Allan Frederick Hathaway v State of New South Wales [2009] NSWSC 116 (23 April 2009)

Last Updated: 24 April 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Allan Frederick Hathaway v State of New South Wales [2009] NSWSC 116


JURISDICTION:


FILE NUMBER(S):
20002/2006

HEARING DATE(S):
27/08/08-29/08/08, 01/09/08-05/09/08, 08/09/08-11/09/08, 13/10/08, 15/10/08

JUDGMENT DATE:
23 April 2009

PARTIES:
Allan Frederick Hathaway (Plaintiff)
State of New South Wales (Defendant)

JUDGMENT OF:
Simpson J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
I Roberts SC/J Sainty SC (Plaintiff)
PW Taylor SC/G Giagios (Defendant)

SOLICITORS:
Walsh & Blair Lawyers (Plaintiff)
I V Knight (Crown Solicitor) (Defendant)


CATCHWORDS:
TORTS
Trespass
trespass to the person
assault
TORTS
Malicious prosecution
essentials of cause of action
malice
absence of reasonable and probable cause
whether purpose of bringing action improper
decision by prosecutor to bring a criminal prosecution, subjective and objective tests
EVIDENCE
Witnesses
plaintiff's credibility
failure to call witnesses
application of rule in Jones v Dunkel, inferences available from failure to call witnesses
DAMAGES
General principles
compensatory damages
exemplary damages

LEGISLATION CITED:
Victims Compensation Act 1996
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
A v New South Wales [2007] HCA 10; 230 CLR 500
Abrath the North Eastern Railway CO (1883) 11 QBD 79
Mitchell v John Heine (1938) 38 SR (NSW) 466
Sharp v Biggs [1932] HCA 54; 48 CLR 81
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1

TEXTS CITED:


DECISION:
Parties to bring in short minutes of order.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

SIMPSON J

Thursday 23 April 2009

20002/2006 Allan Frederick HATHAWAY

v

STATE OF NEW SOUTH WALES

JUDGMENT

1 HER HONOUR: The plaintiff, Allan Hathaway, brings these proceedings against the State of NSW, as vicariously liable for the alleged wrongful acts or omissions of certain members of the NSW Police Service. He asserts two causes of action: assault (by Constable Christopher Jackson); and malicious prosecution (for which, he pleads, Detective Senior Constable Timothy Briggs and Sergeant Virginia Morgan are responsible). It is not disputed that, if any of those police officers committed the tort alleged, the defendant is vicariously liable.

Background

2 The events giving rise to the claims occurred on 6 February 2003 in the city of Wagga Wagga. The plaintiff was then 39 years of age. He had some criminal history, although it was not extensive. He was, however, a serial disqualified driver: he had been charged and convicted of that offence on at least five occasions.

3 During the morning of 6 February 2003 the plaintiff was observed by Detective Timothy Briggs (who did not previously know him, but to whom he had been identified in a pawn shop only minutes before) to be driving an apparently unregistered motor vehicle. Detective Briggs made enquiries over the police radio, and confirmed that the vehicle was unregistered. He also learned that the plaintiff was disqualified from driving. In an unmarked police vehicle, he followed the plaintiff as he drove off in his vehicle, activating the siren and flashing his headlights, signalling to the plaintiff to pull over. The plaintiff ignored this direction. The pursuit continued through various streets of central Wagga Wagga. During this time Detective Briggs remained in radio communication with other police via the police radio network. The radio operator called for assistance for Detective Briggs from any highway vehicles in the vicinity.

4 Eventually, the plaintiff drove into a street that happened to be a cul-de-sac. Detective Briggs followed. The plaintiff alighted from his vehicle and ran off, discarding the thongs that he had been wearing. Detective Briggs chased him on foot for a short time, but soon returned to his vehicle and drove it in the direction the plaintiff had run off. He was assisted by passers-by, who directed him to where the plaintiff had run.

5 Constable Gregory Cox responded to the radio call for assistance, as did many others. Constable Cox, who was in a police vehicle with Senior Constable Dion McAlister, saw the plaintiff in a street, and recognised that he fitted the description that had been broadcast over the radio. The plaintiff jumped a fence and entered the rear yard of a block of home units, pursued by Constable Cox on foot. Constable Cox told the plaintiff to stop and give up, saying that “there are cops everywhere”. The plaintiff ignored Constable Cox and ran off. Constable Cox ran after him, caught up with him, and took him by the left arm. The plaintiff struggled violently and managed to free himself (by kicking Constable Cox in the groin, causing extreme discomfort and pain). The plaintiff ran off again. As he did so, Constable Cox pulled his shirt from his body.

6 It was a very hot day in Wagga Wagga, and the plaintiff was barefoot. His route involved his climbing over a number of fences, some of which were of uncapped corrugated iron. He was bleeding from his feet and his hands. He left a trail of blood behind him.

7 The plaintiff ran into the yard of a house in Simmons Street, and attempted to secrete himself in an outside toilet, but was unable to close or secure the door. This was the home of Mr Ken Smith. He left blood in the area. He then climbed over a gate between that house and the house next door, the residence of the Gaffney family, on the corner of Simmons and Kincaid Streets. He found that a door to the house was ajar and entered the house. No member of the Gaffney family was present. He left blood on some vegetation, and blood in the house. Indeed, on occasions, his route could be tracked by police following the blood trail.

8 The plaintiff found his way to a bedroom, and secreted himself under the bed.

9 By this time a significant number of police officers had joined in the pursuit, and had congregated in the vicinity of the Gaffney house. One of these was Constable Christopher Jackson, whose means of transport was a bicycle. He arrived on the scene and, after climbing a ladder and surveying the scene from the roof of the house, entered the house, announcing his presence, and his office. He received no response. He observed “dirty footmarks” on the floor, and followed them. They led him into the bedroom where the plaintiff was hiding under the bed. Constable Jackson inspected the room, and eventually looked under the bed, where he located the plaintiff.

10 To this point the account of the facts is uncontroversial. What happened thereafter is, however, anything but uncontroversial.

11 Detailed accounts of the events that followed, in the Gaffney house, were given by the plaintiff, by Constable Jackson, and by Constable Julie Philpott, who entered the bedroom shortly after Constable Jackson. Determination of what then happened is the crux of the resolution of the plaintiff’s claim of assault, and has some bearing upon his claim of malicious prosecution. I will later return to the competing versions of events.

12 Detective Briggs also arrived at the house. He was the most senior officer then present and assumed control. He contacted the police station and requested the attendance of the police team trained in crime scene evaluation but was told that the only police officers in Wagga Wagga so trained were unavailable. Detective Briggs therefore requested the attendance of a police officer with the station camera, for the purpose of photographing the relevant scenes in the house. Constable Dion McAlister was deputed to undertake this role and did so. The photographs show significant evidence of blood marks, and a blood trail through the door (to the family room through which the plaintiff entered the house), the laundry, the pantry, the living room and the bedroom.

13 Inspector Thomas Murphy then arrived on the scene. He was senior to Detective Briggs, who yielded control of the investigation to him. Inspector Murphy made arrangements for a contract cleaner to attend and clean the house. During the course of cleaning the bedroom the cleaner found, concealed amongst some clothing and bedding, a large wooden handled kitchen knife. He drew this to the attention of Inspector Murphy, who had the room cleared, and the knife photographed. Subsequently, Detective Briggs submitted the knife for fingerprint and DNA testing. Neither produced any usable result.

14 The knife was the property of the Gaffney family, and was kept in a kitchen drawer. Mr Gaffney had used it that morning, had washed it, and returned it to the kitchen drawer where it was kept. Mr Gaffney was the last of the Gaffney family to leave the house that morning.

15 Photographs were also taken of the kitchen and the kitchen drawers. They show no evidence of any blood stains. One small stain of blood only was found in the kitchen, on a microwave oven.

16 The plaintiff was arrested and taken to the Wagga Wagga Police Station. He arrived at the police station at 11.20am. Pursuant to normal procedures, a record was made of his entry into custody and his condition. Constable Melinda Jennings was the “Custody Manager” on duty at the time. She made a written record of injuries that she observed on the plaintiff, to which I will refer in more detail below. She recorded that he was unable to sign a document due to hand injuries. She made arrangements for him to be taken from the police station to the Wagga Wagga Base Hospital. She called an ambulance. Ambulance officers examined the plaintiff, but he was eventually conveyed to the hospital in a police vehicle. He arrived at the hospital at 12.06am.

17 At this time the plaintiff remained under arrest and was formally in police custody. Police officers remained at the hospital in his presence, until a decision was made by Constable Jennings to release him. This occurred at 6.22pm. Constable Jennings recorded the reason for release as:

“defendant suffering injuries that may need surgery:

· defendant still admitted to Wagga Base Hospital;

· defendant to be charged at a later date when in better condition, defendant known to police.”

18 At the Wagga Wagga Base Hospital the plaintiff was examined by Dr Thomas McDonagh. Physical examination revealed a laceration to his cheek, bruising, decreased sensation and tenderness in parts of the face, neck and head, swollen knees, a contusion to his back, and tenderness over both hands and arms. He had multiple lacerations to his feet. Radiological examination showed extreme facial injuries, including fractures of a cheekbone, the jawbone, the right arm and one finger.

19 The following morning the plaintiff was transferred to the Albury Hospital. In his letter of transfer, Dr McDonagh wrote (to Dr John Hennessy):

“Thank you for seeing Allan who was hit with battons (sic) by police while trying to escape.”

At Albury Hospital the plaintiff underwent surgery for the facial fractures, and he was discharged on 20 February. It seems that while he was an inpatient in the Albury Hospital, a police officer (possibly one unconnected with the events of 6 February) visited the plaintiff with a view to interviewing him. The plaintiff declined to be interviewed. However, no direct evidence was given of this, and evidence of what occurred was only elicited from the plaintiff in cross-examination.

20 On 28 March 2003, in relation to other matters, the plaintiff attended the Wagga Wagga Local Court. There Detective Briggs, in company with Senior Constable Grant James, arrested him and charged him with a number of offences arising out of the events of 6 February. The plaintiff was charged with the following offences:

(a) driving while disqualified;

(b) using an unregistered vehicle;

(c) using an uninsured vehicle;

(d) driving in a manner dangerous to the public;

(e) resisting Constable Cox in the execution of his duty;

(f) possession of an offensive weapon (a knife) with intent to prevent lawful apprehension;

(g) break and enter a dwelling house, and, while therein, stealing property (the knife);

(h) assaulting Constable Cox while in the execution of his duty;

(i) assaulting Constable Jackson while in the execution of his duty, and thereby occasioning actual bodily harm;

(j) resisting Constable Jackson while in the execution of his duty.

21 After his arrest the plaintiff was taken to the police station and entered into custody. Detective Briggs then asked him if he wished to be interviewed electronically. He replied that he did not wish to be interviewed at all. Detective Briggs told him that he would be charged with “a number offences” (he did not specify what offences) arising out of the events of 6 February, and asked the plaintiff if he wanted to say anything else “about anything”. The plaintiff replied:

“No, it’s all a bit of a blur, I can’t remember too much about it. I was taking 60 milligrams of Valium every morning and night.”

22 The plaintiff entered pleas of guilty to the charges (a) to (e), and pleas of not guilty to charges (f) to (j) inclusive. All charges were dealt with summarily, in a hearing that took place in the Wagga Wagga Local Court on 10 and 11 December 2003, and 22 and 23 March 2004. Sergeant Virginia Morgan appeared as the police prosecutor. Constable Jackson and a number of other police gave evidence. The plaintiff also gave evidence. On 24 March 2004 the Local Court Magistrate dismissed all contested charges.

23 A complaint was made, presumably by or on behalf of the plaintiff, about the conduct of Constable Jackson to the Police Integrity Commission (“the PIC”). The PIC conducted an inquiry, which proceeded over a number of days in February and March 2005. Essentially the same witnesses gave evidence. The PIC delivered a report in December 2005.

24 It is unnecessary to comment further on the content of the report, save to say that it resulted in the laying of a charge of assault against Constable Jackson. That charge was the subject of a hearing in the Local Court at Wagga Wagga in November 2007 and the first half of 2008. The plaintiff gave evidence, as did Constable Jackson, and a number of the other police officers who had been involved in the incident. The Magistrate dismissed the charge of assault.

25 As a consequence of the proliferation of proceedings, the principal participants, and witnesses, have given evidence of the events in question on three previous occasions. Not surprisingly, a good deal of time in the present proceedings (the fourth occasion on which most have given evidence) was taken up with attempts to identify, and the examination of, asserted inconsistencies in the evidence given on various different occasions.

