Civil

Wilson v State of NSW [2009] NSWDC

On Wednesday, 25 February 2004, two sheriff’s officers, Mr Davies and Ms Lomas entered the home of Mr and Mrs Wilson at Leonay with a property seizure order relating to unpaid traffic fines owed by Mr Wilson to the State. A conversation occurred between the officers and the Wilsons through a screen door and then an incident occurred in which the Wilsons alleged that Officer Davies assaulted Mr Wilson by kicking the screen door into his face and the Sheriff’s officers failed to leave the premises notwithstanding a clear instruction by Mr Wilson to go. The Sheriff’s officers claimed that Mr Wilson charged out the door and assaulted Officer Davies who then placed Mr Wilson under arrest. Mr Wilson then locked himself inside of the house and the officers left the premises.

The officers went to the street where the police were called. They observed Mr Wilson to emerge from the house and get into his car in the driveway. Officer Davies entered the premises onto the driveway and removed the keys from the car. A physical altercation occurred between the two men during which Officer Lomas came onto the premises and sprayed Mr Wilson with capsicum spray. There was conflict as to what occurred. The Sheriff’s officers claimed that after Officer Davies took the car keys Mr Wilson punched him and then got out and launched a sustained attack on him against which he was forced to defend himself. Mr Wilson claims that he only used such force by way of response as was reasonably required in the circumstances.

Police Officers, sheriff officers and ambulance officers then arrived. Officer Davies and Mr Wilson were taken to hospital in separate ambulances. The sheriff’s officers went into the house and seized and took away certain goods pursuant to the Property Seizure Order. Mrs Wilson claimed that these officers entered the house without her permission.

On Thursday 26 February 2004, Mrs Wilson paid the outstanding traffic fines but was unsuccessful in her attempt to recover the goods from the Sheriff’s Department.

Two days later on Saturday 28 February 2004 Mr and Mrs Wilson attended at the Penrith Police Station where Senior Constable Janovsky and another police officer interviewed Mr Wilson by way of an ERISP. Mr Wilson claimed that soon after his arrival at the station he was arrested and detained in custody for 4 hours and 20 minutes.

Three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson alleging that he assaulted Officer Davies on 25 February 2004. Janovsky pursued and maintained the prosecution notwithstanding a letter from Mr Wilson’s solicitors dated 9 September 2004 seeking withdrawal of the charges. The charges were ultimately heard in the Local Court but were dismissed on 9 November 2004.

Mr Wilson claimed substantial damages including exemplary and punitive damages.

The issue of trespass on initial entry

Judge Johnstone considered the well known authorities of Halliday v Neville (1984) 155 CLR 1 at 6-9 and Lipman v Clendinnen (1932) 46 CLR 550 at 557-8. The defendant’s case was that the Sheriff’s officers had lawfully entered the premises pursuant to a licence implied by law. The plaintiff’s case was that if the permission or licence to enter premises was withdrawn and the entrant then remains on the premises for an unreasonable time, the entry becomes a trespasser: Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605.

Johnstone DCJ held that the licence pursuant to which the officers were on the verandah was never withdrawn. Mrs Wilson did not ask the officer’s to leave and at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence. His Honour was comfortably satisfied that Mr Wilson’s immediate and sudden attack left the officer’s no time to withdraw and as such, the Sheriff’s officers did not commit a trespass.

The issue of estoppel

The plaintiff contended that the defendant was estopped from denying that Officers Davies and Lomas were trespassing during the initial entry. This arose from the initial finding by the Magistrate against the plaintiff to the effect that Davies and Lomas were trespassers from the moment they entered the premises.

Johnstone DCJ found that the parties in both sets of proceedings were not identical. His Honour found that there were no allegations in respect of the cause of action against the Crown and the right of the State of New South Wales arising from the actions of Officers Davies and Lomas. Further, that the doctrine of issue estoppel is not applicable to criminal proceedings: R v Storey [1978] HCA 42 at 39; Rogers v The Queen [1994] HCA 42 at 1.

Did Officer Davies assault Mr Wilson during the initial entry?

His Honour was comfortably satisfied that Mr Wilson assaulted Officer Davies in a manner totally disproportionate to the circumstances that arose and as a result of which Officer Davies was entitled to arrest Mr Wilson immediately after the offence.

