calibre revolver. I took possession of that item …”

He said that, a little later, he spoke to Landini and said “What’s the story with the gun?” and the plaintiff relied “I didn’t know you were coppers. It could have been a rip” . Mr Donaldson said he said “What’s in the parcel?” and at that stage he said Mr Landini looked across at the cab and looked in the direction of the cab and mumbled the words “a cab, eh?” . He said he repeated the question “What’s in the parcel?” and Mr Landini replied “dope” .

Mr Donaldson said he asked “who does the dope belong to?” and that Mr Landini replied “the Melbourne mob” . Mr Donaldson asked “Who are you involved with?” . Mr Landini said “forget it” . Mr Donaldson said “I have reason to believe that you gave a large sum of money to a man named Donaldson Thompson earlier tonight” . He said that Mr Landini said “who’s he?” . Mr Donaldson said “I have reason to believe that on 5 July and again tonight you purchased large quantities of heroin through Thompson” . He said that Mr Landini said “I’m not a giver, Mr Donaldson. If I can’t talk to you, I’m not saying anything” . Mr Donaldson said “What’s that supposed to mean?” and he said “you know” .

The plaintiff had alleged that he had been assaulted by a female police officer. Mr Donaldson’s evidence was that neither Ms Brewster nor Ms Langford were at the KFC premises that night and nor was there present any other female officer. That evidence remains uncontradicted and has support in the evidence of other witnesses including that of Ms Brewster and Ms Langford.

Mr Donaldson said that the plaintiff was later taken to the Drug Squad and an interview took place with him there. He said that he said to the plaintiff “where’s Merle Thompson?” and that Mr Landini replied “I’m not saying, but I wouldn’t like to be in her shoes” . Mr Donaldson then claims he said to Mr Landini “Come with me, I want to show you some items” . He said that Detective Pattle and Mr Landini accompanied him to another room where there was located on the floor five cylinders. One had been broken in the middle and white compressed powder could be seen spilling from the break. There was also a large sum of money, a fawn coloured plastic bag, five paintingS that appeared to have come from the cylinders containing the heroin. Mr Donaldson claims that he said to the plaintiff “What can you tell me about this?” . He said the plaintiff looked at it and mumbled the words “lost, what a bastard” .

As discussed elsewhere in this judgment, the plaintiff denied making each of these statements to Mr Donaldson and asserted that they were part of evidence fabricated against him by Mr Donaldson. (iii) Submissions in relation to Mr Donaldson

The submission on behalf of the plaintiff was, in effect, that the evidence given by Mr Donaldson and Mr Pattle as to the events at the KFC premises and as to the statements attributed to the plaintiff following his arrest at the KFC premises were fabricated. It was submitted that the failure to include reference in the facts sheet to the making of admissions supports that they were fabricated. Additionally, it was submitted that, the plaintiff having been prosecuted in relation to the 1980 charge:- “… on the basis of false evidence and admissions allegedly made by him, which he denied, he was hardly going to repeat the exercise. The Court should conclude that the admissions were not made. If the admissions were not made, the witness statements of Donaldson and Pattle contain a wealth of deliberately false material. They backed that up in evidence at committal and trial. They reinforced it in these proceedings. Their evidence cannot be accepted by the admissions.” (Plaintiff’s Submissions , p.53).

It was submitted by Mr Strickland on behalf of the fourth defendant that the plaintiff, having been “caught red-handed about to receive a large quantity of heroin” and the plaintiff having been experienced in the criminal world, the plaintiff had nothing to lose in trying to “cut a deal with the police” (paragraph 111 of Fourth Defendant’s Written Submissions ).

Mr Strickland submitted that the plaintiff’s alleged statement “a cab eh?” is consistent with that being a statement of surprise by the plaintiff rather than having been a fabricated statement. The plaintiff’s reference to having said that the cylinders contained “dope” (a reference to marijuana) was, in a sense, a half admission, in that it would display knowledge that the parcel contained a prohibited narcotic but not an admission that it contained heroin.

The reference to “the Melbourne mob” was also consistent with evidence that Ms Waddell had received $22,000 from the Ansett Freight Terminal in Sydney in a shoebox that had been sent from Tullamarine Airport, Melbourne on 15 April 1982. The reference to the statement by the plaintiff to Mr Donaldson, inter alia, “… if I can’t talk to you, then I’m not saying anything …” was consistent with his later statement at the CIB “listen, can I talk to you?” . The response by Mr Donaldson “what have you got in mind?” and the plaintiff’s statement “you know” followed by the statement “forget it” and the refusal by the plaintiff then to say anything is all said to have been consistent with an attempt by the plaintiff to “cut a deal” .

Whether this latter point is valid, I generally accept the submission made, namely, that the points made and recorded in the preceding paragraph do provide a plausible interpretation of what was recorded in the statements of Mr Donaldson and Mr Pattle as to what was allegedly said by the plaintiff. Such an interpretation is, in other words, certainly open and is but one factor against the proposition that all of the plaintiff’s alleged statements were fabricated. Other matters on that important issue, of course, must be carefully examined.

Whilst there is an absence of any express reference in the facts sheet to admissions having been made by the plaintiff, the facts sheets are to be considered in the context of the statements made by Mr Pattle and Mr Donaldson very soon after the arrests, which do contain reference to the plaintiff’s abovementioned statements. The failure to show the plaintiff the notes in Mr Pattle’s notebook to the plaintiff was not, on the evidence, an invariable practice and it was not one prescribed or required by formal police procedures. (iv) Mr Donaldson denies influencing Mr Matinca

In relation to Mr Matinca, he was asked whether he recalled a conversation with Mr Matinca about “additional surveillance that you wanted him to leave out of his statement” . Mr Donaldson said that he did not recall such a conversation. He did not recall saying to Mr Matinca “don’t include it” , referring to certain words. He denied saying to Mr Matinca that he was to include in his statement words to the effect “at that time, I saw the defendant, Don Thompson, had a small white piece of paper … paper in his hand which was resting on the console of the vehicle” . He denied making any statement that Mr Matinca was to say that the piece of paper had a number of figures written on it, including one set of figures with a circle around them. He said he denied asking Mr Matinca to include a reference to the fact that Thompson and the other person in the car appeared to be discussing the piece of paper. (v) Factual matters relating to reasonable and probable cause

In cross-examination by Ms Katzmann, Mr Donaldson said that he was more senior to Pattle and that he understood that Mr Pattle knew that he, Mr Donaldson, was leading the inquiry that night. He conceded that it could be argued that he had assumed control of the operation on that night.

In relation to information upon which the decision to charge Mr Landini was based, he said that the information was “really quite lengthy” . He then provided a lengthy answer as to the information upon which he relied (transcript, p.2753 to 2755). He also later stated that he had regard to admissions that were made by Thompson, in particular, “that Thompson had said that the money came from Landini. That Pak had made admissions, that Pak had said that the money had come from Thompson before that” . (vi) The issue as to who was the prosecutor of the 1982 charges

In cross-examination by Mr Strickland, Mr Donaldson said that it was he who charged Mr Landini with the conspiracy to supply heroin, and that Mr Pattle did not participate in the decision. His recollection was that Mr Pattle did not play any role in compiling the brief. He said that he never told Mr Pattle to make any changes to his statement and, in particular, did not tell him to add anything to it or to delete anything from it. He said that he did not give any directions to Mr Pattle as to how he was to give his evidence at the committal or what to say or at the trial. (vii) Preparation of the police brief

Mr Donaldson was subjected to a lengthy cross-examination.

He denied each of the matters concerning the debriefing following the arrest as detailed by Mr X in evidence and denied that he had been involved in fabricating evidence against the plaintiff. He denied that the plaintiff had been assaulted, apart from Pattle knocking him to the ground when he held a gun.

In relation to his role in preparing the police brief, he said that he read the statements of the officers as they came in and if he thought further inquiries or follow up was required, then he would institute those inquiries. He again, however, denied that he had approached any officer including Mr Matinca to include evidence that was not true.

Mr Donaldson said that, although he could not say he had any reservations about Mr X, “I was never terribly impressed with him. I thought he had an attitude problem. Actually I thought he behaved like a spoilt kid” .

In relation to post-arrest investigations, Mr Donaldson stated that the gun that had been taken from the plaintiff and the casings of the bullets had been sent for fingerprint examination and were negative. He also said there was no suggestion of any fingerprints having been found on the money recovered from the Hilton Hotel. He also agreed that, from his recollection, there was no fingerprints found on the piece of paper recovered from the plaintiff’s clothing.

In relation to note taking, he said he saw Mr Pattle taking notes whilst seated in the back of the car with the plaintiff who was handcuffed. He said that he had prepared his statement and had, before doing so, read the record that Mr Pattle had made in his notebook. (viii) Mr Donaldson denies fabricating evidence

Mr Donaldson’s evidence in the present proceedings, accordingly, traversed a considerable range of factual issues concerning the investigations and the events leading to the arrest of the plaintiff and others. These included:- (1) Claimed inconsistencies in his account of events on 19 July 1982. (2) The matters arising from the evidence of Mr X and of Mr Matinca which it was asserted established fabrication of evidence at his behest. (3) The fabrication of evidence as to his own observations concerning the events of the evening of 19 July 1982. (4) The fabrication of statements attributed to the plaintiff both before and after his arrest.