26 There are some matters of real significance concerning the location of the knife, and the laying of the charges against the plaintiff with respect to the knife. These were the charges of possession of an offensive weapon with intent to prevent lawful apprehension and break, enter and steal (the knife being the property allegedly stolen). One notable aspect of these charges is that, although subjected to testing, the knife yielded no fingerprints, and no DNA. There was no evidence that any blood had been present on the knife at the time it was found in the bedroom. Nor was there any sign of blood marks or blood stains in the kitchen in the vicinity of where the knife was normally kept.

The cause of action in assault

27 It is convenient, at this point, to focus upon the plaintiff’s cause of action in assault.

28 Accordingly, I come to the central events, those which took place in the Gaffney house, and the various competing accounts. It is necessary, regrettably, to do this in some detail. At this stage, I will confine the outline to the evidence of each witness given in chief.

The plaintiff’s account

29 In his examination in chief the plaintiff said that, after he climbed the fence separating the Smith premises, where he had been unable to secrete himself in an outside toilet, from the Gaffney premises, he saw that the back door of the Gaffney house was slightly open. This was the door to the family room. He therefore entered the house and turned right into a laundry, which led to a hallway. He turned left into the hallway, through “the edge of the kitchen”, right into a lounge room, through the lounge room and right into a bedroom. This was the bedroom of one of the young sons of the Gaffney family. The plaintiff saw a bed near, but not hard against, a wall.

30 He walked towards the bed and slid himself under it, with his head towards the head of the bed, and slid further towards the top of the bed. He lay on his back, slightly towards one side. From this position he saw the legs and feet of a person enter the room. This was Constable Jackson. The plaintiff deduced, from the way Constable Jackson walked, that he opened and looked into cupboards in the room, and then approached the bed. Constable Jackson crouched and looked under the bed, and saw the plaintiff. He said to the plaintiff:

“Get out from under the bed or I’ll lodge two bullets in your head.”

31 The plaintiff did not move. Constable Jackson stood up, took hold of the bed, and dragged it out from its position near the wall, and tipped it over on its side. The mattress may have fallen slightly towards the plaintiff. The plaintiff lay still for a couple of seconds, and then stood up. He was then about the middle of the bed, which was still on its side, he on one side and Constable Jackson on the other. Constable Jackson then sprayed the plaintiff with capsicum spray, which burned his eyes. He put his right arm up to rub his eyes to ease the burning. Constable Jackson pulled out his baton and struck the plaintiff twice on the right forearm with it. This caused the plaintiff immediate pain. He dropped his arm and Constable Jackson used his baton to strike the plaintiff in the face, on the right cheekbone. This made the plaintiff “a bit dazy, like bit drowsy”, and caused an injury to his face. The plaintiff was bleeding from the wound. Constable Jackson continued to strike him with the baton, at least twice. The plaintiff asked him to discontinue.

32 Eventually, Constable Jackson ceased the striking and the plaintiff walked towards the foot of the bed and around to the other side. As he did so, Constable Jackson resumed the striking, this time using the baton to strike the plaintiff around the legs.

33 After making the initial threat (about shooting him in the head), Constable Jackson said nothing to the plaintiff.

34 At this point, another police officer, a woman (Constable Julie Philpott) entered the room. She told the plaintiff to get on the ground. He said he could not, because he was unable to bend his knees, because of the pain inflicted.

35 Other police officers came into the room. The plaintiff was picked up and thrown on the floor, with his arms under his chest, again because of the pain. The police officers tried pulling his arms from underneath him. They handcuffed him, pulled him from the floor, and led him through the house, through the kitchen, and placed him in the back of a police van in which they took him to the Wagga Wagga Police Station, from where he was immediately taken to the hospital.

Constable Jackson’s account

36 In 2003 Constable Jackson was a uniformed police officer attached to the bicycle squad of the Wagga Wagga Police Station. He was equipped with a revolver, an expandable baton, a capsicum spray, and a VKG radio.

37 On the morning of 6 February 2003, Constable Jackson was on duty at the Local Area Command. He heard the radio call for assistance for Detective Briggs and responded, cycling to the vicinity of the Smith and Gaffney houses. Mr Smith showed him the blood in his outdoor toilet, and he saw blood on foliage covering a gate that divided the two properties. He climbed the gate and entered the Gaffney property. After climbing a ladder to the roof, and surveying the area, he descended and discovered the open rear door, through which the plaintiff had entered. He said that he noticed that a slide bolt on the screen door was damaged.

38 He announced his presence, and that he was a police officer, and then entered the house, through the same door as the plaintiff had. This took him into the family room, and then into the kitchen, and the lounge room. Again announcing his presence, and his police status, he entered the bedroom where the plaintiff was hiding under the bed. In the bedroom Constable Jackson yet again announced his police status. He opened three cupboard doors and found nobody. In order to look under the bed he crouched to a “modified push-up” position, on his knees, his chest almost to the ground. When he did so, he saw the plaintiff’s feet. While he was in that position, the bed tilted up towards him, the mattress came off and landed on him. As he saw this happen Constable Jackson rolled onto his left side and curled up into a foetal position. The bed came to a rest standing on its left side.

39 Constable Jackson stood up, took hold of the bed, and threw it towards the wall. The bed was temporarily clear of the floor, at about waist height. It then landed on the floor, near the wall. The plaintiff rose from behind the bed; he was bleeding from the nose and from a small injury to his right cheek. Constable Jackson told him that he was under arrest. He reached for his radio to call for assistance but was unable to find it. The plaintiff then raised the end of the bed and pushed it towards Constable Jackson. One leg of the bed struck Constable Jackson in the right shin, causing instant pain. Constable Jackson again told the plaintiff that he was under arrest and ordered him to get on the ground. The plaintiff “growled” aggressively at Constable Jackson and again pushed the bed towards him. The two men pushed the bed at each other a number of times. Constable Jackson drew out his can of capsicum spray (also known as “OC spray”), and directed it towards the plaintiff’s eyes. The plaintiff’s hands were still on the bed. On being sprayed with capsicum in his eyes, the plaintiff again pushed the bed towards Constable Jackson. Constable Jackson pushed it back, and again used the capsicum spray, for a longer period, until he had emptied the can. On neither occasion did the capsicum spray appear to affect the plaintiff, and he continued pushing the bed towards Constable Jackson.

40 Constable Jackson then produced his police baton, and flicked it open. He used it to strike a single blow at the plaintiff’s left arm, and then another at his legs, causing the plaintiff to drop the bed.

41 The plaintiff advanced towards Constable Jackson, raised his hands in a boxer’s pose (with his left arm forward, right arm slightly behind, to protect the chin) and orally, and in colourful language, invited Constable Jackson to engage in fisticuffs.

42 Constable Jackson retreated to the corner of the room. He was suffering from the effects of capsicum spray. He continued to shout at the plaintiff that he was under arrest. He had his baton over his right shoulder, at the ready, in a defensive stance. As the plaintiff moved towards him, he raised the baton, and repeated that the plaintiff was under arrest.

43 The confrontation continued until Constable Philpott entered the room. She told the plaintiff to get on the ground.

44 Following Constable Philpott’s entry, Constable Raymond Holmes, Constable Amanda Diessel, and Detective Briggs entered the room. The plaintiff remained in the corner of the room, moving from side to side in an agitated fashion, refusing to comply with orders given to him by the police officers. The police officers physically restrained him. He struggled, which prompted the police officers to trip him so that he fell face down to the floor. He was then handcuffed.

Constable Philpott’s account

45 The only witness other than the plaintiff and Constable Jackson who was present in the bedroom at any material (to the present issues) time was Constable Philpott.

46 She arrived on the scene when the confrontation between the plaintiff and Constable Jackson was well under way, indeed, at its height. As she entered the room she could hear shouting, but could not then make out any words. She made her way in the direction of the voices, and could hear Constable Jackson telling the plaintiff to get on the ground. From the doorway of the bedroom she could see Constable Jackson standing, with his baton raised above his right shoulder, and holding, in his left hand, his capsicum spray.

47 The plaintiff stepped out from behind an open cupboard door. He was bleeding from the eyebrows or eye area; blood was dripping from his face onto his chest. He was perspiring freely. Constable Philpott used her radio to call for assistance. The plaintiff was moving around the room. The bed was on its side. The plaintiff moved towards it and leaned on it. Drops of blood fell on the bed head. The plaintiff moved backwards and forwards between the bed and the wall. She and Constable Jackson continually shouted at the plaintiff to get down on the ground.

48 Shortly after, Constables Holmes and Diessel and Detective Briggs entered the room. The plaintiff was subdued and arrested. He continued to struggle.

* * *

49 Constable Philpott’s evidence casts only dim light on the central events. What is at issue is which of the two men assaulted the other.

50 On the plaintiff’s account, it was Constable Jackson who dragged the bed from above the plaintiff and tipped it on its side, sprayed him with capsicum spray, and, without adequate cause, struck him to the arms, face and legs with his police baton. The plaintiff denied that there had been any pushing or pulling of the bed by him after it had been turned on its side.

51 On Constable Jackson’s account, it was the plaintiff who raised the bed, tilted it until it stood on its side, and then used it as a kind of weapon with which to attack Constable Jackson. By the time Constable Philpott arrived, the bed was on its side, and the two men were in confrontation, the plaintiff in a somewhat agitated state.

52 Accordingly, resolution of what happened in the bedroom depends upon analysis of the evidence given by the two central players; hence the detailed scrutiny of their evidence on this and other occasions on which they have given evidence of these events. In each case, there are the difficulties to which I have already alluded.

53 On behalf of the defendant it was contended that the plaintiff had failed to make out the assault claim. Two principal bases were specified. These were that the claim was inherently implausible, and that the details the plaintiff gave were highly improbable.

54 It was not contended that, if the events in the bedroom took place as described by the plaintiff, Constable Jackson’s behaviour did not amount to an assault, nor that any form of justification existed.

55 In final submissions, counsel for both parties were assiduous in their minute and critical analysis of the evidence given by the plaintiff and that given by Constable Jackson, drawing attention to many inconsistencies (both in the accounts given in these proceedings, and accounts given in previous proceedings) and asserted improbabilities in those accounts. I make no criticism of counsel for taking that course. But, in the circumstances of this case, its utility is limited.

56 Firstly, the material events in question took place over what must have been a very short period of time, and in circumstances in which events were moving very rapidly, and each participant must have been under considerable pressure and threat, and in a heightened state of anxiety. This is not conducive to accurate recall, or even accurate contemporaneous perception, of fine detail. Accounts of imbroglios of that kind, at least in respect of fine detail, are notoriously unreliable.

57 Secondly, both the plaintiff and Constable Jackson have given their accounts on at least four occasions prior to giving their evidence in these proceedings: to their respective lawyers, to the court hearing the charges against the plaintiff, to the PIC, and to the court hearing the charge against Constable Jackson. Each has been examined and cross-examined on at least three occasions. All proceedings have been hotly contested. Constable Jackson acknowledged, and indeed claimed, that his recollection had been altered (and improved) with the assistance of an investigator, who drew to his attention anomalies in his initial version, and persuaded him that, in some significant respects, his initial perception was simply erroneous. Constable Jackson also asserted, voluntarily, that his recollection had been “contaminated” by the repeated examination and cross-examination.

58 I have no doubt that the plaintiff’s perception and recall have likewise been contaminated by the repeated questioning to which he has been subjected. Moreover, his personal qualities and characteristics are such that he was not able to handle cross-examination well. He was highly excitable, at times very defensive, and at other times somewhat aggressive. He frequently did not think before answering a question, and frequently did not absorb the import of a question, so that his answers were often unresponsive. He could be described as at times combative.

59 Accordingly, while the central facts of which the two principal witnesses speak are of fundamental importance in the resolution of the conflict, generally speaking, I find (other than as I hereafter mention) that the minutiae is of little assistance.

60 Further, while the plaintiff was, as I have said, a highly excitable witness, who found it difficult properly to listen to and absorb the questions he was asked, I did not, on the whole, form the impression that the plaintiff set out deliberately to lie, or to mislead. Rather, I formed the impression that his thinking concerning the events was somewhat disordered, coloured possibly by the fear that I accept he felt throughout the incident: fear, initially, of arrest by Detective Briggs; then of apprehension by Constable Cox; and then – whichever version is accepted – of the events in the bedroom; and also by his lingering sense of grievance and injustice, and, finally, by the repetition of the examination of what happened.

61 Of course, all of this has an impact upon his reliability, and the weight that can be attributed to his evidence. But, except in one respect, which is largely peripheral, I do not find him to be a deliberate fabricator.