The second entry by Davies and Lomas

His Honour found that whilst waiting at the car for the arrival of the police, Davies and Lomas saw the plaintiff exiting the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. Davies called out “Sir, stay where you are you’re under arrest. The Police are on their way.” The plaintiff however proceeded to the car, got in the driver’s seat, placed the keys in the ignition and started the engine. Davies went up to the driver’s door and said, “Stop.” The plaintiff replied “Fuck you”. Davies reached into the car, grabbed the keys, turned the motor off and pulled the keys out and placed them in his pocket. He told the plaintiff that he was under arrest. At this stage, the plaintiff punched Davies in the chest striking him on the left side and knocking him off balance. Lomas moved out of the driveway and moved towards him. She observed the plaintiff to emerge from the car and scream “I’m not under fucking arrest”. Davies moved towards the rear of the car whereupon the plaintiff charged him and punched him on the left cheek, his head jerked back and his upper body turned to the left but he did not fall over. The plaintiff then struck him with a series of further punches to the head and body. Davies managed to grab the plaintiff’s arms and smother his punches and the two struggles for several minutes. Davies punched the plaintiff on the chin and pushed him to the side of the car. The plaintiff kept struggling and trying to punch Davies. Lomas got out her OC spray and sprayed the plaintiff.

Johnstone DCJ found that the second entry by Davies onto the driveway did not constitute a trespass.

The defendant’s contention that Davies and Lomas were entitled to re-enter the land and seize the car keys to prevent the plaintiff from driving onto a public road relied upon the High Court decision of Gorrin v Nugent [1988] HCA 59 per Brennan J at 16. This contention was upheld by Johnstone DCJ.

Did Davies assault the plaintiff during the second entry?

His Honour found that the plaintiff was wrongfully detained and falsely imprisoned when Davies removed the keys from the car. However, that detention was limited to the plaintiff’s driving of the car. That detention was of an extremely short duration until Davies punched the plaintiff, being an excessive response totally disproportionate to the removal of the keys when he arrested Mr Wilson in the car.

Did Davies wrongfully arrest the Plaintiff during the second entry?

Johnstone DCJ found that the Plaintiff’s response was unreasonable and totally disproportionate in the circumstances. He was under no physical threat; his personal safety was not threatened. The plaintiff did not even get out of the car before he punched Davies. His Honour found that the response of the plaintiff justified Davies in defending himself. Thus, the arrest of the Plaintiff during the second entry was not wrongful.

The seizure of the plaintiff’s goods

Johnstone DCJ found that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 to 16 March 2004. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. His Honour found that neither the plaintiff nor his wife revoked the original licence. The other Sheriff’s officers who entered the property were entitled to go onto the plaintiff’s property for the legitimate purpose of executions of a Property Seizure Order and to make enquiries of the plaintiff’s wife. This was particularly so when the plaintiff denied ownership of the contents of the house.

Events at Penrith Police Station

Johnstone DCJ found that Senior Constable Janovsky did not wrongfully arrest the plaintiff at Penrith Police Station on the evening of Saturday 28 February 2004. His Honour found that the Custody Management Record was a totally unreliable record. His Honour found that the plaintiff attended the Penrith Police Station of his own free will. He was never told he was under arrest. In this regard, the lawyers who drafted the original defence admitted the arrest. Johnstone DCJ allowed the admission to be withdrawn.

Johnstone DCJ came to the view that the Custody Management Record was a totally unreliable record.

His Honour despite the use of the word “arrest” as used by Inspector Bisset when questioning Senior Constable Janovsky to that of Inspector Bisset.

Did Senior Constable Janovsky prosecute Mr Wilson maliciously?

Johnstone DCJ considered A v New South Wales [2007] HCA 10 and Hathaway v State of New South Wales [2009] NSWSC 116.

Johnstone DCJ referred to the state of mind of Senior Constable Janovsky that he Janovsky preferred the version of the Sheriff’s officers than that of the plaintiff. As such, his Honour found that Janovsky formed the honest belief that the officers were lawfully upon the premises and, as such, justifying the prosecution. His Honour rejected the proposition that the proceedings were instigated for the improper purpose of satisfying the will of the Sheriff’s office. Also, his Honour rejected the proposition that the proceedings were instituted to discourage the plaintiff from bringing proceedings against him or the Sheriff’s officers.

Did Officers Davies and Lomas maliciously prosecute Mr Wilson?

