Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: State of New South Wales v Quirk [2012] NSWCA 216
• Hearing dates: 24 April 2012
• Decision date: 20 July 2012
• Before: Beazley JA at [1]; Hoeben JA at [2]; Tobias AJA at [3]

Decision

(a) Appeal allowed.

(b) Grant leave to the respondent to cross-appeal on the issue of damages for the assault and allow that cross-appeal.

(c) Set aside the judgment of Grove AJ dated 3 June 2011 in the sum of $175,000 and in lieu thereof enter judgment for the respondent in the sum of $95,000.

(d) Set aside the order for costs made by Grove AJ on 9 June 2011 and in lieu thereof order that the appellant pay 70 per cent of the respondent's costs of the proceedings at first instance.

(e) The appellant to pay the respondent's costs of the appeal up to and including 23 April 2012 relating to the abandonment of Grounds of Appeal 1 and 2 on an indemnity basis.

(f) Subject to the preceding order, the respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

(g) The appellant to pay the respondent's costs of his summons for leave to cross-appeal and of the cross-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 - Malicious prosecution - Whether primary judge erred in finding that the plaintiff was the subject of malicious prosecution - Onus of proof on plaintiff to demonstrate absence of reasonable and probable cause in the prosecution of the relevant charges - Onus of proof not discharged - Primary judge erred in finding that the elements of the cause of action had been established - Appeal allowed.; DAMAGES - Intentional torts - Assault - Whether the primary judge erred in his assessment of compensatory, aggravated and exemplary damages.; DAMAGES - Intentional torts - False imprisonment - Primary judge erred in description of purpose of exemplary damages - Court to exercise its own discretion in the assessment of damages.; COSTS - Whether proceedings ought to have been commenced and continued in the District Court instead of Supreme Court - Supreme Court was appropriate forum in light of complexity of factual issues - Uniform Civil Procedure Rules 2005, r 42.34.; COSTS - General rule that costs follow event - Plaintiff awarded costs against defendant - Mixed outcome where plaintiff lost on a number of issues - House v R error - Miscarriage of primary judge's discretion - Reassessment of proportion of costs - Uniform Civil Procedure Rules 2005, r 42.1.
• Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002; Law Reform (Vicarious Liability) Act 1983; Crimes Act 1900; Criminal Procedure Act 1986; Criminal Procedure Act 1996; Crown Proceedings Act 1988; Road Transport (General) Act 2005; Road Transport (Safety and Traffic Management) Act 1999; Uniform Civil Procedure Rules 2005
• Cases Cited: A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500; AT v Commissioner of Police, New South Wales [2010] NSWCA 131; Attorney-General for the State of New South Wales v Bar Mordecai [2009] NSWCA 396; Dodds Family Investments Pty Limited v Lane Industries Pty Limited [1993] FCA 259; 26 IPR 261; Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1; House v R [1936] HCA 40; (1936) 55 CLR 499; Kooee Communications Pty Limited v Primus Telecommunications Pty Limited (No 2) [2008] NSWCA 85; Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466; Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140; New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638; Sharman v Director of Public Prosecutions [2006] NSWSC 135; State of New South Wales v Eves (NSWCA 2009/298477, 9 August 2010, unreported); State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496; Sundell v Queensland Housing Commission [1954] HCA 45; (1954) 94 CLR 531; Williams, Robert Lee Anthony v Director of Public Prosecutions (NSW) [2011] NSWSC 1085
• Category: Principal judgment
• Parties: State of New South Wales (Appellant); Wayne Steven Quirk (Respondent)
• Representation: Counsel: J Maconachie QC; M Hutchings (Appellant/Cross-Respondent); C T Barry QC; M P Tanevski (Respondent/Cross-Appellant); Solicitors: Crown Solicitor (Appellant); CMC Lawyers (Respondent)
• File Number(s): 2007/293848
• Publication restriction: No

Decision under appeal

• Citation: Quirk v State of NSW [2011] NSWSC 341
• Date of Decision: 2011-06-03 00:00:00
• Before: Grove AJ
• File Number(s): 2007/293848

Judgment

1 BEAZLEY JA: I agree with Tobias AJA.

2 HOEBEN JA: I agree with Tobias AJA and the orders which he proposes.

3 TOBIAS AJA: On 1 and 7 March 2006 the respondent was arrested by police after encounters at Kingswood and in Sydney city respectively. Arising out of both incidents, the respondent was charged with various offences. The proceedings with respect of those offences were relevantly terminated in favour of the respondent. As a consequence, the respondent instituted proceedings in the Supreme Court against the appellant, the State of New South Wales, pursuant to s 5 of the Crown Proceedings Act 1988. At all material times the appellant was vicariously liable pursuant to ss 8 and 9 of the Law Reform (Vicarious Liability) Act 1983 for the alleged tortious acts of the police officers concerned.

4 With respect to the events of 7 March 2006, the respondent claimed that he was assaulted by certain police officers, handcuffed and forcibly taken into custody. He was charged with some sex offences which were ultimately dismissed. He then sued for malicious prosecution and, alternatively, for abuse of process. The primary judge dismissed those claims and there is no challenge by the respondent to his Honour's decision in that regard: Quirk v The State of New South Wales [2011] NSWSC 341 at [85].

5 With respect to the events of 1 March 2006, the respondent alleged that he was assaulted, arrested and detained in custody for a period of some seven hours. He was charged with four offences which were ultimately terminated in his favour. He then sued for assault, malicious prosecution, false imprisonment and, in the alternative, for abuse of process. He further alleged that a gold chain which he was wearing was removed after his arrest and not returned to him. This last claim was dismissed by Grove AJ, the primary judge, (at [99]) in circumstances which the respondent also does not challenge. However, his Honour upheld the respondent's claims for assault, false imprisonment and malicious prosecution: Quirk v State of New South Wales [2011] NSWSC 341 at [160].

6 In respect of the assault, the primary judge (at [181]-[184]) awarded the respondent compensatory damages in the sum of $5,000, aggravated damages in the sum of $20,000 and exemplary damages in the sum of $25,000. With respect to the finding of false imprisonment, his Honour (at [186]) awarded the respondent the sum of $50,000 a substantial part of which, so he said, necessarily comprised exemplary damages. As to the successful claim for malicious prosecution the primary judge (at [194]) awarded the respondent a total of $75,000, which again included a "significant element" of aggravated and exemplary damages.

7 At the time that he delivered his principal judgment, the primary judge reserved the question of costs. In a separate judgment given on 9 June 2011 (the costs judgment), his Honour dealt with the issue of costs and ordered that the appellant pay the respondent's costs of the proceedings including the proceedings relating to the events of 7 March 2006 upon which the respondent had failed. His Honour rejected the claim by the respondent for indemnity costs.

8 The appellant now confines its appeal on liability to the primary judge's decision with respect to the malicious prosecution cause of action. It also challenges his Honour's assessment of damages with respect to all three causes of action as well as his costs order. The respondent has filed a summons for leave to cross appeal with respect to the quantum of compensatory damages awarded to him with respect to the assault cause of action and his alleged failure to award such damages with respect to the malicious prosecution cause of action.

The appellant's original grounds of appeal and change of tack

9 In its notice of appeal filed on 15 August 2011, the appellant challenged each of the primary judge's findings in favour of the respondent with respect to the events of 1 March 2006. Relevantly, it challenged his finding that the respondent was assaulted and falsely imprisoned on that date. As a consequence both parties addressed written submissions to those topics.

10 However, on the day before the hearing of the appeal commenced, the appellant informed the Court that it was abandoning its appeal against the primary judge's findings with respect to the assault and false imprisonment causes of action and would only proceed with its appeal against his Honour's finding with respect to the malicious prosecution cause of action. However, it maintained its appeal against his Honour's award of damages with respect to all three causes of action. As a result of this change of tactic, the appellant filed 22 pages of written submissions which, for all practical purposes, he substituted for the written submissions contained in the Orange Book. The filing of those further submissions then required the respondent to file further amended written submissions which, relevantly, were substituted for its written submissions contained in the Orange Book except with respect to the issue of damages and costs.

11 As a result of the foregoing, the respondent was put to a great deal of extra cost and the members of the Court wasted valuable time and resources in reading the material relating to the abandoned grounds of appeal, a matter to which I shall return in dealing with the issue of costs.

12 A further problem arose with respect to the malicious prosecution cause of action as the appellant now challenged a number of the primary judge's findings of fact relating to it. However, it did not provide a Uniform Civil Procedure Rules 2005 (UCPR), Pt 52.36(2) statement. At the Court's request this was provided some days after the conclusion of the hearing. The provision of that statement caused the respondent to file a nine-page response thereto.

13 Although the abandonment of the challenges to his Honour's findings with respect to the assault and false imprisonment causes of action was due to a change of senior counsel and, no doubt, to a reassessment by that counsel of the prospects of success of those challenges, it should have been apparent to the appellant and its advisers at a far earlier point of time that, in the light of the primary judge's findings, the chances of it succeeding on those challenges would have had minimal prospects of success. In State of New South Wales v Eves (NSWCA 2009/298477, 9 August 2010, unreported), the appellant filed a summons seeking leave to appeal from a decision of a judge of the District Court in favour of a plaintiff who had been assaulted by a police officer. Leave to appeal was refused upon the basis that the relevant factual findings of the trial judge were not only supported by the evidence but also constituted an evaluative assessment of the recollection of the relevant police officers of the alleged offence surrounding the plaintiff's arrest which was rejected.

14 Beazley JA, with whom Young JA and Price J agreed, informed counsel for the appellant that the Court was concerned that the application for leave had minimal prospects of success especially as the evidence of the relevant police officers had not been accepted by the trial judge. The Court's concern was directed to the likelihood that there had not been a proper assessment of whether there were any realistic prospects of success in challenging the trial judge's relevant findings of fact. Her Honour thus observed that the application for leave to appeal should never have been brought. She requested that the message contained in her remarks should be referred to the appropriate officers of the appellant.

15 In my view her Honour's observations apply to so much of the appellant's challenge to the primary judge's findings as relate to the respondent's success at trial with respect to the assault and false imprisonment causes of action. As I have observed, it is apparent that when there was a change of senior counsel, the matter was reassessed and that it was determined, in my opinion quite properly, that the appeal against the primary judge's findings of liability on those issues had no real prospects of success. That assessment should have been made at a far earlier point of time and no appeal should have been brought with respect to those causes of action or, if brought, should have been abandoned well before the parties were required to file their written submissions.

16 Contrary to good practice, it is apparent that the final decision to abandon the relevant grounds of appeal occurred only on the day before the hearing with the consequences to which I have referred. This is simply not good enough given that the State is required to be a model litigant by assisting the court to arrive at a proper and just result: see generally, Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 at [15]-[17], [20] per Basten JA (Giles and Bell JJA agreeing); applied in AT v Commissioner of Police, New South Wales [2010] NSWCA 131 and Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140.

17 These remarks are in no way intended to criticise the decision of senior counsel who appeared for the appellant on the hearing of the appeal. Rather, it is to bring home the message to the appellant and its advisers that the prospects of succeeding on the assault and false imprisonment causes of action should preferably have been assessed before the notice of appeal was filed. It is apparent that this was not done and that is reflected in the standard of the written submissions on those issues filed in the Orange Book.

The events leading up to 1 March 2006

18 As observed by the primary judge at [100] of his reasons, the events of 1 March 2006 had their origin in an application for an apprehended violence order (AVO) taken out by Ms Tracey Knight against the respondent who was the father of their two children. On 15 March 2005 Ms Knight obtained an AVO against the respondent current for two years from that date and which included an order in the following terms:

"13. Other Orders: THE DEFENDANT MUST NOT APPROACH, CONTACT OR TELEPHONE THE PROTECTED PERSON(S) EXCEPT FOR THE PURPOSE OF ARRANGING OR EXERCISING ACCESS TO CHILDREN ON ALTERNATE MONDAYS AT PASSADERA DAY CARE CENTRE AT 8 AM OR NOT TO CONTACT EXCEPT FOR CHILDREN RELATED ISSUES BY USING TEXT SMS MESSAGING."

19 On 31 January 2006, Ms Knight attended St Mary's Police Station shortly after 7 pm for the purpose of complaining of a breach of the AVO by the respondent. She was interviewed by Constable Shane Arapa. According to his Honour (at [4]) it appeared that there had been earlier contact during the day between the respondent and Ms Knight who had asked him to call her later that evening. At the time when this further contact might be expected, she was at the police station with her mobile phone complaining to Constable Arapa that the respondent had breached the AVO. However, the Constable was not satisfied that her complaints could be substantiated. Ms Knight remained at the police station and received some advice in relation to the AVO.

