Court of Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

State of New South Wales v Zreika [2012] NSWCA 37

Hearing dates:

8 February 2012

Decision date:

14 March 2012

Before:

Macfarlan JA at 1;
Whealy JA at 2;
Sackville AJA at 3.

Decision:

1. Appeal allowed in relation to the award of exemplary damages, but otherwise dismissed.

2. Order 1 made on 15 July 2011 set aside.

3. The parties file agreed short minutes of order within 14 days, substituting for the judgment in the sum of $340,105, judgment for a sum consistent with the reasoning in this judgment (including adjustments to the calculations of interest).

4. If the parties cannot agree, the State file its short minutes of order within 14 days, together with brief written submissions in support.

5. The respondent file its short minutes within a further 14 days, together with brief written submissions in support.

6. The State pay 75 per cent of the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - unlawful arrest - whether finding of unlawful arrest justified - whether arresting officer had reasonable grounds for suspicions
DAMAGES - malicious prosecution - exemplary damages - whether award of exemplary damages justified - need to take into account award of compensatory and aggravated damages - quantum of exemplary damages

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002
Law Reform (Vicarious Liability) Act 1983

Cases Cited:

A v State of New South Wales [2007] HCA 10; 230 CLR 500
Adams v Kennedy (2000) 49 NSWLR 78
George v Rockett [1990] HCA 26; 170 CLR 104
Grey v Motor Accidents Commission [1998] HCA 70; 196 CLR 1
Hussien v Chong Fook Kam [1970] AC 942
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
New South Wales v Ibbett [2006] HCA 57; 229 CLR 638
New South Wales v Landini [2010] NSWCA 157
New South Wales v Radford [2010] NSWCA 276
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; 71 NSWLR 323
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Warren v Coombes [1979] HCA 9; 142 CLR 531
Woodley v Boyd [2001] NSWCA 35
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448

Category:

Principal judgment

Parties:

State of New South Wales (Appellant)
Haysam Zreika (Respondent)

Representation:

Counsel:
M.J Neil RFD QC and M. Hutchings (Appellant)
D.T Kennedy SC and T.J Boyd (Respondent)
Solicitors:
State Crown Solicitor (Appellant)
Kheir Lawyers (Respondent)

File Number(s):

2008/319779

Decision under appeal

Jurisdiction:

9101

Citation:

[2011] NSWDC 67

Date of Decision:

2011-07-15 00:00:00

Before:

Walmsley DCJ

File Number(s):

2008/319779

Judgment

1MACFARLAN JA: I agree with Sackville AJA.

2WHEALY JA: I agree with Sackville AJA.

3SACKVILLE AJA: This is an appeal from a judgment of a Judge of the District Court (Walmsley DCJ), awarding the respondent damages of $304,556 plus interest against the appellant (" the State "). The primary Judge found that the respondent had been unlawfully arrested and assaulted on 25 July 2006 and was thereafter the subject of a malicious prosecution. The damages awarded included compensatory, aggravated and exemplary damages.

4The respondent's arrest related to a shooting that took place late at night on 20 July 2006 at a home unit in Parramatta. The respondent was arrested at his place of work on 25 July 2006 and charged with shooting with intent to inflict grievous bodily harm, malicious wounding and common assault. He was taken into custody at the time of his arrest and remained in custody until granted bail, subject to stringent conditions, on 21 September 2006.

5The Director of Public Prosecutions withdrew the charges against the respondent on 25 January 2007 and the charges were formally dismissed on that day. It was common ground in the present proceedings that the respondent had nothing to do with the shooting.

6The trial occupied 13 hearing days. A large number of witnesses gave evidence. They included the respondent and Detective Constable Ryder (" DC Ryder") who (as both parties accepted) was to be treated as the arresting officer. His Honour found that DC Ryder's evidence lacked frankness, was often untruthful and could not be relied on in relation to " any matter of importance " (at [72], [233]). By contrast, his Honour accepted the respondent as a witness who was doing his best to tell the truth.

7The primary Judge helpfully summarised (at [2]-[8]) the factual background at the outset of his very careful and detailed judgment, as follows:

"The [respondent] was born on 30 January 1979 and is aged 32. On 20 July 2006 he was living with his parents in Greenacre, an outer suburb of Sydney, but staying the night with his girlfriend, who lived at North Parramatta. On that evening, a serious offence was committed in a home unit in George Street, Parramatta. A man called Thomas Neville was shot on the right side of his scrotum. Police were notified, and attended. Later that night the [respondent] went into a [Coles Express service station] store in Parramatta wearing a top similar to the one the shooter had worn. He was feeling despondent after an argument with his girlfriend, and was engaging in a bizarre monologue. He said aloud, while in the store, either that he had just killed, or felt like killing, 'some cunt', and that he had 'had enough'. He was recorded on audio and video film while in the store. Although he did not fit the description of the shooter as described by witnesses, police decided to charge him. He had been in trouble with the police before, for armed robbery (nine years before) and deemed supply of drugs (seven years before). Because of his record for armed robbery, and the fact that a gun had been used in the new offence, police decided he might be too dangerous for detectives to arrest. So the investigating team brought in the State Protection Group, a specialist group of police who are experienced at dealing with violent and armed criminals.