Johnstone DCJ found that Davies and Lomas did not maliciously prosecute the Plaintiff as neither Davies nor Lomas were prosecutors.

Section 52 and 54 Civil Liability Act 2002 (NSW)

The defendant relied upon the provisions of ss. 52 and 54 of the Civil Liability Act. The defendant relied upon the plaintiff’s “aggressive, excessive and violent” conduct in response to Officers Davies and Lomas.

The plaintiff contended that these sections have no application because the defendant failed to satisfy the Court that any act of physical force employed by the plaintiff to which Davies and Lomas were responding at any time constituted an action for assault, were more than a necessary consequence of their own condition and behaviour.

Johnstone DCJ found that the defendant was entitled to protection provided for in s52 in respect of the allegations of assault and battery in the plaintiff’s second further amended statement of claim.

Disposition

The matter was adjourned for written submissions in light of his Honour’s findings and in particular as to s54, damages and costs.

On 31 July 2009 Judge Johnstone of the District Court delivered reasons for judgment as to damages arising from his Honour’s judgment on liability handed down 30 April 2009.

His Honour at [24] found that the Plaintiff had not proven any psychological condition suffered by him was caused or materially contributed to by any torturous conduct for which the defendant was responsible.

As such, his Honour made no award of damages to the plaintiff by way of compensation for any injury, loss or damage including any special damages, any damages for loss of earning capacity and any damages for pain and suffering or loss of enjoyment of life in respect of any physical or psychological consequences of the torturous conduct which his Honour found occurred.

His Honour then considered s.54 of the Civil Liability Act upon which the Defendant relied in answer to the whole of the Plaintiff’s claim.

  1. A Court is not to award damages in respect of liability to which this Part applies if the Court is satisfied that:
    1. the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
    2. that conduct contributed materially to the death, jury or damage or to the risk of death, injury or damage.
  2. This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
  3. A “serious offence” is an offence punishable by imprisonment for 6 months or more.
  4. This section does not affect the operation of the Felons (Civil Proceedings) Act 1981.
  5. This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned.

His Honour observed that s.54 of the Act does not concern the liability of the defendant but is directed against an award of damages rather than the existence of a liability. It is for the defendant to establish the matters in the sub paragraphs of s.54(1). Evidential Security Services of Australia v Brilley [2008] NSWCA 204 at [124].

His Honour found at [31] that the evidence was insufficient for the Court to be satisfied what matters materially contributed to the plaintiff’s injury or damage let alone that his conduct did so, and if so, what the conduct was, when it occurred and whether it constituted a serious offence. See Fangak v Baxter [2000] NSWCA 264 at [84].

Ex-turpi causa non actio

The defendant contended that the plaintiff was disentitled for recovery of any damages by reasonable operation of the principle of ex-turpi causa non actio, such that his own lawful conduct precludes recovery. This contention relied upon a number of findings of His Honour as to liability.

His Honour observed that the principle of ex-turpi causa non actio was never pleaded. The defendant contended that it was not required to plead reliance upon the principle. His Honour observed that whether or not it should have been pleaded, clearly the plaintiff could not complain that he was taken by surprise.

His Honour observed at [35] it could not have been an intentional parliament to replace the common law principles in the area and as such s.54 of the Civil Liability Act did not replace the doctrine.

The defendant relied upon the assault of Officer Davies by the plaintiff on his verandah and his subsequent resistance and avoidance of the attempted arrest by Officer Davies in giving rise to the precise conduct relied upon. That is the only unlawful conduct on the plaintiff’s part that preceded the torturous conduct of Officer Davies in the second entry onto the plaintiff’s premises.

His Honour at [40] found that the conduct of the plaintiff on the verandah was sufficiently serious or sufficiently proximate to the torturous conduct of Officer Davies in the driveway to preclude the recovery of damages.

His Honour awarded the plaintiff general damages of $15,000. His Honour also awarded the Defendant to pay the Plaintiff’s costs on an indemnity basis.

Hage-Ali v State of NSW [2009] NSWDC 266

At 7.15am on 22 November 2006 Iktimal Hage-Ali was arrested at her family home at Punchbowl. She was then 22 years of age. She was arrested allegedly on suspicion of supplying cocaine.

She was transported to Bankstown Police Station where she arrived at approximately 7.35am. She was interviewed from 9.00am onwards. She was released at 10.39am and was not charged.

Ms Hage-Ali asserted that her arrest was unlawful and her subsequent imprisonment false. If the arrest was unlawful, it followed that the imprisonment was false. The basis of the assertion of the unlawfulness of the arrest was that it was non-compliant with the mandatory requirements of s.99 Law Enforcement (Powers & Responsibility) Act, 2001 (NSW).

Ms Hage-Ali asserted that the events surrounding her arrest and detention represented aggravating circumstances of the wrongful arrest and false imprisonment. She claimed compensatory (including aggravated) and exemplary damages arising from her arrest and imprisonment. She was successful in receiving an award of damages of $18,705 on 14 October 2009 after an 18 day trial.

In the period between August/November 2006 Ms Hage Ali purchased or received on credit small amounts of cocaine (either 0.5 or 1 gram) from Mr B. Her purchases in the period were recorded by telephone intercepts undertaken by police on the mobile phone of Mr B. These intercepts were obtained during the course of the operation of Strike Force Kirban which was established in July 2006 within the Middle Eastern Organised Crime Squad. The principal police officers working with the strike force were Detective Sergeant Patton and Detectives Phillips and Dale.

The strike force simultaneously arrested and executed search warrants on three persons, Mr B, Mr K and Mr D. Ms Hage-Ali was arrested at the same time without a warrant. An authorised officer declined to issue two search warrants including one in respect of Ms Hage-Ali.

The practices of Detective Phillips led to the unfounded assertion in the search warrant application for Ms Hage-Ali and the association between her and an unlicensed firearm. The State accepted that this was an error derived from the cutting and pasting of the same contents between the search warrants.

Between 6.00am and 7.00am on 27 November 2006, a meeting took place involving the participation of a large number of police officers charged with the responsibility of executing search warrants, arresting persons of interest and other associated tasks connected to the operational orders. Inspector Patton was the only person to address the meeting. He stated that all persons of interest were to be arrested.

Detective Phillips believed that the order had not been made that persons were to be arrested, the proposed arresting officers would proceed to do so rather than applying their own mind as to whether they should do so. Detective Dale and Sergeant Dyson followed what was a direction to arrest by Detective Patton.

Four police officers attended Hage-Ali’s residence. She was asleep when the officers arrived and she was arrested. She was transported to Bankstown Police Station. She was met by Inspector Patton and Detective Phillips at around 7.45am. Inspector Patton made a large number of phone calls before the commencement of the voluntary interview with her at 9.00am. Various discussions were had between the officers and Ms Hage-Ali including about her pending employment with the Attorney-General’s Department.

A recorded interview took place which lasted one hour in which Ms Hage-Ali participated with Inspector Patton and Detective Phillips. No lawyer was present. Ms Hage-Ali admitted cocaine use but denied supply. Her denial was accepted and no charges were laid.

Ms Hage-Ali was released at 10.39am. She reported her arrest to her employer, the New South Wales Attorney-General’s Department. Ms Hage-Ali asserted that Inspector Patton had leaked her arrest based on some peculiar behaviour of his towards the end of the interview. This formed part of a sustained attack by Ms Hage-Ali on the credit of Inspector Patton.

Ms Hage-Ali saw Mr Talbot from the Deputy Director General of the NSW Attorney-General’s Department later in the day and detailed mistreatment at the hand of police whilst in detention. She left Australia on 17 December 2006 and has not returned to Australia to live.

Judgment on liability

The State bore the onus of proving the lawfulness of the arrest. Zaravinos v State of New South Wales; State of New South Wales & Anor v Zaravinos (2004) 62 NSWLR 58 at [12]. It was common ground that the State required factual findings in its favour to succeed in its defence by reference of the requirements set out in s.99(3) of LEPRA. The necessary factual findings for the State to succeed in its defence were that the two arresting officers, Detective Dale and Sergeant Dyson:

a) turned their mind to whether it was necessary to arrest Ms Hage-Ali;

b) had the requisite suspicion to justify the arrest for any of the reasons specified under s.99(3); and

c) whether the suspicion, if held at all, was based on reasonable grounds.

His Honour Judge Elkain SC did not make any of the necessary factual findings in favour of the State. The State failed to prove its case. He found that Detective Dale and Sergeant Dyson did not have the requisite suspicion as required by s.99(3) and if they did, any such suspicion was not reasonably held; judgment at paras [205],[206],[210] and [211]. The suspicion was not held because they did not turn their minds to whether they needed to arrest Ms Hage-Ali; judgment at [168(b)].

Wilson v State of NSW [2008] NSWDC 130

In this matter Greg Walsh acted for David Wilson, the plaintiff in an action against the State of New South Wales.

A subpoena had been issued seeking the production of documents from the Commissioner of Police and objection was taken to the production of those documents.

Mr Wilson had sued the State of New South Wales for wrongful acts alleged against certain Sheriff officers in its service. The plaintiff claimed damages for trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue.

Complaints were made as to the conduct of the officers involved which became the subject of various investigations and other inquiries by a number of authorities including the New South Wales Ombudsman of a disciplinary nature. The subpoena sought the production of documents brought into existence as a result of these complaints and their consequences, which the defendant resisted relying on s.170 of the Police Act,1990; s.56 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005.

On 31 January 2008, Walmsley J ordered the defendant give discovery of certain disputed categories of arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents. The defendant prepared a list of documents in which it discovered a significant number of documents. No objection was made to a number of those documents.

Johnstone DCJ referred to the observations of Hunt J in R v Saleam (1989) 16 NSWLR 14. His Honour observed at [162B]:

“The circumstances that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12-13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence.

That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form.”

The State asserted the principle in R v Saleam did not apply to s.170 of the Police Act. It was submitted that s.170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act, 2005. Johnstone DCJ observed:

“That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.”

The next contention on behalf of the defendant was that the word ‘privilege’, which appears in the heading to s.170, must be given some work to do. His Honour rejected this contention. See s.35(4) of the Interpretation Act.

The defendant then contended that the disputed category 2 documents were not relevant to any civil proceedings His Honour said that this was also a bold submission.

Next the defendant contended that the plaintiff had not established a legitimate forensic purpose. His Honour found that it was probable that the documents will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. Further, that the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses. Further, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses. See Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385F.

Finally the defendant contended that the Court should refuse the inspection as to do so would run contrary to the overriding purpose enunciated in s.56 of the Civil Procedure Act 2005, to the effect that the procedures of the Court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The defendant relied upon the observations of the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]. His Honour noted that the remarks of the Chief Justice were not in relation to s.58 of the Act and that the Court must act in accordance with the dictates of justice. Those dictates not only require him to have regard to the object of the just determination of the proceedings (s57(1)), but to enable him to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order that he may make (s58(2)(b)(vi)).

His Honour made the orders sought by the plaintiff in the motion.

Turner v State of NSW & Anor [2007] NSWSC 1081

In this matter Greg Walsh acted for the plaintiff in proceedings against the State of New South Wales and the Director of Public Prosecutions. On 31 January 2000 the plaintiff was sexually assaulted by another police officer and she made a complaint to the police and that police officer was charged with her sexual assault. The offender was tried on three occasions and ultimately acquitted. Over the next four and a half years the plaintiff was the subject of multiple prosecutions initiated by the New South Wales police including an apprehended violence order proceedings. The prosecutions against her failed.

The plaintiff filed a statement of claim in which she sought damages for wrongful arrest and malicious prosecution. The State of New South Wales sought particulars and over a number of years further amended statements of claim were filed together with further requests and answers to particulars. On 25 January 2007 a further request for particulars was made by the Crown Solicitor’s Office requiring approximately 200 responses. They were provided on 15 March 2007.

The State of New South Wales filed a notice of motion seeking to strike out the amended statement of claim on the basis that matters pleaded are objectionable because they have a tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise an abuse of process of the Court occurs; see Rule 14.28(1)(b) and (c) of the Uniform Procedure Rules.

Harrison J reviewed authorities in relation to the issue of particulars. His Honour referred to Hunt J in Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126 at 133 where his Honour observed:

“Their function is to simply relieve the other party if they need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded.”

His Honour also referred to A v New South Wales [2007] HCA 10 in which the High Court of Australia dealt with the question of what the plaintiff needs to prove to establish absence of reasonable probably cause. Harrison J referred to the observation of Hawkins J in Hicks v Faulkner at [85]:

“Because the question in any particular case is ultimately one of fact, little use for guidance is to be had from decisions and other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiries should have been made.”