It was put to Mr Donaldson that the account recorded in Mr Pattle’s notebook was incorrect and had been fabricated.

Mr Donaldson was then, in detail, cross-examined on the individual events that were said to have occurred on the night of 19 July 1982. In the course of doing so, the accuracy and truthfulness of Mr Donaldson’s evidence in relation to those events was tested. In the course of the cross-examination, it was put to him:- “Q. You see, the admissions allegedly made by him and the statements made by him are, in fact, complete fabrications, aren’t they? A. That’s not correct. Q. The introduction of a gun was a gun planted by you and Mr Pattle, was it not? A. It certainly was not.”

It was put to him that his observations as given in evidence and recorded in his statement were fabricated, to which Mr Donaldson responded “not true” . He repeated that he had not fabricated any evidence.

It was later put to him that his evidence had been fabricated and fabricated for the purpose of filling in gaps in evidence otherwise available to police concerning the plaintiff. Mr Donaldson said:- “… I do deny that … but I should point out that, as far as I’m concerned, and was concerned on that night, there was a mountain of additional evidence available against your client, and if you want me to I’ll run through it.”

In relation to the events at the KFC premises, Mr Donaldson said he did not hear any gunfire.

Mr Donaldson was cross-examined as to why police had not maintained more intense surveillance on the plaintiff after 5 July 1982, the association between him and the other suspects having been confirmed. Mr Donaldson said that there was a lack of knowledge that the plaintiff had actually come into possession of narcotics as at 5 July 1982. There was no information confirming that he, in fact, had received heroin on that date. He said that as at that time he was not in charge of the operation and, therefore, could not elaborate.

It was put to Mr Donaldson that the pink piece of paper that was found at Ms Waddell’s home following the arrests had been fabricated for the purposes of implicating the plaintiff. It was put that he had placed it there “… for the use of other police to further the criminality of at least Mr Don Thompson and Danny Landini?” . Mr Donaldson responded, “That’s not true” .

Mr Donaldson strongly refuted all allegations that he had been a party to fabricating evidence and maintained that there was an abundance of evidence that incriminated the plaintiff, none of which had been manufactured. The cross-examination did not, in my opinion, elicit evidence that directly or by inference established impropriety by Mr Donaldson. Mr Donaldson’s evidence in cross-examination, accordingly, does not, in itself, provide an evidentiary basis to support a lack of sufficiency or substance in the objective facts available for the prosecutor’s consideration.

As discussed below, I accept the evidence of Mr Matinca that he was approached by Mr Donaldson and requested to alter his statement and to give false evidence in relation to the discrete matters which were the subject of his evidence. On that basis, I, accordingly, do not accept Mr Donaldson’s evidence in which he denied that he had propositioned or directed Mr Matinca to change his evidentiary statement.

In rejecting, as I do, Mr Donaldson’s denials that he directed Mr Matinca to change his statement as Mr Matinca claimed, the following matters are noted:- (1) To the extent that I do not accept Mr Donaldson in relation to his denials in relation to the matters that Mr Matinca said he changed in his statement at Mr Donaldson’s behest, his credibility in relation to other matters arising in the trial and in the present proceedings, clearly must be scrutinised with some care. (2) Importantly, Mr Donaldson’s account of events at the KFC premises was supported by other evidence including, in particular, that of Mr Pattle and the evidence of Mr Paynter. For reasons expressed in this judgment, it has not been established that the evidence of either Mr Pattle or Mr Paynter was either false or unreliable. (3) Accordingly, the evidence of Mr Donaldson, Mr Pattle and Mr Paynter as to the facts leading up to the plaintiff’s arrest constituted a sound basis upon which a prosecutor could act in deciding to prosecute the 1982 charges. (4) The prosecutor was entitled to consider the facts established by such evidence along with the information that had been gathered through the police investigations between 5 July 1982 and 19 July 1982 prior to his arrest. I am of the opinion that all such evidence supported the proposition that the plaintiff was a party to the conspiracy ultimately alleged against him and of which he was convicted. (e) The evidence of Mr X (i) Mr X’s history and background

Mr X was a former member of the Australian Federal Police. He joined the JTF on 10 May 1982. He was given a pseudonym for the purposes of the present proceedings. The pseudonym order was made upon the basis of confidential affidavit evidence as a protective measure.

He said the officer-in-charge was Inspector Paul Lawrence when he joined the JTF. He remained on the Taskforce until 1996. He said Mr Dent and Mr Pattle remained on the Taskforce until a later date.

In 1982, Mr X said he was the most junior police officer attached to the JTF both in terms of experience and years. He said that from the time he joined it in May 1982 until the end of the year, he was the most junior officer on the Squad. His first job related to Operation Pickaxe. He agreed that the principal matter in relation to it was the arrest and prosecution of Smittant.

Mr X gave evidence in relation to his role under the protection of a certificate issued pursuant to s.128 of the Evidence Act 1995. His understanding was that Operation Pickaxe involved a number of targets who were allegedly involved in the importation and distribution of heroin. His work essentially involved surveillance. He said the surveillance team within the JFT was run by Mr Paynter. Ray Donaldson, he said, had overall carriage of Operation Pickaxe. He said he received instructions from both men.

He agreed that he was charged, whilst a serving officer of the Australian Federal Police, with receiving approximately $60,000 from a person by the name of Spink for informing him whether or not he was under surveillance during the period 1 August 1989 until 5 August 1994. Mr X said that he knew Spink to be a criminal. Mr X, was charged with receiving bribes and attempting to pervert the course of justice. He said he pleaded guilty to both charges. He agreed that Spink had been a participant in what had been described as Australia’s largest ever cannabis importation involving a shipment worth some $225 million.

Mr X was cross-examined in relation to a document, Exhibit 14, which he signed on 20 July 1995. It appears from the evidence that it was prepared in support of a claim for compensation to Comcare Australia (Exhibit 13). It was put to him that he had said in it that he had “… faithfully served the Australian Federal Police … in a professional and competent manner … in respect of a career spanning 1975 – 1995” was a false statement. When Ms Katzmann for the Commonwealth put to him that, in the relevant period he had engaged in a variety of different kinds of corruption, he responded that that was not the case:- “Throughout my whole career with the AFP on a day-to-day basis there were certain instances of corruption that I was involved in. Other days I was performing duties to the best of my ability, again with a professional and competent manner.” (t.1459 to 1460)

It is clear that the statement by Mr X in Exhibit 14 was untruthful. (ii) Mr X’s involvement in Operation Pickaxe

The targets for surveillance included Waddell who lived in Hurlstone Park and the plaintiff.

Mr X said he was on duty on 19 July 1982. He said surveillance was conducted on the La Rustica Restaurant and he also carried out surveillance in the vicinity of the Sydney Hilton Hotel.

Mr X participated in the arrest of Vithaya Smittant. Mr Allen and Mr Dent were present at the time of the arrest. According to Mr X, Mr Allen was involved in the arrest of Pak. Smittant and Pak, in due course, were charged with conspiracy to supply heroin.

Mr X said that Donaldson was the case officer who had carriage of the “brief” and it was he who gave orders to all of the investigators including himself as to what was required.

He was present when Mr Dent interviewed Smittant at the CIB. He said at one point he left the room and returned a short time later. He said that on his return, Mr Dent said:- “They’ve got Landini. Paynter’s let a couple go over at Parramatta Road. They’ve given him a gun, a knife, a mouthful and he’s copped a hiding.”

Mr X also gave evidence of events occurring after 19 July 1982. He said he attended a meeting with a group of people from the JTF. He said he was requested to attend by Donaldson. He said the meeting took place within a week of the arrests of Mr Landini and Mr Smittant. He said that Donaldson said to him “come into the office. We’re having a scrum” .

He said the meeting took place on the same floor in the Westfield Building in which the JTF was situated. He said all officers that were available and who were involved in Operation Pickaxe attended “at the scrum” . He identified the persons present as including Deputy Leader Harry Bendt, Deputy Leader Travers (Federal police officer) and Ray Donaldson, who he described as the “case officer” , Brian Meredith, Dick Paynter, Dennis Pattle, Glen Matinca, Dave Allen, Mick Tracey, Chris Dent, Anne Langford, Cathy Brewster, Ken Hardiman and Ian Lloyd.

He said that they all sat down in the room. There was a large table which accommodated 15 to 20 people.

Mr X said that the first person to speak was Ray Donaldson who said words to the effect of “as you know, we are here to discuss the arrest of the people in Operation Pickaxe. We will run through each individuals officer’s evidence that he will be giving” .

He said he had paperwork in front of him on the desk and was sitting down as he spoke.

Mr X said that he could not recall the order in which Mr Donaldson spoke to the meeting.

According to Mr X, Donaldson said to the others assembled “there is to be no mention that any shots were fired at the scene of the arrest” . According to Mr X he also said to everyone assembled “who heard the admissions made by Landini?” . He said that Pattle said that “he had heard the admissions and everyone laughed” . He said there was another comment made at that time. When asked to say what it was, Mr X said “Chris Dent said ‘you’re too good for me Mr someone and named an officer” . He said the officer was John Bourke. He then repeated “you’re too good for me, John Bourke, Jesus Christ couldn’t help me now” . He said that that was said after Mr Donaldson said “who heard the admissions by Mr Landini” .