62 That one respect concerns his past use of drugs.

The plaintiff’s credibility

63 There is no doubt that very real issues concerning the plaintiff’s credibility in general exist. So much was expressly acknowledged by senior counsel in opening the case at the commencement of the trial. One matter, which I have described above as in itself peripheral, will serve as a graphic illustration. This concerns his use (or otherwise) of illicit drugs.

64 In his evidence the plaintiff was adamant that he had never used heroin, or other illicit drugs. He conceded that he may have said otherwise to some people, but said that, if he had, it was not true.

65 It is incontrovertible, on the evidence, that the plaintiff has repeatedly, over the years, asserted to various people, mostly health professionals, that he has, in the past, used illegal drugs. The drug was usually identified as heroin, on occasions amphetamines, and on one occasion he may have said that he had had a chronic marijuana dependence. As recently as 2007 the plaintiff admitted, during the hearing of the charges against Constable Jackson, to having used heroin in the past. In March to April 2001 he was an inmate in a drug residential programme in Victoria.

66 In giving instructions to his solicitors for the purpose of these proceedings, he said that, in early 2001, when living in Sydney for a short time, he began using heroin heavily, but ceased this on his return to Wagga Wagga. This version found its way into an evidentiary statement that came into existence in the preparation of his case (and that became exhibit 5).

67 In November 2001 the plaintiff made an application for victim’s compensation under the Victims Compensation Act 1996, arising out of an assault on him in April 1999 by his nephew. He (apparently) needed to explain the delay in making the application. As part of that explanation, he said that during late 2000, he experienced increasing problems in his personal life, which led to a period of increased drug abuse in late 2000 – early 2001, and in respect of which he spent several months at the Teen Challenge residential facility in Victoria.

68 Notwithstanding what appears in this document, the plaintiff maintained that he had attended the Teen Challenge facility only because he was involved in voluntary labouring and assisting in the building of a church. When pressed in cross-examination about this statement he gave as an explanation that he had suffered from depression which was one of the effects of the alleged assault upon him by Constable Jackson. (It is to be observed that this, and other references by the plaintiff to drug-taking, predate the confrontation with Constable Jackson.)

69 I will refer to one telling answer given by the plaintiff in cross-examination. He was being asked about one of the many medical records which included a history of intravenous drug taking. He was asked what intravenous drugs, other than heroin, he would have been referring to. His answer was:

“None. It would only be heroin, and I don’t use heroin, so that’s it.” [T124/40]

70 In re-examination he speculated that, at least on an occasion in which he had told general practitioners that he was a drug user, he may have done so in order to obtain a prescription for Serapax.

71 On all of this evidence a conclusion that the plaintiff has at times in the past used heroin is inevitable. There is no evidence that he was using heroin in February 2003 and, strictly, his past use of heroin is only of marginal relevance. But the finding has a significant impact on the assessment of the plaintiff’s credibility. I earlier described him as being “adamant” that he had not used illicit drugs in any form. In fact, a reading of the transcript makes it clear that so to describe it is a very considerable understatement. The plaintiff repeated, over and over again (including on many occasions that were not responsive to the question asked), and vehemently, that he had never used heroin. I am quite satisfied that those assertions were untrue. And I am satisfied that they were untrue to his knowledge.

72 It is necessary to bear this firmly in mind in evaluating the credibility of the account of the critical events given by the plaintiff.

73 An enormous effort was made on behalf of the defendant, both during the course of the proceedings, and in the detailed written submissions subsequently made, to undermine the plaintiff’s credibility, and, indeed, to portray him as a person whose word, on even the simplest matter, could not be believed. I do not propose to analyse nor even refer to the whole of the evidence, or argument in this respect. It is worthy of note that, in opening, senior counsel for the plaintiff candidly acknowledged that there would be and were significant issues in respect of his credibility; and, in final written submissions, accepted that the plaintiff was an unsatisfactory witness, whose evidence called for careful examination and, indeed, scepticism. It was expressly acknowledged that, on the various occasions on which he has given evidence of these events, the plaintiff has given a number of “wildly inconsistent” statements. (Plaintiff’s written submissions para 51.)

74 I turn now to deal with some of the other matters specifically raised, as bearing adversely on the assessment of the plaintiff’s credibility. All of these concern what the plaintiff said (or did not say) to various people in the immediate, and later, aftermath of his arrest.

75 There is in existence a good deal of documentary recording of post-arrest events and observations.

76 On his arrival at the Wagga Wagga Police Station the plaintiff came under the charge of Senior Constable Melinda Jennings, whose function that day was to act as Custody Manager. The plaintiff is recorded as having arrived at the police station at 11.20am at which time the ambulance was called. The ambulance was called because of the use of the capsicum spray, and was standard procedure. It arrived at 11.29am. At 11.51am the plaintiff was conveyed to the hospital (by police vehicle). A rather brief report by the ambulance officers records decontamination for capsicum spray, and lacerations and abrasions. It makes no mention of a complaint by the plaintiff of anything amounting to an assault. Pending the arrival of the ambulance the plaintiff remained seated in the dock. Senior Constable Jennings made visual observations of the plaintiff, asked him questions, and recorded certain information. She recorded her observations of the injuries to the plaintiff’s right cheek, right foot, left forearm and left foot. Importantly, for present purposes, immediately after the plaintiff’s departure for the hospital, she completed a questionnaire. She ticked the affirmative box to a question about whether the plaintiff complained of, or showed any obvious signs of, pain, injury, or illness, which she listed. Her record of visual observations I have mentioned. She ticked the negative box to a question whether the plaintiff made any other complaint about his health.

77 The notes of the history taken by Dr McDonagh at the Wagga Wagga Base Hospital record (relevantly to this question) only:

“... resisting arrest and ran away from police

use of capsicum spray and

baton.”

There is no record that he made any complaint of an assault.

78 This, on the defendant’s submission, was the third occasion on which he had had the opportunity (of which he did not avail himself) to complain about his treatment (the first and second being at the police station, and on the examination by the ambulance officers).

79 The fourth occasion, on the defendant’s submission, was on 28 March 2003, the day the plaintiff was re-arrested, by Detective Briggs, at the Wagga Wagga Local Court. When asked by Detective Briggs if he wished to be interviewed, the plaintiff declined; when asked by Detective Briggs if he had “anything else to say about anything”, the plaintiff replied:

“No, it’s all a bit of a blur, I can’t remember too much about it. I was taking 60 milligrams of Valium every morning and every night.”

80 Finally (the fifth opportunity), when the plaintiff was transferred to the Albury Hospital, he was visited by a police officer, with whom he refused to discuss the incident.

81 I draw no inferences from the failure of the plaintiff to complain in any of these circumstances. It is true that the documentary record produced by the ambulance service contains no reference to any complaint made by the plaintiff. It is on a form, which does not seem to provide for a record of complaint made, if one were made, by a patient. The ambulance officers were not called to give evidence. It cannot be known what, if anything, the plaintiff said to them other than as is recorded in the document.

82 I certainly would not expect him to hope to gain any comfort from complaining to Detective Briggs and Detective James after his arrest at the Local Court; I similarly would not have expected him to complain to the officers at the police station immediately after the arrest of 6 February. Nor, if it is the fact, do I make any findings adverse to the plaintiff’s credibility by his failure to complain either to Dr McDonagh or to doctors at the Albury Hospital. Indeed, I cannot be sure that he did not; but if he did not, it is, in my view, of little or no significance.

83 Counsel for the defendant pointed to evidence that, in the weeks and months following the events, the plaintiff had told at least three individuals that he had no recollection of what had happened. Two of these were Detective Briggs and Constable James, and I do not propose to repeat the observations I have made about that.

84 Another was Dr Clark, a clinical neuro-psychologist who examined the plaintiff on 27 October 2003 and reported on 29 October. In her report Dr Clark wrote:

“In relation to the incident in February 2003, Mr Hathaway indicated that he had no recollection of the events.”

85 That remark must be seen in its context. In the immediately preceding paragraph, Dr Clark described the plaintiff at the interview as:

“... lethargic, his mood was flat and he initiated little information.”

She went on to say that he was also unable to provide any information about his family, his educational background or his work history.

86 Reference was also made to protracted consultations with a Mr P Templeton, a psychologist employed by the Wagga Wagga Community Health Centre. On 24 December 2003 Mr Templeton recorded a consultation with the plaintiff which included the following:

“Previously no memory of events with police – now recalls the (sic) ‘definately (sic) hit me more than twice’.”

The previous day Mr Templeton had recorded:

“States he now recalls police definately (sic) hit him more than twice during his arrest, however, continues to remember little else of the alleged assault by police.”

87 But there are many more records of relevance. The plaintiff was again admitted to the Wagga Wagga Hospital on 17 July 2003. He is recorded as having presented with suicidal ideation and low mood. Major stressors noted included:

“Alleged police assault six months ago – required facial surgery to repair # cheek, jaw.

- flashbacks of attack, fear of further police violence.”

88 He is recorded as stating:

“... problems all began after an alleged ‘bashing by cops’,”

after having been caught driving whilst unlicensed. The record goes on to note:

“Says he was under influence of drugs and can’t remember incident in detail but claims bashed by batons.”

89 He is recorded as expressing fear of police, of trembling when he sees police, and fear of further attacks.

90 In another note, dated 10 March 2004, the plaintiff is described as declining to provide any further information.

91 I think I have said quite enough to demonstrate that the assessment of what happened in the bedroom on 6 February must be made without resort to external circumstances relevant to the plaintiff’s credibility. On the one hand, as was conceded, there are real issues concerning his credibility; on the other, there are internal indicators of consistency in his account. In particular, I find his relatively early claims of assault to health professionals, in circumstances where he could not have anticipated that these would be used to support his credibility, persuasive. Even more persuasive are what I would regard as his spontaneous complaint of flashbacks and a fear of police. I do not find his (limited) claims of little or no recollection of assistance: I attribute that to the plaintiff’s defensive and self-protective personality. Of particular importance in this context is his refusal to disclose to Dr Clarke information about his family, or his educational background.

92 Counsel for the defendant then advanced eight separate circumstances, said to indicate a “circumstantial implausibility” that the events occurred as described by the plaintiff. I will mention them only briefly, with limited reference to the supporting argument, which can be found in paras 142 to 155 of the defendant’s written submissions. They were:

· that Constable Jackson was not significantly involved in the pursuit initially, he had no grudge against the plaintiff, and, in the circumstances of the pursuit, had no time to acquire any motive for a violent assault;

· the likelihood that the plaintiff would make immediate complaint of any treatment as described;

· Constable Jackson’s inability to predict the plaintiff’s lack of credibility, or that he would not immediately complain; and that the likelihood was that such an injury would trigger a critical incident investigation by other police;

· the likely presence of lay observers as witnesses to the altercation;

· the likely immediate or unpredictable arrival of other police officers;

· that Constable Jackson could have had no expectation of, and no capacity to predict, co-operation in any misdeeds by him by other police officers;

· that Constable Jackson lacked any ability to predict the absence of forensic examination;

· that to conduct himself as the plaintiff alleged was threatening both to Constable Jackson’s career and liberty.

93 I find these unpersuasive. They, in general, proceed on the erroneous basis that Constable Jackson took time to stop and think through the possible implications of any assault, or that he would, prior to engaging in such an assault, take the time and have the reasoning capacity to undertake the analysis set out by counsel. It is unrealistic, in my view, to suggest that he would not have assaulted the plaintiff because he would have recognised that later forensic examination might implicate him; or that other police who arrived might fail to close ranks and support him; or that the assault might threaten his career or liberty. Such a proposition belies the reality of what occurred, even on the defendant’s case. The fact is that the plaintiff was being pursued as an unlicensed driver of an unregistered vehicle. Detective Briggs was readily able to obtain, by police radio, information about his vehicle registration status, and his licence status. It could be expected that, were any further information about the plaintiff recorded in police intelligence, it would have been conveyed to Detective Briggs. No such information was conveyed. The plaintiff could hardly have been perceived to have been a seriously dangerous criminal. Yet, on Detective Briggs’ call for assistance, numerous police officers quickly converged upon the corner of Kincaid and Simmons Streets. I have no doubt that the chase gave rise to heightened excitement and the rush of adrenalin in some if not all of the police officers involved. It is not beyond possibility that Constable Jackson, finding himself the first to come across the plaintiff in a position where he could be captured, experienced such an adrenalin rush, and even fear, sufficient to cause his judgment to be impaired. It cannot be correct that he had no time to acquire a motive for a violent assault – such an assault could, rationally, be entirely reactive. Nor is it realistic to suggest that he would have recognised the likelihood that the plaintiff would immediately complain to other police officers or to others.