On 25 July, five days after he had entered the store in Parramatta, while the [respondent] was at work with his elderly father, who was helping him in his vehicle glazing business, the [respondent] was arrested by a group of men from the Operational Training Unit (OUT), part of the State Protection Group. Some were carrying shotguns and wearing special clothing. The arrest was in a public area of Artarmon. The events shocked the [respondent], who immediately protested his innocence. But he was pushed to the ground, and he says he was dragged in the dirt and trodden on, and had a shotgun pointed at him. When told by police what he was to be charged with, he immediately told them they had the wrong man and asked for an identification parade. He was handcuffed and handed over to investigating police, who took him to Chatswood Police Station, where he was charged with common assault, shotting at a person with intent to inflict grievous bodily harm, and malicious wounding. Of those offences, the most serious, shotting at a person, carries a maximum term of imprisonment of twenty five years. He was not given police bail.

He appeared before the Local Court at Hornsby on 26 July, at Parramatta on 9 August and on 16 to 17 August. Bail was applied for on the first and third appearances. Each time, bail was refused. Police prosecutors, who received instructions from investigating police, opposed bail on each occasion. Because the charges were serious, police prosecutors eventually handed over the prosecution to the Director of Public Prosecutions. This occurred on 18 September 2006.

When the [respondent] was next before the court, on 21 September 2006, the DPP did not oppose bail. He was given bail on stringent conditions.

...

Once the DPP had reviewed the case, all charges were withdrawn. Formal dismissal of them occurred on 25 January 2007. By then the [respondent] had endured over two months in custody. He had lost his business. He had been left with a debt of over $30,000 for borrowings for his business, much of which he had had to spend on legal fees.

He says the police officers who arrested him had no right to arrest him, and are liable for false imprisonment. In charging him and then maintaining the proceedings in the face of strong exculpatory evidence, some of which they never disclosed to him or his lawyers, and some of which they deliberately ignored, he says they committed the tort of malicious prosecution. Further, he says police used quite unnecessary force when they arrested him, and are thereby liable in damage for trespass ...".

8It is not necessary for the purposes of this appeal to recount the primary Judge's reasoning at length. I outline briefly below the critical findings made and the conclusions reached by his Honour.

Wrongful Arrest

9The State defended the respondent's claim that he had been unlawfully arrested and falsely imprisoned on the ground that the police were entitled to arrest him by reason of s 99(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 (" LEPR Act "). This provides that a police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under an Act.

10The primary Judge accepted that the State carried the onus of proving, on the balance of probabilities, that DC Ryder, as the arresting officer, had reasonable grounds to suspect that the respondent had committed the offences with which he was charged on 25 July 2006. His Honour concluded that the State had not discharged its onus and that it was vicariously liable, pursuant to Part 4 of the Law Reform (Vicarious Liability) Act 1983, for the tort committed by DC Ryder (at [10], [89]).

11In particular, the primary Judge made the following findings:

(i) DC Ryder became convinced as soon as she received information from Mr Silver several hours after the shooting that the respondent was the shooter (at [89]). (Mr Silver was the employee on duty at the Coles store who reported the respondent's bizarre behaviour at the store to the Parramatta police. As the primary Judge's summary indicates, this incident occurred shortly after the nearby shooting.)

(ii) From then on, DC Ryder closed her mind and ignored exculpatory evidence that she ought not to have ignored. She also ignored the fact that there were no eyewitnesses to the shooting who had implicated the respondent (at [89]).

(iii) DC Ryder must have been aware before the respondent's arrest that there were very considerable differences between the descriptions given by eyewitnesses of the shooter and the available information as to the respondent's physical characteristics (at [67]). For example, Mr Mahoney, one of the eyewitnesses to the shooting, in his statement given on 21 July 2006, described the assailant as five feet four inches tall, of stocky build and with short black hair and a five o'clock shadow. He made no mention of a scar. Mr Silver, in a statement also given on 21 July 2006, described the respondent as six feet four inches tall, skinny, clean shaven and with a prominent oval-shaped scar on his face. Police records (compiled because of the respondent's criminal history) showed that the respondent was in fact five feet eleven inches tall and had brown hair.

(iv) According to the eyewitnesses to the shooting, the shooter drove a late model silver-coloured Holden Commodore. Mr Silver obtained the registration number of the respondent's vehicle, which was a 1980s Toyota van (at [67]).

(v) The shooter was understood by Mr Mahoney to be the boyfriend of Jonathon Bright's sister (at [39]). Mr Bright was also an eyewitness to the shooting. In his statement of 21 July 2006, he said that he had previously met the assailant, whom he knew as " Michael ", a friend of his (Mr Bright's) sister (at [36]). The respondent's first name was Haysam and there was no information to suggest that he had ever been known as " Michael " (at [67]).

(vi) The differences between the description of the shooter and that of the respondent should have been obvious, even after viewing the more ambiguous CCTV images. Yet the differences did not trouble the police and no eyewitness was ever asked if he had heard of the respondent. Other eyewitnesses to the shooting were not interviewed until after the respondent's arrest (at [69]).

(vii) The words used by the respondent at the Coles store, the colour of the top being worn by the respondent (which, on one view, matched the colour given by the eyewitnesses of the shooter's top) and the proximity of the store and the respondent to the scene of the shooting initially created a justifiable suspicion in DC Ryder that the respondent had been the shooter. But in the four days before the arrest on 25 July 2006, she found no evidence to link the respondent to the shooting and she became aware of powerful exculpatory evidence (at [80]). Although DC Ryder was perfectly correct to be initially suspicious, she lacked reasonable grounds for the suspicion at the time of the arrest (at [81]).