Mr X said that Donaldson also said words to the effect of “who had the gun? Who saw Landini in possession of the gun? …” and he added “who corroborates who here?” . Donaldson, according to Mr X said, speaking to Mr Pattle, “now, how did you disarm him again?” . He said the reaction of those assembled at that time was one of laughter and comments were made, the details of which he could no longer recall.

Mr X also said he recalled a comment being made about a right hook being thrown and the comment being made “was it a karate kick?” . He said he recalled Donaldson specifically saying “there is to be no mention of any assault taking place on Landini at the arrest” . He also said Donaldson said to Brewster and Langford “I’ll speak to you separately after this regarding how your statements will need to be changed” .

Mr X said that at the meeting Mr Donaldson was in possession of photocopies of the original draft statements of officers. He said that after the meeting, he spoke to Donaldson and that that was within a couple of days. He did not recall any others being present on that occasion. He said that he was sitting at his desk in the JTF. He had previously given a draft statement to Mr Donaldson and he said he did not see that draft again. He said that two days after the assembly of officers, Donaldson then came to Mr X and said “here you go, here’s your statement. Sign that” or words to that effect. He said he was shown a re-typed statement which had inclusions in it that he had not prepared.

Mr X was shown a copy of his statement dated 1 July 1982. He said that when it was handed to him by Donaldson he signed it and gave it back to him. The draft statement he had earlier prepared was prepared by him on a Remington typewriter, whereas the statement given to him by Mr Donaldson, he said, had been recorded on a word processor. A copy of the statement was marked MFI 30.

He said that after the first “scrum down” meeting, he had countless meetings with Mr Dent and Mr Pattle in relation to the plaintiff. He said that he had more conversations with Mr Dent (with whom he used to drive to work with each day) than he did with Mr Pattle.

He said he recalled a particular conversation at the Strand Hotel which was just across the road from the JTF offices in William Street. The occasion was drinks after work. He said Mr Dent said words to the effect “what about you, Ace, getting a commendation for disarming a bloke who didn’t have a gun in the first place?” . He said that the name “Ace” was a nickname for Mr Pattle. He did not recall anything being said by Mr Pattle. He said nothing was said and there was only a laugh by Mr Pattle, Mr Dent and himself. The evidence in these proceedings disclosed that Mr Pattle did not, in fact, receive a commendation, although an application for one appears to have been made.

In cross-examination by Ms Katzmann and by reference to his diary, he said that on 19 July 1982 he commenced surveillance work in the morning and later in the day he followed Pak from the Hilton Hotel at about 7.15 pm. A short time later, he returned to the Hilton Hotel where he took up a surveillance position. At about 9.20 that evening, he saw, Don Thompson, alight from a taxi outside the Hilton Hotel in George Street. He was carrying a multi-coloured plastic shopping bag.

He followed him into the foyer of the hotel and remained there until he saw Thompson leave the hotel. He said when he left the hotel he was not carrying the multi-coloured plastic shopping bag. He stayed at the hotel for some time with other police including Detectives Allen, Brewster and Dent. He then went to a room on level 39 of the hotel where Detective Allen knocked on the door. Upon entering the room he saw the multi-coloured shopping bag, being the bag that had been in the possession of Mr Thompson. He also saw in the room Ms Pak and Mr Smittant.

On 19 July 1982, he made a note in his diary as to Mr Thompson alighting from a taxi in George Street carrying the bag.

In cross-examination by Mr Maconachie, Mr X stated that at the “scrum down” , Mr Donaldson had raised questions such as “where were you? , what time was that? , who did you see? , what did you did then? , who were you with when you went there?…” .

He agreed that it was not surprising that after submitting his statement it came back with “additions” . However, he also stated that he would not agree that there was “nothing surprising” that the statement had come back with “inclusions” . As to deletions, he agreed that it may be necessary for a case officer, using his skills and knowledge, to endeavour to put together a statement that was likely to capture evidence in admissible form. Certain “deletions” , he agreed, would not be unusual. He later also agreed that if the case officer formed the conclusion that there was a fact about which he might be able to speak but which had not been included in his statement, then it would not be unusual for him to consult him and ask him about that matter. He agreed that this happened “all the time” . In this particular case he said that Donaldson had simply come back with his statement and told him to sign it:- “Q. What he did in the usual course of the preparation of the brief in a complex matter was to put before you a statement that had been re-typed into a database for your consideration; that’s what happened, isn’t it? A. Consideration and signature. You have to sign it Q. Of course, for your consideration and signature that’s what happened, isn’t it? A. I would agree with that, yes.”

Mr X conceded, in relation to his evidence that Mr Donaldson at the “scrum down” had said, “Who saw Landini in possession of the gun?” that his recollection was not clear and he accepted that, with so much time having passed, his recollection could be wrong.

In relation to his evidence that Mr Donaldson said “Who corroborates who here?” , he also accepted that it would not be “unusual” in a complex operation for inquiries to be directed as to who could corroborate a particular aspect of a matter. He accepted that it would be “quite legitimate” for the case officer to ask which officer was in a position to speak to a particular point. (iii) Mr X’s credibility

Mr X’s evidence was relied upon in order to establish corruption in the process involving other members of the JTF in the preparation of materials that in due course would constitute the Crown brief in the prosecution of the plaintiff and his co-accused.

In cross-examination by Ms Katzmann it was put to Mr X:- “Q. At all events, you said to the Royal Commission investigators, didn’t you, that on a couple of occasions, particularly the arrest phase of the operation, you were concerned that certain things were taking place which, in your view, weren’t entirely proper but again it was more of a nature that things looked shifty as opposed to having any hard evidence that something shifty was taking place? A. That’s correct, that’s what I said on that occasion.”

Mr X agreed that on the majority of occasions that he and others conducted surveillance operations they were often not sufficiently knowledgeable of the operation to have an appreciation of the role or significance of activities of particular targets.

In relation to Operation Pickaxe, Ms Katzmann asked him:- “Q. I asked you some questions earlier about your role in those early days when you were at the JTF and that is during the Snooker Pickaxe Operation. With the exception of conducting the record of interview with Mr Smittant, it would be accurate to describe your work with respect to that operation as being that of a gopher, a runner, a courier driver, someone sitting in a surveillance van for 16 hours a day sometimes for three days straight? A. Yes. Q. Essentially, you were running around as the general dog’s body, weren’t you? A. Yes. Q. And it is true to say, is it not, that during the Snooker Pickaxe Operation on the majority of occasions you would be conducting surveillance with no idea why you were doing it? A. On a lot of occasions, yes.”

Mr X denied, when it was put to him, that his account of Mr Donaldson exhorting officers to suppress evidence or falsify statements was “a concoction” .

In relation to “scrum downs” , he agreed that there were general meetings held from time to time in the JTF for the purpose of checking on progress. He agreed that he told investigators that such general meetings were, in his view, one of the best ways to ascertain whether one was getting an accurate reflection of what actually took place. He added “on some occasions, the scrums took place for an improper purpose” . He agreed, however, that he told the Commission investigators that most of the scrums were for “quite a legitimate purpose” .

Mr X agreed that it was common, both in the AFP and in the JTF for there to be a debriefing after an operation. A point often raised at such meetings was how an operation of the kind in question could be performed more effectively the next time an occasion arose. It was also common he said for somebody to be given the responsibility of “pulling the brief together” and to give directions as to what the person conducting the meeting wanted so far as “paperwork” was concerned.

In relation to the “scrum down” following the arrests at the KFC premises, both members of the Executive, Mr Bendt and Mr Travers were present. He said that Mr Donaldson as the case officer had the task of drawing together material including exhibits and statements for the police brief.

He agreed in evidence to the Royal Commission that he said that the first incident he could recall involving a breach of duty or possible breach of duty occurred in August 1983, well after the Snooker/Pickaxe Operation. He further agreed that the only evidence he gave to the Royal Commission of a scrum down following the arrest of a man was unrelated to the matter in question in these proceedings. He agreed that he did not, in the course of evidence, mention any other person involved in improper conduct in a scrum down.

He also agreed that when he first spoke to the Royal Commission officers on 1 September 1995 he did not mention anything to do with the Snooker/ Pickaxe Operation.

When he was interviewed by Royal Commission investigators again on 22 September 1995 (by which time he had “rolled over” ), he agreed he did not mention Mr Landini or the Snooker/Pickaxe Operation. In his statutory declaration made on 25 September 1995, the first incident of corruption or impropriety that he could recall occurred about 13 August 1983.

He agreed that a further incident of corruption or impropriety disclosed to investigators occurred on 23 December 1983, being an occasion when he was present and when a person was “verballed” .

He also agreed that he made a statutory declaration on 25 September 1995 in which he mentioned seven specific incidents or operations in which there was some form of corrupt or dishonest conduct. None of them, however, involved Mr Landini. He agreed that he told investigators at that time that he was not aware of any other corrupt practices within the JTF.

He agreed that on 3 October 1995 he told Royal Commission investigators about “scrum downs” in respect of two matters, but that neither of them involved Mr Landini or the Snooker/Pickaxe Operation.

Mr X further agreed that when interviewed on 3 October 1995 there was no recorded reference made by him to a scrum down held in relation to Mr Landini or the Snooker Pickaxe Operation and he agreed that it appeared to be the case that he did not refer to any meeting about the Landini matter in which Mr Donaldson told him to do anything improper or that anyone else should do anything that was improper.