20 The foregoing events occurred only some minutes before 7.27 pm when Ms Knight's mobile phone rang. She answered it and recognised the voice of the respondent. After informing Constable Arapa that the phone call was from the respondent, she immediately put the phone on loudspeaker so that Constable Arapa could hear the conversation which then occurred. According to a written statement made and signed by Ms Knight on 31 January 2006 (admitted into evidence as the document obtained from her at the time but not as to the truth of its contents) and to a COPS entry prepared by Constable Arapa on 2 February 2006, the respondent spoke to Ms Knight for a period of six minutes but during that time the children of Ms Knight and the respondent were not mentioned. At the expiration of those six minutes, Constable Arapa identified himself to the respondent. The latter terminated the call at 7.33 pm whereupon Constable Arapa immediately obtained the statement from Ms Knight referred to.

21 There was a conflict in the evidence between Constable Arapa and the respondent as to what occurred between the two of them before the respondent terminated the call at 7.33pm. According to the former, he offered the respondent the opportunity to attend the police station that evening, an offer which he refused, challenging the police to find him. According to the respondent, Constable Arapa informed him that he wished the respondent to come to the police station regarding the AVO which he said that he, the respondent, had just breached. The respondent denied that he had breached the AVO and indicated he was happy to attend the police station but only in the company of his solicitor which he would arrange to do as soon as he was notified by Constable Arapa as to an appropriate time. To that offer, according to the respondent, Constable Arapa said "I want you to attend the police station now or I will come and arrest you". The respondent responded: "You do whatever you have to do, but I will only attend the police station with my solicitor". As noted above the telephone call was then terminated.

22 Although neither Ms Knight in her statement nor Constable Arapa in his written or oral evidence detailed the content of the conversation between the former and the respondent, they both asserted that during that conversation there was no mention of the children or anything that related to the respondent arranging or exercising access to the children. It was on that basis that Constable Arapa asserted that he formed the opinion that there had been a breach of the AVO.

23 At [100] of his reasons the primary judge stated that there was no evidence verifying any breach of the AVO by the respondent until the mobile telephone call overheard by Constable Arapa on the speaker, "when it is claimed that there was no mention of any arrangements concerning the children". In his evidence in chief (at Black 1/21V-X) the respondent indicated that he was telephoning Ms Knight as a consequence of an earlier conversation he had had with her relating to arrangements with respect to access to the children, when she had suggested that he telephone her at about 7 pm that night after the children had gone to bed. He asserted that during the course of the conversation which, without the respondent's knowledge, occurred when the phone was on loud speaker, he asked her whether she had made a decision regarding what they had discussed earlier in the day. He said that Ms Knight raised a number of points with him which had nothing to do with the children and continued to do so notwithstanding that he attempted to re-focus her on the children as he had no reason to talk to her about anything else. When asked what particular matter she wanted to talk to him about, he responded,

"She wanted a different type of car she wanted some money for furniture and other stuff"

It should be noted that although the primary judge (at [4]) referred to a dispute as to what was said in the conversation between Ms Knight and the respondent, no finding was made by his Honour as to whether that conversation occurred in the terms the respondent had asserted: see [45] below.

24 Ms Knight was not called to give evidence although according to the primary judge, she was scheduled as a possible witness for the respondent in the course of case management directions. However in the circumstances his Honour was not prepared to draw any inference from her absence. Nevertheless, notwithstanding an extensive cross-examination of Constable Arapa, he was not challenged upon his evidence that there had been no mention of the children during the course of the conversation which he had overheard. In fact, as appears from Black 1/587 O-V, the only cross-examination of Constable Arapa with respect to that telephone conversation related to whether he thought it was a coincidence that Ms Knight had attended the police station alleging a breach of the AVO and that while she was doing so the respondent had telephoned her on her mobile phone. When asked whether he was aware that the respondent and Ms Knight had met earlier in the day to discuss arrangements in relation to the children, he said that he was not and that he had not been told that at any point of time.

25 The primary judge dealt with this issue at [101]-[104] of his reasons. At [101] he observed that he did not think that Ms Knight's visit to the police station shortly before 7.30 pm when the call from the respondent was received was coincidental. Nor did he consider that the visit was consistent with a requested arrangement for a call being made about that time by Ms Knight when she had met the respondent earlier in the day. Whether that was so or not does not seem to me to be particularly relevant to the issue as to whether there was evidence of a breach of the AVO. At [102] his Honour referred to a pro forma police document from which he concluded, the contrary not being suggested, that the alleged breach of the AVO did not involve violence or any threat thereof.

26 At [103] his Honour noted that it was therefore clear that

"assuming the validity of the complaints of breach taken at the highest, violence of neither actuality nor potentiality was involved. Those circumstances should have provided a key indicator as to the appropriate conduct in enforcing the AVO."

27 It is apparent that the purpose of this last remark of his Honour was, as he later found, that it was inappropriate for Constable Arapa to arrest the respondent for what was a technical and non-violent breach of the AVO. This may be accepted for, in part, it was the foundation of his Honour's finding of false imprisonment. Be that as it may, on the basis of the unchallenged evidence of Constable Arapa on this issue and the statement of Ms Knight, there was material which, if accepted, provided evidence of a breach of the AVO.

28 At [105] the primary judge recognised that so far as the evidence demonstrated, Constable Arapa was seeking to enforce what was an alleged breach of the AVO consisting of a telephone call in which arrangements for the children were not mentioned. His Honour's complaint, as appears from [106], was that instead of proceeding to arrest the respondent on 1 March 2006, one month after the events of 31 January 2006, Constable Arapa should have charged the respondent with a breach of the AVO by creating and serving him with a court attendance notice (CAN) pursuant to Division 1 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

29 Such a notice would have required the respondent to attend court to answer the allegation on a specified date. Given the non-violent nature of the alleged breach, his Honour considered it difficult to see why this method was not adopted. Again, this observation was relevant only to his Honour's finding with respect to the false imprisonment cause of action. It should be mentioned, however, that Constable Arapa was cross-examined at Black 1/597C-H and 609W-614D as to why he did not proceed by way of a CAN on or before 1 March, evidence which his Honour in effect rejected by finding (at [106]) that it was "intentionally obfuscatory". I shall return to this aspect of the matter below.

30 At [107] the primary judge resolved the different versions of the conversation between Constable Arapa and the respondent as to the latter attending the police station, to which I have referred at [21] above in favour of the respondent's version as it gained some corroboration from his solicitor, Mr Amirreaggi. He accepted the evidence of Mr Amirreaggi that he had telephoned St Mary's Police Station on 31 January and had spoken to an officer asking that whoever was dealing with the matter concerning the respondent be informed that he and the respondent would be available to attend the police station within the hour. Constable Arapa's denial that he received any message to that effect was considered by his Honour to be "difficult to countenance". That finding is only relevant to the issues on the appeal to the extent that it reflects a finding, amongst others, whereby the primary judge declined to accept the evidence of Constable Arapa on a particular matter. However it was heavily relied on by the respondent in both his written and oral argument. I will need to refer to it again when dealing with those submissions: see [83] below.

The delay between 31 January and 1 March 2006

31 Before dealing with the events of 1 March it is necessary, as it was relied upon heavily by the respondent as well as by the primary judge, to deal with the delay between 31 January when the alleged breach of the AVO occurred and 1 March 2006 when Constable Arapa proceeded to the respondent's place of employment in order, to put it neutrally, to speak to him. In this respect at [105] his Honour noted that an absence of urgency could be detected in Constable Arapa's election only to seek contact with the respondent by telephone on 1 March, an entire month after the events of 31 January. As I have observed, those telephone conversations appear to have been accepted by his Honour as involving assertions by Constable Arapa that he was seeking to enforce the alleged breach by the respondent of the AVO arising out of the overheard mobile telephone call on 31 January.

32 The evidence of Constable Arapa in cross-examination (at Black 1/589W) was that between 31 January and 1 March he only worked six rostered shifts, the balance of the month being rest days. He thus only worked for six days in that period, evidence that was not the subject of challenge. However, Constable Arapa accepted that he would have driven past the Kingswood Autoport where the respondent worked on each of those six days. It was in this context that at Black 1/590M the following cross-examination occurred:

"Q. You yourself, you have already said, were of the belief that he [the respondent] had in fact breached it [the AVO]?

A. Yes."

That answer was not challenged except in the limited cross-examination (in a different context) referred to at [64] below and in submissions.

33 At Black 1/587W-X, 590 O-P, 593 M-O and 594 O-R, Constable Arapa in cross-examination accepted that during the six days that he was rostered on duty between 31 January and 1 March he would have driven past the Kingswood Autoport about 30 times and that on two or three of those occasions he had stopped at the Autoport and sought out the respondent but was always told that he was not present. Further, he did not see him at his place of employment at those times. Apart from asserting that Constable Arapa had not given that evidence in his evidence in chief, a proposition with which he agreed, there was no further challenge to his evidence as to the number of occasions during the six days that he was rostered on duty between 31 January and 1 March that he had attempted to find the respondent.

34 Although it was suggested to Constable Arapa that that evidence was given by him in order to explain the delay in following up the respondent with respect to the alleged breach of the AVO, a proposition which Constable Arapa denied at Black 1/594 X, that denial was not the subject of an adverse finding.

35 Nevertheless at [105] his Honour said that he "detected" an "absence of urgency" in Constable Arapa's election to seek contact with the respondent only by telephone between 31 January and 1 March. Further, at [108] he contrasted the "swiftness of the police action on 1 March" with what he referred to as "the relatively leisurely activity in relation to the matter as the month of February passed". No reference was made to the evidence of Constable Arapa which I have chronicled at [32] and [33] above.

36 As will appear, in my opinion these findings of his Honour could only have been relevant to the false imprisonment cause of action. However, the respondent relied on them with respect to his malicious prosecution cause of action to found a submission, as I would understand it, that Constable Arapa could not have genuinely believed that the respondent had committed a breach of the AVO on 31 January for otherwise he would have proceeded against him with greater urgency.

37 There are difficulties with this proposition of the respondent given the primary judge's repeated observations that the alleged breach did not involve actual or potential violence or any threat thereof. That of itself, when coupled with the limited days in February when Constable Arapa was rostered for duty, may well explain why he did not telephone the respondent with respect to the breach of the AVO until 1 March. His Honour did not give consideration to such a possibility.

The primary judge's findings as to the credit of the respondent and Constable Arapa

38 At [28] to [39] of his reasons, his Honour dealt with the respondent's credit. At [28] he recorded his finding with respect to the respondent's evidence that he was not a "creditworthy witness". He considered that there was an alarming frequency of the response "I'm unsure" when confronted with facts, the denial of which he appeared to perceive as forensically dangerous. There was an abundance of incidences when the respondent impressed as lacking in candour and, more significantly, incidences where his evidence was demonstrably unacceptable. At [189] he reiterated that he did not find the respondent to be "a reliable witness".

39 Thus at [29] his Honour noted:

"It might be inferred that adverse conclusions concerning the [respondent's] credit were anticipated as submissions on his behalf focused upon assertions where the [respondent's] evidence was supported by others and in a broad sense, corroborated."

40 It is not unimportant to note that his Honour made no similar general finding as to the creditworthiness of Constable Arapa. Certainly, he rejected Constable Arapa's evidence on a number of specific issues some of which related to the order in which the events of 1 March 2006 occurred. For instance, as noted at [30] above, at [107] he rejected Constable Arapa's evidence that when he spoke to the respondent on Ms Knight's mobile phone on 31 January, the respondent declined to attend the police station, challenging the police to find him. Rather, he accepted the respondent's version that he would attend the police station on the condition he was accompanied by his solicitor. In other words, the solicitor's evidence provided some corroboration of the respondent's version of the conversation. His Honour preferred the evidence of the respondent as it was "indirectly supported by the evidence, evidence which [he accepted], of the solicitor Mr Amirreaggi".

41 A further instance was his rejection (at [106]) of Constable Arapa's reasons for not issuing the respondent with a CAN with respect to the alleged breach of the AVO. There are other incidences where he rejected Constable Arapa's evidence to which I shall refer below where relevant. However, it is convenient to note at this point that the primary judge did not reject Constable Arapa's evidence that he overheard the conversation on Ms Knight's mobile phone between her and the respondent in which there was no mention of their children. That evidence was consistent with Ms Knight's statement referred to at [20] above. It was not suggested to Constable Arapa that he could not rely on it in charging the respondent with a breach of the AVO.

42 As observed at [23] above, the respondent's evidence was that in the course of the telephone conversation overheard by Constable Arapa, it was Ms Knight who was avoiding any reference to the children whereas he, the respondent, attempted to have Ms Knight focus on the children. Notwithstanding what I noted in the last sentence of that paragraph, it is reasonable to infer that given the lack of creditworthiness of the respondent found by the primary judge, he did not accept his assertion that the children were referred to in the course of the conversation.

43 In these circumstances, there being no finding of his Honour that Constable Arapa was not entitled to rely on Ms Knight's statement of 31 January, it could also be inferred that he accepted, or at least did not reject, Constable Arapa's evidence that there was no mention of the children during the course of the conversation as a consequence whereof there was evidence of a breach of the AVO. Although his Honour expressed himself (for example at [103]) in terms of assuming the validity of the complaints with respect to the breach of the AVO, at no point in his judgment does he find that that assumption was not supported by credible evidence.