(viii) It was appropriate to award compensatory damages of $50,500 for the wrongful arrest (including $500 for lost earnings on 25 and 26 July 2006) (at [92], [306]). This award was made on the basis that the period of detention relevant to the cause of action based on wrongful arrest was that commencing with the respondent's arrest and extending to the following day, when he was first brought before a magistrate (at [86]).

(ix) The respondent should also be awarded $10,000 for exemplary damages, given the circumstances of the arrest in a very public place (at [93]). However, although DC Ryder made an " appalling error ", there was no conscious wrongdoing on her part or contumelious disregard of the respondent's rights. Thus no exemplary damages should be awarded (at [93]).

Assault and Battery

12The primary Judge noted that the respondent's case on assault and battery was that unreasonable force had been used to effect his arrest. His Honour observed that neither party had addressed the proposition that if the arrest was unlawful (as his Honour found), the issue of unreasonable force did not arise.

13The primary Judge found that the respondent had been arrested in the forceful manner he described in his evidence and that the force used by the members of the OUT was more than reasonably necessary (at [131]). His Honour awarded compensatory damages of $10,000 for the assault and battery but rejected the respondent's claim for exemplary damages (at [133]).

Malicious Prosecution

14The primary Judge observed (at [135]), in relation to the respondent's malicious prosecution claim, that the State did not dispute that criminal proceedings had been instituted against the respondent and terminated in his favour. The matters in dispute were whether there was an absence of reasonable and probable cause to bring or maintain the prosecution and whether the prosecution had been instituted or maintained maliciously. The respondent bore the onus of proving these matters (at [18]).

15His Honour found that:

(i) the State lacked reasonable and probable cause to continue the prosecution as from 26 July 2006, the date of the first bail hearing (at [241]).

(ii) DC Ryder had no sufficient basis for any honest belief in the case she instituted and then maintained (at [247]).

(iii) On 31 July 2006, DC Ryder became aware that Jonathon Bright's mother, Ms Black, had participated in a " photo array " on 28 July 2006, three days earlier. DC Ryder also became aware on 31 July 2006 that Ms Black, who had met " Michael ", had not identified the respondent to be that person. Nonetheless, DC Ryder kept the prosecution going " in the hope that some incriminating evidence might turn up ". From 31 July 2006, DC Ryder appreciated that there was no reasonable and proper cause for the prosecution (at [247]).

(iv) While it was rare and exceptional for a court to find that a police officer had taken or maintained a prosecution for an improper purpose, DC Ryder was well aware from 31 July 2006 that the case against the respondent was unmeritorious and bound to fail. Despite lacking reasonable and probable cause, she continued to maintain the proceedings in the face of that knowledge (at [297]). Since malice covers any motive other than a desire to bring a criminal to justice, the respondent had established the element of malice required to make out the tort of malicious prosecution (at [297], [301]).

(v) Bearing in mind that the respondent had been in custody for about two months and recognising the need to avoid " overlapping " in the damages award, his Honour considered that the respondent should be awarded $75,000 by way of compensatory damages (at [302]).

(vi) The primary Judge awarded the respondent $25,000 as aggravated damages and $100,000 as exemplary damages for the malicious prosecution. His Honour did so for these reasons (at [302]-[303]):

"In maintaining the prosecution as she did, I regard Detective Constable Ryder's conduct as contumelious. Her employer needs to pay a substantial sum for exemplary damages so it will learn that police need to be educated and guided properly and not treat suspects in the base way Detective Constable Ryder treated the plaintiff. Police should understand that people's liberty is not to be trifled with. As the Court of Appeal said in Adams v Kennedy [2000] NSWCA 152 at [36]:

'Th[e] figure should indicate ... that the conduct of the [appellant] ... was reprehensible [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained ... so that abuses of the kind that occurred [here] do not happen.'

I consider the appropriate sum for exemplary damages is $100,000. I would award aggravated damages too, of $25,000, for the increased mental suffering I find the [respondent] suffered by the manner in which the [appellant] behaved in the course of maintaining the prosecution."

(vii) In addition, his Honour found that the respondent should receive compensatory damages of $23,694 for his costs incurred in defending the prosecution, plus $6,406 in respect of interest paid by him on a loan used to fund the defence costs (at [304]). He was also entitled to damages equivalent to eight weeks' loss of income, which his Honour assessed at $5,000 (at [305]).

Summary of Damages Award

16The damages awarded to the respondent comprised the following:

(a) Wrongful arrest	$
- Compensatory damages	50,500
- Aggravated damages	10,000

(b) Assault and battery
- Compensatory damages	10,000

(c) Malicious Prosecution
- Compensatory damages	75,000
- Exemplary damages	100,000
Aggravated damages	25,000
Defence costs and interest	29,356
Economic loss	5,000

TOTAL	$304,556

Interest

17In a separate judgment delivered on 15 July 2011, the primary Judge awarded the respondent $35,549 in interest. Thus judgment was given for the respondent against the State for a total of $340,105.

THE ISSUES ON APPEAL

18The State challenges:

(i) the finding that on 25 July 2006, the date of the respondent's arrest, DC Ryder had no reasonable grounds for her suspicion that the respondent had committed the offences with which he was charged and that, therefore, he had been wrongfully arrested;

(ii) the finding that unreasonable force had been used to arrest the respondent and that therefore the State was liable to pay damages for assault and battery;

(iii) the award of $100,000 as exemplary damages for malicious prosecution;

(iv) the award of $25,000 as aggravated damages for malicious prosecution; and

(v) that portion of the damages award of $23,694 for defence costs which (according to the State) related to costs incurred by the respondent before 31 July 2006 (the date from which, on his Honour's findings, the prosecution became malicious).