94 The analysis put forward on behalf of the defendant is far too clinical. It does not even pay lip service to the possibility that Constable Jackson acted spontaneously, whether out of fear, excitement, or some other motivating factor. It does not assist me in determining what took place in the bedroom.

95 The account given in evidence by Constable Jackson was not his original account of the event. His first record of what had happened was made, in the form of an evidentiary statement, later that day. He recounted his entry into the house and following dirty footmarks to the bedroom. His statement goes on to record the following. He crouched down to look under the bed and saw a pair of feet and said “Police”. Before he could say anything else, and while he was still in a crouching position, the bed lifted in the air and landed on him. He became tangled in the blankets. He kicked the bed off him, and stood up. He saw the plaintiff jump up. The plaintiff was bleeding from the nose and face. He again said that he was a police officer, and told the plaintiff he was under arrest, and to get on the ground. The plaintiff grabbed the side of the bed, lifted it, and pushed it towards Constable Jackson. Constable Jackson pushed it back, and repeated that he was a police officer and gave the instruction to the plaintiff to get on the ground. The plaintiff picked the bed up, and pushed it onto Constable Jackson. He yelled and made a growling noise. The plaintiff continued pushing the bed towards him; it struck him in the shins. The two men continued to push the bed back and forth at one another. Constable Jackson used his capsicum spray in an attempt to subdue the plaintiff. He again told the plaintiff to get on the ground. The plaintiff kept fighting and picked up the bed, and pushed it onto Constable Jackson. Constable Jackson emptied the can of capsicum spray, but although it affected him badly, it seemed to have little effect on the plaintiff.

96 Constable Jackson dropped the capsicum spray can and drew his police baton. He did this because he believed he was in danger of being overpowered by the plaintiff and injured. He hit the plaintiff on each arm with the baton. The plaintiff continued pushing the bed and attempted to take hold of Constable Jackson. Constable Jackson told the plaintiff again that he was under arrest. He walked around to the end of the bed in order to effect an arrest. The plaintiff picked up the end of the bed, raising it over Constable Jackson’s head. Constable Jackson pushed it back. Still in fear of injury, he struck at the plaintiff’s legs with his baton. The plaintiff dropped the bed. The plaintiff was still very aggressive, and unaffected by anything Constable Jackson did. Constable Jackson retreated to the doorway of the room in order to prevent the plaintiff’s escape. The plaintiff walked towards him, in an aggressive fashion, inviting a physical fight. Constable Jackson repeatedly told the plaintiff he was under arrest and to get on the ground. At this point he heard Constable Philpott arrive.

97 This was the evidence given by Constable Jackson on 11 December 2003 in the prosecution of the plaintiff.

98 Later that day, Constable Jackson went to the Wagga Wagga Base Hospital for blood tests. While there he began to make an entry in his notebook. There were some discrepancies between what he recorded in his notebook, and what he had earlier recorded in his statement. Perhaps of most significance, the notebook entry included the following:

“On my hands and knees. POI [person of interest] picked bed up and dumped it on me trying to pin me under it. I kicked bed off me and POI + bed hit wall. I got to my feet ... POI ... picked up bed and tried to hit me with it. I pushed bed back ... POI kept pushing bed onto me. I got forced back as POI was bracing his back against wall and pushing with his legs ...”

99 Constable Jackson illustrated the entry with two diagrams, the first showing the plaintiff under the bed, Constable Jackson on hands and knees, and the bed rotating 180 degrees towards him. He agreed that this was what he intended to convey in the notebook had happened. The second diagram shows two men, with the bed in between them, on its side. It is obviously intended to depict the struggle in which Constable Jackson said he was engaged with the plaintiff over the bed.

100 In cross-examination Constable Jackson agreed that portions of the notebook entry were incorrect and misleading, as were portions of the account in his statement.

101 On 7 February 2003 Constable Jackson was interviewed by a Critical Incident Investigation Team (as to which I will say more in due course). He began by reading a prepared statement, which he called a “spiel” in which he said that he objected to answering any question the answers to which might incriminate him, and that any answers he did give, would be given under compulsion and he reserved the right to claim privilege or immunity against their use in any subsequent proceedings.

102 As to what occurred in the bedroom, he told the investigators:

“Well, I got down on my hands and knees to have a look, just to check under the bed, and I’ve seen a pair of feet, and then I looked up and, to where I thought the guy’s head was, and he’s just kicked the bed up on top of me, and he’s pushing his, I could feel him on top of the bed ... I’ve pushed the bed back up off me, and I pushed the bed against the wall. It was on its side. And we’ve had a struggle. He was on one side of the bed, I was on the other side of the bed, and he was using the wall to brace himself against it, and kicked the bed back onto me and charged me with the, holding the bed and ...

I was laying on the ground ... that’s on the side. I’ve basically kicked the bed off, using my hands and feet ...”

103 It was during the course of cross-examination on these various versions that Constable Jackson explained how he had arrived at his current version, that he gave in evidence in chief.

104 As mentioned above, following the PIC inquiry, Constable Jackson was charged with (and ultimately acquitted of) assault on the plaintiff. In preparation for his defence of that charge his solicitor arranged for an investigator to examine the evidence and the circumstances. It was the investigator who suggested to Constable Jackson that it was unlikely, if not impossible, that the events had occurred as he initially described them. Just why that is so is not clear to me, but it may have to do with reconciling Constable Jackson’s description of what had happened with the photographic evidence obtained by Constable McAlister.

105 The photographs are numerous and detailed, but, with all respect to Constable McAlister who plainly did his best, they are obviously not the work of a trained forensic photographer.

106 It is also likely that they reflect the fact that the choice of subject matter was not made by a person with appropriate specialised training in crime scene investigation.

107 I return to the bare essentials of the accounts given by the plaintiff and by Constable Jackson. The plaintiff’s account was that he was lying, partly on his side, under the bed when Constable Jackson entered the room and looked under the bed and then stood up. Constable Jackson then took hold of the side of the bed, dragged it out (from the northern to the southern walls of the room), and tipped it on its side. The mattress may have fallen a little towards him. He was then sprayed with capsicum spray and struck with the baton.

108 Constable Jackson’s account was that, after entering the room, he crouched and looked under the bed where he saw the plaintiff. The next thing he knew was that the bed tilted up towards him, the mattress came over and fell on him. The bed tipped 90 degrees and came to rest with its left side lying on the floor.

109 Among the photographs is a photograph of the bed, on its side. The mattress is leaning against the upper side of the bed, but the lower end of the mattress has slid out and become separated from the base. It lies at an angle to the bed. The upper side of the bed is facing towards the northern wall, the under side towards the southern wall.

110 Although there was no direct evidence, it was never suggested that this was not the position in which the bed was left after the conclusion of the altercation between the two men. The surface of the bed was facing towards the northern wall – that is, the wall where, when the confrontation was in progress (as, on either version, it was) the plaintiff was located. The mattress is only partially dislodged.

111 For five reasons, I think the plaintiff’s version of this aspect of the matter is more likely to be correct. The reasons are:

(i) the direction in which the bed is facing is consistent with its having been lifted from the southern side of the room, the side on which Constable Jackson was. It is quite inconsistent with having been lifted or tilted from where the plaintiff was;

(ii) the position of the mattress: it is still substantially in place. On Constable Jackson’s version, the mattress had completely separated from the bed and had landed against the wall;

(iii) it is unlikely that, from under the bed where he was, the plaintiff could have obtained sufficient purchase to raise and push the bed as Constable Jackson described. On Constable Jackson’s version, it will be remembered, the bed was, initially, airborne. In this respect, one piece of Constable Jackson’s evidence is significant. He said that he saw the bed tilt and he was buried under the mattress before he saw the plaintiff. In fact, he said that it was after the bed had come to rest on the floor that the plaintiff “pops up from behind the bed”. That would mean that, from his position secreted under the bed, the plaintiff managed to raise sufficient leverage to lift the bed, to make it airborne, to such an extent that the mattress separated completely from it. That is improbable, almost to the point of impossibility. It is far more likely that the bed was lifted from Constable Jackson’s side of the room, and tilted towards the plaintiff;

(iv) if the mattress slipped from the base as depicted in the photograph, it would scarcely have been possible for the plaintiff to push the bed, repeatedly, as described by Constable Jackson;

(v) finally, if the bed had been tilted as described by Constable Jackson, it could be expected to have come to rest on its other side, with its upper side facing towards the southern, not the northern, wall.

112 Neither Constable Philpott nor Constable McAlister could cast any real light on the position of the bed. Constable Philpott said she could not really remember which way the bedposts were facing, but that she thought it was the mattress side that was closest to the (northern) wall; in cross examination she said that she did not know why no photograph was taken looking in the direction in which the bed was located.

113 I have concluded, on the balance of probabilities, that the events occurred much as described by the plaintiff.

114 Since it was not argued on behalf of the defendant that if that were so, the actions of Constable Jackson did not constitute an unlawful assault, it follows that the plaintiff has established that cause of action.

Malicious prosecution

The law

115 The tort of malicious prosecution has been the subject of recent consideration by the High Court in A v New South Wales [2007] HCA 10; 230 CLR 500.

116 The tort has four elements:

· that criminal proceedings (or other proceedings to which the tort applies) were brought (or maintained) against the plaintiff by the defendant (or, as is here alleged, by persons for whose torts the named defendant is liable);

· that the proceedings terminated in favour of the plaintiff;

· that the defendant (or persons for whose torts the named defendant is liable) acted maliciously;

· that the defendant (or persons for whose torts the named defendant is liable) acted without reasonable and probable cause: A [1].

Each element was exhaustively examined and explained by the High Court.

117 it is the third and fourth elements to which attention must here be directed: malice, and the absence of reasonable and probable cause in bringing the proceedings against the plaintiff. In relation to those elements, the following propositions emerge:

(i) the onus lies upon the plaintiff to prove each element. In the case of absence of reasonable and probable cause, that involves proof of a negative: [60], [77];

(ii) although there may be some overlap between the concepts of malice and absence of reasonable and probable cause, the High Court maintained the principle that there are two separate issues to be litigated: [40];

(iii) malice is proved where a plaintiff proves that the prosecutor brought the proceedings for a purpose other than a proper purpose of initiating legal proceedings – one, but not the only, example of such a purpose is “personal animus”: [55];

(iv) that purpose must be the sole or dominant purpose actuating the prosecutor: [91]; malice may be proved by inference, but it must be proof, not conjecture or suspicion: [73];

(v) with respect to the absence of reasonable and probable cause, the relevant questions have, in different cases, been differently formulated; for example:

“1. Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case;

2. Did they honestly believe the case which they laid before the magistrates; and

3. Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff [?]” (extracting from Abrath the North Eastern Railway CO (1883) 11 QBD 79 at 79): [44];

(vi) reasonable and probable cause for prosecuting another for an offence exists where the following conditions apply:

“(1) The prosecutor must believe that the accused is probably guilty of the offence.

(2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise.

(3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true.

(4) This belief must be based upon reasonable grounds.

(5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.” (as stated in Mitchell v John Heine (1938) 38 SR (NSW) 466 at 469, per Jordan CJ): [64]

(vii)

“Reasonable and probable cause does not exist if the prosecutor does not at least believe that the probability of the accused’s guilt is such that upon general grounds of justice a charge against him is warranted. Such cause may be absent although this belief exists if the materials of which the prosecutor is aware are not calculated to arouse it in the mind of a man of ordinary prudence and judgment.” (as stated in Sharp v Biggs [1932] HCA 54; 48 CLR 81 per Dixon J, italics in original): [64]

(viii) there is no disharmony between the expressions of the applicable principles in John Heine and in Sharp: [117];

(ix) the relevant time for consideration of the existence of malice, and the absence of reasonable and probable cause, is the time of institution, and the time of maintenance, of the proceedings: [59].

(x) two questions arise: what did the prosecutor make of the material available? (a subjective question); and what should the prosecutor have made of that material? (an objective question): [70].

For the remainder of this part of these reasons outlining the relevant law, it will be convenient to adopt the terminology used in the High Court and refer to the defendant, or the person for whose torts the defendant is liable, as “the prosecutor”.

118 “Maintaining” proceedings is a continuing process. It is conceivable that a prosecutor may act for proper reason (ie non-maliciously) or with reasonable and probable cause (or the plaintiff may be unable to prove malice, or the absence of reasonable or probable cause) at the time of institution of proceedings, but, at a later point in the proceedings, and while the proceedings are being maintained, the existence of malice or the absence of reasonable and probable cause may be shown. At any time at which the sole or dominant purpose of maintaining the proceedings becomes an improper (malicious) one, or the prosecutor becomes aware that reasonable and probable cause for the proceedings does not exist, or no longer exists, the proceedings ought to be terminated, or the prosecution is malicious.

119 A good deal has changed in the arrangements made for criminal prosecution since the decisions in Abrath, Sharp, and John Heine. It is seldom that the alleged victim of an offence or person having personal knowledge of the facts initiates the prosecution. Rather, in the ordinary case, the prosecution is initiated by a police officer, acting on information supplied from a variety of sources, of the veracity of which he or she, ordinarily, has no personal knowledge. Where the offence charged is to be dealt with summarily, responsibility for its further prosecution will be taken by a trained police prosecutor. That is what happened here. (Where the offence is to be charged on indictment, the prosecution will ordinarily be undertaken by prosecutors employed by the Director of Public Prosecutions. But that is not a matter of present relevance.)

120 A number of the cases cited in A, particularly the earlier cases, appear to impose two requirements – one, that a prosecutor have an actual, subjective, belief in the guilt of the person prosecuted, and two, that there also exist, objectively, reasonable and probable cause for bringing the prosecution. The High Court restated that the onus of proof lies upon the plaintiff, and appears to have endorsed both requirements – but also recognised that modern notions of the objectivity and detachment demanded of those acting in public prosecutorial roles, in circumstances where they have, and can be expected to have, no personal knowledge as to the facts and circumstances alleged, sit uneasily with the first requirement: [69] – [70], [73], [80].

121 There is thus some tension between the early cases that impose a requirement that the prosecutor (subjectively) hold a positive belief in “the case”, and more modern notions of objectivity, particularly applicable in circumstances where public prosecuting authorities have the conduct of prosecutions initiated by law enforcement authorities.

122 Detective Briggs does not fit easily into the class of prosecutors acting solely on information provided to him. He certainly had personal knowledge of the relevant facts concerning the first four charges, all to do with the original incident, and the use of the unregistered and uninsured motor vehicle. And he was sufficiently on the spot at the Gaffney household to have some knowledge of the events that there occurred; he arrived while the confrontation between the plaintiff and Constable Jackson was under way, and after Constable Philpott had entered the bedroom. The plaintiff was still on his feet, being ordered by Constable Philpott (and refusing) to get on the floor. Detective Briggs observed that there was blood on his head. Detective Briggs was present when the plaintiff was restrained by other police who entered, and forced to the floor. He did not have a clear view of the circumstances of the arrest, and was not involved in it.

123 The decision to bring a criminal prosecution is a weighty one. It has important consequences for the person against whom the prosecution is brought. Equally weighty is a decision to not bring a criminal prosecution, where the prosecutor is a person whose role it is, acting on information supplied by others, to prosecute on behalf of official prosecution authorities. An underlying question that may arise concerns the extent, if any, to which an investigating police officer or prosecuting police officer, charging or considering charging a person, is required to bring critical analysis to bear upon the factual content of the evidentiary material provided to him or her. Obviously, a prosecutor ought not to bring or continue proceedings if satisfied that the evidentiary basis is not reasonably capable of belief. At the other end of the spectrum, it would be wrong for a police officer in receipt of potentially credible information to decline to prosecute because he or she took an adverse view of the informant’s reliability, or the reliability of other witnesses. That would be to permit the prosecutor to usurp the function of the court.

124 Neither A, nor the cases cited in A, deal directly with this difficult issue. It arises in the present case, although that is complicated by the circumstance that Detective Briggs (who initiated the charges against the plaintiff) was himself a participant in the relevant events.

The facts

125 With these principles and questions in mind I turn now to the facts relevant to the plaintiff’s claim for malicious prosecution. Substantially, they concern events after the arrest of the plaintiff and his removal from the premises.

126 As I have indicated, the first and second elements of the test of malicious prosecution are not in issue. Criminal proceedings were brought against the plaintiff. Two individuals responsible for bringing and maintaining the proceedings were Detective Briggs and Sergeant Morgan. The defendant is liable for the torts of each. The proceedings terminated in favour of the plaintiff.

127 At the outset, I make this observation. There exists a certain level of obscurity about some important aspects of these events. I am satisfied that that obscurity has been deliberately engineered, for the purpose of ensuring that no comprehensive examination or scrutiny of those aspects of the events (which are of considerable importance), or of the individuals responsible for them, can, in these proceedings, take place. The aspects of the events to which I refer are the finding of the knife, and the recruitment of cleaners to clean the house before its investigation by suitably trained and equipped officers.

128 The obscurity comes about principally by reason of the absence, from these proceedings, of two key participants who could have been expected to give significant evidence. One of these is Inspector Murphy. The other is the contract cleaner who was called in by Inspector Murphy to repair the damage to the house. This occurred after Detective McAlister had taken his (with respect to him, amateur) photographs, and before police officers expert in crime scene investigation could be involved.

129 The two officers alleged in the statement of claim to have been responsible for the prosecution of the plaintiff were Detective Briggs, who initiated the charges, and Sergeant Morgan, who prosecuted them. The case so far as it concerns Sergeant Morgan can be disposed of quickly.

Sergeant Morgan

130 In oral submissions at the conclusion of the evidence, and after the parties had exchanged and provided written submissions, senior counsel for the defendant suggested that senior counsel for the plaintiff “really went softly softly on Constable (sic) Morgan”. In response, senior counsel for the plaintiff conceded that “we have gone soft on Sergeant Morgan ...” and acknowledged that the plaintiff did not have a very good case against her; and that, in order to succeed on the malicious prosecution claim, it would be necessary to prove the relevant facts against Detective Briggs.

131 In these circumstances, I do not propose to deal in detail with what has been put in relation to Sergeant Morgan. However, in fairness to her, I would simply make the following observations. The concession made by senior counsel for the plaintiff accords with the tentative view I had reached. Sergeant Morgan was a very impressive witness, who gave her evidence frankly and with assurance and who, it seemed to me, undertook the task of prosecuting responsibly, diligently and ethically.

132 Her role exemplifies the ambiguity to which I have earlier alluded, concerning the requirement that a prosecutor have a positive belief in the guilt of the person charged. All she could do was examine the evidence with which she had been provided, determine that, if accepted, it was sufficient to prove the various offences with which the plaintiff was charged, and present the evidence in an orderly and logical fashion. In the absence of any demonstrated reason for thinking that any of the statements was not credible, it was not her role to decide the plaintiff’s guilt or innocence. My impression, which, having regard to the concession made by senior counsel, I do not have to harden into a conclusion, is that there is no basis for a finding of malicious prosecution against Sergeant Morgan.

Detective Briggs

133 Against Detective Briggs the plaintiff does press his claim. It will be recalled that Detective Briggs charged the plaintiff with ten offences. Of these, the plaintiff entered pleas of guilty to five. He successfully defended five. Of these, he claims, four were brought (and/or maintained) by Detective Briggs maliciously and/or without reasonable and probable cause. These were the charge of assaulting Constable Jackson, the two charges concerning the knife, and the charge of resisting Constable Jackson in the execution of his duty. The claim does not appear to be made in respect to the charge of resisting Constable Cox in the execution of his duty. Determination of these issues involves determination of what was in Detective Briggs’ mind, firstly on 28 March when he charged the plaintiff, and thereafter (on a continuing basis) until December 2003 and March 2004 when the charges were prosecuted.

134 Determination of what was in Detective Briggs’ mind itself has three parts: identification of the material or information available to him; identification of how he perceived it (what he “made of it”); and identification of what he “should have made” of it. The inquiry is thus both subjective and objective.

135 Although, as the High Court held, the two elements (malice and absence of reasonable and probable cause) are discrete, the evidence called to prove them may overlap. Each may be proved by inference.

136 However, evidence going to the existence of reasonable and probable cause may also be direct or concrete. It is convenient to deal first with the issue of the absence of reasonable and probable cause.

137 In considering this, it is to be remembered that Detective Briggs does not fall into the same category of prosecutor as does Sergeant Morgan; he was an active participant in the events, and a witness in the proceedings against the plaintiff. But he was not a witness in respect of any of the charges the subject of the claim of malicious prosecution, at least not a direct or eye witness.

138 In A, the High Court recognised this category of prosecutor. The majority said:

“71. ... if the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies ... the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt. If, however, the plaintiff alleges that the prosecutor knew or believed some fact that was inconsistent with guilt ... the absence of reasonable and probable cause could also be described (in that kind of case) as the absence of a belief in the guilt of the plaintiff.”

139 It was to this class of case that a great deal of the evidence elicited in cross-examination from Detective Briggs, as well as other police officers, was directed. Counsel for the plaintiff sought to show, by inference from that evidence, that Detective Briggs may be supposed to have known where the truth lay, and that, accordingly, he did not have the requisite belief in the plaintiff’s guilt. In this respect two matters assumed a great deal of prominence. In a sense, each of these is collateral to the main issue. But each is capable of casting considerable light on the question of what Detective Briggs knew, or may be taken to have known. The first of these was the finding of the knife; the second was the failure of Detective Briggs, and other police officers, to “declare a critical incident”, and the consequences of that: and the inferences that could or should be drawn from those two matters. Put bluntly, it was the plaintiff’s case that the knife had never been in his possession, that it had been in its usual place in a kitchen drawer until after he had been removed from the premises, and that it had been placed, by one or more of the police officers present, in the bedroom, for the purpose of incriminating the plaintiff in offences he had not committed, and strengthening the case against him in respect of his confrontation with Constable Jackson.

140 I have concluded that the factual issues concerning “the knife charges” and the “assault and resist” charges are quite different, and the two categories need to be considered separately. I will begin with “the knife charges”.

The knife charges

141 Of course, for the plaintiff to succeed in respect of these charges, it is necessary that he establish that Detective Briggs was either involved in the placing of the knife in the bedroom, or that he knew of it, and knew of the purpose for which that was done.

142 It was also put on behalf of the plaintiff that, according to NSW Police Service Guidelines, on the plaintiff’s arrest, a “critical incident” ought to have been declared and certain specified procedures followed. A “critical incident” was not initially declared (it was, later in the day), the specified procedures were not followed, and crucial evidence was destroyed. This, on the plaintiff’s case, was done for the purpose of ensuring that the truth of the plaintiff’s encounter with Constable Jackson would not be known, and to prevent the location of any evidence that might have exculpated the plaintiff, and demonstrate that it was Constable Jackson who assaulted the plaintiff, not the plaintiff who assaulted Constable Jackson. Of course, none of this can assist the plaintiff unless it can also be shown that Detective Briggs was involved in the decision making, or aware of it, to the extent that he was aware of:

“some fact that was inconsistent with [the plaintiff’s] guilt”.

143 Notwithstanding the absence of the two potentially significant witnesses, a large number of police officers gave evidence of the events at the Gaffney house following the removal of the plaintiff from the premises. It is not easy to piece together an adequate chronology. As best I can ascertain from the evidence of those police officers, the following is what occurred at the Gaffney house in the immediate aftermath of the plaintiff’s arrest. Given the way the evidence emerged, it is not possible to be definitive or precise about the sequence of events.

144 After the plaintiff’s departure, Constables Jackson, Philpott, Diessel, Holmes and Detective Briggs gathered at a garden tap in the Gaffney premises to decontaminate from the effects of the capsicum spray, and to remove any blood from their bodies.

145 Detective Briggs remained at the premises. Constable Jackson was driven by another (unidentified) police officer to the Local Area Command (“the LAC”), which was in a different location to the Wagga Wagga Police Station, where he underwent a further decontamination process, changed his clothes, and began preparing a statement of events.

146 Constable McAlister initially washed his hands in an en-suite in the Gaffney house, then further decontaminated at an outside tap of the house next door. After ten or fifteen minutes he returned to the police station, riding one of the push bikes that had been left by other police officers.

147 Constable Philpott remained at the premises, but did not initially re-enter the house. Constable Diessel also remained at the premises. Constable Holmes escorted the plaintiff to the police vehicle, then almost immediately returned home to change his clothes.

148 Detective Briggs was at that time the most senior officer present. He contacted the police station and asked for the attendance of Crime Scene investigating police. He was told that they were unavailable. He then telephoned Constable McAlister, asking him to return to the house, bringing with him the station camera. He then inspected the house and garden. He remained present at the house until Mr Gaffney returned home, and spoke to him. He then went to the pawnshop where he had first encountered the plaintiff.

149 Constable McAlister returned, in company with Inspector Murphy, to the Gaffney house. Inspector Murphy, as then the senior officer present, took charge of the scene. He instructed Constable McAlister to “get some photos”. Inspector Murphy decided to call in a contract cleaner to repair the damage, and he (or somebody acting on his instructions) did so. Constable McAlister, accompanied by Constables Philpott and Deissel, began to take photographs in and around the house. Constable Philpott made a written record of the photographs taken; Constable Diessel assisted by identifying appropriate subjects and areas for the photography.

150 Constable Holmes returned briefly to the house, where he had a conversation with Inspector Murphy, before resuming other duties. (According to him, other police were present, but he did not identify them.) Having completed his photography, Constable McAlister left the house and went to the LAC. While there he received a telephone call from Inspector Murphy, asking him to return to the house yet again, this time bringing a different (digital) camera.

151 While at the pawnshop, Detective Briggs received a telephone call from Inspector Murphy. Inspector Murphy told Detective Briggs that a knife had been found in the bedroom by the cleaner. Detective Briggs went to the LAC, then returned, in company with Constables McAlister and Jackson, to the Gaffney house.

152 On his return, Constable McAlister was directed by Detective Briggs into the bedroom; Detective Briggs showed Constable McAlister, behind the bed, a knife. At Detective Briggs’ request, Constable McAlister photographed the bed and the knife – “in situ”, as he said. Inspector Murphy was then present. (Constable McAlister thought there was also a cleaning lady present.)

153 (There is some uncertainty, that does not have to be resolved, about some of these events. Detective Briggs said that he returned to the scene with Constables McAlister and Jackson; Constable McAlister said that he received a phone call from Detective Briggs, asking him to return with the digital camera. He did so, and there met Detective Briggs.)

154 Constable Jackson accompanied Detective Briggs to the house. He took possession of the knife, and took it to the police station, where he entered it in the exhibit book.

The finding of the knife

155 It will be observed from this account that there is no direct evidence of the circumstances in which, or by whom, the knife was discovered. There is no evidence from any person who claimed to have been present in the house when it was found. Not only that, there is no evidence from any of the police officers who were present in the house up to and including the time of the plaintiff’s arrest, who asserted that he or she had seen the plaintiff in possession of a knife.

156 There is in evidence a statement (part of exhibit B), made on 9 April 2003, of Mr Simon Mansfield, the contract cleaner. Although no limitation was sought or made under s 136 of the Evidence Act 1995 on the use that could be made of this statement, it was part of a bundle of material prepared for the purposes of the Local Court prosecution of the plaintiff. It is plain to me that it was tendered in the present proceedings for the purpose of identifying what material was before Detective Briggs at the time he charged the plaintiff and what material was before Sergeant Morgan when they conducted the prosecution. In my opinion some caution ought to be exercised in accepting the contents of this and the various other statements (virtually the entire police brief is contained in exhibit B) as evidence of the truth of what is asserted therein.

157 However, it may be that, to the extent it gives any information about the finding of the knife, Mr Mansfield’s statement is uncontroversial. He merely said that, while cleaning the bedroom, he found the knife, among a doona and some bedclothes piled on the floor. Inspector Murphy was present, and, when the knife was brought to his attention, he told Mr Mansfield to stop the cleaning. (The cleaning was later resumed and completed.)

158 The knife was subsequently submitted, by Detective Briggs, for investigation for fingerprints and DNA. On 13 May he received a report indicating that DNA testing was unsuccessful. Fingerprint testing carried out on 9 February was also unsuccessful, yielding only some unidentifiable smudges. (It is not clear when Detective Briggs received this information.)

159 Notwithstanding the absence of any direct information in the material available to Detective Briggs as to the finding of the knife at the time when he charged the plaintiff on 28 March (Mr Mansfield’s statement is dated April 9) two of the charges involved allegations concerning the knife – a charge of stealing, and a charge of possession of an offensive weapon to prevent lawful apprehension.

160 Mr Gaffney gave evidence. He identified the knife as one which belonged to his wife. He said that he had used it on the morning of 6 February, and had then washed it, dried it and put it away in a kitchen drawer. He was the last of the family to leave the house that morning.

161 He had earlier given the same information to Detective Briggs. On 10 February 2003 Mr Gaffney made a statement. The statement was taken by Detective Briggs. At para 4, Mr Gaffney said:

“On Thursday 6 February 2003 I utilised a large kitchen knife to cut up some fruit for breakfast. After using this knife, I washed it up, dried it, and placed it back into the top kitchen drawer. This is where we put the kitchen utensils.”

162 At paras 8 and 9, he said:

“8. Not long after I was contacted by police, and returned home again. I was shown to Luke’s bedroom and saw that the knife that I had put away earlier was lying on the floor, between where the bed was, and the wall. This amazed me somewhat, as I had only just put it away a few hours earlier.

9. No other person from my family, in particular my son Luke, were home at the time I put the knife away. Further no one from my family returned home after I had left for work.”

163 It is necessary to make a discrete finding of fact in relation to the knife. In this context, I regard the unexplained absence from the witness box of Inspector Murphy as of very considerable significance. He was the officer in charge of the scene after the plaintiff’s arrest. He arranged for photographs to be taken. Most importantly, in an extraordinary decision, he arranged for the contract cleaner to enter and clear the scene, plainly destroying potentially critical evidence. He made no attempt to preserve the scene. He was present when Mr Mansfield found the knife. I recognise that, on the defendant’s case, at the time he made the decision to have the scene cleaned, the knife had not been found, and police officers did not know of its existence. If the defendant’s case were to be accepted, the finding of the knife took the incident into a new, and more serious, dimension. Even accepting that for the moment, and hypothetically accepting the defendant’s case at face value, the police were engaged in the aftermath of a serious incident in which a private home had been invaded, a police officer assaulted, and a civilian injured (although the known extent of the plaintiff’s injuries at that time was a matter of significant dispute).

164 It is also of significance, although perhaps less so, that the person who was alleged to have found the knife in the bedroom was not called.

165 These two absences attain special significance given the amount of energy, time, and cost that has been devoted to the preparation of this case on behalf of the defendant. A model of the bed was made. The actual bed was brought from Wagga Wagga to Sydney, for the purpose of a (as it turned out, futile) demonstration.

166 I am conscious, however, that the inferences I can draw from the absence of these potential witnesses are limited. They were set out by Menzies J in Jones v Dunkel [1959] HCA 8; 101 CLR 298 and are (adapted to suit the circumstances of the present issue):

“(i) That the absence of [a witness] ... cannot be used to make up any deficiency of evidence;

(ii) That evidence which might have been contradicted by [a witness] can be accepted the more readily if [that witness] fails to give evidence;

(iii) That where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that [a party] disputing it might have proved the contrary had he chosen to [call] evidence is properly to be taken into account as a matter of circumstance in favour of drawing the inference.” (p 312)

167 Despite the number of (trained) police officers in the bedroom – five, immediately after the confrontation – not one gave evidence of having seen the plaintiff with a knife. It is scarcely conceivable that, had the events occurred as Constable Jackson said they did, and the plaintiff had been in possession of the knife, he would not have produced it; or, at least, that he would have been able to conceal it.

168 Given the plaintiff’s condition when he entered the Gaffney house, he could not have armed himself with the knife without leaving blood, and his DNA, on it (he was not carrying anything that he could have used to avoid physical contact with the knife) and he could not have taken it from the kitchen drawer without leaving blood smears on the floor and the furniture in the vicinity.

169 And it is scarcely credible that, had the knife been in its later location when the plaintiff was arrested and removed, it would have escaped the combined examination of Constables McAlister, Philpott and Diessel, although I have not overlooked that, on Mr Mansfield’s (untested) account, it may have been concealed amongst bedding.

170 So far as I can ascertain from the evidence, the one police officer who remained at the house throughout the relevant time (although he was not present at any time when the plaintiff was) was Inspector Murphy. Yet he was one of two participating police officers who did not give evidence. (The other was Constable Diessel, although I draw no inferences from this.)

171 This is not, of course, an investigation into who was responsible for taking the knife from the kitchen drawer and placing it in the bedroom. I am satisfied, however, that it was not the plaintiff. I am satisfied, having regard to the absence of DNA or fingerprints on it, that its removal was effected by a person (or persons) aware of the significance of those forensic investigations and the means of avoiding leaving such evidence. And I am satisfied that it was placed in the bedroom by a person or persons aware of the significance its presence would have in the prosecution of the plaintiff. It follows that I am satisfied that it was taken from the kitchen drawer and placed in the bedroom, after the plaintiff’s departure, by one or more of the police officers. I am not in a position to make a specific finding as to who that was. In fact, for present purposes, that does not matter. What matters is what Detective Briggs knew, as at 28 March when he charged the plaintiff with these offences, and thereafter, up to the time of the hearing, when he maintained them. What is in issue is whether, in bringing charges against the plaintiff on 28 March, Detective Briggs acted for an improper purpose, or without reasonable and probable cause.

172 Although the issue has been treated as a composite one, it may be that a different result emerges in relation to one or more of the charges in question. The issue arises particularly starkly in relation to the two charges concerning the alleged theft and possession of the knife. I will return to this question. Although I cannot be satisfied that Detective Briggs was himself personally involved in placing the knife in the bedroom, I am satisfied that he was aware that that was done, by a police officer or officers after the plaintiff had been removed from the scene. In part, that satisfaction derives from my conclusions concerning the next issue, the failure to take appropriate steps to preserve the scene and relevant evidence.

Critical Incident

173 During the course of the hearing, especially in cross-examination of the defendant’s witnesses, a great deal was made of the circumstance that a “Critical Incident” had been “declared”. That occurred at about 1.30pm. The issue arose because, on the plaintiff’s case, a “Critical Incident” ought to have been “declared” immediately upon the arrest of the plaintiff. That that was not then done had the consequence that appropriate procedures were not implemented, and evidence at the scene that should have been preserved was not, and was, in fact, deliberately destroyed.

174 There was some evidence of what a “Critical Incident” is. In Guidelines issued in 2000 for use within the NSW Police Service, a “Critical Incident” is defined as including:

“Death or Serious injury resulting from the use of police issue appointments

Death or Serious injury to any person in custody

Death or Serious injury arising from a police operation”

The Guidelines go on to outline the procedures to be adopted and followed where a Critical Incident eventuates.

175 A specialised investigation team, known as a “Critical Incident Investigation Team” (“CIIT”) is to be appointed to investigate the Critical Incident. The Guidelines recognise that, inevitably, some delay will occur before the CIIT arrives at the scene. The most senior officer at the scene (“the First Officer”) is to take certain defined steps, the first of which is to notify the Duty Officer in Sydney that the incident has occurred, and describe the circumstances. He or she is also to take steps for preserving the scene for fingerprinting, and appointing an officer to secure the scene.

176 There is, however, nothing in the Guidelines providing for “declaration” of a Critical Incident; rather, the Guidelines seem to envisage that a Critical Incident, in effect, declares itself: it comes into existence when the relevant event (eg death or serious injury in the circumstances provided for in the definition) occurs, or circumstance arises. That is no mere quibble: the cross-examination, and the argument, both focussed heavily upon when the occurrences at the Gaffney house became, and were known to be, a “Critical Incident”. The Guidelines contain no definition of, or guidance as to the identification of “serious injury”.

177 Here, a Critical Incident existed because (as was later recognised) the injuries to the plaintiff qualified as “serious”.

178 There are two areas of uncertainty – the meaning of “serious injury”; and identifying when any police officer (more accurately, Detective Briggs) recognised that the plaintiff’s injuries were serious. Certainly, it would be expected that, on his examination at the hospital, it would be recognised that he was suffering from serious injury.

179 As with the issue concerning the knife, investigation of this issue does not involve exploring the whole of the conduct of the police officers involved. For the purpose of these proceedings, it is necessary to focus upon the conduct of Detective Briggs, and his state of knowledge or awareness of the extent of the plaintiff’s injuries. Failure (if it is established) on his part to take the appropriate steps under the Critical Incident Guidelines does not of itself have any identifiable consequences in these proceedings – it is put forward as evidence from which inferences, adverse to Detective Briggs, may be drawn, concerning his subsequent conduct in charging the plaintiff.

180 Detective Briggs was, until the arrival of Inspector Murphy, the “First Officer” – the most senior officer present. It was therefore his obligation (if, by reason of the extent of the plaintiff’s injuries, the events constituted a “Critical Incident”), inter alia, to preserve the scene for fingerprints and appoint an officer to secure the scene.

181 Detective Briggs did not take any of those steps. (Nor did Inspector Murphy, on his arrival.)

182 The simple explanation given on behalf of the defendant for this is that, until the plaintiff’s admission to hospital, neither Detective Briggs nor any other officer was, or should have been, aware that the plaintiff’s injuries were “serious”.

183 Detective Briggs accepted a proposition put to him in cross-examination, that “serious injury” equated to injury sufficient to require emergency medical treatment, such as admission to a hospital Accident and Emergency ward for treatment. That does not emerge from the Guidelines, but it is a reasonable and sensible approach to the meaning of the words, and one with which Detective Briggs was comfortable, both when giving evidence in this case and in 2003.

184 He said that, at the time of the plaintiff’s arrest, and notwithstanding the amount of blood on the plaintiff and in the bedroom, he did not believe that his injuries were serious. It was therefore not obvious to him that the incident ought to be categorised as “a Critical Incident”.

185 Constable Jennings took a similar view. Among her duties was to keep a record, called a “Custody Management Record” of relevant matters concerning individuals in custody. On her recollection of the plaintiff’s arrival at the police station, he was not suffering from injuries that she would have classed as serious. She did make arrangements for his transfer to the hospital, but that, she said, was standard procedure where capsicum spray has been used.

186 The Custody Management Record, which was quite detailed, tends to support Constable Jennings’ view. The record consists of a pro-forma containing provision for the insertion of specified information. Constable Jennings recorded that the plaintiff had bruising around his right eye, blood dripping from his cheek, a 2cm cut to the right cheek, and pain to the right knuckles, an abrasive burn with skin off his big toe and one next the right foot, an abrasive burn with skin off on the left foot, and a 3cm cut along the heel and middle toe; a 1.5cm cut on the left arm near the elbow, a cut between pointer and middle fingers of the left hand, and grazing on the right forearm. In answer to a question of whether the plaintiff had made any other complaint about his health, she answered “no”.

187 The ambulance report recorded:

“CT Police Station ♂ ./C arm injury to decontaminate capsicum spray OA found ♂ sitting in cell. Police stated. pt [patient] wash down for capsicum spray OE pt alert orientated + well perfused. Laceration to 1.5cm to Ⓡ cheek, Ⓛ hand between index and middle finger, 1.5cm to Ⓛ forearm, LAC to instep of Ⓛ foot abrasions to bottom of L + R foot and toes. pt transported to hospital by police.”

188 At 11.18am Detective Briggs spoke by radio to the operator. When asked for a situation report, he is recorded as saying:

“Yeah one in custody, he (ui – [unintelligible]) they might want to have a look at him there. We’re fine out here. All I want is Crime Scene if they’re coming ...”

189 He was specifically asked if anybody was injured. He is recorded as replying:

“Well there is actually some matter, apart from the initial traffic stuff, there’s a number of assaults on police and as well as an unlawful entry, break and enter type situation in order to avoid us. I’ll explain it all later. It’s sort of a bit hard (ui) just to explain everything.”

190 On balance, I have concluded that the position adopted on behalf of the plaintiff ought to be accepted. The photographs demonstrate that a very substantial amount of blood had been shed in the bedroom. There was no evidence that Constable Jackson was injured in such a way as to shed blood. All of the blood must have come from the plaintiff. It was obvious that some of his injuries were facial. That is sufficient to alert a prudent senior police officer that a serious incident had occurred, and to trigger the procedures laid down by the Guidelines. Indeed, in his radio call, Detective Briggs advised those at the police station that the plaintiff ought to be examined. This was a radio call on which reliance was placed by the defendant, but it demonstrates to me that Detective Briggs was, at the very least, aware that the plaintiff had suffered injury requiring investigation. That, alone, raises questions about Detective Briggs’ failure to secure the scene. He was not responsible for what occurred after the arrival of Inspector Murphy, and his assumption of control of the situation. But if Detective Briggs had, as he was required to do, notified the Duty Officer in Sydney that a Critical Incident had occurred, then the other procedures – the appointment of a CIIT – would inevitably have followed. It would not have been possible for Inspector Murphy to call in the cleaners and destroy the scene.

191 But, as I have said repeatedly, and I remind myself, this is not a general inquiry into the conduct of Detective Briggs and his colleagues. His failure to take the necessary steps are relevant only if it can be inferred that they were for a reason from which a further inference of malice, or absence of reasonable and probable cause, can be drawn.

192 If, for example, it were concluded that Detective Briggs’ failure to implement the procedures resulted merely from an error of judgment on his part in the evaluation of the level of seriousness of the plaintiff’s injuries, then no adverse inferences concerning the prosecution could be drawn. If, on the other hand, it could be inferred that Detective Briggs failed to act in order to protect the position of, for example, Constable Jackson, then, plainly, adverse inferences could be drawn.

193 In my opinion, it must have been quite obvious to Detective Briggs that something untoward had, or very probably had, occurred in the bedroom. He gave evidence, in cross-examination, that, after the plaintiff had been removed from the scene, he asked Constable Jackson what had happened.

194 The evidence he gave was as follows:

“He replied, words to the effect of, he went in the house, he went in the room. As to what happened inside the room he ultimately looked under the bed.

...

He looked under the bed. And I believe he saw Mr Hathaway under there. I think he told him he was under arrest. That there was a struggle.

...

He was under the bed and the bed ended up on top of him or something.

...

There was a struggle and somehow the bed end up on Jackson, or the bed was sort of flipped and landed on top of him, and he pushed that off and then basically he was at one end of the bed and Mr Hathaway was at the other end of the bed and there was a sort of push/pull type of situation. There was, I think he utilised his OC spray. Well, he did utilise his OC spray, which apparently had no effect. Still the pushing and pulling and so forth. I think at some stage he lost balance?

...

And ultimately he has then utilised his baton.

...

He struck him once when going one way and hit the arm and on the back and going back on the other arm, I believe.

...

And then the pushing and pulling of the bed continued and then Mr Hathaway has allegedly picked the bed up and then Jackson has been able to utilise the baton and strike him on the leg, and that was when – anyway, Mr Hathaway started letting go of the bed, or something. And then not long after that anymore pushing and pulling.

...

I believe I asked him about the lacerations, I believe, and he said, basically it wasn’t to do with him. ... or he was unsure as to how that occurred.”

195 He did not believe that the laceration he had observed to the plaintiff’s face could have been caused by a baton blow to the head. He thought that was more consistent with what had occurred earlier, when the plaintiff was running and jumping over fences. He also said that he had been informed (he now knew incorrectly) that, before his entry to the house, the plaintiff had been seen to be bleeding from the head.

196 On this account, it must have been obvious to an experienced Detective even at that early stage that serious questions would be asked concerning the events in the bedroom. That does not mean that he was not entitled, at that point, to accept, at face value, the account given by Constable Jackson. But that account exposed those very questions. It is therefore inexplicable that he did not take more decisive action to preserve the scene. It was not sufficient merely to ask for Crime Scene Detectives to attend, and, when told that they were not available, to do nothing further. That he did not take further action, I consider, was attributable to his recognition of the possibility that Constable Jackson had exceeded the bounds of propriety in his response to the plaintiff’s conduct.

197 I am satisfied also, that, although Detective Briggs was not responsible for what Inspector Murphy did, he was aware of its impropriety and of the likelihood that this was done for the purpose of frustrating any subsequent investigation. Even in the absence of the declaration of a Critical Incident, the area remained the scene of a serious crime.

198 It is, therefore, an inevitable conclusion that Detective Briggs lacked reasonable and probable cause to bring the charges involving the knife, and that, in doing so, he acted for an improper purpose and therefore maliciously.

199 The improper purpose was the support of Constable Jackson in his assertions about the plaintiff, and to strengthen the case against the plaintiff. It also was to perpetuate the fiction that had been created by the placement of the knife in the bedroom, and protect the police involved.

The assault and resist charges

200 I turn now to the information Detective Briggs had by 28 March, when he laid the charges against the plaintiff.

201 The critical time in respect of this inquiry is, of course, 28 March, the date on which Detective Briggs charged the plaintiff with the ten offences. It is necessary to ascertain what information was in his possession at that time.

202 He had statements from a number of witnesses, and entries on the Computerised Operational Policing System (“COPS”). A good deal was made of the progressive COPS entries, but, it seems to me, this is a record that is largely if not entirely derivative, based on primary material such as statements which were otherwise known to Detective Briggs. It does not add anything to the analysis of the information and material that Detective Briggs had and what he ought to have made of the information that he had.

203 By 28 March, the information Detective Briggs had was as follows:

· his own observations of the plaintiff’s behaviour – driving an unregistered vehicle, whilst disqualified from driving, and in a manner dangerous; running away when cornered;

· his own observations of the plaintiff’s condition in the bedroom;

· his own observations of Constable Jackson in the bedroom, and thereafter at the Gaffney house;

· the description of events given to him by Constable Jackson immediately after the plaintiff’s departure;

· information given to him by Mr Gaffney at the house (including information about the location of the knife before the intrusion into the house);

· information given to him by Inspector Murphy about the cleaner finding the knife;

· a written statement made by Constable Jackson on 6 February;

· a written statement made by Mr Gaffney on 10 February;

· a written statement by Constable Philpott, in which she described the plaintiff as having “blood all over his face and body”;

· a written statement by Mr Smith, the neighbour;

· a written statement by Inspector Murphy, including an account of the cleaner finding the knife;

· the results of fingerprint testing on the knife.

204 In my opinion, Detective Briggs was entitled to accept, for the purpose of his consideration of the prosecution of the plaintiff, and to act upon, the description of events given by Constable Jackson. In this respect it is significant that the plaintiff declined to give his own account either at the police station, or later, when a police officer (unidentified) attempted to interview him. While I have earlier held that this does not, in the circumstances, reflect adversely on the plaintiff’s credibility, and I adhere to that view, it does mean that, by 28 March, Detective Briggs had no alternative scenario, no contradiction of what Constable Jackson said, and no apparent reason (apart, perhaps, from healthy scepticism) to doubt it.

205 He therefore had reasonable and probable cause to bring the charge of assaulting Constable Jackson in the execution of his duty, and of resisting him in the execution of his duty. He is not shown to have brought those charges for an improper purpose. The plaintiff has failed to demonstrate that those prosecutions were malicious.

DAMAGES

206 In respect both of the assault and the malicious prosecution the plaintiff claims damages, compensatory and exemplary. A claim for aggravated damages was abandoned. Damages are to be assessed on common law principles. No statutory provisions exist that modify the common law quantification.

Compensatory Damage

Assault

207 Under the heading of compensatory damages, the plaintiff claims general damages (for pain and suffering) economic loss, and out of pocket expenses.

208 The plaintiff was born in December 1963. He was 39 years of age as at 6 February 2003. He is now 45 years of age. He has a criminal record that is littered with offences of driving whilst disqualified, licence suspended, or similar. There are also entries for firearm offences, offences of dishonesty, and others. The seriousness of his criminal conduct may best be gauged by reference to the penalties imposed. None has ever resulted in a term of imprisonment.

209 His criminal history is not of direct relevance to the assessment of damages; his entitlement to adequate and proper compensation for the wrongs done to him is not affected by his character. His damage is not diminished because he has not always been a law-abiding citizen. His criminal record is relevant to one aspect of the damages claimed, those claimed for past and future economic loss. Obviously, his capacity to obtain employment is, to a degree, affected by his criminal record. Those with criminal records are less likely to be given employment opportunities.

(i) General damages

210 I have already outlined the injuries sustained by the plaintiff in the assault. These injuries have been variously described in a number of medical reports. Dr Parkinson, the Acting Medical Superintendent of the Albury Hospital, reported the results of X-rays taken at Wagga Wagga as showing:

· compound fracture of the right cheek bone with some facial nerve paraesthesia;

· compound fracture of the right jaw bone;

· fracture of the neck of the right ulnar bone;

· fracture of the neck of the right fourth metacarpal bone;

· fracture of the lateral wall of the right orbit (eye socket);

· bruising, without fractures, to knees;

· lacerations to the soles of the feet.

Dr Hennessy operated on 9 February.

211 The plaintiff recalled that, during the assault, he was in fear of his life.

212 The plaintiff described his condition. He said that his cheek and jaw was swollen, and painful. His right arm was in a plaster cast. He had trouble with his eyesight, from double vision (confirmed by Dr Hennessy). (The plaintiff had already given evidence that he had previously suffered from that condition.)

213 After his discharge, the pain to his face continued, as did the double vision. His knees ached and he said he could hardly walk. After his arrest on 28 March, the plaintiff spent about two weeks in custody in Junee gaol, before being able to meet the bail conditions imposed. During this time both knees, his right arm, and his face continued to cause considerable pain.

214 In July 2003 the plaintiff was admitted to Gissing House. Gissing House is a psychiatric ward of the Wagga Wagga Base Hospital. The plaintiff explained this admission by saying:

“I was struggling with what had happened on 6 February and it was really hard for me to deal with what happened.”

215 Since that date he has been a patient in Gissing House, both voluntarily and involuntarily.

216 He has nightmares.

217 A vast amount of documentation concerning the plaintiff’s medical (including psychiatric) history was put before me. However, as any claim for damages for psychiatric injury was abandoned, it is unnecessary to go into that. Like his criminal history, his medical and psychiatric history is relevant in the assessment of loss of earnings attributable to the assault.

218 It is relevant to take into account the fear he experienced during the encounter with Constable Jackson, and the nightmares he continues to experience.

219 I will deal as briefly as possible with the medical reports, prepared for the purpose of the litigation. Mr Graeme Wright is an oral and maxillofacial surgeon who was consulted by the plaintiff on 14 July 2003, and again on 19 April 2004. Mr Wright recorded, following the later consultation, that the plaintiff was concerned about the change in his facial appearance, with his face now “sunken in”. Mr Wright did not express an opinion about this, but did not suggest that the plaintiff’s description was inapt. He did record “dorsal deviation” of the nose, and flattening over the right cheek. Mr Wright was of the opinion that the plaintiff would have no improvement with his facial appearance unless surgery were undertaken.

220 Dr Clayton Barnes is an eye physician and surgeon, who had treated the plaintiff on a number of occasions prior to February 2003, and saw him again on 14 November 2003, on referral by Mr Wright. Dr Barnes thought that most of the problems concerning his eye of which the plaintiff complained existed prior to February 2003, other than a sunken right eye, some facial scars around the right eye and right facial numbness. He indicated that he did not consider further surgery appropriate, and stated that Mr Wright had told him, in November 2003, that he was not contemplating further surgery. Dr Barnes reported again in December 2006, and expressly recommended against further surgery.

221 Dr Edgar de Burgh Norman is a consultant maxillofacial surgeon. He reported on 10 December 2006 at considerable length. He agreed that further surgery was not indicated. He provided assessments of impairment as follows:

“0.5% Whole Person Impairment, facial scarring ...

6% Whole Person Impairment, facial deformity and as a consequence of 2 – 3 mm depression of the right zygomatic corpus or body ...

5% Whole Person Impairment, infraorbital trigeminal sensory neuropathy with pain ...”

222 Dr James Lance is a consultant neurologist who reported on 19 October 2006. He considered that the plaintiff’s earning capacity is now restricted to 20 to 30 hours per week with resultant loss of earning capacity. This report is not otherwise of very much assistance.

223 Dr Richard Honner is a specialist in the hand and upper limb. He carried out a detailed examination of the plaintiff on 18 October 2006, for medico legal purposes. He gave an opinion of permanent disability of 10% loss of function of the right arm, a further 10% loss of the lumbar spine and a further 8% loss of the right leg.

224 I note that no other medical practitioner included reference to any spinal disability resulting from the assault and I put that to one side. Dr Honner thought that the plaintiff’s ongoing pain will be permanent, causing significant loss of enjoyment of life. However, I note that he recorded that the plaintiff had been hospitalised for “some seven or eight weeks” at the Albury Hospital. This is a considerable exaggeration of the time actually spent in hospital by the plaintiff.

225 The medical reports are not easy to digest, possibly because the medical practitioners found the plaintiff as difficult to interview as counsel found him to examine and cross-examine. Nevertheless, a picture emerges. The plaintiff undoubtedly suffered a significant injury to the face, to the arms, and to the legs, as a result of which he has experienced significant pain and will continue to do so.

226 Counsel for the plaintiff proposed an appropriate sum by way of an award of general damages of $90,000; counsel for the defendant proposed $50,000 as a more realistic assessment.

227 Not surprisingly, the correct figure lies somewhere in between the two proposals. I propose to award the plaintiff $65,000 by way of general damages. He is entitled to interest on the amount, which is to be calculated by the parties.

(ii) Economic loss

228 Whether by reason of his criminal record or otherwise, that the plaintiff has difficulty obtaining and maintaining employment is demonstrated by his work history. His employment has always been sporadic. He left school at the age of 15, and began working (as had his father) in market gardens. His initial employment was part-time. He then moved to working in shearing sheds, as a roustabout, or shedhand. He continued doing this kind of work, in various locations, for some years, working for six to seven months of the year. He then worked mixing chemicals for a crop dusting operation. This, too, was seasonal work. He returned to market gardens, again working part-time. There were periods of unemployment.

229 At 17 he had his first encounter with the criminal law, and was placed on probation for 12 months. In May 1995 he was employed by Pays Air Services, and playing rugby league. He suffered a neck injury whilst playing football, the symptoms of which continued for some time. Despite extensive investigation, there appears to have been no organic explanation for the symptoms.

230 He spent a period in a rehabilitation unit, after which he noticed significant improvement.

231 In 1999 he was assaulted by a nephew and suffered injury to his eye, nose and jaw. He spent some time in the Wagga Wagga Base Hospital, and then the Albury Hospital, where he was treated by Dr Hennessy.

232 Following the 1995 football injury, the plaintiff had several years of unemployment. In 2000 he moved to Sydney where he had labouring work. After a few months in Sydney he returned to the country and lived in Hay. He had some employment but injured his ankle, as a result of which he was unable to work for a period. He underwent surgery on the ankle, moved to Wagga Wagga, and looked, unsuccessfully at first, for employment. He appears to have obtained employment in late October 2003, in a wood yard. He found the work difficult because it caused pain in his legs and arm. He remained in that employment for a few weeks.

233 In these circumstances, it is hardly surprising that no wage figures were put before me. I have not overlooked the plaintiff’s history of drug use.

234 On behalf of the plaintiff, counsel conceded that, at the time of the assault he was not in employment and had not been for some time. The evidence does not disclose for how long. Counsel also conceded that they could

point to no period of unemployment solely referrable to the effects of the assault.

235 On the basis of these concessions, counsel for the defendant argued that no allowance for loss of earning capacity ought to be made. However, that overlooks that the award is for loss of earning capacity and, even having regard to the various complications I have mentioned, there can be no doubt that such earning capacity as the plaintiff had in February 2003 is diminished by reason of his ongoing physical condition. That is evidenced by the difficulty he has had doing the work he has been able to obtain since the injury.

236 The plaintiff was 39 years of age at the time of the injury, and is 45 now. It is unlikely that, absent the injury, his earning capacity would have yielded anything regular or significant.

237 Counsel for the plaintiff argued for an amount of $50,000, including a small allowance for the past and for lost superannuation entitlements.

238 That is the sum I might have allowed had the plaintiff been considerably younger than he now is, but, it seems to me, that, given his unemployed status at the time of the injury, and the unlikelihood of any major change in his pattern of living, that is too high. I will allow $30,000.

(iii) Out of pocket expenses

239 Out of pocket expenses are agreed at $4,335 and will be allowed.

Malicious prosecution

General Damages

240 The plaintiff is entitled to damages for the malicious prosecution of the two knife charges. In their submissions, counsel for the plaintiff proposed the sum of $7,500. This proposal took into account also the charge of assault, which I have found has not been shown to have been maliciously brought. That, however, makes not a great deal of difference. Counsel for the defendant proposed no more than $5,000.

241 It must be borne in mind that the plaintiff was initially charged on 28 March 2003. He was acquitted on 24 March 2004. He was two weeks in custody before being able to meet his bail conditions. The assessment of damages in that respect is complicated by there being no way of determining whether, if he had been charged only with the assault and resist charges, bail conditions of the same stringency would have been imposed. Certainly, while charges of assaulting a police officer in the execution of his duty are serious, the charges of stealing and possession of the knife were substantially more so. Moreover I am aware that he was charged at court while he was attending for other reasons. The plaintiff gave evidence that he believed, and correctly, that, if convicted of those charges, he was in real danger of going to gaol for a significant period of time. That fear lingered for the twelve months between charge and acquittal. It is in this respect I note that, in cross-examination, the plaintiff claimed that he had not been told that he was charged with anything to do with a knife; he said:

“That was all a hush hush thing.”

242 I do not place much weight on this last observation: I very much doubt that the plaintiff was taken to the police station and charged, without being advised of the nature of the charges. I do, however, think it likely that he did not fully absorb what was being put to him.

243 In any event, he was well aware that he was facing serious charges, with, if convicted, the distinct possibility, if not probability, of a term of imprisonment.

244 I bear in mind that he is not entitled to any damages for the prosecution of the charge of assault, even though he was ultimately acquitted of that. And I bear in mind that he was also charged with the series of offences to which he entered pleas of guilty. It is necessary to attempt to disentangle the effects of the two knife charges from the effects of the charges properly brought. I do not think the proposed sum of $7,500 is unreasonable in the circumstances and I propose to allow that amount.

Exemplary damages

245 That, in an appropriate case, exemplary damages may be awarded, is clear and is not disputed: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; 155 CLR 448; Lamb v Cotogno [1987] HCA 47; 164 CLR 1; Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1.

246 Nor was it in contest that this is an appropriate case for an award of exemplary damages. It was expressly conceded on behalf of the defendant that, if Constable Jackson is found (as he has been) to have assaulted the plaintiff, the plaintiff is entitled to an award of exemplary damages. As I read the submissions made on behalf of the defendant (although it is not so clearly expressed) the concession extends for the finding that the prosecution of the plaintiff on the two offensive weapon charges by Detective Briggs was malicious.

247 Nor was any argument put that, because the proceedings are not brought against the actual tortfeasors, the quantification ought in any way to be modified. This was, in the light of the decisions in Lamb and Gray, a correct approach. What is in issue between the parties is the quantum of damages which ought to be awarded under this head.

248 Quantification of exemplary damages calls for an examination of the purposes for which such damages are awarded. The purpose is three fold. It is to punish the wrongdoer, to deter the wrongdoer and others from engaging in such conduct again, and to assuage, in the plaintiff, any urge for revenge and to discourage any temptation to engage in self help likely to endanger the peace (Lamb, p9).

249 Interestingly enough, and perhaps not surprisingly, the explanations given of the purposes and quantification of awards of exemplary damages often echo the language of the criminal law in sentencing, particularly in respect to what is, in sentencing principle, called general deterrence and specific deterrence. In that context, it might be thought that the fact that it is not the tortfeasors themselves who will be called upon to make the payments is of some relevance. But that would be to take too narrow a view. That it will be the tortfeasors’ ultimate employer who will bear the cost may act as an incentive to it to implement measures designed to ensure adherence to proper standards of behaviour. And there can be few more important objectives than the maintenance and enforcement of integrity and proper standards in the Police Service.

250 Both parties approached the issue on the basis that separate awards would be made in respect of each of the torts I have found to have been committed. In respect of the assault, the plaintiff proposes that a sum of $150,000 is the correct award, and, in respect of the malicious prosecution, a sum not less than $50,000.

251 On behalf of the defendant it was proposed that, in respect of the assault, a sum of $100,000 would be adequate, and in respect of the malicious prosecution, the sum of $20,000.

252 On behalf of the defendant it was argued that exaggeration by the plaintiff as to the nature and extent of the assault is a relevant consideration. I reject that. The quantification for exemplary damages is to be made by reference to what I have found occurred. It is not possible to be definitive about the number of blows struck by Constable Jackson, but, on the findings I have made, it is quite plain that he used excessive and unnecessary force in striking the plaintiff to the head with his baton. I do, however, take into account that this was an unpremeditated assault, that took place in the heat of a chase of a suspected person, although one who could not have been thought to be dangerous. I also take into account what I was able to observe when the witnesses gave their evidence; Constable Jackson is a tall, fit, well built young man; the plaintiff is of a much smaller build. He also was already suffering some degree of injury from what had occurred to him during the course of the pursuit.

253 In respect of the assault I consider that the figure proposed on behalf of the defendant properly reflects the nature of the assault, and meets all objectives of the award of exemplary damages. I propose to award $100,000.

254 On my opinion, the malicious prosecution calls for a greater degree of denunciation and deterrence. It calls for a greater degree of denunciation because, unlike the assault, it was a considered and deliberate cause of action, and was perpetuated over a twelve-month period. It calls for a greater degree of deterrence because the misuse and abuse of police power to bring criminal proceedings is something that other police officers ought to be aware will not be tolerated. Certainly, I am satisfied that an award of $20,000, as proposed on behalf of the defendant, would be manifestly inadequate to meet the objective. Indeed, not withstanding the submission made on behalf of the plaintiff, the sum of $50,000 is inadequate for that purpose. I propose to award $100,000.

255 It will be necessary for the parties to reduce the findings and conclusions expressed herein, and the awards I have foreshadowed, to writing, and bring in proposed short minutes of order.

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LAST UPDATED:
23 April 2009