44 In the foregoing context I mention two other matters. The first is that at [105] and [190] the primary judge seems to infer that there was some conversation between Ms Knight and the respondent before she put her mobile phone on loudspeaker. The evidence does not support any such inference. Rather, as soon as Ms Knight recognised that the caller was the respondent she placed the phone on speaker. Constable Arapa's evidence as to this at Black 1/531T - 532G was not the subject of challenge.

45 The second matter is that there was no evidence as to the content of the conversation between Ms Knight and the respondent overheard by Constable Arapa. The latter's evidence in chief as to this was as follows (Black 1/532Q-R and 533R-S):

"Q. What did you hear unfold once the phone was on loud speaker?

A. I just heard the male speak for a period of time. Prior to that, I was aware that there was an AVO in place. And all I was listening for was something about the kids. And during that time I never heard--

...

Q. Did you hear anything in the content of the conversation which caused you to do something?

A. It wasn't so much what I heard, it's what I didn't hear."

Again, that evidence was not the subject of challenge or adverse comment by his Honour.

The events of 1 March

46 According to Constable Arapa's COPS entry, at about 10.45 am on 1 March the police (meaning thereby himself) telephoned the respondent at his place of employment and offered him the opportunity to attend the police station either that day or at a later date. The respondent in effect declined the offer in circumstances which are not presently relevant. At approximately 11 am, together with a Constable Kathy Donney, he left St Mary's Police Station and travelled to the respondent's place of employment at Kingswood. Although Constable Arapa denied that from the outset he intended to arrest the respondent, that evidence was rejected given the evidence of Constable Donney, accepted by his Honour (at [110]), that he (Constable Arapa) was always going to arrest the respondent.

47 Relevantly, on attending the Kingswood Autoport, Constable Arapa sighted the respondent who then entered and commenced to drive his vehicle within the precinct of the Autoport. The primary judge then records what occurred between Constable Arapa and the respondent in the following paragraphs of his reasons:

"[114] Although the [respondent's] vehicle was moving he stopped it reasonably promptly in response to a police hand signal. ... Constable Arapa's evidence in chief was that, without response from the [respondent] he said "I am Constable Arapa. I am a police officer from St Mary's police. Can you produce your driver's licence for me please?". And "you're the driver of a motor vehicle. I require you to produce your licence for me. If you fail to do so you may be committing an offence". And "you know, I believe that you are Wayne Quirk, a person wanted by police for breach of an AVO. I am placing you under arrest for breaching that AVO and I require you to get out of the car".

[115] This evidence is substantially in harmony with the content of statements which the Constable made on 29 June 2006 and 25 March 2011. There is a significant difference in what he recorded in his notebook at 12.15 on 1 March 2006 when he had returned to Penrith Police Station. He recorded:

I have stopped you for the purpose of a random breath test, do you have your drivers licence?"

48 At [117] his Honour considered that it stretched credibility

"that he [Constable Arapa] approached the [respondent] and spoke in the terms of the dispassionate ritual incantations to which he testified."

However, there was no suggestion by his Honour that he did not accept the accuracy of Constable Arapa's entry in his notebook to which he had referred at [115]. The effect of that entry was that whilst the respondent was still in his vehicle having just been stopped by the police from further driving it, Constable Arapa asked him to produce his drivers licence although not in the formal terms or "dispassionate ritual incantations" asserted by him in his evidence.

49 Constable Arapa was cross-examined as to why he asked the respondent to produce his licence. Although his evidence at Black 1/639R to 640S that it was to confirm the identity of the respondent was rejected by his Honour (at [144]), it was not suggested that Constable Arapa was not authorised to require the respondent to produce his driving licence without giving a reason for doing so. That unconditional authority was to be found in s 171(1)(a) of the Road Transport (General) Act 2005. Further, it was an offence to refuse to comply with such a requirement: see s 171(2)(a).

50 Nor was it contested that Constable Arapa required or requested the respondent to get out of his vehicle. At [118] his Honour accepted that there was agreement that the respondent did not willingly get out of his vehicle but was required to be forcibly removed by the police officers. He resisted their attempt to extract him from the vehicle in the following manner as described by his Honour:

"To the extent that he resisted, the preponderance of evidence was that he did so by stiffening his body and planting his feet on the firewall at the floor of the car. ... He simply held his body rigid."

51 At [120] his Honour remarked:

"However, assuming without deciding, that the arrest might be justified by an allegation of breach of the AVO, an issue arises as to whether excessive force was employed by those involved in making the arrest. My conclusion on the whole of the evidence is that excessive force was applied and the [respondent] was the victim of assault."

52 Although his Honour ultimately determined that the arrest of the respondent was not justified thus leading to his finding in favour of the respondent on the false imprisonment cause of action, I repeat that the primary judge did not reject Constable Arapa's stated belief that the respondent had breached the AVO albeit in a non-violent manner.

53 His Honour then dealt in some detail with the evidence relevant to the issue of assault and false imprisonment at [121]-[142] of his reasons. As his findings with respect to those issues are no longer challenged, it is unnecessary to refer to that evidence. However, it is appropriate to note that at [135] his Honour found that the police response to the intended arrest of a person suspected of a non-violent breach of an AVO said to have been committed more than a month previously was "extraordinary" and at [136] he referred to a "lack of restraint on the part of the police in the exercise of their purported powers". Again, at [141] his Honour referred to an aspect of the matter which, he said, offered insight into the willingness of the police officers at the scene to reject any opportunity to appropriately assess the situation. In other words, it is apparent that his Honour considered, and this is not in issue on the appeal, that the police grossly over-reacted.

54 However, having made those findings, at [143] his Honour considered that an important indication "of the absence of bona fides in the conduct of Constable Arapa in particular", was to be found in the request and subsequent charge of refusing to undergo a breath test. It will be necessary to refer again to this finding below as it contains an ambiguity.

55 At [145]-[147] the primary judge dealt with what he said at [144] was some "demonstrable problems" with Constable Arapa's version in relation to the refusal of the respondent to undertake a breath test. I commence this aspect of his Honour's findings by observing that although Constable Arapa's notebook, the contents of which his Honour appears to have accepted as accurate, stated that he, Constable Arapa, had informed the respondent that he had stopped him for the purpose of obtaining a random breath test rather than that he was arresting him for breaching the AVO (which was his evidence in chief: see [47] above), nevertheless there was no suggestion that Constable Arapa required the respondent to undertake a breath test while he was still in his vehicle.

56 At [145] his Honour noted that after he was removed from the vehicle, the respondent appeared to be having a seizure, fit or panic attack which caused one of his employees, Ms Pateman, to call an ambulance. Constable Arapa's evidence, according to his Honour, was that after the ambulance officers had attended to the respondent he made a formal request of the respondent in the following terms:

"Because you are the driver of a motor vehicle on a road related area, in accordance with the Road Transport Safety and Traffic Management Act I require you to undergo a roadside breath test. What I require you to do is place your lips over the end of the tube and blow into the device in one long continuous breath and keep going until I say stop."

Constable Arapa then described the attempts of the respondent to provide a sample including his failure to provide a sufficient sample notwithstanding a number of requests or directions for him to do so.

57 At [147] his Honour said this:

"This description of events to which he testified is perceptibly inconsistent in a number of respects with what Constable Arapa had written in his notebook later on 1 March. The notations and some testimony about this casts some light upon the constable's state of mind and motives in executing the arrest."

Although referring to Constable Arapa's "motives" in executing the arrest, when dealing with the issue of malice at [158], his Honour expressly eschewed determining what those motives were.

58 His Honour then set out the cross-examination of Constable Arapa at Black 1/621J-622P. In that exchange he was referred to the entry in his notebook recorded by the primary judge at [115] of his reasons (see [47] above) to the effect that he had stopped the respondent for the purpose of a random breath test. The exchange recorded by his Honour concluded with the following questions and answers:

"Q - So the real reason that you stopped him was so you could administer a random breath test?

A - Yes.

Q - Nothing to do with the AVO, according to this document, was it?

A - According to that, no."

59 His Honour then concluded in the following terms:

"[148] I conclude that the arrest of the [respondent] was not justified. It follows that his detention was unlawful. Further I am satisfied that Constables Arapa, Barnes and Wade used excessive and unreasonable force in carrying out the arrest and that their conduct constituted an assault of the [respondent]."

One of the difficulties faced by the respondent is that the primary judge's findings and conclusion referred to in the foregoing paragraphs appear to be directed to the assault and false imprisonment causes of action rather than to the malicious prosecution cause of action and, in particular, to the critical issue of absence of reasonable and probable cause. I shall refer further to this conundrum below: see [99] below.

The respondent is charged

60 Having found that the respondent had established an entitlement to damages arising out of the events of 1 March for false imprisonment and assault, his Honour then turned to his claim of malicious prosecution which he dealt with in eight paragraphs at [151] to [158]. Before referring to his Honour's remarks and findings on that issue it is necessary to record that on his return to the police station Constable Arapa created (by computer) and served the respondent with a CAN alleging the following offences:

001 Crimes Act 1900, Section 562I(1)

Contravene apprehended domestic violence order between 7:27 pm and 7:33 pm on 31/01/2006 at St Marys.

did knowingly contravene a prohibition specified in an apprehended domestic violence order.

002 Crimes Act 1900, Section 546C

Resist police/ hinder police/ incite another to assault/ resist/ hinder police between 11:10am and 11:20 am on 01/03/2006 at Kingswood.

did resist Constable ARAPA a member of the Police Force in the execution of his duty.

003 Road Transport (Safety and Traffic Management) Act 1999, Section 13(2)

Fail to undergo breath test between 11:10 am and 11:20 am on 01/03/2006 at Kingswood.

did, when required by Constable ARAPA, a police officer, to undergo a breath test under section 13(1) of the Road Transport (Safety and Traffic Management) Act 1999, fail to undergo the breath test in accordance with the directions of the said officer.

004 Road Transport (General) Act 2005, Section 171(2)(a)

Driver/rider refuse to produce licence, state name between 11:10 am and 11:20 am on 01/03/2006 at Kingswood.

did drive a vehicle, to wit, ATD-32r, on a road"

The prosecution of the charges

61 The CAN records that the respondent was served with it at 5.18 pm on 1 March 2006 at Penrith Police Station. It was returnable before Penrith Local Court on 23 March 2006. Leaving to one side what occurred between 23 March and 17 October 2006 as presently irrelevant, the charges in the CAN were ultimately listed for hearing on the last mentioned date. However, as the primary judge noted at [151] of his reasons, s 177(4) of the Criminal Procedure Act 1996 (NSW) (as it then stood) required a copy of a CAN to be filed in a court not later than seven days after it was served except with the leave of a magistrate or a registrar of the court. As I have indicated, the CAN was served upon the respondent on 1 March 2006 but it was not filed in a Local Court within the seven days referred to in s 177(4). Accordingly, when the matter came before the presiding magistrate on 17 October 2006, he held, consistently with the decision of Bell J in Sharman v Director of Public Prosecutions [2006] NSWSC 135, that he lacked jurisdiction to hear and determine the charges and, as a consequence, ordered that they be dismissed. Accordingly, the proceedings were thereupon terminated in the respondent's favour.

62 At [151] the primary judge remarked that pursuant to s 177(5) of the Criminal Procedure Act, leave may be granted under subs (4) after the expiry of the seven-day period referred to in that subsection. No application for such leave was made. His Honour then made the following observations:

"[151] ... no doubt the grant of leave would require cause to be shown but it was not suggested that the prosecution even contemplated seeking to proceed with the CANs after they, in effect, lapsed for want of filing.

'

[152] This inaction which might be categorised as 'letting sleeping dogs lie' is suggestive, at the very least, of an absence of genuine belief that the [respondent] should be brought to answer for breach of the criminal law."

63 The primary judge did not refer to any evidence, whether of Constable Arapa or anyone else, to support the findings referred to in the preceding paragraph. At Black 576G-L in his evidence in chief, Constable Arapa accepted that he was the relevant informant with respect to the charges alleged in the CAN and that the preparation and presentation of the brief of evidence to other police to prosecute was his responsibility. However, following the compiling of the brief, his evidence, which was not challenged except as appears in the next succeeding paragraph, was that the brief goes to the brief handling manager. In fact, when asked whether or not the internal system which checked to ensure the brief contained all relevant material, had operated in this case, his answer was interrupted by his Honour in the following exchange (at Black 1/576Q-T):

"HIS HONOUR

Q. I'd imagine, constable, you'd feed it in at one end, the anticipation being ultimately it will get into the hands of whoever is the advocate in court?

A. Yes, that's correct, sir. The normal process is--

HIS HONOUR: Yes, I understand. Yes, Mr Bodor."

64 The extent of Constable Arapa's cross-examination on this issue was as follows (at Black 2/678K-Y):

"Q. What happened to the four charges?

A. They were dismissed at court.

Q. Why?

A. Because the court attendance noticed hadn't been filed in the court registry within the required time.

Q. And whose responsibility was it to ensure the court attendance notice was filed within the relevant time?

A. The police prosecutor.

Q. I suggest it was yours?

A. No, that's incorrect.

Q. Are you aware that Constable Pearson gave evidence in this case yesterday afternoon?

A. No.

Q. I want to suggest to you that it was your responsibility to ensure that that notice was filed on time and you deliberately did not do so?

A. That's incorrect.

Q. And I suggest the reason that you deliberately did not do so is because you did not want your conduct to be the subject of any examination before a magistrate?

A. No, that's incorrect.

Q. And I suggest to you the reason why you did not want your conduct to be the subject of any examination before any magistrate is that you had no honest belief that any of those four charges brought against this man had any substance to them whatsoever?

A. That statement is incorrect."

I interpolate that as noted at [32] above, this was the only cross-examination of the respondent that sought to directly challenge his belief that there was sufficient evidence to support the bringing of the four charges. Significantly, his Honour made no specific finding that he rejected the last answer in the above exchange.

65 It is to be noted that no questions were directed to Constable Arapa as to when he first became aware that the CAN had not been filed in court; nor was he asked any questions to suggest that he was aware that if the CAN was not filed within the specified period, an application could be made for leave to file it out of time. The Court was not referred to any other evidence of any other police witness that might have borne upon this issue.

66 Furthermore, there was no specific reference by the primary judge to Constable Arapa's evidence which I have recorded at [63] above; nor is there any finding by his Honour that he did not accept that the answers he gave were truthful. The one rider to this is his general finding (at [157]) of absence of reasonable and probable cause. However, his Honour did not attribute that absence to the suggestion in the last question of the exchange recorded at [63] above.

67 In the foregoing circumstances, in my view there was no evidence from which a proper inference could be drawn first, that Constable Arapa was responsible for the ongoing prosecution of the charges listed in the CAN; secondly, that he became aware that the CAN had not been filed at a time prior to the dismissal of the charges on 17 October 2006; thirdly, that he was aware that leave could be sought from the Local Court to file the CAN out of time; fourthly, that it was his responsibility to ensure that it was filed within time; and fifthly, that he had any further involvement in the prosecution once he had prepared the brief of evidence and handed it over to the prosecuting police officers.

68 Accordingly, in my respectful opinion, the failure of the prosecuting authority to contemplate seeking leave pursuant to s 177(4) and (5) of the Criminal Procedure Act could not be sheeted home to any inaction on the part of Constable Arapa on the "let sleeping dogs lie" theory (referred to by the primary judge at [152] which I have recorded at [62] above) so as to reflect adversely upon his genuine belief that the respondent should be "brought to answer for breach of the criminal law". Finally, it is not insignificant that there is nothing in the respondent's various written submissions filed in this appeal or in oral argument in which reliance was placed upon his Honour's findings at [151] and [152] of his reasons.

The relevant legal principles

69 It was common ground that the relevant legal principles were those stated in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ in A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [54] - [95]. Relevantly to the present case their Honours dealt at some length with the requirement of absence of reasonable and probable cause. In so doing they distinguished between the position of a prosecutor who was personally aware of the relevant evidence (such as Constable Arapa) and a prosecutor who was required to rely on the evidence of others and which, depending on its nature, might require him or her to make further enquiries.

70 For present purposes, the following propositions can be distilled from the reasons of the plurality:

(a) To succeed with respect to the tort of malicious prosecution, the plaintiff is required to prove two distinct elements, one positive (malice) and the other negative (absence of reasonable probable cause). Each has a separate role to play: [54].

(b) Although a conclusion about malice does not render it irrelevant (as proof of particular facts may provide evidence of both elements), the inquiries about what the prosecutor did make, and should have made, of the material available when deciding whether to initiate or maintain a prosecution, if the prosecution fails, an action for malicious prosecution will not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge. This would be so notwithstanding a finding of malice: [54], [56].

(c) Thus the inquiry about reasonable and probable cause has two aspects. The first is what did the prosecutor make of the material available to him and the second is what should the prosecutor have made of it. The first is a subjective test the second an objective test: [58].

(d) As the question as to whether there is an absence of reasonable and probable cause must be determined at the time the prosecution is commenced, attention is necessarily directed to what material the prosecutor has available for consideration when deciding whether to commence or maintain the prosecution: [59].

(e) It is important to recognise that in an action for malicious prosecution the plaintiff must establish a negative (the absence of reasonable probable cause). The forensic difficulty of proving such a negative is well known. It is very much dependant upon the nature of the forensic circumstances of a particular case. What must be avoided is the tendency to translate the negative question - whether the defendant prosecutor acted without reasonable and probable cause - into the different question - what will constitute reasonable and probable cause to initiate criminal proceedings: [60].

(f) Subject to the qualification in (h) below, in Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469 Jordan CJ said that there were five conditions to be met if a person was to have reasonable and probable cause for prosecuting another for an offence:

"(1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty."

(g) To succeed on the issue of absence of reasonable and probable cause, the plaintiff has to establish "that one or more of the foregoing conditions did not exist" which, according to Jordan CJ, he may do by proving, if he can, that the defendant prosecutor did not believe him to be guilty, or that the belief in his guilt was based on insufficient grounds: [64].

(h) The five conditions stated by Jordan CJ provide guidance about the particular kinds of issue that might arise at trial in those cases where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds. However those five conditions should not be understood as completely or exhaustively describing what will constitute reasonable and probable cause: [66].

(i) If the plaintiff alleges that the defendant prosecutor did not have the requisite subjective state of mind when instituting or maintaining a prosecution, that is an allegation about the prosecutor's state of persuasion. The subject matter of the relevant state of persuasion in the mind of prosecutor is the sufficiency of the material then before the prosecutor to warrant setting the process of the criminal law in motion. If the facts of the particular case are such that the prosecutor may be supposed to know where the truth lies, the relevant state of persuasion will necessarily entail a conclusion (a belief of the prosecutor) about guilt: [71].

(j) The negative proposition that the plaintiff must establish (that the prosecutor acted without reasonable and probable cause) may be established in either or both of two ways: the defendant prosecutor did not "honestly believe" the case that was instituted or maintained, or the defendant prosecutor had no sufficient basis for such an honest belief: [77].

(k) In most cases, honesty, or more accurately, the allegation of lack of honesty, will require consideration of what the prosecutor knew, believed or concluded, about some aspect of the material. However, if the prosecutor's knowledge or belief must be considered, honesty will add nothing to the inquiry: [78].

(l) What is required is an examination of the prosecutor's state of persuasion about the material considered by him or her. That should not be done by treating the five conditions stated by Jordan CJ as a complete and exhaustive catalogue of what will constitute reasonable and probable cause although they are generally sufficient where the prosecutor is not required to act upon information provided by others [as in the present case]. However the focus must be on the absence of one or more of those conditions: [81].

(m) The objective element of the absence of reasonable and probable cause has been couched in terms of the "ordinarily prudent and cautious man placed in the position of the accuser" or explained by reference to "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution". 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 (not must) depend upon evidence demonstrating that further inquiry could and should have been made [no such assertion was made in the present case]: [83], [86].

(n) With respect to malice the plaintiff must establish that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law - an "illegitimate or oblique motive". That improper purpose must be the sole or dominant purpose actuating the prosecutor. Various examples are given of malice such as personal animus, ill-will, spite, a desire to punish the plaintiff or to stop a civil action brought by the plaintiff against the prosecutor. The list is non-exhaustive. Malice can be defined only by the negative proposition: a purpose other than a proper purpose: [91], [92].

(o) Although proof of malice is often a matter of inference, it is proof that is required, not conjecture or suspicion. It requires evidence from which the court can infer that the prosecutor wished to pursue some illegitimate or oblique motive other than a proper invocation of the criminal law: [93].

The AVO charge

(a) The statutory basis for the charge

71 The statutory basis for this offence was s 562I of the Crimes Act 1900 which relevantly provided:

"(1) A person who knowingly contravenes a prohibition or restriction specified in an order made against the person is guilty of an offence

Maximum penalty: 50 penalty units or imprisonment for 2 years, or both

...

(3) If a member of the Police Force believes on reasonable grounds that a person has committed an offence against this section, the member of the Police Force may, without warrant, arrest and detain the person."

(b) The evidence available to Constable Arapa

72 The evidence available to Constable Arapa to support the charge of knowingly contravening the relevant prohibition of the AVO was the statement of Ms Knight prepared and signed on 31 January 2006, which stated as follows:

"On Tuesday the 31st of January 2006, I attended St Mary's police station to speak to the police. At 7:10pm that evening, I was speaking with Constable ARAPA. At 7.27pm, my mobile telephone rang and I answered it. I immediately recognised the voice as that of Wayne QUIRK, my ex de-facto and father of our two children. I said to Constable ARAPA, "It's him." I put the phone on loud speaker so that constable ARAPA could hear him. Wayne spoke on the phone for 6 minutes before Constable ARAPA spoke to him. Wayne terminated the call at 7.33pm. I checked my phone to see if his phone number had appeared but it came up as a silent number. At no time did Wayne say anything about arranging access for the children. I did not give Wayne permission to contact me."

73 There was also the COPS entry created by Constable Arapa on 2 February 2006 which, relevantly, stated the following:

"On Tuesday the 31st of January 2006, the victim attended St Mary's police station to report alleged breaches of the order. The victim spoke to police in an interview room at the station. It was deemed at the time that the allegations being made could not be substantiated. The victim remained at the police station whilst police gave her advice in relation to the order. This was taking place only minutes before 7:27pm.

..

At 7:27pm that date, the victim's mobile phone rang. The calling number did not appear on the screen, only the words 'Private Number'. The victim answered and immediately recognised the voice as that of the accused. The victim placed the phone on to speaker phone so police could hear the conversation. The accused spoke to the victim for a period of six minutes. During that time, the children belonging to the victim and accused were not mentioned. After six minutes, police identified themselves to the accused. Police offered the accused the opportunity to attend the police station that evening however the accused refused the offer, challenging police to find him. The accused terminated the call at 7:33pm. Police immediately obtained a statement from the victim."

74 As I have noted at [22] and [45] above, the contents of the conversation between Ms Knight and the respondent was not included in the statements of Ms Knight and Constable Arapa. It was not necessary to do so as an offence was committed if that conversation did not mention their children. Of course, as observed at [23] above, the respondent's evidence at trial as to this conversation was different to what was allegedly overheard by Ms Knight and Constable Arapa insofar as they asserted that the conversation contained no reference to the children. However, at no time prior to the dismissal of the charge on the technical ground that the CAN had not been filed within the statutory time limit, was there any evidence that Ms Knight or Constable Arapa were aware of the respondent's version of that conversation.

75 In my opinion the fact that the alleged breach of the AVO did not involve actual or threatened violence, a factor which, as I have said, was repeatedly emphasised by the primary judge, or that there was a delay between 31 January and 1 March before Constable Arapa confronted the respondent with the alleged breach, does not detract from the fact that, on the basis of the statement of Ms Knight and Constable Arapa having personally overheard the conversation between Ms Knight and the respondent, there was direct evidence supporting an allegation that there had been a contravention of the AVO and, therefore, an offence under s 562I(1) of the Crimes Act.

(c) The primary judge's reasons

76 The primary judge's findings with respect to the events leading up to 1 March 2006 and which essentially involved the events of 31 January 2006 may be found at [100] to [107] of his Honour's reasons to which I have referred in some detail at [23] - [30] above. I shall therefore only repeat so much of those reasons as is necessary to understand his Honour's findings and their relationship to the issue of absence of reasonable and probable cause.

77 At [100] his Honour relevantly observed that there was no evidence verifying any breach by the respondent until the mobile telephone callover heard by Constable Arapa on the speaker phone "when it is claimed that there was no mention of any arrangement concerning the children". At [101] he observed that he did not consider that Ms Knight's visit to the police station was coincidental although that can have no bearing on the present issue. At [102], [103] and [104] his Honour was at pains to observe that the alleged breach of the AVO by the respondent did not involve any actual or potential violence. That circumstance, his Honour remarked,

"should have provided a key indicator as to the appropriate conduct in enforcing the AVO"

78 I do not understand this last observation of his Honour to query either the sufficiency of the evidence that in the telephone conversation there was no mention of the children of Ms Knight and the respondent or Constable Arapa's belief that there was no such mention. Rather, I think his Honour's remarks were directed to the manner in which Constable Arapa went about pursuing the respondent with respect to the breach of the AVO resulting from that conversation.

79 At [105] his Honour referred to the absence of urgency in pursuing the matter as a consequence of one month going by before Constable Arapa sought to contact the respondent with respect to the matter. That delay, if such it be, in the circumstances to which reference has already been made, cannot of itself constitute evidence from which the inference can be drawn (and which his Honour did not draw) that Constable Arapa did not have an honest belief that there had been a breach of the AVO, albeit a non-violent one. Equally, it cannot be relevant to the objective sufficiency of the evidence available to support the prosecution of that breach.

80 Then at [106] his Honour found that given the non-violent nature of the alleged breach, it was difficult to see why Constable Arapa did not pursue the matter by way of a CAN rather than proceeding to the respondent's premises for the purpose of arresting him. The cross-examination of Constable Arapa on this issue is at Black 1/609W - 612L. Essentially, when asked why a CAN could not have been generated at the police station and then served on the respondent on or prior to 1 March, Constable Arapa responded that he did not have access to a mobile computer in the field and that there were difficulties in producing a CAN in the police station in the absence of the person to whom it was to be directed.

81 His Honour's rejection of that evidence was confined at [106] to the practical difficulties asserted by Constable Arapa when service by mail is attempted. However, it seems to me that his Honour, expressly or inferentially, rejected the whole of the testimony of Constable Arapa on this issue. Be this as it may, the rejection of that evidence could not bear upon the issue of absence of reasonable and probable cause with respect to the offence in question.

82 Finally, much reliance was placed by the respondent on [107] of his Honour's reasons. However in that paragraph his Honour rejected the evidence of Constable Arapa concerning the conversation he had with the respondent after he identified himself at the conclusion of the conversation between the respondent and Ms Knight on 31 January 2006 and a similar conversation he had on 1 March 2006. The issue was whether the respondent informed Constable Arapa that he was prepared to attend the police station in the company of his solicitor, a version Constable Arapa denied. His Honour accepted the respondent's version of these conversations. But again these findings in my opinion can have no bearing upon the present issue.

(c) The respondent's submissions and their consideration

83 Nevertheless the respondent submitted (Appeal Trscpt 39) that the reason why Constable Arapa went to the respondent's place of work "and bashed him up was because he wouldn't come to the police station without a solicitor". This was an inappropriate submission as there is not a jot or tittle of evidence to support it. Furthermore, it is a serious allegation which was never put to the respondent in cross-examination. Nevertheless, at Appeal Trscpt 44 the respondent submitted that the involvement of the respondent's solicitor "was the key to this case". It was then submitted that Constable Arapa denied that there was any reference by the respondent to his solicitor because he knew, when the respondent indicated to him that he would attend the police station with his solicitor, that he did not have the material that he needed to successfully prosecute the respondent for breach of the AVO. As I understand this submission it was that if the respondent attended the police station with his solicitor the latter would be able, in some unidentified manner, to convince Constable Arapa that there was no evidence that his client had breached the AVO presumably on the basis of the version of the conversation between Ms Knight and the respondent overheard by Constable Arapa which the respondent asserted took place.

84 With respect, the submission is difficult to follow and is based on mere speculation. At no time was it suggested to Constable Arapa in cross-examination that the conversation between the respondent and Ms Knight was in terms of that asserted by the respondent in his evidence at trial: see [23] above. There was no suggestion that at the time Ms Knight attended the police station on the evening of 31 January 2006 that Constable Arapa had any knowledge either of her or of the respondent. It was just another alleged breach of an AVO. True it is that his Honour found (at [104]) that there was evidence that the telephone call overheard by Constable Arapa was made pursuant to an arrangement, but there was no suggestion that the Constable was aware of what that arrangement was. Notwithstanding the respondent's submissions based on the so-called "problem" of the respondent's solicitor, there was no finding by the primary judge that Constable Arapa had, for no discernable reason, falsified his account of the conversation he overheard in terms of there being no mention of the children or that he had then persuaded Ms Knight to prepare a statement which was also false.

85 For the respondent to succeed it was necessary for him to establish on the balance of probabilities the absence of any honest belief by Constable Arapa in the accuracy of his recording of what he had overheard in the telephone conversation between Ms Knight and the respondent and, in particular, that the children in question had not been mentioned. Although the primary judge refers to Constable Arapa seeking to enforce an "alleged" breach of the AVO and that it was "claimed" that there was no mention of any arrangements for seeing the children nowhere did his Honour find that that claim was not made on reasonable grounds.

86 Further, as the appellant submitted, nowhere in his reasons did his Honour remind himself of what was said in A's case with respect to the need to look at the material the prosecutor had in front of him and what he made of it, in terms of its sufficiency to support the relevant charge. Nor did he address the further requirement as to what a reasonable person in the position of the prosecutor would have made of that material. In failing to ask these questions his Honour was, with respect, in error.

87 The respondent nevertheless submitted that it was explicit in the primary judge's finding (at [107]) that he accepted as accurate the respondent's version of what had occurred in the conversations between him and Constable Arapa. But that finding could not reflect upon the issue of whether there was any sufficient evidence that a conversation took place between the respondent and Ms Knight during which there was no mention of the children. That was the only relevant issue that arose with respect to the AVO charge.

88 It was further submitted that it was unnecessary for the respondent to "go through the ritual of putting, for the sake of putting it, propositions to Constable Arapa when the joinder of issue on those issues was as plain as it could be". To the extent to which this submission was directed to the AVO charge, it must be rejected.

89 The respondent's final written submission in the present context was in the following terms:

"Whether Constable Arapa had reasonable and probable cause for instituting proceedings for breach of the AVO and whether he acted with malice depended upon the evaluation of the trial judge of his conduct, motives, thought processes, or absence thereof and inferences to be drawn from other evidence. The finding that the whole of his conduct was extraneous to the exercise of his executive power lead to the finding that he had not done what he was required to do ie consider whether there was reasonable and probable cause to charge the respondent with the breach of an AVO. Why did he wait a month to do so? Why did he stop the respondent for a random breath test and not simply arrest him for breach of the AVO?"

90 One can probably add to this submission the question: Why did Constable Arapa proceed to the respondent's place of work on 1 March 2006 if he did not believe that there had been a breach of the AVO? There was simply no purpose for him to do so if he did not hold the relevant belief. The evidence accepted by the primary judge was that he proceeded on 1 March to the Autoport for the purpose of arresting the respondent for a breach of the AVO. It is the manner in which he pursued the breach which his Honour severely criticised. But that is another matter.

91 In oral submissions the respondent asserted that Constable Arapa knew that he did not have the material he needed to institute a successful prosecution for breach of the AVO. It was also submitted that there was no evidence capable of supporting a breach of the AVO at the time the respondent was charged. What was overheard by Constable Arapa on 31 January did not, to his knowledge, constitute sufficient material which would warrant charging the respondent with a breach of the AVO.

92 When this submission was made senior counsel was asked whether Constable Arapa was cross-examined in terms that he knew that he did not have sufficient information to arrest the respondent for breach of the AVO. Counsel said that it was his recollection that he was so cross-examined but was at that time unaware of where in the transcript that occurred. He was then requested to find the relevant reference. As the Court was not further enlightened on this aspect of the matter, the only inference available is that there was no such cross-examination. The submission must therefore be rejected.

93 In summary, the primary judge did not reject the evidence of Constable Arapa that, having overheard the conversation between the respondent and Ms Knight, there was no mention of the children. It was not suggested to Constable Arapa that he had falsified his statement that there was no such mention or that he had no honest belief that there was no mention of the children during the course of that conversation. The reliance by the respondent on the findings of his Honour at [107] concerning the solicitor (see [30] above), Mr Amirreaggi, takes the matter no further. The respondent's submission that it was implicit in his Honour's findings that he did not believe Constable Arapa's version of what occurred on the evening of 31 January could only be based on his findings at [107]. In my opinion, they could not and did not reflect on what Constable Arapa overheard in the conversation between the respondent and Ms Knight. As that was the critical conversation which provided the evidentiary foundation for the alleged breach of the AVO, it was necessary for his Honour to make a specific finding that there was mention of the children if he was to reject Constable Arapa's evidence that there was not. In the absence of any such finding, the respondent's case on absence of reasonable and probable cause with respect to the AVO charge must fail.

The resist police charge

(a) The statutory basis for the charge

94 The statutory basis for the charge of resist officer in the execution of his duty is to be found in s 540C of the Crimes Act which, relevantly, was in the following terms:

"Any person who resists ... a member of the police force in the execution of his ... duty shall be liable on a conviction for a Local Court to imprisonment for twelve months or to a fine of ten penalty units, or both."

(b) The evidence available to Constable Arapa

95 At the time that this offence allegedly occurred, the respondent was in his vehicle. The police signalled to the respondent to stop the vehicle and he did so. Constable Arapa then walked to the driver's door and opened it. According to his evidence in chief he introduced himself and requested the respondent to produce his driver's licence. When he didn't respond he said,

"You're the driver of the motor vehicle. I require you to produce your licence for me. If you fail to do so, you may be committing an offence."

96 Again he got no response although he noticed the respondent reach into the pocket of his jeans and take out a mobile phone and dial a number. Constable Arapa then said to him,

"You know, I believe that you are Wayne Quirk, a person wanted by police for breaching an AVO. I'm placing you under arrest for breaching that AVO and I require you to get out of the car."

On two other occasions he had informed the respondent, who had not moved, that he was under arrest for breach of the AVO and that he needed to get out of the vehicle.

97 As the primary judge noted at [115] of his reasons, Constable Arapa's evidence in chief was substantially in harmony with the contents of his statements that he made on 29 June 2006 and 25 March 2011. It was also generally consistent with his COPS entry on 1 March 2006 insofar as it was stated that the police requested the respondent to produce his driver's licence that when he refused saying he had done nothing wrong, he was requested a second time but gave no response after which he was told that he was wanted by the police in regards to breaching an AVO and that he was under arrest for that offence and should get out of the vehicle in order to accompany the police to Penrith Police Station.

98 In cross-examination (at Black 608) Constable Arapa accepted that he sought to arrest the respondent for breach of the AVO. He was then cross-examined on the entries in his notebook which records that at 12.15pm on 1 March 2006 he, in effect, left Penrith Police Station "re breach AVO". However, he was then cross-examined on the narrative, such as it is, in his notebook the relevant part of which was recorded by his Honour at [115]: see [47] above. Constable Arapa accepted that the real reason that he stopped the respondent was so that he could administer a random breath test and that that had nothing to do with the AVO according to what he had written in his notebook: see [58] above.

99 That cross-examination was said by his Honour to cast some light upon Constable Arapa's state of mind and motives in executing the arrest. However, it is difficult to know what his Honour made of that cross-examination in the context of the malicious prosecution charge for in [148] of his reasons, which immediately followed his recitation (at [147]) of the cross-examination on the notebook, he made the following finding:

"I conclude that the arrest of the [respondent] was not justified. It follows that his detention was unlawful. Further I am satisfied that Constables Arapa, Barnes and Wade used excessive and unreasonable force in carrying out the arrest and that their conduct constituted an assault of the [respondent]."

Nowhere in his reasons does his Honour link the cross-examination which he set out at [147] with any of the charges the subject of the malicious prosecution cause of action.

100 The respondent relied upon some evidence of Ms Pateman in which she said that the police did not really give the respondent a chance to get out of his car. When asked whether the respondent was doing anything whilst the police were trying to pull him out of the car, she responded, "he wasn't doing anything". However, none of this evidence was referred to by the primary judge. Although he accepted Ms Pateman's evidence generally, it is apparent that he did not accept her evidence on the present issue: see [102] below.

(c) The primary judge's reasons

101 With respect to the evidence of Constable Arapa as to what he said to the respondent after opening the driver's side door of his vehicle, his Honour remarked (at [117]) that it

"stretched credibility that he approached the [respondent] and spoke in the terms of the dispassionate ritual incantations to which he testified."

This may be so in that Constable Arapa may not have been as polite or as formal as he asserted. However, there is no finding by the primary judge to the effect that Constable Arapa did not inform the respondent that he proposed to arrest him for breaching the AVO or that he had not informed him that he had been stopped for the purpose of obtaining a random breath test with a request that he produce his driver's licence. The passage in Constable Arapa's cross-examination recorded at [147] of his Honour's reasons was directed at his state of mind and motives in executing the arrest. In other words, his Honour does not seem to have rejected the notion that he was seeking to arrest him. There was no appropriate reason to arrest him except that the reason that he had proceeded to Kingswood in the first place, namely, the breach of the AVO.

102 However, as already noted at [50] above, his Honour found (at [118]) the respondent did not willingly get out of his vehicle and that he resisted doing so by stiffening his body and planting his feet on the firewall at the floor of the car. There was, therefore, a clear finding that the respondent resisted Constable Arapa's attempt to extract the respondent from his vehicle so that he could effect an arrest.

103 One searches in vain for any other findings of his Honour with respect to the resist police charge. At [120] his Honour made the statement which I have recorded at [51] above. He never did decide whether the respondent's arrest was justified by the alleged breach of the AVO. Nor did he make any findings with respect to the belief, which Constable Arapa said he held, that the respondent had resisted Constable Arapa in the execution of his duty. In particular, he made no finding as to that duty. Nor did he make a finding that the respondent did not resist Constable Arapa in the execution of his duty.

104 It is convenient at this point to refer to the cross-examination of Constable Arapa at Black 608 - 609 with respect to his knowledge and understanding of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). Of present relevance are s 99(2) and (3) which were in the following terms:

"(2) 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 any Act or statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety or welfare of the person."

105 An interesting question of construction arises as to whether s 99(3) constrains a police officer's power under s 99(2). In Attorney-General for the State of New South Wales v Bar Mordecai [2009] NSWSC 396 Smart AJ at [30] expressed the view that s 99(3) did restrict the circumstances in which the power under s 99(2) may be exercised. That decision was followed by Harrison AsJ in Williams, Robert Lee Anthony v Director of Public Prosecutions (NSW) [2011] NSWSC 1085.

106 Irrespective of the position at law with respect to the proper construction of the provisions referred to, Constable Arapa accepted that under the Police Commissioner's Code of Practice a police officer must not arrest a person unless it is necessary to achieve one or more of the purposes set out in s 99(3) of LEPRA. At Black 608O he agreed that he had arrested the respondent because he believed he had earlier committed the offence of breaching the AVO. He was then taken through the various sub-paragraphs of s 99(3). He agreed that none of them applied to the situation with which he was faced apart from sub-par (a). Upon being referred to that sub-paragraph the following exchange occurred:

"Q. Now, that was the one you relied upon?

A. That was the prominent one in my mind.

Q. Did you rely upon any others?

A. That one there was the prominent one in my mind."

After he had been referred to the other sub-paragraphs and accepted that none of them were prominent in his mind, he was asked the following question and answer:

"Q. So we are only left with (a), 'to ensure the appearance of a person before court in respect of the offence'?

A. Yes."

107 The cross-examiner did not take this matter further and it was not referred to by the primary judge. There is therefore no finding of his Honour rejecting Constable Arapa's reliance, to justify the arrest of the respondent, upon s 99(3)(a). In any event, as already noted, at [120] of his reasons the primary judge assumed "without deciding" that the arrest might be justified by an allegation of breach of the AVO. As I have also noted his Honour never decided whether that assumption was correct or not.

108 Given that the onus lies upon the respondent to establish absence of reasonable and probable cause, the lack of relevant findings by the primary judge with respect to the resist police charge has the consequence that that onus was not discharged. In my view this is so notwithstanding his Honour's finding at [148] that the arrest of the respondent was not justified, a finding which is not challenged. In this respect it was not suggested by the respondent that that finding was sufficient to justify a submission that the respondent had established the absence of reasonable probable cause with respect to the resist police charge. In fact the respondent's written submissions with respect to this charge were, with respect, limited in content and the matter was not the subject of any specific oral submissions.

109 It follows from the foregoing that in the absence of relevant findings by the primary judge, the respondent has not discharged the onus of demonstrating absence of reasonable and probable cause with respect to the charge in question. To the extent that his Honour found to the contrary, he was in error.

Failure to undergo a breath test charge

(a) Statutory basis for the charge

110 The respondent was charged with a breach of s 13(2) of the Road Transport (Safety and Traffic Management) Act 1999 (the Road Transport Act). The relevant provisions of s 13 are as follows:

13 Power to conduct random breath testing

(1) A police officer may require a person to undergo a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that the person:

(a) is or was driving a motor vehicle on a road or road related area, or

(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or

(c) ...

(2) A person must not, when required by a police officer to undergo a breath test under subsection (1), refuse or fail to undergo the breath test in accordance with the directions of the officer.

Maximum penalty: 10 penalty units.

(3) It is a defence to a prosecution for an offence under subsection (2) if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to undergo a breath test.

(3A) ...

(4) Without limiting any other power or authority, a police officer may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.

(b) The available evidence to Constable Arapa

111 I have already referred at [47] above to his Honour's reference at [115] of his reasons to the recording in Constable Arapa's notebook that he had

"... stopped you for the purpose of a random breath test, do you have your driver's licence?"

It is apparent that the Constable's authority to so stop the respondent is to be found in s 13(4). As I observed at [55] above there was no suggestion that Constable Arapa required the respondent to undertake a breath test while he was still in his vehicle and at [56] above I set out the primary judge's exposition of Constable Arapa's evidence with respect to his request that the respondent undergo a breath test.

112 In his evidence in chief Constable Arapa stated that after the respondent was removed from his vehicle, he was handcuffed with his hands behind his back. He then began to shake and he remembers someone saying that he was having a fit. Once he started shaking he undid the handcuffs and took them off. As best he could he then put the respondent into the recovery position on his side and he then stopped shaking. In the meantime an ambulance had been called which arrived on the scene at 11.40 am. The ambulance notes state as follows:

"No apparent abnormalities.

PT allegedly had a fit when he was requested to take a breath

On examination noted him to be fully conscious and aware. Transport to hospital was offered but he decided to go with the police instead."

113 According to Constable Arapa's evidence at Black 1/563 after the ambulance officers had concluded their examination of the respondent, he spoke to the officers and asked whether there was any reason why the respondent would not be able to perform a breath test to which they responded in the negative. Constable Arapa then approached the respondent and made the request which I have recorded at [56] above. At Black 563W - 564E Constable Arapa described the unsuccessful attempts made by the respondent to provide a breath sample.

114 At Black 628I Constable Arapa was asked in cross-examination whether during the events of the morning he at any time formed the opinion the respondent may have been affected by intoxicating liquor to which he responded that he could not remember ever thinking that that was the case. He was then cross-examined on his witness statement dated 8 March 2011 where he had said that he was concerned as a result of the respondent's behaviour that he was affected by intoxicating liquor.

115 As noted by his Honour (at [154]) this was clearly inconsistent with the fact that Constable Arapa did not claim that the respondent smelled of the prior ingestion of intoxicating liquor and that he did not enquire of the respondent whether he had consumed any. His Honour rejected what he described as Constable Arapa's "tentative" evidence in his statement of 25 March 2011 that as a result of the respondent's behaviour he was concerned that he was affected by intoxicating liquor as well as his denial at Black 1/632O-P that he thought the respondent may have been intoxicated because of his shaking.

116 Constable Arapa was not cross-examined to suggest either that he had not required the respondent to undergo a breath test or that having required him to do so, the respondent had failed to heed Constable Arapa's direction that he needed to blow in one long continuous breath. Nor was he cross-examined to suggest that he did not honestly believe that the respondent had thereby committed an offence.

117 He was, however, cross-examined with respect to his evidence and it was not until after he had checked with the ambulance officer that he required the respondent to undergo a breath test. Constable Arapa was shown the ambulance notes to which I have referred at [112] above and, in particular, that part of the notes which asserted that the "patient allegedly had a fit when he was requested to take a breath test". Although the word "test" after the word "breath" does not appear in the notes it was not suggested that the reference was to other than a breath test. At Black 2/671 - 672 the following exchange occurred:

"Q. I am suggesting to you that you had requested Mr Quirk undergo a breath test before the ambulance arrived?

A. I didn't request him to do the breath test before they arrived but I did tell him the reason I stopped him in the motor vehicle was for the purpose of a random breath test.

...

Q. ... What I am suggesting to you is that what actually happened is what is recorded in the ambulance record. Namely, that his state was such when you insisted that he undergo a breath test that he was not capable of blowing into the machine as directed by you?

A. Well firstly, I hadn't, I hadn't asked him to do the breath test before the ambulance got there so I can't agree with that. But in regards to his, his state or fitness to be able to conduct a breath test, I asked the ambulance officers after they had finished with him if he was capable of doing so and they told me that he was."

118 The respondent's evidence in chief (at Black 1/40 - 41) was to the effect that after he was removed from his vehicle he was handcuffed and was sitting up against the side of the vehicle. Constable Arapa then said to him that he wanted him to undergo a breath test. He then produced a breathalyser metre with a tube, holding it up to his mouth and requesting him to blow into it. However, he was very short of breath and failed each time to give the necessary length of breath as his breathing was very shallow. He was undergoing a panic attack and was extremely scared. He did not suggest that he told Constable Arapa that he was short of breath due to a panic attack. Nor was the Constable asked whether that was what he observed or that that might have been the reason why the respondent failed the breath test.

119 According to the respondent the foregoing all occurred before the ambulance arrived. It was only when the ambulance officers arrived that his handcuffs were released. It may be noted that in cross-examination it was suggested to the respondent that it was whilst the ambulance officers were present that Constable Arapa requested him to undergo a roadside breath test, a proposition which he denied. In the short cross-examination on this issue it was not suggested to the respondent that he was not handcuffed at the time he was requested to undergo a breath test or that the request was made after the ambulance officers had examined him.

(c) The respondent's submissions

120 The respondent submitted that the evidence was such that Constable Arapa must have requested the respondent to undertake a breath test before the ambulance arrived and not after it left and that his evidence to the contrary was false and deliberately false. The primary basis for this submission was the notes of the ambulance officer that the "patient allegedly had a fit when he was requested to take a breath test".

121 Constable Arapa's evidence (at Black 1/563H) was that he required the respondent to undertake a breath test after he checked with the ambulance officers as to whether there was any reason why he, the respondent, would not be able to perform such a test. His evidence did not suggest that the test was conducted after the ambulance had actually left the scene. Nevertheless, the issue raised by the respondent on the appeal was that Constable Arapa's evidence must have been false as he required the respondent to undertake a breath test before the ambulance arrived.

(d) The primary judge's reasons

122 The factual issues arising from the conflicting evidence which was required to be resolved by the primary judge was as follows. First, was the respondent required by Constable Arapa to undertake a breath test before or after the ambulance arrived? Secondly, at the time he was required to undertake the test was he still handcuffed?

123 At [116] of his reasons his Honour said that he would

"later record some observations about the request for breath test, recognising there is a dispute about when and the circumstances in which it occurred."

124 As noted at [54] above the primary judge returned to the topic at [143] where he said:

"A further, and in my view, important indication of the absence of bona fides, in the conduct of Constable Arapa in particular, is to be found in the request and subsequent charge of refusing to undergo a breath test, a matter to which I have said I would return."

125 As I have already noted at [55] above, at [144] his Honour observed that Constable Arapa's version in relation to the breath test refusal "has some demonstrable problems". At [145] he noted that the appearance of the respondent, variously referred to as a seizure, fit or panic attack, had caused an ambulance to be called to the scene. He noted that Constable Arapa had said that after the ambulance officers had attended to the respondent he made a formal request of the respondent in the terms which I have recorded at [56] above. His Honour then observed (at [146]) that Constable Arapa then described the actions of the respondent, his failure to provide a sufficient sample and the further request by him of the respondent to do so.

126 At [147] his Honour remarked that the foregoing description of events to which Constable Arapa had testified was

"perceptibly inconsistent in a number of respects with what Constable Arapa had written in his notebook later on 1 March. The notations and some testimony about this casts some light upon the Constable's state of mind and motives in executing the arrest."

His Honour then set out the cross-examination of Constable Arapa to which I have referred at [58] above.

127 The only other reference by the primary judge to this issue is at [155] and [156] of his reasons. In the former he referred to the provisions of s 13 of the Road Transport Act noting, to his surprise, that no cause was required in order to authorise a police officer to require a person driving a vehicle in a road-related area to undergo a breath test. At [156] he then said:

"Although the provision does not in fact incorporate any notion of randomness, in the present case there was nothing random about the selection of the [respondent] by Constable Arapa and I am satisfied that the request was made by the constable seeking to draw upon authority to enable him to dominate the [respondent] and, in so far as any alleged suspicion that the [respondent] might be thought to be affected by the prior ingestion of substance or substances, it was a charade."

128 His Honour then concluded in the following terms:

"[157] I hold that the [respondent] has proved the absence of reasonable and probable cause for the institution of the proceedings."

129 The following observations can now be made:

• First, the primary judge did not resolve the issue of whether Constable Arapa required the respondent to undergo a breath test before or after the ambulance arrived.
• Secondly, he made no finding which accepted the respondent's evidence in chief (referred to at [118] above) in which he said that he was unable to complete the breath test as required as he was short of breath and his breathing was very shallow because he was having a panic attack. Of course, if he could establish when prosecuted for an offence under s 13(2) that he was unable on medical grounds to undergo the breath test, then he would have a defence under s 13(3). But that was not the present issue.
• Thirdly, even if the respondent was still handcuffed (contrary to Constable Arapa's evidence) when he was required to undertake a breath test, it was not suggested that that fact of itself prevented him from complying with Constable Arapa's request to undergo the test.
• Fourthly, contrary to what his Honour found at [147] of his reasons, there was no inconsistency, perceptible or otherwise, between what he had written in his notebook on 1 March to the effect that the respondent had been stopped for the purpose of a random breath test, and the unchallenged evidence that he was not required to actually undergo a breath test until he was outside the vehicle and in a sitting position leaning against it.
• Fifthly, his Honour's comment at [147] that that alleged inconsistency "casts some light upon the constable's state of mind and motive in executing the arrest" had nothing to do with whether or not there was an absence of reasonable and probable cause with respect to the allegation that the respondent had failed to undergo a breath test in accordance with Constable Arapa's directions contrary to s 13(2) of the Road Transport Act.
• Sixthly, his Honour's conclusion at [148], based upon what preceded that paragraph, related to his finding with respect to the false imprisonment cause of action.
• Seventhly, the primary judge's finding at [156] that he was satisfied that the request made of the respondent by Constable Arapa to undertake a breath test was made by the Constable

"seeking to draw upon authority to enable him to dominate the [respondent]"

Also it had no bearing upon the issue of absence of reasonable and probable cause which was dependent upon a determination of whether Constable Arapa honestly believed that the respondent had refused to undergo a breath test in accordance with his directions and whether, objectively speaking, there was sufficient material to support that refusal.

130 Findings of dominance and the like may well have some bearing on the issue of malice but had no relevance on the issue of absence of reasonable and probable cause where Constable Arapa had personal knowledge of the relevant evidentiary facts. It is insufficient, in my respectful opinion, for the primary judge to do no more than make a general finding (as he did at [147]) that the respondent had proved the absence of reasonable and probable cause without dealing with the particular evidentiary material upon which Constable Arapa relied to charge the respondent with the s 13(2) offence. He simply did not undertake that exercise. That being so, in my view, his Honour's generic finding of absence of reasonable probable cause cannot be sustained with respect to the charge presently under consideration.

131 In this context it is appropriate and convenient to observe that his Honour's judgment is very much focussed on his findings as to inappropriate conduct on the part of the police and, in particular, on the apparently unnecessary arrest of the respondent in the manner in which it occurred on 1 March 2006. Equally, his Honour was concerned that that conduct was highly relevant to the false imprisonment cause of action which he found proved and which is not the subject of challenge. The difficulty, however, is that his Honour did not properly grapple with the issues which arose with respect to the malicious prosecution cause of action with particular reference to the onus which lay upon the respondent to demonstrate on the balance of probabilities an absence of reasonable and probable cause in relation to the material evidence supporting each of the offences. In reality, that evidence was not in issue insofar as the relevant facts were within a very narrow compass and were the subject of evidence from Constable Arapa the essential ingredients of which were not challenged.

132 For present purposes, I can accept his Honour's finding at [158] that the respondent had discharged the onus of proving malice in the sense that the proceedings were instituted for an extraneous purpose that did not involve the invocation of the criminal law. As I understand his Honour's reasons that extraneous purpose was to dominate the respondent. As noted at [54] above, although at [143] his Honour referred to an absence of bona fides in Constable Arapa's conduct, it is not clear precisely what he meant. As that finding was made in the context of the requirement of the respondent to undergo a breath test, it may be that his Honour was referring to a lack of bona fides on the part of the Constable that such a breath test was necessary as at that time there was no suggestion that the respondent had smelt of alcohol or that otherwise he appeared to have been drinking.

133 The difficulty with these findings of the primary judge is that the invoking of s 13 of the Road Transport Act, as his Honour acknowledged at [155], did not require any suspicion on the part of the police officer in question that the person who was required to undergo a breath test should smell of alcohol or otherwise present himself or herself as having possibly been drinking alcoholic liquor at any relevant time. Constable Arapa was authorised by statute to require the respondent to undergo a breath test which, on the respondent's own evidence, he was unable to do in accordance with Constable Arapa's directions as to providing an appropriate sample. He thereby committed an offence. In those circumstances Constable Arapa was entitled, and perhaps required, to charge the respondent with that offence. Whether he liked the respondent or disliked him is irrelevant. Whether he was angry with him or not was equally irrelevant as to whether there was an absence of reasonable and probable cause.

134 A similar observation can be made with respect to his Honour's further finding at [156] that any concern expressed by Constable Arapa that the respondent might be affected by liquor, was a charade. Again, when dealing with damages, the primary judge found at [191] that after the events at the Autoport, Constable Arapa "threw the book" at the respondent by instituting proceedings against him "for all the offences which he thought could be brought against" him. However, this last allegation was never put to Constable Arapa and was probably recognised by his Honour as having no relevance to the issue of either absence of reasonable or probable cause or malice given the legal context (damages) in which the finding was made.

The failure to produce driver's licence charge

(a) The statutory basis for the charge

135 The statutory basis for this charge was s 171 of the Road Transport (General) Act 2005 (NSW) which relevantly was in the following terms:

"(1) An authorised officer may, in the execution of his or her functions under the road transport legislation, require the driver ... of a vehicle to do any ... of the following:

(a) produce his or her driver licence (in the case of the driver of a motor vehicle),

(b) ...

(c) ...

(2) The person not:

(a) refuse to comply with a requirement of an authorised officer under subsection (1), or

(b) ..."

(b) The evidence in support of the charge

136 Constable Arapa's evidence with respect to this charge (at Black 1/552S) was that when he opened the driver's door of the respondent's vehicle he introduced himself and then requested the respondent to produce his driver's licence. When the respondent did not respond he repeated to him that as the driver of the motor vehicle he was required to produce his licence and that if he failed to do so he may be committing an offence. No licence was produced. According to the respondent in his evidence in chief (at Black 1/31T), Constable Arapa yanked the door open and said "Wayne Quirk?" He said "Yes." Constable Arapa said, "Wayne, get out of the car. At Black 1/39J the respondent gave evidence that after he was handcuffed Constable Arapa asked him to produce his driver's licence. He informed the officer that his licence was in his wallet in his back pocket and that Constable Arapa then removed the wallet and looked at his licence.

137 The respondent was challenged on his version at Black 1/220N-R in the following exchange:

"Q. And said, "My name is Arapa. I am from St Marys police. Can you produce your driver's licence for me, please? If you fail to do so you may be committing an offence"?

A. Incorrect. All I got was, "Get out of the car".

Q. You said, "No, I haven't done anything wrong"?

A. No. He asked if I was Wayne Quirk and then "get out of the car".

Q. Arapa said, "Sir, I need you to produce your driver's licence too me now"?

A. Incorrect."

138 There was thus a conflict in the testimony of the respondent and Constable Arapa which required resolution if the respondent was to discharge the onus of demonstrating absence of reasonable and probable cause. That onus would only be satisfied if the primary judge rejected the evidence of Constable Arapa and accepted that of the respondent. Constable Arapa was cross-examined on his version at Black 1/639-640. It was put to him that he did not have any doubt that the person he was speaking to was the respondent. He replied that he did and that that was the reason why he had requested him to produce his licence as he wanted to confirm in his mind that the person in the vehicle was definitely the respondent.

(c) The primary judge's reasons

139 The primary judge referred to Constable Arapa's evidence in chief in [114] of his reasons. He noted at [115] that that evidence was substantially in harmony with Constable Arapa's statements made on 29 June 2006 and 25 March 2011 but was significantly different to what he had recorded in his notebook on 1 March 2006 when he returned to Penrith police station. I repeat that what was there recorded was:

"I have stopped you for the purpose of a random breath test, do you have your driver's licence?"

140 His Honour returned to the issue at [144] where he found that Constable Arapa's assertion that he was asking for the licence to confirm the respondent's identity "stretched credulity". There was no further reference by his Honour to this issue. Again, there were no findings that reflected the principles in A apart from the generic finding at [157] of absence of reasonable and probable cause.

(d) The respondent's submissions and their consideration

141 The respondent submitted that the charge of failure to produce driver's licence could only be one in respect of which Constable Arapa could hold a genuine belief that an offence had been committed, if his version of when the demand was made was true. It was then submitted that that version was inconsistent with the notebook entry.

142 Notwithstanding his Honour's remarks referred to at [139] above, it is clear from his notebook that Constable Arapa asked the respondent: "Do you have your driver's licence?" Being a shorthand note of what had occurred, one would not have expected the note to have set out fully the conversation that took place between Constable Arapa and the respondent at the time. The notebook does not record the respondent's response to the question he was apparently asked. If, as one would expect, the respondent had said that he did have his licence, there would be little point in asking him the question without requiring its production so as to confirm, at the very least, that it was current.

143 The unfortunate fact is that the primary judge simply made no relevant findings on this issue. The entry in the notebook is not completely at odds with the version asserted by Constable Arapa as it refers to the respondent's driver's licence. The primary judge's rejection at [144], when dealing with the false imprisonment cause of action, of Constable Arapa's evidence as to his reason for requiring the respondent to produce his driver's licence takes the matter no further. It may well be that his Honour was unable to accept the respondent's version given that there was no corroborating evidence as required as a consequence of his Honour's finding with respect to the respondent's credibility: see [38] and [39] above. On the other hand, as I have observed, there was some corroboration of Constable Arapa's version given his reference to the respondent's drivers licence in the entry in his notebook.

144 At the end of the day, the respondent could only succeed in demonstrating on the balance of probabilities an absence of reasonable and probable cause if he could persuade the primary judge to make a finding accepting his version and rejecting that of Constable Arapa. In this he failed. Accordingly, it follows that the relevant onus was not discharged. Again his Honour's generic finding at [157] that the respondent had proved the absence of reasonable probable cause for institution of the proceedings cannot, in my respectful opinion, be sustained in respect to the charge currently under consideration.

Conclusion with respect to the malicious prosecution cause of action

145 The conditions referred to by Jordan CJ in Mitchell v John Heine and which I have recorded at [70(f)] above provide an appropriate guide to the issues in the present case. In that context, in my view, the primary judge did not make findings which would justify the conclusion that the respondent had established, on the balance of probabilities, that one or more of those conditions did not exist.

146 In essence, the primary judge only accepted the evidence of the respondent where it was corroborated. Although he rejected various aspects of the evidence of Constable Arapa, he did not reject his evidence which went directly to Constable Arapa's belief that each of the offences with which he had charged the respondent was supported by sufficient material of which he had personal knowledge to warrant the institution of proceedings in respect of the offences contained in the CAN. Nor did he find that the objective standard of sufficiency was not satisfied. In fact, he did not address that issue at all. As the respondent bore the onus and that onus was not discharged, it follows that a critical ingredient of the malicious prosecution cause of action has not been established as a consequence whereof that cause of action must fail. It follows that his Honour was in error in finding to the contrary.

147 As in my opinion it was not open to the primary judge to find that the respondent had proved the absence of reasonable and probable cause in respect of each of the four offences with which the respondent was charged, it is unnecessary to deal with the issue of malice. It also follows that it is unnecessary to deal with the appellant's challenge to the quantum of damages which the primary judge assessed with respect to that cause of action.

Damages

(a) The assault cause of action

148 The primary judge awarded compensatory damages for the assault in the sum of $5,000. To that he added a further $20,000 to reflect elements of aggregation and separately awarded $25,000 by way of exemplary damages.

149 The appellant did not seek to challenge his Honour's award of $5,000 for what I will describe as ordinary compensatory damages. It did challenge the additional aggravated damages of $20,000 and the exemplary damages of $25,000. It was submitted that the normal compensatory damages and the aggravated compensatory damages were awarded otherwise then in accordance with the principle identified by Hodgson JA in State of New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [131]. The appellant further submitted that the award of exemplary damages was made without determining the necessity for that rare remedy given the quantum of compensatory damages: Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [12] and [20]; New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638 at [34]. Finally, although it was conceded that some aggravated damage was justified, it was submitted that the award of $25,000 for both types of compensatory damages was outside the range of a properly exercised discretion when guided by what Hodgson JA said in Riley.

150 In his argument in support for leave to cross appeal, the respondent submitted that in the light of the evidence accepted by the primary judge the finding that the amount of $5,000 awarded by the primary judge for ordinary compensatory damages was manifestly inadequate with respect to a person who had been kicked, punched, struck with a baton several times, thrown to the ground and kneed in the back in a violent manner. The evidence accepted by the primary judge found that Constable Barnes used his baton to strike the respondent, Constable Arapa kneed the respondent's upper right thigh a number of times and Constable Wade punched him on his thigh at the same time as Constable Barnes was wielding his baton. This evidence was supported by the description by Ms Pateman of the police conduct. In addition it was submitted that his Honour was in error in classifying the respondent's injuries sustained in the assault as being "minor". Furthermore the award did not properly reflect the terrifying experience to which the respondent was vulnerable with particular reference to his psychiatric condition. Accordingly, it was contended that leave should be granted in relation to the appeal against the award of $5,000 for ordinary compensatory damages which should be increased to $20,000. The respondent accepted the amounts awarded by the primary judge in respect of aggravated and exemplary damages.

151 In Riley Hodgson JA, with the agreement of Sheller JA on the issue of damages and Nicholas J, said (at [131]):

"In my opinion, the only principled explanation must be along the following lines. It is extremely difficult to quantify damages for hurt feelings. In cases of hurt feelings caused by ordinary wrong-doing, of a kind consistent with ordinary human fallibility, the court must assess damages for hurt damages neutrally, and aim towards the centre of the wide range of damages that might conceivably be justified. However, in cases of hurt to feelings caused by wrong-doing that goes beyond ordinary human fallibility, serious misconduct by the defendant has given rise to a situation where it is difficult to quantify appropriate damages and thus where the court should be astute to avoid the risk of under-compensating the plaintiff, so the court is justified in aiming towards the upper limit of the wide range of damages which might conceivably be justified."

152 Also relevant to his Honour's approach was what he said at [133]:

"This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages up to the upper end of the available range. The approach also means, I think, that aggravated damages can be a matter of degree: the worse the defendant's conduct, the further from the centre of the range and towards the upper limit of the range the court may be justified in going."

153 In the present case his Honour awarded separate amounts for ordinary compensatory damages, aggravated damages and exemplary damages. There is no doubt that he was required to assess exemplary damages as a separate and distinct head of damage to compensatory damages. This is because, as Spigelman CJ observed in State of New South Wales v Ibbett [2005] NSWCA 445 at [83] in a passage cited in the judgment of the plurality in the High Court at [34], in the case of aggravated damages the assessment is made from the point of view of the plaintiff whereas in the case of exemplary damages the focus is on the conduct of the defendant. Nevertheless, as the Chief Justice pointed out in the same paragraph, it was necessary to determine both heads of compensatory damages before deciding whether or not the quantum is such that a further reward is necessary to serve the objectives of punishment or deterrence or, if there be a separate purpose, condemnation.

154 At [35] of Ibbett, the plurality in the High Court noted that in cases where the same circumstances increased the hurt to the plaintiff and also made it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once. In the present case there was some debate as to whether aggravated damages should be awarded separately to ordinary compensatory damages though I do not think it is necessary to resolve that issue. Although the passages from the judgment of Hodgson JA in Riley would seem to indicate that both heads of compensatory damages should be awarded as one and not separately, I do not think that his Honour was seeking to lay down a fixed rule.

155 In the present case, there can be no doubt that there was a significant element of aggravation with respect to the assault upon the respondent. Thus the appellant did not seek to cavil with his Honour's finding at [182] that:

"[t]he assault was committed in an area which was comprehended within the plaintiff's place of business. The humiliation of being beaten was observed by employees and, being a "road related area" as asserted by Constable Arapa when seeking to administer the breath test, was open to the public, a gathering of which also would have viewed the humiliation of the plaintiff."

156 At [180] the primary judge not only found that the physical injuries sustained by the respondent in the assault should be classified as "minor" but also that any aggravation of his psychological condition was transient and lasted no longer than three months. The Court was not referred to any medical evidence which would justify any different conclusion at least so far as there was any aggravation of the respondent's psychological condition. In this respect the appellant relied on the events of 7 March 2006 which, so it was submitted, involved the respondent in a clash with the police that would have had a far greater impact upon his psychological condition than the assault which occurred on 1 March.

157 In my opinion there was a serious element of aggravation in the assault of the respondent in the presence of his employees and other members of the public. There could be no doubt that it was a humiliating experience. I also consider from the photographs in evidence, that the physical injuries sustained by the respondent, although not serious and lasting, were somewhat understated by his Honour when he described them as minor.

158 Adopting the approach of Hodgson JA in Riley, in my view the middle of the range of ordinary compensatory damages in respect of the assault was $10,000 - $12,000. The aggravating element in the present case was, I consider, of significance. The upper end of the range combining both ordinary and aggravated compensatory damages should in my view be assessed at $30,000. Accordingly that amount should be substituted for the sum of $25,000 for both heads of compensatory damages awarded by the primary judge.

159 With respect to exemplary damages, the conduct of the police was such as to attract the opprobrium of the Court. During the course of argument on the appeal their conduct was described as appalling. The respondent was set upon by three policeman in circumstances that his Honour found to involve the use of excessive and unreasonable force. Although the amount of exemplary damages in the sum of $25,000 awarded by the primary judge is towards the upper end of the range, I would not regard it as outside that range justifying appellate intervention. Accordingly the appellant's challenge to the quantum of exemplary damages fails.

(b) The false imprisonment

160 With respect to this cause of action his Honour (at [186]) awarded the respondent the sum of $50,000 a substantial part of which, so he said, necessarily comprised exemplary damages which was "to assuage the [respondent] for sustaining this tortious conduct". In so describing the purpose of exemplary damages he erred: see [153] above. As a result of that error, the amount awarded by his Honour should be set aside and it thus becomes necessary for the Court to exercise its own discretion with respect to the award of damages under this head.

161 The false imprisonment cause of action included two elements. The first related to the arrest of the respondent at his place of work. The second related to his detention at the police station for some seven hours. The former was possibly more serious than the latter although I do not seek to understate the seriousness of a citizen being wrongly deprived of his liberty. Further, the first element in my view, involved a substantial element of aggravation for, again, the respondent was humiliated in the presence of his employees and members of the public by being handcuffed, required to undergo a breath test and then deposited in the police paddy-wagon. He suffered a panic attack and, to use his own words, was "scared shitless". This is not surprising given the substantial number of police and police cars that for some unexplained reason arrived at the scene: see [134] of his Honour's reasons.

162 However, one must be careful not to double-dip or double count by ensuring that the damages awarded for the assault are kept separate from those awarded in respect of the respondent's arrest and detention. Bearing these matters in mind, I would assess compensatory damages including aggravated damages in respect of the false imprisonment cause of action in the sum of $25,000.

163 As to exemplary damages and again being conscious of the necessity not to double count, I consider that an appropriate award to reflect the Court's disapproval of the police conduct would be a further sum of $15,000 making a total of $40,000 in lieu of the primary judge's assessment of $50,000.

164 As I have found that the respondent has not established its case with respect to the malicious prosecution cause of action, it is unnecessary to deal with his Honour's award of damages for that tort. It follows from the foregoing that the total amount of damages to which the respondent is entitled is $95,000.

Costs

165 In his costs judgment the primary judge ordered that the appellant to pay the respondent's ordinary costs of the proceedings. He rejected a submission that as the respondent lost on a number of issues it would be appropriate that he should not have the whole of his costs of the proceedings.

166 There were a number of issues litigated before the primary judge. The first related to the events of 7 March 2006 upon which the respondent failed. The second was related to the gold chain cause of action on which he also failed. The third related to the assault, false imprisonment and malicious prosecution causes of action upon each of which he succeeded before the primary judge but has failed on the malicious prosecution cause of action in this Court. Importantly, on the appeal only the malicious prosecution and damages issues were debated. Nevertheless, as noted at [11] above the decision of the appellant to so confine the appeal resulted in a good deal of wasted costs for which the appellant was responsible.

167 The appellant raised three issues with respect to the issue of costs. They were:

(a) What effect rule 42.34 of the UCPR has on the respondent's entitlement to recover costs;

(b) Whether the respondent is entitled to the costs of representation by three counsel at the hearing (being senior counsel and two juniors); and

(c) Whether costs ought to follow the event.

168 Rule 42.34 provides as follows:

"(1) This rule applies if:

(a) In proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b) The plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) An order for costs may be made, but would not ordinarily be made, unless the Supreme Court is satisfied the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted."

169 There does not appear to be any authority as to the application of this rule. The appellant submitted that the present case could easily have been litigated in the District Court and did not require the determination of issues in the Supreme Court either as to the monetary basis of the respondent's claim or as to the complexity of the law. In this respect, actions for malicious prosecution, assault and false imprisonment are, so it was said, frequently heard in the District Court to no prejudice to the parties. Accordingly it was submitted that it was appropriate that the respondent not recover any of his costs of the proceedings.

170 In the present case the provisions of rule 42.34(1)(a) are obviously satisfied. The respondent will receive a judgment for less than $500,000. It is a matter of contention as to whether the provisions of subpar (b) are satisfied given that the respondent has failed to succeed on his malicious prosecution claim. However, for present purposes, I will assume that he would be entitled to at least some order for costs against the appellant at first instance.

171 I will therefore concentrate on the provisions of rule 42.34(2). True it is that the present case did not involve any complex legal issues and that the monetary amount to which the respondent would have been entitled had he succeeded on all his claims may not have exceeded the amount of $500,000. However had he so succeeded he may have been entitled to an amount approaching that figure. Importantly, the facts were complex involving as they did two separate incidents involving not insignificant conflicts of evidence. It was not suggested that the case ran for a period longer than it should have which was from 4 April to 21 April 2011 before a highly experienced judge of the Common Law Division of this Court. It was also conducted by experienced senior counsel on both sides. Although it is true that the case could have been litigated in the District Court, in my view the factual issues were sufficiently complex as to warrant the proceedings being commenced and continued in the Supreme Court. It therefore follows that in my view rule 42.34 has no application to the present case.

172 As to the second issue raised by the appellant, the primary judge considered that that was a matter to be determined on the assessment of costs. The appellant referred to the decision of Webb J in the High Court in Sundell v Queensland Housing Commission [1954] HCA 45; (1954) 94 CLR 531 at 534-535 where his Honour quoted authority for the proposition that it was the duty of the court to come to a conclusion itself in matters relating to the appropriate number of counsel and that it should not shelter behind the taxing officer's disallowance. His Honour also referred to a number of cases in which it was suggested that the employment of a third counsel was an unusual expense and would not be justified when there were questions of law and fact which were very important albeit not complicated. Authority was cited by Webb J to the effect that to justify three counsel the case must involve extraordinary complications and difficulty. I would, however, think that cases in 1954 were generally far less factually complicated and took far less of the court's hearing time than is the experience of today's litigation.

173 In the present case we are dealing with one senior counsel and two junior counsel. The second junior counsel for the respondent was only of five years seniority. The first junior counsel was very senior.

174 As I have indicated I regard the case of sufficient complexity and difficulty to have warranted its institution and maintenance in the Supreme Court. In these circumstances, in my view the respondent was justified in engaging a third junior of less than seven years seniority. I therefore reject the appellant's argument to the contrary.

175 The third issue relates to the costs order which should be made with respect to the proceedings at first instance. Pursuant to rule 42.1 of the UCPR costs follow the event unless it appears to the court that some other order should be made in whole or in part. This provides the court with a broad discretion together with the power to make a proportional costs order. Such an order was accepted as being an appropriate approach where a party has been successful on some issues and unsuccessful on others: Kooee Communications Pty Limited v Primus Telecommunications Pty Limited (No 2) [2008] NSWCA 85 at [25] per Basten JA.

176 In that case his Honour referred to the decision of the Federal Court in Dodds Family Investments Pty Limited (former Solar Tint Pty Limited) v Lane Industries Pty Limited [1993] FCA 259; 26 IPR 261 at 271-272 where the Court (Gummow, French and Hill JJ) stated that where a considerable part of a trial is taken up in determining issues upon which a party fails, it is a proper exercise of discretion to reduce the costs allowed to that party. The Court further stated that where there is a mixed outcome in proceedings the question of apportionment is very much a matter of discretion for the trial judge and that mathematical precision was illusory so that the exercise of the discretion will often depend upon matters of impression and evaluation.

177 It was submitted that the time consumed by the consideration of the events of 1 March 2006 was no more than half of the allocated hearing time. It was therefore contended that the primary judge should have awarded the respondent only 50 per cent of his costs of the proceedings. Alternatively, as the respondent was unsuccessful in relation to many issues, it ought to be ordered to pay 50 per cent of the appellant's costs of the proceedings.

178 The submission that the respondent should receive 50 per cent of his costs of the proceedings was based, I assume, on the assumption that the appellant's appeal would be dismissed. That is not the case. However, the respondent was successful at trial on the assault and false imprisonment causes of action and will receive a not insignificant award of damages with respect thereto.

179 A question not addressed directly by the appellant was whether in making the order he did his Honour's discretion miscarried in accordance with the well-known principle articulated in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. His Honour's reasons for the order he made was, to say the least, brief. He recognised that the respondent lost on a number of issues but then simply asserted that the appropriate order was that he should have the whole of his costs. In my view his Honour failed to take into account the extent of the issues upon which the respondent failed before him. Those issues have now increased as a consequence of the respondent failing on his malicious prosecution cause of action. In the foregoing circumstances in my opinion his Honour's costs discretion miscarried justifying appellate intervention.

180 Accordingly, it is necessary for this Court to re-exercise that discretion. I do so by expressing the view that the respondent should receive a substantial proportion of his costs of the proceedings at first instance. In all the circumstances in my view he should receive 70 per cent of those costs.

181 With respect to the costs of the appeal, in my opinion the appellant should pay the respondent's costs up to and including 23 April 2012 thrown away by its abandonment of its grounds of appeal 1 and 2, namely, its challenges to the assault and false imprisonment causes of action. Those costs should be paid on an indemnity basis. Subject to that, the respondent should pay the appellant's costs of the appeal but should have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

Proposed orders

182 I would therefore propose the following orders:

(a) Appeal allowed.

(b) Grant leave to the respondent to cross-appeal on the issue of damages for the assault and allow that cross-appeal.

(c) Set aside the judgment of Grove AJ dated 3 June 2011 in the sum of $175,000 and in lieu thereof enter judgment for the respondent in the sum of $95,000.

(d) Set aside the order for costs made by Grove AJ on 9 June 2011 and in lieu thereof order that the appellant pay 70 per cent of the respondent's costs of the proceedings at first instance.

(e) The appellant to pay the respondent's costs of the appeal up to and including 23 April 2012 relating to the abandonment of Grounds of Appeal 1 and 2 on an indemnity basis.

(f) Subject to the preceding order, the respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

(g) The appellant to pay the respondent's costs of his summons for leave to cross-appeal and of the cross-appeal.

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Decision last updated: 20 July 2012