19The State does not challenge:

(i) the damages totalling $60,500 awarded for wrongful arrest (should the finding of wrongful arrest be upheld);

(ii) the quantum of damages awarded for assault and battery;

(iii) the finding that the prosecution of the respondent had become malicious as from 31 July 2006.

20Mr Neil QC, who appeared with Mr Hutchings for the State, accepted that the challenge to the finding that unreasonable force had been used to arrest the respondent becomes moot if this Court upholds the finding that the respondent was wrongfully arrested. He did not dispute that if the respondent's arrest was wrongful, there was no lawful justification for the use of any force to arrest the respondent on 25 July 2006 and, accordingly, no basis for setting aside the finding that the respondent had been assaulted when he was arrested.

21It is important to note that, subject to two exceptions, the State does not challenge any of the primary Judge's findings of primary fact or his Honour's findings as to credit. The first exception is that the State challenges the finding that unreasonable force was used to arrest the respondent. However, as I have explained, this issue only arises if this Court sets aside the finding that the respondent was unlawfully arrested.

22The second exception is that the State contests the primary Judge's finding that the so-called " Platten document " had not been seen by DC Ryder before the respondent's arrest and therefore could not have provided a basis for her to suspect on reasonable grounds that the respondent had committed the offences. I shall deal with this challenge later ([34-46] below).

23It is also important to note that the State does not take issue with the primary Judge's statement of the relevant legal principles, except in relation to the award of exemplary damages for malicious prosecution. The complaints concern the application of those principles to the (now) largely uncontested primary facts.

UNLAWFUL ARREST AND FALSE IMPRISONMENT

24The State defended the respondent's claim that he had been wrongfully arrested and falsely imprisoned on the basis that DC Ryder suspected on reasonable grounds that the respondent was the perpetrator of the shooting that occurred on 20 July 2006: LEPR Act, s 99(2). The High Court explained the concept of reasonable grounds for a suspicion in George v Rockett [1990] HCA 26; 170 CLR 104.

25The Court pointed out (at 115) that suspicion and belief are two different states of mind. The Court continued (at 115-116) as follows:

"Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam [[1970] AC 942, at 948], 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove.'" The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees [(1966) 115 CLR 266], a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said [(at p 303)]:

'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.'"

26In his judgment in Hussien v Chong Fook Kam , shortly after the observation cited by the High Court in George v Rockett , Lord Devlin explained (at 948-949) the distinction between a reasonable suspicion and prima facie proof:

"The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years. The law is thus stated in Bullen and Leake , 3 rd ed. (1868), p. 795, the 'golden' edition of (1868):

'A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it.'

Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof.

...

Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v Egan (1934) 150 L.T. 412. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance."

Inconsistent Findings?

27The State contended that the primary Judge's finding that DC Ryder did not reasonably suspect that the respondent had committed the offences could not be reconciled with what was described as a " finding " that she had reasonable and probable cause to institute the prosecution of the respondent. The latter finding was said to be implicit in of the judgment, where his Honour made the following finding (at [241]):

"I am persuaded on the balance of probabilities that the defendant lacked reasonable and probable cause to continue with the prosecution from the first bail hearing onward."

Mr Neil submitted that since the first bail hearing took place on 26 July 2006, the day after the respondent's arrest, the primary Judge had implicitly found that the State had reasonable and probable cause to prosecute when the respondent had been arrested on the previous day.

28In my opinion, this is an implausible interpretation of the judgment. In making the finding at [241], the primary Judge was responding to the respondent's contention that the maintenance and continuation of the prosecution were inappropriate and malicious and should have been dropped when significant exculpatory evidence came to light (at [134]). Specifically, his Honour addressed the respondent's contention that, assuming that there was a time when police had reasonable and probable cause , that time was finite and the proceedings should have been discontinued when DC Ryder became aware of additional exculpatory evidence (at [237]). It is to be remembered that the parties made submissions to the primary Judge without knowing the findings of fact his Honour would ultimately make in relation to each cause of action.

29Mr Kennedy SC, who appeared for the respondent at the trial and on the appeal, invited his Honour to consider the exculpatory evidence that had become available to DC Ryder at different stages of the prosecution. The stages included the following:

on 26 July 2006, when the respondent's girlfriend gave alibi evidence at the first bail hearing;
on 27 July 2006, when an eyewitness to the shooting told police that the shooter had threatened him (the respondent then being in custody); and
on 28 July 2006, when Ms Black participated in the " photo array ", but did not identify the respondent as " Michael " (at [240]).

As I have recorded, his Honour found that the prosecution had become malicious from 31 July 2006, the date on which DC Ryder became aware of the outcome of the photo array.

30The primary Judge was plainly well aware that he had found that DC Ryder, at the time of the arrest, had no reasonable basis for her suspicion that the respondent was guilty. His Honour restated that finding in the course of dealing with the respondent's malicious prosecution claim (at [297]). His Honour was also aware that he had already awarded the respondent damages for wrongful arrest and false imprisonment, including damages for his detention between his arrest on 25 July 2006 and his first court appearance on 26 July 2006 (at [86]).