He agreed that he had made no mention of any assault on Mr Landini, and there had been no reference in the record by him of any “verbal” of Mr Landini and no reference in it to anyone firing a gun at the scene of the plaintiff’s arrest. There was no record made of him disclosing any reference to shots being fired on the night of the arrest or of the plaintiff being “loaded” with a knife or of Mr Donaldson directing anyone to alter his or her statement or to perform any task that was improper.

Mr X also agreed that he had not referred to any matter concerning the Snooker/Pickaxe Operation or the plaintiff in evidence on 20 October 1995 or in a further statutory declaration that he made on 26 October 1995. He acknowledged that at the foot of the last-mentioned document he stated “I have attempted to disclose everything that I can recall about my time in the JTF” .

He further agreed that there was no reference in a further statutory declaration made by him on 2 November 1995 to the Snooker/Pickaxe Operation or to the plaintiff.

Mr X gave evidence that his contract with the Australian Federal Police was not renewed. He agreed that this was before he admitted to any wrongdoing.

Mr X agreed that he was charged with making a communication with a specified person with intent thereby to pervert the course of justice contrary to s.319 of the Crimes Act 1900 and that on 5 April 1995, he was suspended from duty. He was informed that his contract, which was due to expire on 30 June 1995, would not be renewed. He accepted that, by 21 September 1995, he believed that his own corruption would be uncovered. He understood he would be given an indemnity if the Royal Commission investigators believed that he had made full and frank disclosure. He said that his involvement in Operation Pickaxe was principally concerned with the prosecution of Mr Smittant.

It is clear that Mr X has a history of dishonesty and, for that reason, his evidence has required extremely close scrutiny. The evidence he has given about the “scrum-down” is contradicted by the witnesses called by the defendants. In particular, as earlier indicated, Mr Matinca, who I accept as having given honest and reliable evidence, contradicted Mr X entirely on his evidence.

In addition, it is clear that, although Mr X spoke on multiple occasions with investigators attached to the Wood Royal Commission, he at no time disclosed any impropriety associated with Operation Pickaxe. In none of the statutory declarations completed by him was there any mention, at all, of the matters which he detailed in evidence in the present proceedings and no reference to impropriety having occurred in the course of investigations in Operation Pickaxe.

I was unimpressed with Mr X as he gave his evidence. His demeanour confirmed what is otherwise manifestly evident, namely, that he is a wholly unreliable witness. The circumstances in which he came to give evidence, primarily through a meeting at his local hotel with the plaintiff and Mr Neddy Smith, are, to say the least, unusual. How it is that Mr X could recall the detail of matters as recounted by him in evidence following the plaintiff’s arrest, in particular, in relation to the alleged scrum down, but he had not been able to recall or disclose to the Royal Commission investigators anything at all about Operation Pickaxe was not explained by him.

I, accordingly, do not accept the evidence of Mr X. I do not consider that any aspect of it can be relied upon for the purpose of making any relevant findings. (f) Mr Pattle

Mr Pattle worked with the Commonwealth Police from June 1972 until 1979 and in 1980 it became the Australian Federal Police. His work with the Commonwealth Police was mainly surveillance work and intelligence work in respect of inbound and outbound passengers of interest by way of border surveillance at the airport.

In March 1980, he was seconded to the JTF on Drug Trafficking. He then held the rank of Detective Senior Constable and, at the time of his secondment, there were approximately 20 officers working at the JTF.

Mr Pattle said in evidence that the case officer of Operation Snooker/Pickaxe was Detective Sergeant Donaldson and that Detective Sergeant Paynter was the officer-in-charge of the surveillance team as at July 1982.

He said that he did not hold any authority during his secondment to lay charges in relation to suspected criminal offences committed under New South Wales law. He had not been sworn in as a senior constable with the New South Wales Force (as it was then known).

At no time whilst he was at the JTF, was he ever tasked with preparing a brief or being in charge of a brief. His duties did not involve liaising with informants or co-ordinating investigations. He was not involved in determining any form of electronic surveillance whilst at the JTF nor did he have any input into the targeting process whilst with that body.

Mr Pattle said that, from 1980 to July 1982, his main role was physical surveillance and he estimated that 90% of his time was performed doing so. Otherwise, he assisted in organising witnesses for trials and assisting with the evidence for such trials. He said that directions in relation to surveillance came from Detective Sergeant Paynter.

Mr Pattle said that his level of seniority (Detective Senior Constable) was the lowest grade at the time at the JTF. He said that Mr Matinca also was graded at that level.

In relation to Operation Snooker/Pickaxe before July 1982 he said he recalled being involved in surveillance on three occasions, two occasions prior to 15 July involving surveillance in and around the Dulwich Hill area and in China Town and on 15 July 1982 at the GPO Post Office, Martin Place.

Prior to 19 July 1982, he had heard that the plaintiff was a person of interest. He did not recall, however, attending the briefings for Operation Snooker/Pickaxe prior to 19 July 1982.

Mr Pattle gave evidence at the committal hearing, a copy of which constitutes Exhibit BA, and also at the trial, a copy of the transcript of which also became an exhibit in the present proceedings.

In the present proceedings, Mr Pattle said he was satisfied that the evidence he had given at trial was true and correct, subject to some errors of detail which he referred to in evidence in these proceedings.

Mr Pattle said that his instruction was to attend on 19 July 1982 at Kings Cross and to follow the cab driven by Mr Paynter and transporting Mr Thompson. He said, otherwise, he was not involved in the planning of the operation on 19 July 1982.

Mr Pattle said that, prior to that date, he had never had any contact with the plaintiff. He said that he had never seen Mr Thompson prior to that date.

Mr Pattle also made a statement dated 21 July 1982 (Exhibit AF) concerning the events of 19 July 1982, which also forms part of Exhibit BF in the present proceedings (Tab 29). At paragraph 5 of that statement he recorded:- “5. When I arrived at the Kentucky Fried Chicken shop I saw a Holden Commodore sedan no LRC-982 parked near the near of the car park facing Parramatta Road. I also saw a male person who I now know to be the defendant, Henry Charles LANDINI, standing close to the front passenger side window of the taxi no T-1977. At this time, LANDINI was facing the front passenger side window of the taxi and THOMPSON appeared to be handing a rather large, light coloured, cylindrical object to LANDINI from the taxi. The object was sticking out of the front passenger side window of the taxi and LANDINI appeared to be just about to take hold of it.”

In paragraph 6, Mr Pattle recorded:- “6. I also saw Detective Sergeant DONALDSON drive his vehicle to a position near the rear of the taxi, I then saw the defendant LANDINI run from where he was standing towards the driver’s side door of the Commodore sedan LRC-982. LANDINI was not carrying the parcel. I saw Detective Sergeant DONALDSON alight from his vehicle and commence to approach LANDINI. At the same time, I drove my vehicle to a position close to the driver’s side door of the Commodore sedan no LRC-982 and alighted. By this time, LANDINI had reached the driver’s side front door of the Commodore. I saw him open that door of the vehicle. He then turned, reaching into his right hand overcoat pocket, he withdrew a revolver which he commenced to raise in the general direction of Detective Sergeant Donaldson and myself. At this time, I had reached LANDINI and I knocked him to the ground causing the revolver to fall from his grip. Detective Sergeant Donaldson took possession of the revolver.”

In evidence in the present proceedings, he said that he was approximately 60 feet from the taxi when he heard the word “now” or “go” . In these proceedings, he said at that point he was turning west into the car park out of Britannia Avenue.

In these proceedings, he said when he saw the plaintiff reach into his overcoat and withdraw a short barrel revolver, he quickened his pace, punched the plaintiff as hard as he could on the right side of his face. He said his momentum carried him forward into the plaintiff who appeared to sag and he went down with him to the ground. He said that he heard a “clunk” sound which he assumed was a firearm hitting the pavement. He said that the firearm was being held by the plaintiff.

Mr Pattle gave evidence that he searched the plaintiff and found in the right hand a piece of pink paper. In the left hand pocket he said he found what he described as a “lock blade knife” . He recalled that there was some writing on the pink piece of paper but could not recall what it was. He said he handed these objects to Mr Donaldson.

He said that he recalled Mr Donaldson had a further conversation with Mr Landini and that he, Pattle, made a record of it in his official police notebook some time after the conversation within one to two minutes. He said he was then seated in the rear of the police vehicle next to Mr Landini at that time. He said that, subsequently, he and Mr Donaldson drove back to the CIB at the Remington Building in Liverpool Street.

He said that there was then a conversation between Detective Donaldson and the plaintiff. He said he made a record of it in his notebook. That record became paragraph 11 of his police statement.

In the course of that conversation, Mr Pattle recorded that Mr Donaldson said to the plaintiff, “Where is Merle Thompson?” . He said, “I’m not saying, but I wouldn’t like to be in her shoes” .

Mr Donaldson said, “I want you to come with me, I have some items I wish to show you” .

The statement then records that the plaintiff made no reply but accompanied Mr Donaldson and Mr Pattle to another area of the Drug Squad Office where Mr Donaldson indicated to him five black cylinders, one of which was open, five oriental paintings and a large sum of money. Mr Donaldson is recorded as saying, “Is there anything you can say about this?” . The plaintiff then shook his head and said “Lost, what a bastard” .

In the present proceedings, Mr Pattle said that his notes recording the above were an accurate account, although he said he would not say that they were a verbatim account.