Harrison J held that this was not a case in which any portion of the Amended Statement of Claim should be struck out. The defendant’s consented to the filing of a fifth edition of the statement of claim. His Honour nevertheless ordered certain particulars to be provided.

McCrae V The Boy Scout Association of NSW & Potter (NSWDC 13 SEPTEMBER 2007)

In this matter Greg Walsh acted for Xavier McCrae, a former boy scout who was sexually abused by one Robert Potter, a Scout Leader. Potter pleaded guilty to sexually assaulting four young male complainants including Mr McCrae between 1978 and 2002.

Greg Walsh commenced proceedings on behalf of Mr McCrae claiming damages for assault against Mr Potter and damages for negligence against the Boy Scout Association. The Association eventually admitted breach of its duty of care. Damages against the association were assessed pursuant to the Civil Liability Act 2002.

Xavier McCrae initially attended at Kyle Bay Scout Hall where he was given, together with other young scouts, a firearm demonstration by Potter. Potter encouraged McCrae and others in the Venture Group to meet him at his house in Narwee. At the first meeting at Potter’s house, Mr McCrae was taken to a pistol club in Condell Park. Over the next three years, Potter encouraged Mr McCrae and other young scouts to come to his home where pornographic videos were shown including homosexual videos. Xavier and others were subjected to a number of forms of sexual views which continued right to 2002.

Potter was not only a paedophile but also a hebophile, that is, an adult who has a strong sexual and emotional attraction to adolescents. The ages of such children are between 11 and 17 years of age. Hebophiles invariably display predatory behaviour in identifying troubled or withdrawn post-pubescent children. They often comfort and support vulnerable post-pubescent children and make the child dependent upon them.

The effect of the abuse upon Xavier McCrae was profound. Xavier was treated by Dr Sara Williams and Dr Ruth Forster. The latter had been providing regular psychotherapy since taking over his care in 2004. She diagnosed him as suffering a chronic dysthymic disorder.

Judge Peter Johnstone found that Xavier McCrae significantly understated his case and gave evidence in a forthright manner. His Honour noted the effects of self-mutilation on Xavier’s upper arms which clearly indicated the diverse effect of Potter’s abuse upon him. His Honour accepted Xavier McCrae as a witness of credit.

The Scout Association qualified Dr White who trivialised Xavier McCrae’s sexual abuse as the substantive stressor. Judge Johnstone observed “the opinion of Dr White is in my view flawed, objectively unsupportable and less than compelling.”

Apart from Dr Sara Williams, Dr Ruth Forster and Dr Parker, McCrae was examined by Dr John Roberts. His Honour noted that Dr Roberts spoke of the severity of the symptoms experience by Mr McCrae, including self-mutilation, down to the muscle of an intelligent young man and the appearance of normality but severely affected. His Honour Judge Johnstone found that Xavier McCrae suffered a severe and debilitated psychological condition as a result of the sexual abuse he experienced. His Honour awarded damages against the Scout Association in the sum of $501,941 and against Potter of $766,941. The award against Potter included exemplary damages of $100,000.

Maloney v New Zealand [2006]

In this matter Greg Walsh appeared for the applicants who had successfully resisted an application for extradition by New Zealand.

It was argued that costs were discretionary and notwithstanding the fact that the applicants had successfully resisted extradition, they were not entitled to their costs. Madgwick J observed that s43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide and unstructured discretion. His Honour referred to the decision in Latoudis v Casey (1990) 170 CLR 534 in which the High Court had considered the discretion in relation to the prosecution for a summary criminal offence where the Defendant had succeeded. The majority of the High Court had emphasised the compensatory nature of a costs order and the inadequacy, in a criminal law context, with the fact that the charge was laid in the public interest and that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant with a costs order; per Mason CJ at 544; Toohey J at 563 and McHugh J at 569.

Madgwick J ordered New Zealand to pay the applicant’s costs.

A v State of NSW & Ors (HCA) (6 and 7 September 2006)

In this matter Greg Walsh represented the appellant, A, following up on the grant of special leave on 10 February 2006.

The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, the second respondent’s employer (the first respondent) and another police officer. This followed the dismissal of two charges of homosexual intercourse against him under s78H of the Crimes Act 1900 (NSW). The trial judge found that the claim of malicious prosecution was established against the first and second respondents in respect of one charge only. (The first respondent’s liability was based upon its vicarious liability as the second respondent’s employer). His Honour however dismissed the rest of the appellant’s claims.

The appellant appealed against the dismissal of the other claim for malicious prosecution. He also appealed against the dismissal of the claims for false imprisonment, false arrest and abuse of process. The appellant further appealed against various components of the award of damages. The first and second respondent cross-appealed, seeking a verdict on both claims of malicious prosecution.

In determining whether the respondents had acted without reasonable and probable cause in laying the charges, the trial judge applied the test stated by Jordan CJ in Mitchell v John Heine & Son Ltd (“Mitchell”). At the outset of the appeal however, the Court raised the issue of whether Jordan CJ’s statement was contrary to those made by this Court in Sharp v Biggs (“Sharpe”) and Commonwealth Life Assurance Society Ltd v Brain. One of the main issues upon the appeal therefore was the identification of the proper test to apply in such cases.

On 2 September 2005 the Court of Appeal (Beazley JA, with whom Mason P and Pearlman JA agreed) held that an accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause to succeed in an action for malicious prosecution. They also found that a prosecutor will act without reasonable probable cause if they lacked an honest and reasonable belief that charging a person was justified. In reaching these conclusions their Honours followed Sharp as opposed to Mitchell. The Court of Appeal further held that a prosecutor will “honestly and reasonably believe” that charging a person is justified if the evidence would lead a person or ordinary caution and prudence to conclude that it was warranted. Their Honours held however that a prosecutor need not actually believe that an accused is guilty. It is sufficient that they honestly and reasonably believed that there was a proper case to put before a Court.

The Court of Appeal further held that malice will be proved if an accused can show that a prosecutor was motivated by spite, ill-will or by improper motives towards the accused. This could include succumbing to pressure from bureaucratic superiors to lay a charge. In this case however there were no improper motives.

The pressure to charge the appellant existed because there was a “prima facie case” against him.

The grounds of appeal include:

  • The Court of Appeal erred in determining the appeal and cross-appeal by formulating and applying an incorrect test for determining the absence of reasonable cause in a case of malicious prosecution.
  • The Court of Appeal erred in finding that the appellant had not established absence of reasonable and probably cause to lay the charge in respect of D.
  • The Court of Appeal erred in finding that a reasonable prosecutor, exercising ‘prudence and judgment’ would have been justified in laying the charge in respect of C
  • The Court of Appeal erred in finding that malice had not been established in respect of charging C and D.

On 21 March 2007 the High Court unanimously upheld the appeal by A, represented by Greg Walsh, in respect of his claim for malicious prosecution.

Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution the High Court held today.

A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12 and 10 year old step-sons, D and C, when they were aged 8 and 9 respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The Magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him.

A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros has told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation, Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from the Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C.

A appealed to the High Court which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominantly purpose of the prosecutor in brining the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probably cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probably cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.

A v State of NSW & Ors; Foros v A; State of NSW v A [2005] NSWCA 292

In this matter, Greg Walsh represented A in respect of proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the State of New South Wales and a police officer. The District Court had found for the plaintiff in respect of his claim for malicious prosecution, however the remainder of the plaintiff’s claims were dismissed.

In determining whether the respondents had acted without reasonable and probably cause in laying the charges, the trial Judge applied the test stated by Jordan CJ and Mitchell v John Hine and Son Ltd [1978] 38 SRNSW 466. The Court per Beazley JA (Mason, Pearlman AJA agreeing) held that:

i. To succeed in action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause; Sharp v Biggs (1932) 48 CLR 1;

ii. A prosecutor will act without reasonable and probably cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified. Sharp v Biggs (1932) 48 CLR 81; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (approved); Mitchell v John Hine & Son Ltd (1938) 38 SR (NSW) 466 not followed.

iii. A prosecutor will “honestly and reasonably believe” that the laying of a charge is justified where upon the material available to the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of the charge was warranted; Sharp v Biggs (1932) 48 CLR 81;

iv. A prosecutor need not believe that the accused was guilty of the offence charged in the sense than an accused will be convicted. It is sufficient that a prosecutor honesty and reasonably believed that upon the available evidence, there was a proper case to lay before the Court; Sharp v Biggs (1932) 48 CLR 81

v. It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.

vi. Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.

vii. Although there was pressure on the second respondent from his superiors it was pressure to lay the charge if there was a “prima facie” case.

viii. The second respondent believed, on the material he considered that the charges were warranted.

ix. Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused or improper motives, namely motives other than a desire to bring the accused to justice. Hicks v Faulkner (1878) 8 QB 167; Trobridge v Hardy (1955) 94 CLR 147; Glinski v McIver [1962] AC 726;

x. An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a “prima facie” case.

A has sought leave to appeal to the High Court of Australia.

A v State of NSW (NSWDC, Unreported, 3 February 2004)

In this matter Greg Walsh represented a successful plaintiff in an action for wrongful arrest, false imprisonment and malicious prosecution arising from charges that he had sexually assaulted his two step-sons. The charges against A were dismissed at a committal hearing and A was successful in his action against the State of New South Wales and the first defendant, a detective.

Zaravinos v State of NSW; State of NSW & Ors v Zaravinos [2004] NSWCA 320

In this matter, Greg Walsh represented Mr Zaravinos in respect of an action against the State of New South Wales for false arrest and false imprisonment. Mr Zaravinos had attended a police station by appointment for an interview and was arrested successfully by two police on different but related charges, interviewed, charged, fingerprinted, photographed, bailed and released. The prosecutions were after several adjournments discontinued. At first instance the District Court judge found no reasonable grounds for arrest, noting “the case has all the hallmarks of heavy handed and officious use of arbitrary power” and awarded the plaintiff damages.

An appeal was made by both parties to the New South Wales Court of Appeal and significant issues relating to the law of arrest was determined in Mr Zaravinos’ favour.

At paragraph 39, Bryson JA said:

“The time at which Mr Zaravinos was arrested, sooner after 5pm on a Saturday afternoon, was probably close to the nadir of availability of Magistrates and authorised Justices, and also of lawyers able to give advice to persons under arrest. Although authorised Justices are available at a small number of Courts on Sunday, there was really no rational prospect of Mr Zaravinos’ areests ending in anything other than his being granted police bail later that night; there was not imaginably reasons why, with his passport available to be surrendered, a Bail Sergeant would decide to keep him in custody until he could be taken before an authorised Justice on the following day, or Monday. The Trial Judge did not accept the contention that there was a “minor fear” that Mr Zaravinos might abscond but if there were, it was dealt with as fully as it reasonably could be when his passport was brought to the police station by 6pm. As the trial judge rejected the evidence given by Superintendent Jenkins and Ms Horan about their reasons for effecting arrests, conclusions to the effect that the arrests were heavy handed and officious uses of arbitrary power, and that arrests and detention were wrongful, were reasonably open to the Trial Judge and His Honour could hardly find otherwise”.

Suncorp Metway Limited v Scarf (2003) NSWCCA 185

In this matter Greg Walsh acted for the respondent in respect of a matter heard in the District Court and ultimately heard in the New South Wales Court of Criminal Appeal. The case involved a motor vehicle accident and a claim upon an insurance policy – where the term of the police refusing indemnity if, at the time of the event which gave rise to the loss, the motor vehicle was being driven by a person whose faculties were impaired or who was under the influence of alcohol – whether the insurer had established entitlement to refuse indemnity – difficulty of attracting appellate intervention where the trial judge comes to a conclusion in favour of party upon whom the burden of proof does not lie – where there is competing expert evidence – whether trial judge’s conclusions were based on credit where inconsistent with incontrovertibly established facts – whether insured made a fraudulent misrepresentation under s28(2) Insurance Contracts Act 1984 (Cth) – whether the insurer is obliged to pay interest in accordance with s57(2) of the Insurance Contracts Act – the appeal was dismissed and the amount awarded by the District Court Judge in the sum of $224,527.00 was not interfered with.

R v Clark (2003) NSWCCA 288

In this matter Greg Walsh represented the appellant, John Clark, in the New South Wales Court of Criminal Appeal. The appellant pleaded guilty to one count under s52A(3)(c) of the Crimes Act 1990 namely driving his motor vehicle in a manner dangerous to the public causing grievous bodily harm. Christie DCJ imposed a fixed term imprisonment of two (2) years to be served by way of periodic detention. No non-parole period was specified. The appeal was upheld and the Court consisting of Wood CJ, Simpson J and Adams J sentenced the appellant to a suspended sentence.