31The respondent bore the onus of proving the elements of the tort of malicious prosecution. In order to determine the respondent's claim, his Honour did not need to make a finding that DC Ryder lacked reasonable and proper cause to prosecute on 25 July 2006. By confining his finding to the period from 26 July 2006 onwards, his Honour plainly did not intend to find that DC Ryder had reasonable and probable cause to institute the prosecution at any earlier time. Indeed, his Honour said as much when stating his conclusion on reasonable and probable cause (at [247]):

"I find police lacked reasonable and probable cause from 26 July onward. Further, I find police, in particular Detective Constable Ryder, had no sufficient basis for any honest belief in the case she instituted and then maintained. I consider below under the element of malice what she made of the case from 31 July onward. There I have come to the view that she knew from that day that she had erred in having the plaintiff arrested, and that she lacked reasonable grounds for continuing the proceedings, but kept them going in the hope some incriminating evidence would turn up."

32In other passages, the primary Judge made it clear that he thought the prosecution against the respondent had always been " fatally flawed " and that the additional exculpatory material that came to light simply added to " a weighty case already of a lack of reasonable and probable cause " (see, for example, at [242], [243]). The critical point for the purposes of the claim based on malicious prosecution was that DC Ryder pursued the prosecution for an improper motive on and after 31 July 2006.

33The State has not established that there was any inconsistency in the findings made by the primary Judge.

The Platten Document

34One pillar of the State's challenge to the finding that DC Ryder had no reasonable grounds to suspect that the respondent committed the offences was that the primary Judge had overlooked the significance of a document prepared by Inspector Platten (who had since retired). The document purported to record the contents of two telephone conversations instigated by the perpetrator of the shooting on 23 July 2006. By that time, Sarah Bright (Jonathon Bright's sister) had been arrested as an accomplice to the shooting that had occurred three days earlier. (Sarah Bright had refused to provide any information to the police.)

35The Platten document was summarised by the primary Judge as follows (at [50]):

"The heading to the document says: ' Calls made by offender Haysam Zreika (wanted for shooting at Parramatta) to friends of his and Sarah Bright (accomplice to Hysam (sic)) ' . The author of the note [Inspector Platten] then asserts that when he spoke to Ms Black on 23 July she identified herself as ' the mother of the offender Sarah Bright who is the accomplice to offender Haysam Zreika who is the offender for the shooting the other night '. (The emphases are mine). Ms Black was recorded in the document as having told Mr Platten that the [respondent] had contacted a Mr Omar Abukhaled and demanded that he bail out Sarah Bright. Mr Platten was recorded as having phoned Mr Abukhaled and being told that the [respondent] had phoned him, demanding he help bail Sarah Bright. The [respondent] was said to have been threatening in manner. A telephone number recorded by Mr Platten as that of the [respondent] was set out in the note."

His Honour noted that the document had never formed part of the police brief served on the defence in the prosecution of the respondent.

36As the primary Judge observed (at [52]), if Inspector Platten's note was accurate, the police case against the respondent " had suddenly achieved a great deal of strength ". However, his Honour found that the note was not accurate and that neither Ms Black nor Mr Abukhaled had referred to or identified the respondent in their accounts of the conversations they had had with the perpetrator. Instead, Inspector Platten had inserted the respondent's name into the note as the perpetrator of the shooting, having obtained the name from existing entries on the COPS database (at [59]). The primary Judge found that Mr Platten's evidence to the contrary was mistaken (at [59]).

37In reaching this conclusion, his Honour took into account that a police officer had taken a statement from Mr Abukhaled on 24 July 2008. In that statement, Mr Abukhaled said nothing about the respondent, but confirmed that Sarah Bright was a friend of " Michael ". The primary Judge observed (at [58]) that if Mr Abukhaled had mentioned the respondent by name to Inspector Platten, he could have been expected to provide the same details in the statement he gave a day later. It was " highly significant " that Mr Abukhaled had not done so (at [59]). His Honour also found (at [83]) that DC Ryder had Mr Abukhaled's statement before her when she prepared Operational Orders on 25 July 2008, shortly before the respondent's arrest on that day. Furthermore, it was " obvious " from Mr Abukhaled's statement that Inspector Platten's document was " significantly incorrect " (at [269]).

38The State did not challenge the finding that the Platten document was inaccurate and thus did not provide a basis for concluding that the respondent was the offender. However, the State's written submissions contended that there was no evidence that DC Ryder knew that Inspector Platten's note was inaccurate at the time the respondent was arrested. It followed, so it was argued, that the primary Judge should have found that DC Ryder was entitled to rely on the Platten document in determining that there were reasonable grounds to suspect that the respondent had committed the offences.

39The respondent's written submissions pointed out that the primary Judge found (at [83]) that DC Ryder had not seen the Platten document until after the arrest and that the contents of the document therefore could not have provided a basis for DC Ryder's belief that the respondent had committed the offences. The State's reply submissions challenged this finding, on the ground that Operational Orders prepared by DC Ryder on 25 July 2006, prior to the arrest, contained material that could only have been derived from the Platten document. Specifically, the State relied on a passage in the Operational Orders which stated that a subscriber check had been completed on the number from which the telephone call to Mr Abukhaled had been made. The check showed that it had been registered to a " Mary Rose " at a non-existent address. That information had been recorded in the Platten document, although not in the same words as were used in the Operational Orders.

40Mr Neil submitted that DC Ryder could only have obtained the " Mary Rose " information, which she recorded in the Operational Orders, from the Platten document. However, the evidence does not support this submission.