Mr Strickland on behalf of the Mr Pattle, asked him:- “Q. Did anyone direct you to make a false statement in this matter? A. No, they did not. Q. Did anyone direct you to give false evidence? A. No, they did not. Q. Either at the committal or at the trial? A. No. Q. Did you agree with Detective Donaldson to make a false statement? A. No, I did not. Q. Or to give false evidence either at the committal or trial? A. No. Q. Did you make a false statement? A. No. Q. Did you give false evidence? A. No, with the exception of the errors that I pointed out. Q. At any time during the operation of 19 July, did you assault Mr Landini, apart from punching him in the jaw? A. No. … Q. Did you say to Mr Landini at the KFC: ‘Don’t move, or I’ll shoot’? A. No, I did not. … Q. Did you stick a gun in Mr Landini’s back? A. No, I did not. … Q. Did you see any police officer jump on Mr Landini’s back when he was on the ground? A. No. Q. Did you do that? A. I was on his back when I went down, or when we both went down to the ground, but I didn’t jump on his back. Q. Did you grab his hair or starting pulling his hair upwards? A. No, I did not. Q. Did you put your foot on his head? A. No, I did not.”

In further answers, Mr Pattle denied that he saw anyone treat the plaintiff in that way, did not see anyone grab him by the throat or kick him in the stomach. He said that he did not see Constable Brewster at the KFC premises that night and did not hear Donaldson say “If he moves, shoot him” . He also denied assaulting the plaintiff whilst in the police vehicle and did not see anyone else assault.

After the plaintiff was charged, Mr Pattle said he had no recollection of a debriefing session or meeting with members of the JTF. He specifically denied hearing Mr Donaldson directing officers to not mention shots having been fired at the KFC premises and he did not hear Donaldson say “who heard Landini’s admissions?” and did not hear Detective Dent say words to the effect “you’re too good for me John Bourke. Jesus Christ couldn’t help me now” . He did not recall Donaldson saying “who had the gun? Who saw Landini in possession of the gun? Who corroborates who?” and did not hear him say at the meeting “now, how did you disarm him again?” and did not hear laughter in the room. He said that Donaldson did not say that there was to be no mention of the assault upon Mr Landini at the arrest.

Mr Pattle said he was not consulted by Mr Donaldson in relation to the laying of any charges against Mr Landini nor was he consulted by any other officer about doing so. He played no role, he said, in the decision to lay either of the two charges against the plaintiff.

In relation to the preparation of his statement, he was asked:- “Q. Did you have any discussions with Detective Donaldson about the content of your statement either before or after you completed it? A. No. Q. Did Detective Donaldson ever tell you to add anything to your statement? A. No, he did not. Q. Or to delete anything from your statement? A. No. Q. Or to give any false or misleading material in your statement? A. No.”

Mr Pattle said he was not consulted in relation to the drafting of the fact sheet (Exhibit 5). His only other involvement was giving evidence in the committal hearing and at trial.

Mr Pattle denied ever hearing a conversation at the Strand Hotel in which Mr X said “What about you Ace, getting a commendation for disarming a bloke who didn’t have a gun in the first place” . He said he did not receive a commendation in relation to the events of 19 July 1982.

He said during his term at the JTF, his relationship with Mr X was “generally tense” . He went on to explain that there had been a long-standing animosity between narcotics personnel and the Commonwealth (former Commonwealth Police) and additionally he said Mr X had some problems with the fact that he had served in Vietnam.

In the written submissions for the plaintiff, it was contended that Mr Pattle’s evidence was inconsistent with his previous evidence and with the evidence of other officers. It was also claimed that his evidence at the trial was “deliberately vague” . A number of aspects said to support the contention of inconsistency are set out at pp.41 to 42 of the plaintiff’s written submissions. These references were said to support the submission that “Pattle’s evidence cannot be trusted” . The submissions then set out what is contended was “the more likely scenario” .

Even if the cross-examination of Mr Pattle in the present proceedings, which at times resembled the course commonly adopted in criminal trials, exposed elements of unreliability in his account, that is a long way from establishing that the prosecutor, prior to charges, should have been able to similarly test his reliability. Additionally, there would need to be a great deal more evidence before a conclusion could be reached that he fabricated evidence. The approach taken on behalf of the plaintiff in the present case was essentially one that sought to establish unreliability in Mr Pattle and to link that to his past history in which he admitted on one occasion to have engaged in dishonestly taking money (see below).

Separate submissions were made to the effect that the alleged admissions made by the plaintiff as recorded in the statements prepared by Mr Donaldson and Mr Pattle “cannot be accepted” . It was contended that their evidence, in that respect, should not be accepted on any point “unless it is corroborated by independent credible evidence” (p.54).

In the Plaintiff’s Submissions in Reply , paragraph 135, it was stated:- “… if the Plaintiff’s case is accepted in so far as, on 19 July 1983, [sic] the Plaintiff was ‘loaded’ with admissions, a gun and a role in the supply of the heroin, then Pattle must be seen as someone who has aided and abetted the prosecution and further, someone who has adopted or continued the prosecution.”

The submissions made on behalf of the plaintiff concerning the evidence given by Mr Pattle essentially rests upon the proposition that the plaintiff should be preferred as a witness over Mr Pattle. Beyond the conflicting versions of the two men, there is no objective or other evidentiary basis for a conclusion that Mr Pattle was involved in “loading” the plaintiff with admissions, a gun or had a role in fabricating evidence.

The issue to which I have referred above concerning Mr Pattle’s past act of dishonesty related to the theft of money from a suspect. Pattle gave evidence that he returned the money at the request of Haken and one or two days later he found a sum of money in his desk drawer. He initially did not count it and put the money on the top of the communal fridge. Soon after, he took the money and spent in on gambling and alcohol. He understood that the money formed part of a larger sum of money that had been stolen from a suspect.

Mr Pattle’s evidence that his conduct represented a significant error of judgment rather than it being an intrinsic defect of character. It was submitted on his behalf that his conduct in relation to this matter was of a very different character to the kind of conduct alleged against him in these proceedings, namely, the fabrication of evidence against a suspect. It was observed in the submissions for Mr Pattle that his evidence was that it had deeply troubled his conscience over many years.

Following the incident in February 1984, Mr Pattle applied for a transfer to Canberra and said that he did so because he had regarded himself as having been very compromised by his conduct. In submissions on his behalf (paragraph 102), it was stated that, what was said to be his single act of corruption stood in contrast to the “plaintiff’s life of crime” . It was submitted that in Mr Pattle’s case, the particular piece of corrupt conduct should be viewed as an isolated episode and atypical or uncharacteristic.

Mr Strickland correctly submitted that it ought not be concluded that because Donaldson instructed Matinca to fabricate evidence against Thompson and Waddell that it logically follows that he also instructed Pattle to fabricate evidence against the plaintiff. It was further observed that the evidence that Donaldson directed or requested Mr Matinca to fabricate evidence against Thompson or Waddell was not led as tendency evidence on the part of Donaldson or Pattle.

I do not consider that the plaintiff has established to the applicable standard any of the serious allegations made against him. Pattle’s evidence is to be considered in the context of all the evidence. That evidence, as I have earlier stated, establishes that the Crown case against the plaintiff was a very strong one. That evidence did not depend upon Mr Pattle’s evidence as there was an abundance of evidence that provided reasonable and probable cause for the prosecutor. (g) Mr Robert Tunnicliff

Mr Tunnicliff is a Detective Superintendent with the AFP. He joined the Australian Customs Service in 1975. He joined the JTF in 1979 and was there until August or September 1983.

He undertook surveillance duties in Operation Pickaxe. He became involved in the operation in May 1982. He said that he and Mr Pattle were junior officers at the time, although Mr Pattle was the more senior of the two.

Mr Tunnicliff’s statement dated 21 July 1982 was in evidence (Exhibit BF, Tab 52). He gave evidence at the committal on 21 January 1983 (transcript, part of Exhibit BA).

He carried out surveillance duties on 19 July 1982. He was travelling on that occasion on a motorcycle. Later that evening, he said that when he drove up to the KFC premises, he saw Pattle holding the plaintiff, and Mr Donaldson arriving within a very short time of Pattle taking hold of the plaintiff.

He said that he had no recollection of any meeting of Operation Pickaxe officers after the arrests were made at the KFC premises at which Mr Donaldson or anyone else directed him to give false evidence.

Mr Tunnicliff said that he has never agreed with anyone to fabricate or give false evidence. He said that no-one after the arrests indicated that there was a “a gap” in the evidence. He said that he did not hear any gunshots at the KFC premises. He also said that he did not hear Mr Donaldson say at any stage that no-one was to mention gunshots having been fired. He also said that he did not see any female police officer at the KFC premises.

Mr Tunnicliff said that he did not recall hearing any of the statements which Mr X in evidence attributed to Mr Donaldson. Whilst it was possible that there may have been a meeting of officers after the arrests, he confirmed that he did not attend if one was held.

In cross-examination, Mr Tunnicliff was asked at some length about the process by which statements of officers were produced. This involved identifying the relevant source documents that were used and how and which officers participated in the formation of the statements. It is unnecessary to detail that evidence here.

Mr Tunnicliff gave evidence of his observations at the KFC premises. He did not see any gun on that occasion and he said he saw Thompson running and being pursued by then Detective Paynter and Detective Harrigan across Parramatta Road. It was he who recovered the heroin after Thompson dropped it.

He subsequently attended with five other police at Waddell’s house. He could not recall who made the notes concerning the conversations on that occasion between Paynter, himself and Waddell. He said that he, Langford and Detective Sergeant Southwell participated in Waddell’s arrest. It was he who charged her of being in possession of a pistol found by police at the premises. He said that he did not find the piece of paper at Waddell’s house on which the word “house” (the code word for heroin), but he said that he first saw it at those premises, other officers having brought it to his attention.

I have no reason to doubt the evidence of Mr Tunnicliff and I accept it entirely. He had a limited role to play in the events at the KFC premises concerning the plaintiff. (h) Mr Kenneth Hardiman

Mr Hardiman retired from the AFP with the rank of Superintendent on 31 March 2006. He had, prior to joining the JTF, been seconded to the Williams Royal Commission in Drug Trafficking. At a subsequent time he was assigned to the JTF. He was one of the founding members of the JTF. He remained with it until August 1983. He was involved in Operation Snooker and later in Operation Pickaxe. He said that he primarily performed surveillance duties. He made a statement dated 21 July 1982 concerning the events of July 1982 (Exhibit 6). He gave evidence at the committal and at trial (part of Exhibits BA and BD).

He said he was not cross-examined at the trial by counsel who appeared for the plaintiff.

He said that he initially saw the plaintiff in relation to Operation Pickaxe on 5 July 1982 approaching Waddell’s premises. On that occasion, he said the plaintiff was with Mr Neddy Smith. The two entered the premises together. It was some little time before that that he saw Smith and the plaintiff emerge from a side street (Woodside Avenue) and approach Waddell’s premises. He said that he made notes of his observations and transmitted information via police radio.

He said that he omitted his observations concerning Smith and the plaintiff from his statement because Smith had not been arrested in relation to the same matter.

He said that he never attended any meeting concerning Operation Pickaxe where anyone was directed to give false evidence. He did not hear Donaldson give any such direction. He said that he certainly did not agree with anyone to give false evidence. He was never approached to do so.

He said that he never attended a meeting where any statements or remarks were made as claimed by Mr X following the arrests.

He did not attend the KFC premises on 19 July 1982. He said that he attended at 16 Duntroon Avenue later on the evening of 19 July 1982 at Waddell’s premises.

In cross-examination, he said that he had a “distinct memory” of having seen both Smith and the plaintiff on 5 July 1982 as described in evidence in chief.

Mr Hardiman said that that was the only occasion that he saw Smith and the plaintiff together.

In relation to the subject of the compilation or making of statements by police officers, he said that if there was clearly a deficiency in a statement submitted by an officer, then he might speak to that person, but he said that that was “perfectly normal action” . He said that he, in those circumstances, he might have a statement re-drafted where there was an obvious omission. In this respect, he did not suggest that this involved any impropriety.

I accept Mr Hardiman in relation to this latter aspect. In relation to his evidence generally, there was no basis established for not accepting his evidence and I accept it as a reliable account. His observations of the plaintiff and Smith were corroborated by other evidence. (i) Mr Brian Meredith

Mr Meredith is a retired police officer formerly in the service of the New South Wales Police. He joined in March 1969 and retired on medical grounds in October 1997 with the rank of superintendent.

He joined the JTF in 1981 and left it in about 1985. In that period, he held the rank of Detective Senior Constable.

His principal work with the JTF was surveillance work. He said at that time, Mr Paynter held the same rank as himself, although Paynter was in charge of surveillance. He described Paynter as the senior surveillance officer who ran the Surveillance Unit. Mr Meredith said that he had worked with Mr Paynter for some years and said that he was the best surveillance operative he had seen.

On 19 July 1982, he conducted surveillance on Don Thompson. At one point, he followed him into the Hilton Hotel. He later entered and came out later with “an Asian female” . This was obviously Pak. They were followed to the Crest Hotel, Kings Cross. They there met up with an Asian man, obviously Naktrakul. They then went to the Hampton Court Hotel.

A while later, he said Thompson came out carrying a bag. He said that Paynter was, at the time, working undercover as a taxi driver. He saw Thompson hail the cab driven by Paynter.

He said that he endeavoured to follow Paynter via the radio. He followed until they reached the KFC premises.

He said he continued on Parramatta Road and made a u-turn and passed the KFC premises and parked on the opposite side of the road. He said that when he heard over the radio something like “it’s go in” , he jumped out of his vehicle and saw Thompson running across Parramatta Road. He gave chase as well as did another officer. He said he did not hear any gunshots before Thompson was caught. He said that Paynter caught Thompson and Paynter escorted Thompson back across the road.

He did not recall seeing any women police officers at the KFC premises. He said he did not see the plaintiff lying on the ground at any time and did not see him kicked. He did not hear him being abused. He said that he did not see a pistol in the possession of Mr Landini.

He said he later assisted in searching Waddell’s premises at Hurlstone Park. He attended there with a number of police. He said that Anne Langford was one of the officers.

When he arrived at the premises, he said Ms Waddell allowed them in. He said police “would have had a search warrant” and the premises were searched. He said that Ms Langford found a Victorian Police Journal which was in a drawer and it had a piece of paper in it. That piece of paper was admitted at trial as evidence against Waddell. He said certain things were removed and taken back to the CIB.

In relation to any meeting that took place after the arrests on 19 July 1982, he said he did not recall attending any organised meeting. He said to his knowledge he had no recollection of Donaldson saying anything to anyone about changing their statements or to remove any reference to a female police officer being at the KFC premises. He said Donaldson did not say that no-one was to say anything about an assault on the plaintiff.

He also said that Donaldson did not say there was to be no reference to shots having been fired. He said Donaldson did not tell him what to put in his statement. According to Meredith, he typed his own statement from running sheets and other source materials. He made his statement on 12 August 1982 (Exhibit 4).

He said he gave evidence at the committal and told the truth on that occasion (part of Exhibit BA). He also gave evidence at the trial (Exhibit BD).

He said that he did not hear Donaldson ask “who heard Landini’s admissions?” . He said he did not hear Pattle ever say “I heard the admissions” . He said that he did not hear Donaldson say to Pattle “who had the gun? Who saw Landini in possession in the gun? Who corroborates who here” .

Mr Meredith was cross-examined at some length as to the observations conducted by him on 5 July 1982. He confirmed that after Thompson came back from the city, he met up with the plaintiff by walking to the plaintiff’s Mazda vehicle and entering it. This is contrary to the plaintiff’s evidence as to how the initial meeting took place. He acknowledged that there was an inconsistent entry in the surveillance sheet which recorded that Thompson and the plaintiff walked to the Mazda vehicle. There was, however, other surveillance evidence referred to above of Mr Thompson being observed crossing the road and entering the plaintiff’s vehicle.

A good deal of the cross-examination of Mr Meredith was directed to the specific surveillance carried out on 5 July 1982 and other matters concerning events on that day, the purpose of which was to challenge Mr Donaldson statements that the plaintiff had been involved in a drug transaction on 5 July 1982. I note that the detail and accuracy of surveillance material which was put to Mr Meredith in cross-examination in the present proceedings were not matters pursued with him at the trial. The cross-examination on these matters did not, in my opinion, materially assist on the question of alleged fabrication of evidence or generally on the issue of the absence of reasonable and probable cause. Although the evidence did not plainly establish that there had been money and drugs exchanged on 5 July 1982, the circumstances and meetings between Smith, the plaintiff, Waddell, Thompson and Pak on that date all constituted cogent circumstantial evidence as part of the overall Crown case against the plaintiff.

Mr Meredith was cross-examined at length about the events that occurred at the KFC premises. His evidence in chief as to what he said he saw there, at least so far as the plaintiff was concerned, was brief indeed. A good deal of the cross-examination focussed on the position of vehicles, lighting, the speed with which Mr Meredith passed the premises and other physical features associated with the site. Mr Meredith’s statement (Exhibit 4) had referred to events after 8.15 pm on 19 July 1982. He recorded the Thompsons’ trip to the La Rustica Restaurant and the Thompsons entering the plaintiff’s vehicle. After being driven a short distance, he said Thompson left the vehicle carrying the umbrella and multi-coloured plastic bag. He was then followed to George Street in the city where he soon after, according to Meredith, entered the Hilton Hotel.

A short time later he was seen to travel to the Crest Hotel and later leave it with Naktrakul. He observed him entering the taxi driven by Paynter carrying a brown plastic carry bag.

He recorded in his statement then following the vehicle to the KFC premises. However, his evidence as to what he saw there, as recorded in paragraph 11 of his statement, was extremely restricted. Mr Meredith said in cross-examination that his attention was on Thompson rather than on the plaintiff. He confirmed that he did not see anybody assault the plaintiff whilst at those premises.

In paragraph 12 of his statement, Mr Meredith recorded the events on his attendance with other police at 16 Duntroon Street, Hurlstone Park. He recorded finding the Victorian Police Journal. When Waddell was asked by police whose papers they were, she replied “it’s Danny’s, it’s got something to do with a property he’s getting” . There was no significant challenge to Mr Meredith’s account as to what happened at Ms Waddell’s premises later that night.

He confirmed that it was he who actually found the piece of white paper inside the Victorian Police Journal. I have no reason to doubt Mr Meredith’s evidence and I accept it as credible evidence. (j) Mr William Harrigan

Mr Harrigan was a retired AFP officer.

In 1979, he accepted a position with the then Federal Bureau of Narcotics. In 1980, he was appointed to the AFP and worked in that service’s Drug Squad.

In 1981, he was transferred to the Organised Crime Branch.

In 1981, he was transferred to the then National Crime Authority. At that time, he held the rank of Detective Superintendent. He remained there until June 1992. He retired on 2 February 1996. He said he accepted an offer of redundancy that was made to everyone on the AFP at that time.

As at 19 July 1982, he was a member of the JTF. He said that an investigation into Thompson by the Organised Crime Branch of the AFP had crossed over investigations being made by the JTF. As a result, a joint operation came into being. The joint operation became known as Operation Snooker/Pickaxe.

A copy of his statement dated 23 August 1982 is in Exhibit BF1, Tab 32.

In his statement, Mr Harrigan stated that, on the night of 19 July 1982, he observed Thompson enter the cab driven by Paynter. He said that, as he drove towards the KFC premises, he saw Thompson running across Parramatta Road with Paynter in pursuit. He said later that night he took possession of the five cylinders containing the heroin and that he spoke to Thompson. It was during this discussion as recorded in Mr Harrigan’s statement (p.3) that Thompson is recorded as saying, inter alia, “… Danny will kill me for this, they have my wife and they will kill her too …” . Thompson is recorded as saying that his wife could have been at Waddell’s home. He said, otherwise, “… I don’t know where she is, they took her away when they gave me the money” .

Mr Harrigan’s statement recorded Thompson as saying that he had obtained the cylinders of heroin from “… a Chow at the Hampton Court Hotel” .

Mr Harrigan referred to then having travelled to Thompson’s home and the premises were then searched. He said he there had a discussion with Thompson.

Mr Harrigan recorded showing the cylinders of white powder to Thompson at the CIB and Thompson acknowledged that they were the one that he had thrown away and that they contained heroin. It was in this discussion that he said that Thompson disclosed that he “… got the money in that bag from Danny and gave it to Judy Parker [sic] at the Hilton tonight …” .

Mr Harrigan gave evidence in a straightforward manner. He said that Thompson in his record of interview “… was completely frank and open …” .

Mr Harrigan also stated in evidence:- “… I recall asking Mr Thompson how much he paid for the kilo of heroin, when he went to the Crest Hotel. He said ‘$96,000’. I asked him where he got the money from. He told me he got it from Mr Landini and he took the heroin out to Mr Landini or for Mr Landini. I can recall those questions, that just followed, and his answers, and he signed the records of interview and he was served with a copy …”

Mr Harrigan said there was a debriefing shortly after the arrest. He said it occurred at the JTF offices. He said that no-one was directed to give or asked to give false evidence. He said that he never heard Mr Donaldson issue such a direction and that he never agreed with anyone to give false evidence. He said that at no time after the arrest was he informed that there was a “gap” in the evidence.

He said that he had never heard any suggestion being made to the effect that the plaintiff had never had a gun when arrested. He also said that he did not hear any suggestion of the plaintiff having been bashed, loaded or verballed or that evidence had been fabricated against him.

He said that Donaldson did not issue any instruction that no-one was to mention any assault on the plaintiff or that they were not to mention any shots having been fired at the scene of the arrest.

He said that he had no recollection of Mr Pattle saying that he had heard Mr Landini make admissions nor people reacting by laughing at a statement to that effect. He said he did not recall Mr Donaldson saying to Mr Pattle “now how did you disarm him again?” , referring to the plaintiff.

In cross-examination, Mr Harrigan stated that he typed his own statements. For that purpose, he used his own notes and his recollection of events. He thought that he would have started work on the statement soon after the events. He said he probably took notes when he interviewed Don Thompson.

In relation to the events at the KFC premises, Mr Harrigan said he did not see Pattle or Donaldson with a gun and nor did he see the plaintiff in possession of one.

I was impressed by Mr Harrigan’s evidence, which was not shaken in cross-examination. He gave the impression of being a truthful and objective witness. I accept his evidence as credible. Consideration (a) The prosecutor of the 1982 charges

In relation to the 1982 charges, the initial question involves identifying the prosecutor(s) of proceedings. The plaintiff has contended that, in addition to Mr Donaldson, both Mr Matinca and Mr Pattle were prosecutors of the charges against him, by reason of their role and, in particular, by fabricating evidence against him.

The first and second defendants, the State and the Commonwealth of Australia and the fourth defendant, Mr Pattle, disputed the plaintiff’s contention in this respect. They each submitted that there was no evidence that would support such a finding.

In the written submissions for the fourth defendant, Mr Strickland adopted the submissions made on behalf of the second defendant. In particular, in this respect, he contended that Mr Pattle did not lay the charges against the plaintiff nor was he consulted about the charges. Further, it was contended that there was no evidence that he was involved in any decision in relation to the charging or continuation of the prosecution against the plaintiff. Further, it was contended there was no evidence that the fourth defendant exercised any independent judgment or discretion in charging the plaintiff.

Mr Strickland additionally submitted that Mr Pattle had no authority to lay charges in relation to suspected criminal offences committed under New South Wales law. He was not sworn in as a special constable and was not a New South Wales Police officer. His role was such that he was not consulted in relation to the facts sheet and he had no role in compiling the brief and was not consulted in relation to it. It was also contended that he did not have any discussion with Mr Donaldson about the matter after he completed his statement. His main role throughout the relevant period said to have been as a surveillance officer and, in that respect, his involvement was very limited prior to 19 July 1982. His evidence was that he had no recollection of attending briefings in relation to Operation Snooker/Pickaxe before 19 July 1982.

In Commonwealth Life Assurance Society Limited v Brain [1934-1935] 53 CLR 343 at 379 to 380, Dixon J considered whether, in that case, it was open to the jury to find that the appellant company had “instigated” the prosecution for conspiracy such as to be responsible civilly in an action for malicious prosecution.

In the course of that case, Dixon J observed:- • It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as a result of an independent discretion on the part of that authority. • However, if the discretion is misled by false information, or is otherwise practiced upon in order to procure the laying of the charge, those who thereby brought about the prosecution are responsible.

Dixon J stated (at 379):- “The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.”

Accordingly, even though a prosecution may be brought be a prosecutor on behalf of the State as an exercise of prosecutorial discretion, if it were the case that individual officers conspired to fabricate evidence in alleging criminal conduct by another, by instigating the prosecution in that way, in accordance with the principles discussed by Dixon J in Brain (supra), such officers, for the purpose of the tort of malicious prosecution, would be regarded as prosecutors.

In the present proceedings, in relation to the 1980 charge, it was the plaintiff’s case that the prosecution had been instigated by the officers involved in the plaintiff’s arrest and that that prosecution by them continued through the bail and committal hearings, the plea and sentence. Whilst most of that process occurred prior to the enactment of the Law Reform (Vicarious Liability) Act 1983, it was contended that, nonetheless, the sentencing process occurred after the enactment of that Act.

In Johnston v Australia & New Zealand Banking Group Limited [2006] NSWCA 218, Basten JA, with whom Giles and Santow JJA agreed, stated:- “36. That a person who is not legally a party to a prosecution may nevertheless be sued is beyond doubt. In Davis v Gell (1924) 35 CLR 275 at 282, Isaacs ACJ stated:- ‘For the purposes of this form of action the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge .... The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.’”

In the present case in relation to the 1982 charges, it was claimed for the plaintiff that Donaldson, as the case officer and the one who laid the charges against the plaintiff, was a prosecutor and that Pattle, by “backing him up” and thereafter providing a false statement of what had occurred in the carpark at the KFC premises, brought him within the “extended definition” of a prosecutor. Reliance was placed, in particular, on the High Court’s judgment in Brain (supra): Plaintiff’s Submissions , 27 July 2007 at [16]. It was also claimed that “at the very least Pattle aided and abetted Donaldson in relation to the laying of charges and thereafter the maintenance (also called continuation) of the prosecution of Landini. It is therefore alleged that Pattle was a prosecutor, on the same basis as in Brain’s case. Critically, Pattle was there in the KFC carpark at the relevant time and his evidence as to those matters is essentially identical to that of Donaldson, which evidence was also made up, obviously in concert with Donaldson” ( Plaintiff’s Submissions , 27 July 2007 at [16]).

In the plaintiff’s submissions dated 27 July 2007, it was contended at [19] that Messrs Pattle and Matinca were active in the investigation and “… although there is no evidence that Matinca discussed with Donaldson charges which were to be laid, he was part of an entire Taskforce which played an active role in setting the proceedings in motion and thereafter continuing them” (at [19]).

It is also there alleged “Matinca aided and abetted Landini being charged . Matinca adopted and continued the proceedings by his deliberate participation in the provision of false material for inclusion in the prosecution brief”.

The second defendant, in contending that neither Matinca nor Pattle was a prosecutor, supported the submission at two levels. The first was the need for the plaintiff to demonstrate as a matter of fact that the evidence that each gave implicating the plaintiff in a conspiracy to supply heroin and the possession of an unlicensed firearm was, in fact, false. The second was that any such false evidence, in fact, led, persuaded or influenced the Crown to prosecute.

The second defendant supported its submissions, firstly, by reference to the principles that were said to determine who was a prosecutor and secondly, on the facts of the matter, that Donaldson was the prosecutor, he having signed the charge sheet and prepared the brief and having effectively directed and controlled the operational aspects leading to the plaintiff’s arrest.

In support of the submissions, reliance was placed upon the authorities that established that the mere provision of false information was not enough to constitute a person a prosecutor. In that respect, the dicta of Richardson J in Commercial Union Assurance Co of NZ Limited v Lamont [1980] 3 NZLR 187 at 199 was relied upon. In essence, it was contended that the simple furnishing of information, whether false or not, was not sufficient to establish whether the person instigated the prosecution. Applying that principle to the present case, it was submitted:- “For the plaintiff to succeed against the Commonwealth, he must first prove that either Pattle or Matinca set the proceedings in motion so that this was in substance Pattle’s or Matinca’s prosecution in the sense that, in reality, the Crown was the agent an instrument of Pattle or Matinca or that Pattle or Matinca intentionally supplied the prosecutor with information that they knew was false for the purpose of persuading or influencing and which persuaded or influenced the Crown to prosecute” : Outline submissions, paragraph 22.

Reliance was placed upon the principle in Browne v Dunne (1894) 7 C & P 408 as far as the proposition was not put to Donaldson as to whether he would have preferred a charge against the plaintiff without the allegedly false evidence of Matinca or Pattle.

On the evidence, in my opinion, neither Mr Matinca nor Mr Pattle were or could be considered to have been prosecutors in respect of the 1982 charges. Mr Matinca’s role was a limited one, largely confined to surveillance work. The false evidence which he said he gave at the direction of Mr Donaldson was not evidence that was admitted in the Crown case against the plaintiff. There is no basis for a finding that he fabricated evidence against Mr Landini and, in accordance with the relevant principles referred to above, there is no basis in law for a finding that he was a prosecutor of the 1982 charges.

Similarly, in relation to the Mr Pattle, on the findings I have made, the plaintiff has not adduced evidence to the requisite standard establishing that Mr Pattle gave false evidence or fabricated evidence against the plaintiff. He was in a not dissimilar position to Mr Matinca. His role was a very limited one, the details of which have been discussed earlier.

Applying the relevant principles to the evidence in the case, Mr Pattle was not a prosecutor of the 1982 charges. (b) Reasonable and probable cause

The premise of the plaintiff’s case, namely, that the defendants did not have reasonable and probable cause to prosecute him has a two-fold aspect. The first is the plaintiff’s contention that evidence was fabricated against him. The second is that surveillance and other evidence relied upon suggesting that he was a party to the criminal conspiracy to supply heroin went no higher than supporting a conclusion of guilt by association.

The first aspect requires a determination as to whether evidence against the plaintiff was fabricated by Mr Donaldson, and/or Matinca and/or Mr Pattle and/or others, whether at Mr Donaldson’s direction or not.

The second aspect requires an assessment of the strength and the reliability of the relevant evidence available to the prosecutor.

In support of the allegation that the defendants (in particular, Mr Donaldson) acted maliciously, namely, that he or they acted for an improper purpose and not for the purpose of carrying the law into effect, the plaintiff largely relied upon the alleged fabrication of evidence against him by Mr Donaldson and Mr Pattle as well as a supposed intention to secure a conviction in circumstances where the available materials could do no more than support a suspicion.

In relation to the issue of reasonable and probable cause:- (1) The issue of the alleged fabrication of evidence and the giving of false evidence relied upon by the plaintiff, depended largely upon acceptance of his own evidence and the evidence of Mr X. The fabrication of evidence having been denied, in particular, by Mr Donaldson and Mr Pattle, for the plaintiff to succeed he is required to prove the allegation to the Briginshaw standard. He has not, for reasons discussed, above, done so. (2) As to the investigation materials said to have established the plaintiff’s participation in the conspiracy alleged, attention is to be given to the sufficiency of those materials and to the belief that was held in the basis for a case against the plaintiff in determining whether he has proved the absence of reasonable and probable cause. At the end of the day, the plaintiff sought to establish that the prosecution brought against him was groundless and constituted a civil wrong.

In the present case, so far as Mr Donaldson is concerned, it is to be observed that he fulfilled three roles. At a critical point in the investigation, he assumed the role as case officer for Operation Pickaxe. He also became a witness of fact as to what is said to have occurred on the evening of 19 July 1982 at the KFC premises. Thirdly, he fulfilled the role of prosecutor in laying the charges against the plaintiff.

The sources of Mr Donaldson’s knowledge of material facts was two-fold. The evidence established that he kept abreast of investigations in Operation Pickaxe carried out by other officers in the JTF. In addition, he was also an eye witness, by virtue of his presence at the scene of the critical events at the KFC premises and which were directly relevant to the issues concerning the offences charged.

On the analysis and evidence to which I have earlier referred, I have found that Mr Donaldson improperly caused Mr Matinca to give false evidence in two respects. That evidence was admitted against the plaintiff’s co-accused, Waddell and Don Thompson only. The question is then whether Mr Donaldson, in addition, gave false evidence against the plaintiff and/or persuaded others to give false evidence against him.

The truthfulness of the evidence of Mr Donaldson and Mr Pattle is not to be examined in a vacuum. Before the events at the KFC premises took place and about which Mr Donaldson and Mr Pattle both gave evidence at trial and in the present proceedings, there existed a very large amount of significant evidence pointing to the fact of the plaintiff’s participation in a conspiracy to supply heroin. This evidence must be taken into account in determining the plausibility of what Mr Donaldson and Mr Pattle said took place at the KFC premises. Additionally, the very fact of Mr Thompson’s presence at those premises with 1.1 kilograms of heroin in his possession and his intended meeting up with the plaintiff late at night is evidence that supports the plausibility of events as both Mr Donaldson and Mr Pattle recorded them in their statement, including in particular, the central fact, corroborated by Paynter, of the actions of Mr Thompson in the process of passing the cylinders out of the taxi window to the plaintiff.

The evidence of Mr X having been rejected as wholly unreliable leaves the plaintiff’s version without corroboration. The plaintiff has not established that the prosecutor knew or believed at any point in time that there was some fact or facts that was/were exculpatory or inconsistent with his guilt. Additionally, it has not been established in the present proceedings that the facts established by the investigations were, in any material respects, lacking in terms of either reliability or strength. Finally, it has not been established that Mr Donaldson, Mr Pattle or Mr Matinca did not hold an honest belief as to either the plaintiff’s guilt of the facts said to have justified his prosecution.

On the evidence to which I have referred, I do not consider that there is an evidentiary basis for a finding that Mr Donaldson fabricated evidence against the plaintiff or persuaded others to do so. I am equally satisfied that there is no basis for a finding against Mr Pattle to support the allegation that he fabricated evidence against the plaintiff. Findings: 1982 charges

The surveillance evidence constituted an important part of the circumstantial evidence in the Crown case. The evidence based on surveillance was not challenged in any significant way at trial and has not, in my opinion, been established in the present proceedings as having been lacking in integrity or reliability.

I find that the evidence of Mr Matinca establishes that he, in fact, falsified two aspects of surveillance evidence. That evidence, however, was not admitted at trial against the plaintiff.

The evidence that Thompson was caught in the act of attempting a hand over of the cylinders containing heroin to the plaintiff at the moment police intervened was corroborated by the evidence of Paynter. There is no basis for a finding that Paynter’s evidence was, in any way, fabricated or false evidence. His evidence corroborated Donaldson’s account and I accept the evidence of both as reliable in that respect.

The facts and circumstances concerning the events at the KFC premises on 19 July 1982 combined with circumstantial evidence provided objective material constituting reasonable and probable cause to charge the plaintiff with being party to the conspiracy to supply a commercial quantity of heroin.

The evidence establishes that Mr Donaldson, as prosecutor, held a belief, based on the materials available to him, that those materials warranted setting the process of the criminal law in motion against the plaintiff.

The whole of the material available to the prosecutor at the time of commencing the processes of the criminal law against the plaintiff, in my opinion, constituted a reasonable basis for Mr Donaldson’s belief in setting those processes in motion.

The evidence does not establish that Mr Donaldson fabricated evidence against the plaintiff or that he sought to persuade others to do so. The evidence does not establish that Mr Pattle fabricated evidence against the plaintiff.

Neither Mr Pattle nor Mr Matinca were prosecutors within the extended meaning of that concept: Commonwealth Life Assurance Society Limited v Brain (supra).

It follows from the above findings that the plaintiff has not established a want of reasonable and probable cause for the 1982 charges.

It also follows that the plaintiff has not established that the 1982 charges were laid for an improper purpose. Orders (a) The 1980 charge

In relation to the findings made and the assessment of damages set out in paragraph [536], there is to be judgment for the plaintiff in relation to the cause of action in malicious prosecution based upon the 1980 charge to include the following:- (1) Consequential economic loss (legal expenses) $5,000.00 (2) Injury to person and restriction of liberty $35,000.00 (3) Aggravated damages $30,000.00 (4) Exemplary damages $160,000.00 Total $230,000.00

The plaintiff and first defendant to bring in short minutes of order to give effect to the judgment. In relation to the question of interest and costs, in the event that the parties are unable to reach agreement, written submissions are to be lodged with my associate by 4.00 pm on 6 February 2009. (b) The 1982 charges

On the basis of the findings set out above, there is to be judgment in favour of the first, second, third, fourth and fifth defendants in relation to the cause of action in malicious prosecution based upon the 1982 charges.

In relation to the question of costs, any written submissions to be lodged with my associate by 4.00 pm on 6 February 2009.