Hrdavec v State of New South Wales

1. [1]

   The plaintiff commenced this proceeding by statement of claim filed 17 October 2016 claiming damages for wrongful arrest, false imprisonment and malicious prosecution. The claim arises from the arrest of the plaintiff by New South Wales Police on 2 July 2015 and the charging of him that day with offences of aggravated sexual assault in company and depriving the complainant of her liberty (contrary to s 61JA(1) of the Crimes Act 1900 (NSW)) and aggravated indecent assault in company (contrary to s 61M(1)). These offences were alleged to have been committed on 22 June 2015. The plaintiff was remanded in custody following his arrest until 31 July 2015 and was then on bail until 11 December 2015 when the charges were withdrawn.

2. [2]

   By notice of motion filed 26 June 2018 the plaintiff seeks directions under rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) in relation to expert evidence he wishes to adduce from a retired Detective Chief Inspector, Mr Gary Matthews. On 25 August 2017 the Registrar fixed the matter for hearing commencing on 13 August 2018. The current estimated hearing time is five days. On 16 May 2018 the plaintiff served on the defendant a report of Mr Matthews and by letter invited the defendant to serve, no later than 13 July 2018, the report of any expert it may wish to engage. The letter proposed that a conclave take place during the month before commencement of the final hearing.

3. [3]

   In broad terms Mr Matthews’ report contains his opinion on whether the officer in charge of the investigation had reasonable and probable cause to arrest and charge the plaintiff, whether the law was observed in the manner of the plaintiff’s arrest and whether the officer preferred or maintained the charges out of malice.

4. [4]

   Rules 31.19 and 31.20 are applicable to the proceedings. So far as relevant for present purposes they are in the following terms:

5. [5]

   The defendant opposes the making of any direction under these rules. It submits that if the plaintiff wished to adduce expert evidence he was required by the rules to seek directions in that regard at an early stage of the proceedings, not when they have been on foot for over 20 months. On the hearing of the motion on 9 July 2018 I raised in argument whether the opinions of Mr Matthews contained in his report would be admissible in any event and, if they were, whether his opinion evidence would be reasonably required to enable the Court to resolve the issues. The defendant submitted both these questions should be answered no.

6. [6]

   It was pointed out by Brereton J in Chapman v Chapman [2007] NSWSC 1109 at [6] that:

7. [7]

   The material submitted to Mr Matthews for his opinion is listed in his report. It comprises for the most part witness statements and electronic recordings of interviews which I infer must have been part of the prosecution brief served on the plaintiff in the course of the prosecution during the second half of 2015. That material must have been in the plaintiff’s hands and must have been supplied by him to Mr Matthews well before 16 May 2018, in order to allow Mr Matthews time to read the material and to draft his report. The application for directions under r 31.19 should have been made before the material was submitted to Mr Matthews, to permit the Court to determine whether any expert evidence ought be adduced and, if so, whether it should be from a joint expert or a Court appointed expert.

8. [8]

   As Brereton J said in Chapman v Chapman at [7]:

9. [9]

   Those purposes are defeated by the service of an expert report in circumstances such as the present. Unless there was some compelling explanation for the plaintiff’s delay or a clear case that the expert evidence would be important to the resolution of issues in the proceedings or some other powerful circumstance in favour of reception of the evidence, I would not make directions under r 31.19 on such a belated application and would not permit the report to be used. In this case there is no explanation offered for the delay and, far from it being clear that the evidence is important, I find it is inadmissible.

Elements of the alleged torts

1. [10]

   The plaintiff’s cause of action for wrongful arrest and false imprisonment will turn upon whether the power of arrest under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“the Law Enforcement Act”) was properly engaged. The relevant part of s 99 is as follows:

2. [11]

   So far as the cause of action for malicious prosecution is concerned, the elements of the tort were summarised in the judgment of the plurality in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 at [1], in these terms (citations omitted):

3. [12]

   The third element, malice, was further elaborated by their Honours at [88]-[95]. At [89] the following statement from Fleming, The Law of Torts, (9th ed, 1998) at 685 was approved:

4. [13]

   Whether or not there was malice in the above sense on the part of the defendant in commencing or maintaining a prosecution is a question of fact to be determined by the jury if the cause of action is tried by jury: Sharp v Biggs (1932) 48 CLR 81; A v New South Wales at [2]. As the plurality said in the latter case at [41]:

5. [14]

   As to the fourth element the plurality in A v New South Wales said (at [76]) that mere proof that the defendant “had no positive belief that the accused person was, or was probably, guilty” would not in every case prove absence of reasonable and probable cause for the laying or maintenance of the charge. In particular their Honours said that the mere absence of such positive belief would not be sufficient where the prosecutor acted on the statements of others, as in the present case. Their Honours continued (at [77]) as follows (emphasis in original):

6. [15]

   Further on this element of the tort their Honours said at [80]:

7. [16]

   Finally, with respect to the objective aspect of the fourth element, absence of reasonable and probable cause, their Honours said (at [82]-[83]):

8. [17]

   The underlying circumstances relevant to a plaintiff’s allegation that an officer in charge acted without reasonable and probable cause are matters of fact to be determined by a jury if the cause of action is tried in that manner. However the ultimate inference whether or not the established facts amount to a want of reasonable and probable cause is for the court: Sharp v Biggs; A v New South Wales at [2].

9. [18]

   In the present case it is the third and fourth elements, malice and want of reasonable and probable cause, that are in contest. The statement of claim is pleaded in a form which does not aid identification of the issues. The parties are yet to comply with a direction for the filing and service of a statement of matters in dispute. So far as it is possible to tell on the present state of the papers, the defendant does not appear to contest that it is vicariously liable for the torts pleaded if they should be proved against the officer in charge of the investigation, or that the prosecution terminated in the plaintiff’s favour.

10. [19]

    The plaintiff must prove all elements. If he should satisfy the Court that the officer in charge did not honestly form the view there was a proper case for prosecution or that he did form that view but on grounds which, in the Court’s assessment, a reasonable man would not consider sufficient to warrant prosecution, then want of reasonable and probable cause, element (4), will be established. But the cause of action will not be made out unless it is also proved that the officer was actuated by malice in the sense discussed at [12]-[13] above. As the plurality said in A v New South Wales at [40]:

Admissibility of Mr Matthews’ report

1. [20]

   Mr Matthews’ report is addressed to the following questions which were submitted to him by the plaintiff’s solicitor:

2. [21]

   The following extracts from sections of the Evidence Act 1995 (NSW) have a bearing upon Mr Matthews’ answers to these questions:

3. [22]

   The plaintiff relies upon the exception in s 79 as the basis for tendering Mr Matthews’ report. This requires that the plaintiff identify what “specialised knowledge” Mr Matthews has and how his opinions are based upon it. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 six of the justices said at [32] of their joint judgment:

4. [23]

   In Clark v Ryan (1960) 103 CLR 486; [1960] HCA 42 Dixon CJ said at 491:

5. [24]

   In that case, concerning a motor accident, it was found that a particular witness did not have the experience from which to be able to describe the usual behaviour of vehicles under the prevailing conditions, nor did he have the engineering expertise to support an abstract opinion on the physics of the situation. At 491-492 Dixon CJ said:

6. [25]

   In HG v R (1999) 197 CLR 414 at 428; [1999] HCA 2 Gleeson CJ cited Clark v Ryan, treating it as applicable to s 79 of the Evidence Act. His Honour said, with reference to evidence of a psychologist which had been tendered on behalf of the accused in his trial for sexual offences:

7. [26]

   In R v GK (2001) NSWLR 317; [2001] NSWCCA 413 Mason P said at [40]:

8. [27]

   According to these principles the questions asked of Mr Matthews, as set out at [20] above, invite answers which are inadmissible for the following reasons.

9. [28]

   As to question A, whether the officer in charge had reasonable and probable cause for charging the plaintiff involves the application of the relevant legal standard to established facts. Similarly, whether the arrest was justified depends upon the application of the legal standard in s 99 of the Law Enforcement Act. Mr Matthews’ opinion on these matters is not directed to the proof of “the existence of a fact about the existence of which the opinion was expressed’, as provided for in s 76. What he says in answer to question A can only be an attempt to put, through him, the arguments the plaintiff’s counsel may wish to make from the evidence and from the facts as found. This aspect of the report is inadmissible, being either a submission or an attempt by the witness to arrogate to himself the Court’s function of applying the law to the facts.

10. [29]

    As to question B, whether any, and if so what, further investigations “should” have been conducted before the arrest and the laying of the charge is irrelevant. This is not a negligence action in which the performance of the police officers’ duties to be measured against some standard which Mr Matthews would purport to establish. Whether the contested elements of the tort of malicious prosecution are made out and whether it is shown that s 99 of the Law Enforcement Act was not complied with will be determined by the Court examining what enquiries the police in fact carried out and whether the results thereof were sufficient, according to the Court’s judgment, to sustain reasonable suspicion which would justify arrest and reasonable and probable cause for prosecution.

11. [30]

    As to questions C and D, whether police charged the plaintiff as soon as reasonably practicable after arrest and whether they complied with statute law and regulations in questioning him depend upon the application of legal standards to established facts. Mr Matthews’ purported opinions on these matters suffer from the same vice as his answers to question A.

12. [31]

    As to question E, whether the police were justified in opposing bail is a question the answer to which may or may not throw light upon whether the prosecution was maintained with malice. Mr Matthews’ answer indicates that he has understood it in this way. His answer is inadmissible for the same reasons as given in relation to question A. If the issue of whether there was justification for opposing bail actually arises in the trial, there would be no place for Mr Matthews’ opinion on the subject. It would self-evidently be a matter for the Court to decide, applying legal standards and having regard to the procedures laid down in the Bail Act 2013 (NSW). Whether bail is justifiably or unjustifiably opposed is a matter for the Court’s judgment and could not be in the least assisted by Mr Matthews’ asserted expertise on the subject.

13. [32]

    As to question F, the question whether police should have taken steps to discontinue or withdraw the charges earlier than in fact occurred is another way of posing the question whether they had reasonable and probable cause for maintaining the prosecution. The answer offered by Mr Matthews is thus inadmissible for the reasons given in relation to question A.

14. [33]

    As to question G, whether any police officers intended to mislead their colleagues is to be answered by the Court making inferences from the proved circumstances, if it arises at all. It is not a question upon which there could be any relevant field of expertise and none is identified by Mr Matthews. If it should become relevant at the hearing for the Court to draw inferences from primary facts as to whether some police intended to mislead others, it could not be said that “the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance” (in the words of the quotation approved by Dixon CJ in Clark v Ryan).

15. [34]

    As to question H, whether there is any evidence of malice and, if so, whether the Court will make a finding of malice upon the basis of that evidence is not an issue upon which the tribunal of fact could experience any difficulty which would be in any way assisted by Mr Matthews’ expression of opinion. Again, by posing this question to him the plaintiff has sought to elicit purported opinion evidence from a witness who does no more than seek to substitute himself for the tribunal of fact.

16. [35]

    Even if, contrary to my view, Mr Matthews’ report or some part of it could be shown to satisfy the exception in s 79 of the Evidence Act, I would exclude it in exercise of the discretion under s 135. That section is in these terms:

17. [36]

    I find the report to be of nil probative value. It reads in all respects as a submission on findings of fact and on the application of legal tests to those facts, which the Court on final hearing will have to determine according to its own assessment. For example in answer to question A the following is said:

18. [37]

    Mr Matthews’ answer to question B includes this, after referring to alibi witnesses whom the plaintiff had nominated and whom it is said were not interviewed or reinterviewed following the plaintiff’s arrest:

19. [38]

    In relation to question E, concerning whether bail should have been imposed, Mr Matthews states:

20. [39]

    Mr Matthews’ answer to question G contains the following with respect to the facts sheet said to have been prepared for the plaintiff’s first appearance before the Local Court:

21. [40]

    These evaluative assertions from Mr Matthews, even if admissible on some basis which I cannot see, would be of no assistance to the Court in weighing the evidence and drawing conclusions regarding the elements of the torts pleaded. By expressing his own conclusions about malice of unfairness of the officer in charge Mr Matthews has made himself an advocate for the outcome rather than a witness who could assist the Court to find the facts correctly.

Orders

1. [41]

   Directions made on 9 July 2018 resolved the plaintiff’s notice of motion in all respects other than the orders sought concerning Mr Matthews’ report. The further orders of the Court will be:

   1. (1)

      The plaintiff’s application by notice of motion filed 26 June 2018 for directions pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (NSW) with respect to the opinion report of Mr Matthews served on 16 May 2018 is dismissed.

   2. (2)

      The costs of the notice of motion are to be costs in the cause.