41DC Ryder did not say in her evidence that she had seen the Platten document prior to preparing the Operational Orders. Her evidence, as his Honour recorded (at [83]), was that she was unsure when she received the document and, in particular, whether she had received it before or after the respondent's arrest. The Operational Orders prepared by her made no express reference to the Platten document. Mr Platten himself did not suggest in his evidence that he had provided the document to DC Ryder. (Inspector Platten emailed the document to Inspector Newman shortly after it was created, but Inspector Newman was not called to give evidence.) Furthermore, in her oral evidence, DC Ryder did not identify the contents of the Platten document as a matter she took into account in determining that the respondent should be arrested.

42DC Ryder was not asked about the source of the " Mary Rose " information recorded in the Operational Orders. The evidence is consistent with a number of possibilities as to how she became aware that the telephone was registered in the name of " Mary Rose ". One obvious possibility, for example, is that the officer who conducted the subscriber check conveyed the results directly to DC Ryder as the officer with the carriage of the matter.

43In my opinion, the evidence supports the primary Judge's finding that DC Ryder had not seen the Platten document before the arrest. The fact that the Operational Orders recorded the substance of the Platten document's reference to " Mary Rose " is insufficient to counter the inference available from the other evidence to which I have referred.

44This is enough to dispose of the State's reliance on the Platten document. But even if DC Ryder had seen the Platten document prior to preparing the Operational Orders, the State's case would not have been advanced. It will be recalled that the Operational Orders did not expressly refer to the Platten document. Nor did the Operational Orders suggest that the person describing himself as " Frankie ", who had made telephone inquiries about Sarah Bright, had been identified by Ms Black or by Mr Abukhaled as the respondent. The Operational Orders merely said that " Police are of the belief that the person who made this call [to Mr Abukhaled] is Haysam Zreika ".

45DC Ryder was cross-examined as to the basis for her belief that the respondent had committed the offences. She did not suggest the Platten document played any part in forming the judgment that the respondent should be arrested. This is not surprising since, as the primary Judge found, DC Ryder had available to her Mr Abukhaled's statement made on 24 July 2006. It was obvious from that statement that Mr Abukhaled had not identified the respondent as " Frankie ", the person who made the telephone call to Mr Abukhaled seeking information or assistance in relation to Sarah Bright.

46The absence of evidence from DC Ryder that she relied on the Platten document as supporting her suspicion that the respondent was the offender is an independent reason for rejecting the State's contentions in relation to that document. The State has not shown that the primary Judge erred in finding that the Platten document did not assist the State's defence to the respondent's claims of unlawful arrest and false imprisonment.

The Finding that DC Ryder Lacked Reasonable Grounds for her Suspicion

47It was common ground that, if the State's challenge to the primary Judge's treatment of the Platten document was rejected, this Court was as well placed as the primary Judge to determine whether the evidence established that DC Ryder, at the time of the arrest, had reasonable grounds to suspect that the respondent was the perpetrator of the shooting: Warren v Coombes [1979] HCA 9; 142 CLR 531; Woodley v Boyd [2001] NSWCA 35, at [9], per Heydon JA.

48Mr Neil criticised the primary Judge's finding on the ground that his Honour had failed to confine his examination to the knowledge of DC Ryder and also wrongly took into account information obtained by her after the arrest. I do not think that either of these criticisms is made out.

49The primary Judge recorded (at [14]) that the parties had agreed that DC Ryder was to be treated as the arresting officer and that it was her state of mind that was critical. The key finding (at [89]) was expressed in terms of DC Ryder's approach to the arrest. In particular his Honour found that she had closed her mind as soon as she received information from Mr Silver early on 21 July 2006 and had ignored exculpatory evidence and had ignored the fact that no eyewitness implicated the respondent. The reference in several paragraphs of the judgment to information given or available to " the police " (at, for example, [46], [47], [66]) are accurate and do not suggest that his Honour somehow overlooked that the question was whether DC Ryder had a reasonable basis for her suspicion. In considering that question his Honour had to take into account information available to the police (and therefore to DC Ryder), but which DC Ryder did not follow up.

50The submissions that the primary Judge had taken into account information that became known to DC Ryder only after the arrest was not developed in oral argument. On my reading of his Honour's careful examination of the evidence, he confined himself to information available to DC Ryder before the arrest and to enquiries that could and should have been made before that time.

51As the authorities establish, reasonable grounds for a suspicion that a person has committed an offence is not equivalent to prima facie proof that the person committed the offence. Giving proper weight to that consideration (as did the primary Judge), it is difficult to see how his Honour could properly have reached any conclusion other than that DC Ryder did not have reasonable grounds for her suspicion.

52The primary Judge found (at [67]) that since no-one had positively identified the respondent as the shooter, it would have been:

"elementary for the police (especially [DC] Ryder), before having the [respondent] arrested, to compare the descriptions of the assailant from eyewitnesses, with what police knew of the [respondent]."

53His Honour set out (at [67]) a comparison drawn from the available evidence as at the day of the arrest in tabular form, as follows:

"	The assailant	The [respondent]
First name	Michael	Haysam (no evidence he was ever called Michael)
Surname:	Unknown	Zreika
Height:	5'4"	6'4" (from Mr. Silver), or 180 cm (from police records, which I calculate to be 5'11" on imperial measurements)
Build:	Stocky	Thin (from Mr Silver)
Hair:	Short, black	Brown (from Mr Silver, and police records)
Facial Hair:	Five o'clock shadow	Clean shaven (from Mr Silver)
Jacket:	Orange	Red (from Mr Silver, and Constable Hayman, after seeing the video)
Trousers:	Dark blue jeans	Dark pants (from CCTV)
Shoes:	Blue and white	White (from CCTV)
Vehicle driven	Recent model silver coloured Holden Commodore, possibly VX	1980s Toyota van, with dents on passenger side (from Mr Silver)
Other distinguishing features	None noted	Prominent facial scar (from Mr Silver)"

The State does not suggest that this table contains any significant inaccuracies.

54The primary Judge summarised (at [68]) the evidence against the respondent on the day of the arrest as follows:

"(a) According to Mr Silver, within about three hours of the shooting, and just a few streets away from the scene of the shooting, [the respondent] had said something bizarre to Mr Silver: either that he had just killed 'some cunt', or was going to; and that he had 'had enough';

(b) The [respondent] had worn a red top: it is possible to confuse red with orange;

(c) Michael's top had been orange; ([DC] Ryder claimed to me she had observed the [respondent] wearing an orange top on the CCTV);

(d) Michael had shot the victim ..."

In addition, the CCTV images of the Coles Store incident although unclear, might have suggested to DC Ryder some similarities between the descriptions of " Michael " and the physical appearance of the respondent at the Coles Store (at [69], [75]).

55I have referred previously to some key findings made by the primary Judge (at [11] above). Significantly for present purposes, he found that:

DC Ryder regarded the case as solved once Mr Silver made his telephone call early on 21 July 2006 (at [69]);
DC Ryder's assessment of the respondent's physical characteristics based on CCTV footage was different from the information concerning the respondent that the police already had in their records (at [79]);
the police, including DC Ryder, had plenty of time to check the facts before arresting the respondent (at [79]);
DC Ryder ignored the exculpatory evidence available to her, notably the differences between the eyewitness' descriptions of " Michael " and the description and records concerning the respondent (at [80]);
DC Ryder made no attempt to ask any of the eyewitnesses, including those who knew or had met " Michael ", whether the respondent could be identified at Michael (at [69]); and
DC Ryder did not interview or arrange for interviews of these eyewitnesses who had seen the shooting (at [69]).

56On these findings, DC Ryder's suspicion that the respondent was the perpetrator could not be said to be based on reasonable grounds. The table prepared by the primary Judge demonstrates that, despite the initial suspicions naturally generated by the respondent's bizarre behaviour, Mr Silver's description of the respondent and his vehicle and the information derived from police records simply could not be reconciled with the description of the perpetrator and his vehicle given by the eyewitnesses. Further investigations conceivably might have explained the apparent inconsistencies or, more likely, definitely ruled out the respondent as a suspect. But the obvious enquiries were never made because DC Ryder had closed her mind to the exculpatory evidence.

57The State's challenge to the finding that DC Ryder did not have reasonable grounds for her suspicion that the respondent had committed the offence fails.

ASSAULT AND BATTERY

58As I have explained, since DC Ryder did not have reasonable grounds for her suspicion, the State's challenge to the award of damages to the respondent for assault and battery does not arise and need not be considered.

MALICIOUS PROSECUTION: DAMAGES

Principles

59There is no challenge to the finding of the primary Judge that the respondent had made out his case on malicious prosecution. The elements of the tort of malicious prosecution were stated in the joint judgment in A v State of New South Wales [2007] HCA 10; 230 CLR 500, at 502-503 [1], as follows:

"the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally ... criminal proceedings) were initiated against the plaintiff by the defendant;

(2) that the proceedings were terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4) that the defendant acted without reasonable cause."

In addition, the plaintiff must prove damage: New South Wales v Landini [2010] NSWCA 157, at [20] per Macfarlan JA. In the present case, there is no challenge to the award of $75,000 as compensatory damages for malicious prosecution.

60A plaintiff who succeeds in an action for malicious prosecution will not necessarily receive either aggravated or exemplary damages. Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett , at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett , at 647 [33]. [34].

61Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect " detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno , at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is " conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC , at 7 [14].

62Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett ; NSW v Landini , at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police:

"should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen."

Ibbett , at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA.

63In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett , at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once.

64I endeavoured to summarise the effect of the authorities in New South Wales v Radford [2010] NSWCA 276, at [97], as follows (Beazley and Macfarlan JJA agreeing):

"These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff's feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award."

Aggravated Damages

65The State's written submissions asserted that the award of $25,000 for aggravated damages for malicious prosecution should not stand. The reason given, without elaboration, was that the respondent called no evidence that could justify aggravated damages. The contention was mentioned but not developed in Mr Neil's oral submissions.

66The short answer to this contention is that the respondent gave evidence of his feelings in consequence of his detention while awaiting trial, in particular his distress and mounting anger at what was happening to him. The evidence provided a sound basis for an award of $25,000 as aggravated damages for the intangible damage sustained by the respondent as the result of the malicious prosecution.

Exemplary Damages

67Mr Neil did not challenge the finding that DC Ryder's conduct in maintaining the prosecution was " contumelious ". However, he challenged the award of $100,000 as exemplary damages for malicious prosecution on two grounds, the first of which emerged clearly only in the course of oral submissions:

(i) the primary Judge erred by failing to consider whether and to what extent an award of exemplary damages was necessary to serve the objectives of punishment, deterrence and condemnation in the light of the award of compensatory and aggravated damages (totalling $100,000); and

(ii) in any event, an award of $100,000 for malicious prosecution was manifestly excessive in the circumstances of the case.

68Mr Kennedy did not dispute that the primary Judge was required to consider whether and to what extent exemplary damages should be awarded in view of the award of compensatory and aggravated damages. He submitted that, although the primary Judge's reasoning on this aspect of the case was economical, his Honour had in fact taken into account the award of compensatory and aggravated damages before determining that an award of exemplary damages of $100,000 was appropriate.

69The primary Judge's award of $75,000 as compensatory damages expressly (at [302]) took into account the period of approximately two months that the respondent spent in custody after 31 July 2006 (the period was actually 52 days). The award of $25,000 as aggravated damages was assessed having regard to the respondent's " increased mental suffering " (at [303]). The award of $100,000 for exemplary damages, reflected his Honour's view, consistently with the principle stated in Adams v Kennedy ([62] above), that the State should pay a substantial sum so that it would learn the need for police to be educated properly and to indicate that " people's liberty is not to be trifled with ".

70While the primary Judge is not to be criticised for stating his conclusion briefly, a fair reading of his reasons does not indicate that the award of exemplary damages took into account the sums awarded as compensatory and aggravated damages. The judgment does not expressly consider whether an award of $100,000 for exemplary damages was necessary or appropriate having regard to the considerable sums awarded for compensatory and aggravated damages. Indeed, his Honour assessed aggravated damages after having arrived at a figure of $100,000 for exemplary damages. I therefore conclude that his Honour erred in his approach to the assessment of exemplary damages.

71Since his Honour erred in assessing exemplary damages, this Court should reassess the award. In doing so, it is to be remembered that there is (and could be) no challenge to the finding that DC Ryder's conduct, in maintaining the respondent's prosecution when there was no reasonable and probable cause to prosecute and she knew it was bound to fail, was contumelious. Plainly, it is a very serious matter, demanding condemnation from a Court, when a police officer maintains a prosecution knowing that it is bound to fail and (as in this case) knowing that the accused person is in custody. In these circumstances, the primary Judge was correct to emphasise the importance of bringing home to the State the need to educate and guide police in the exercise of their considerable powers to affect the liberty of individuals.

72In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; 71 NSWLR 323, at 329 [22], Spigelman CJ observed that while there is no " tariff or standard " for the assessment of exemplary damages, some understanding of the general scale of awards is appropriate. Any such understanding must take account that the damages award in any given case must depend on the peculiar circumstances of that case, including the approach taken by the court to the assessment of compensatory and aggravated damages. While Mr Neil recognised the difficulties of relying on awards in other cases, he submitted that some guidance as to the general scale of awards could be gleaned from decisions such as NSW v Landini (where exemplary damages of $50,000 were awarded for a case in which police officers took active steps to maintain a prosecution that they knew to be based upon evidence fabricated by the police) and NSW v Ibbett (where the High Court upheld awards of general, aggravated and exemplary damages totalling $100,000 for trespass and assault where two police in casual clothing unlawfully entered premises at night, and pointed a gun at the occupier, terrifying her; the award included $35,000 in exemplary damages).

73The difficulty of placing too much reliance on awards in other cases is illustrated by decisions to which Mr Kennedy referred, in which very large exemplary damages awards were made. While most of these did not involve wrongdoing by police officers, he pointed to Adams v Kennedy, decided in 2000, where the Court of Appeal awarded $100,000 in exemplary damages for trespass, assault and false imprisonment.

74Ultimately, each case must depend on its own circumstances. In this case, the primary Judge awarded compensatory and aggravated damages for malicious prosecution totalling $100,000. These awards were not given in order to deter, punish or condemn the State or the officer for whose conduct the State was vicariously liable. Nonetheless, the magnitude of the compensatory and aggravated damages reinforces the primary Judge's findings as to the seriousness of DC Ryder's conduct and of the consequences for the respondent. The authorities require the compensatory and aggravated damages to be taken into account in determining whether and to what extent exemplary damages should be awarded.

75The conduct of DC Ryder, although not of the same character as the conduct which occurred in NSW v Landini, involved an egregious failure to act in the manner expected of a police officer where the liberty of an individual is at stake. The conduct was sufficiently egregious to warrant an award of exemplary damages not only to mark the Court's disapprobation, but to act as a deterrent and a spur to the State to ensure that police officers are properly trained and understand their heavy responsibilities. However, when the magnitude of the compensatory and aggravated damages are taken into account, I consider that an award of $50,000 is appropriate to give effect to the objectives served by an award of exemplary damages.

Damages for Defence Costs

76The State submits that his Honour had overlooked that some of the defence costs in respect of which damages were awarded for malicious prosecution, had been incurred before 31 July 2006. Since, on his Honour's findings, the tort of malicious prosecution was not committed until 31 July 2006, the damages should not have included legal costs incurred by the respondent before that date. According to Mr Neil those costs amounted to $6,500.

77This point was not raised before the primary Judge. It is true that until judgment was given, the State did not know whether his Honour would find that the respondent had made out his case in malicious prosecution and, if so, the date on which the tort was complete. However, when giving judgment for the respondent on 1 July 2011, the primary Judge stood over the proceedings to enable the parties to make submissions on interest and costs. A further hearing took place on 15 July 2011. The State had ample opportunity at that hearing to draw the timing of legal costs to his Honour's attention, but did not do so.

78In my view, the State should not be permitted to raise this issue for the first time on appeal. Had it been raised, the respondent may well have submitted to the primary Judge that the legal costs incurred before 31 July 2006 should have been the subject of the award of damages for false imprisonment. Having regard to the small amount at issue, the primary Judge's award of damages in respect of legal costs should not be disturbed.

ORDERS

79The following orders should be made: