District Court New South Wales

• Medium Neutral Citation: Zreika v State of New South Wales [2011] NSWDC 67
• Hearing dates: 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 31 March 2011, last written submissions received 19 April 2011
• Decision date: 01 July 2011
• Jurisdiction: Civil
• Before: Judge Walmsley SC

Decision

Judgment for the plaintiff

• Catchwords: Wrongful arrest- assault by police- malicious prosecution- police failed to provide defence with exculpatory evidence- police prepared misleading facts sheet- maintained unmeritorious prosecution- damages awarded against police- aggravated and punitive damages
• Legislation Cited: Bail Act 1978 (NSW), s 9D; Civil Liability Act 2002 (NSW); Director of Public Prosecutions Act 1986 (NSW), s 15A; Evidence Act 1995 (NSW), ss 114, 115; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99 (3), 231; Law Reform (Vicarious Liability) Act 1983 (NSW), Part 4
• Cases Cited: A v New South Wales (2007) 230 CLR 500; Adams v Kennedy [2000] NSWCA 152; Alexander v The Queen (1980-1) 145 CLR 395; Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 17-18; Aslett v The Queen [2009] NSWCCA 188; Austin v Dowling L.R 5 C.P.534; Briginshaw v Briginshaw (1938) 60 CLR 336; Browne v Dunn (1893) 6 R 67; Brown v Hawkes (1891) 60 LJQB 332; Cannon v Rochford & Ors [2002] VSCA 84; Clark v Molyneux (1877) 3 QBD 237; Clyne v The New South Wales Bar Association (1960) 104 CLR 186; Coyle v New South Wales [2006] NSWCA 95; Diamond v Minter [1941] 1 KB 656; Festa v The Queen (2001) 208 CLR 593; Fox v Wood (1981) 148 CLR 438; George v Rocket (1990) 170 CLR 104; Gianoutsos v Glykis [2006] NSWCCA 137; Glinski v McIver [1962] AC 726; Gray v Motor Accident Commission (1980) 196 CLR 1; Hathaway v New South Wales [2009] NSWSC 116; Hunter Area Health Service and Anor v Presland [2005] NSWCA 33; Hussien v Chong Fook Kam [1970] AC 942; Liesbosch, Dredger v Edison,S.S. (Owners) [1933] AC 449; Lye v New South Wales [2005] NSWCA 282; Jones v Dunkel (1959) 101 CLR 298; Meering v Graham-White Aviation Co (1920) 122 LT 44; Mitchell v Heine (1938) 38 SR(NSW) 464; Nye v State of New South Wales (2004) Aust Torts Reports 81; O'Hara v Chief Constable of RUC [1997] AC 286; R v Jovanovic (1997) 42 NSWLR 520; Rapley v Rapley (1930) 30 SR (NSW) 94; Roberts v Bass (2002) 212 CLR 1; Ruddock & Ors v Taylor (2003) 58 NSWLR 269; Skrijel v Mengler & Ors [2003] VSC 270; Spautz v Butterworth (1996) 41 NSWLR 1; State of New South Wales v Delly [2007] NSWCA 303; State of New South Wales v Ibbett (2005) 65 NSWLR 168; State of New South Wales v Landini [2010] 157; State of New South Wales v Zaravinos (2004) 62 NSWLR 58; Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118; Vignoli v Sydney Harbour Casino [1999] NSWSC 1113; Whitbread & Anor v Rail Corporation NSW and Ors [2011] NSWCA 130; Whitehorn v The Queen (1983) 152 CLR 657
• Texts Cited: Carolyn Sappideen, Prue Vines, Fleming's the Law of Torts, (10th ed, 2010); Stephen Odgers, Uniform Evidence Law, (9th ed, 2010); R P Balkin, JLR Davis, Law of Torts (4th ed, 2008)
• Category: Principal judgment
• Parties: Haysam Zreika (Plaintiff); The State of New South Wales (Defendant)
• Representation: Mr D Kennedy SC with Mr T Boyd (Plaintiff); Mr M Neil QC with Mr M Hutchings (Defendant); Kheir and Associates (Plaintiff); I V Knight (Defendant)
• File Number(s): 2008/ 319779

Judgment

CONTENTS

	Paragraph
Introduction	1
Summary of factual background	2
The Law	9
False imprisonment	9
Assault and battery	15
Malicious prosecution	18
The plaintiff's evidence	22
Plaintiff's evidence concerning identification	29
Mr. Ahmed Zreika	32
How police linked an innocent man to the shooting	34
The day of the shooting	34
The day after the shooting	36
What the police knew about the shooter on 21 July 2006	40
Mr Silver's observations	41
What the police did after receiving Mr Silver's telephone call	42
The arrest of Sarah Bright	49
The Platten Document	50
Mr Platten's Credit	59
The OTU request	60
An erroneous assertion	61
Red becomes orange	62
The Plaintiff is "unemployed"	63
State of police knowledge on the day of the arrest	65
The CCTV material	69
Detective Constable Ryder's evidence	70
The grounds said to have been reasonable	74
Arguments on wrongful arrest	77
Conclusion on arrest	87
Damages	90
The battery count	94
Detective Inspector Newman	97
Credit of Detective Inspector Newman	98
Inspector Smith	99
Credit of Inspector Smith	102
Detective Sergeant Davey	103
Sergeant McCormack	104
Credit of Sergeant McCormack	105
Detective Sergeant Navin	106
Credit of Detective Sergeant Navin	107
Chief Inspector Green	108
Credit of Chief Inspector Green	112
Sergeant Van Hoeven	113
Credit of Sergeant Van Hoeven	114
Acting Sergeant Christian Gost	115
Credit of Sergeant Christian Gost	116
Sergeant Marrs	117
Credit of Sergeant Marr	118
Plaintiff's credit	119
Credit of Ahmed Zreika	122
Consideration on battery count	125
Damages	132
Malicious Prosecution	134
Some legal principles	137
The evidentiary position following the arrest	140
A prosecutor's duty	141
The Facts Sheet	144
Events from 26 July onward	148
An interlude: some important evidence is kept from the accused	165
The narrative resumes	180
An incident at court on 9 August	193
Credit	222
Credit of Detective Sergeant Davey	223
Detective Senior Constable Ryan	224
Credit of Senior Constable Ryan	227
Constable Hayman	228
Credit of Constable Hayman	230
Ms Katherine Flynn	231
Credit of Detective Constable Ryder	232
The case alleged, of malice/ absence of reasonable and probable cause	234
Reasonable and Probable cause	235
The material which was available	236
The submissions	237
Did police ever have reasonable and probable cause?	241
When the plaintiff's girlfriend gave alibi evidence	242
When Jeremiah Mahoney told police the shooter had come to his home and threatened him	243
When the shooter was reported as having been seen in Parramatta Mall	244
When Ms Black was shown a photographic array and failed to identify the plaintiff as her daughter's friend, Michael.	245
When police viewed the CCTV footage of the person of interest in the Parramatta Mall	246
Conclusion on reasonable and probable cause	247
Malice	249
Consideration and conclusion on malice	287
Damages	296
Conclusion	300

Introduction

1 This case arose because of a police error, which led to the wrong man being charged with serious offences and kept in custody for two months. The plaintiff has sued the defendant for wrongful arrest, for an assault on him when he was being arrested, for malicious prosecution, and for misfeasance in public office. The defendant concedes police arrested and prosecuted the plaintiff, and that the charges were later dismissed. However, Mr M Neil QC who with Mr M Hutchings appeared for the defendant, put to me that the police were justified in arresting and prosecuting the plaintiff; the force used was reasonable and did not amount to an assault, and he was not maliciously prosecuted; nor was there any misfeasance in public office.

Summary of factual background

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

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

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

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

6 On 6 October 2006, just over two weeks after his release on bail, the plaintiff was again arrested by police, who said their records showed he should be in custody. Fortunately he was able to persuade police to release him after about half an hour, by which time they had looked at the bail reporting records he had in his car.

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

8 He says the police officers who arrested him had no right to arrest him, and are liable for false imprisonment. In charging him and then maintaining the proceedings in the face of strong exculpatory evidence, some of which they never disclosed to him or his lawyers, and some of which they deliberately ignored, he says they committed the tort of malicious prosecution. Further, he says police used quite unnecessary force when they arrested him, and are thereby liable in damages for trespass. Although the tort of misfeasance in public office was pleaded, that count was abandoned in the course of closing addresses. Both parties agree that the Civil Liability Act 2002 has no part to play in this case.

The Law

False imprisonment

9 False imprisonment is a form of trespass to the person. Actual damage is not necessary to support the action. An imprisonment consists in the restraint of the liberty of a person, by confining the person in a prison, or within walls, or by forcibly detaining the person in an open place: Meering v Graham-White Aviation Co (1920) 122 LT 44 at 51. The only defence is lawful authority: Ruddock & Ors v Taylor (2003) 58 NSWLR 269 at [4], per Spigelman CJ.

10 The plaintiff has sued the State of New South Wales. That is because the State accepts it is vicariously liable for the tortious acts of New South Wales police: Part 4, Law Reform (Vicarious Liability) Act 1983 (NSW).

11 The defendant in relation to the claim of trespass has pleaded that it was entitled to detain him as and when it did as it had lawful authority. It says it had that authority under s.99 (3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Section 99 is as follows:

99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:

the person is in the act of committing an offence under any Act or statutory instrument, or

the person has just committed any such offence, or

the person has committed a serious indictable offence for which the person has not been tried.

(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:

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

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

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

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

to prevent the fabrication of evidence in respect of the offence,

to preserve the safety or welfare of the person.

(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

12 It is easy, with the benefit of hindsight, and after a lengthy and searching court hearing, as occurred here, to criticise a police investigation. Police are entitled not to be held to account for all of their errors. The expression "reasonable grounds" in s.99 (3) LEPRA Act allows that police may make some errors without being held accountable in a wrongful arrest action.

13 The police officer who the defendant concedes made the decision to arrest and charge the plaintiff was Detective Constable Jacqueline Ryder (formerly Devlin). She was the principal witness in the defendant's case. Her decision to arrest and charge the plaintiff and maintain the charges for almost two months was the subject of minute dissection, and her honesty was attacked. I shall return in time to consider her evidence and her credit.

14 In an action alleging a police officer has made a wrongful arrest, the defendant carries the onus of proving that the arresting officer did in fact suspect on reasonable grounds that it was necessary to arrest. As will later appear, the first time the plaintiff was physically detained, it was not by Detective Constable Ryder but by Sergeant McCormack of the OTU. However, as soon as the arrest was effected, he delivered him to Detective Constable Ryder, who then also formally arrested him. The parties are agreed that for all relevant purposes I should treat Detective Constable Ryder as the relevant arresting officer. In particular, Mr D T Kennedy SC, who, with Mr T Boyd, appeared for the plaintiff, eschewed any suggestion that the defendant had any obligation to prove Sergeant McCormack's state of mind at the time he arrested the plaintiff, in order to prove "lawful authority".

Assault and battery

15 The case put is one of battery.

"The form of trespass to the person known as battery is any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiff's consent."

(R P Balkin, JLR Davis, Law of Torts (4 th ed, 2008) 32.)

The battery is said here to have consisted in being knocked to the ground, having his head stood on, having his mouth grabbed, being dragged along the ground, and having a shotgun pointed at his head. Although, as Balkin and Davis note at 3.18, pointing a gun at someone is in modern authorities regarded not as a battery but an assault, no argument was addressed to me on this issue, and in any assessment of damages, in the context of this case, I do not regard that as material.

16 By its defence the defendant denied any assault or battery had occurred, and asserted that the mode and manner of his arrest had been lawfully justified in accordance with section 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). That section provides as follows:

"S.231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest."

17 The plaintiff did not identify the person or people he says assaulted him at the time of his arrest, save that he said one of the men, someone he said had on the uniform of inspector, was the officer who had grabbed his mouth while he was lying on the ground.

Malicious prosecution

18 In A v New South Wales (2007) 230 CLR 500 at [1] the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) said:

"For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

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

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

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

As the Court of Appeal said in State of New South Wales v Landini [2010] 157 at [20], to these elements should be added proof of damage.

19 The parties agree that the police officer who decided to maintain the prosecution against him until the matter was assigned to the DPP, was the charging officer, Detective Constable Ryder.

20 By its defence, the defendant denied the charges had been brought and prosecuted maliciously and without reasonable cause. Before me, Mr Neil conceded that the plaintiff had been prosecuted and that the charges had ultimately been terminated in favour of (or "favourably to" (T 696)), the plaintiff. In issue, were the elements of 'reasonable cause' and 'malice', as to both of which the plaintiff carried the onus of proof, and as to both of which, Mr Neil submitted, the plaintiff had failed to discharge his onus of proof.

21 I shall now deal with the evidence in the plaintiff's case and then the evidence called by the defendant, and consider it in the context of the cases put by each party.

The plaintiff's evidence

22 The plaintiff told me that in July of 2006 he was a self employed automotive glazier. His business had been going for about two months. Before that he had worked as an automotive glazier for a large company. When setting up the business he had borrowed $30,100 from Citibank. His monthly repayments had been $639.38 (Ex 'A' p.270). He had a criminal history. In 1997 he had pleaded guilty to three armed robbery charges and been sentenced to two years imprisonment to be served by periodic detention. In 1999 he had been convicted of deemed supply of drugs and served a term of full time imprisonment. As a result of that history, police had photographs of him and his DNA was on police records. On the evening of 20 July 2006 he had stayed with his girlfriend at her unit at North Parramatta. They had had an argument and he had left. At about 1am he had gone into the Coles Express Service Station and Convenience Store in Victoria Road Parramatta (the Coles store). The Coles store was two streets from his girlfriend's unit. He entered it to buy a soft drink. He was aware CCTV cameras were present. He was feeling upset about the fight he had just had with his girlfriend. He was speaking aloud about his feelings. Although there was a great deal of controversy about this incident before me, he said he recalled saying to himself at one stage, while in the store: "I feel like killing some cunt".

23 On 26 July 2006 he was at work in Waltham Street Artarmon, replacing a windscreen in a Hino truck. It was quite a heavy job, so he had his father with him to help. He was in the course of fitting new rubber around the new windscreen when he observed two four wheel drive vehicles stop nearby. This is how he described what then happened:

"Q. Yes.

A. And a bunch of blokes jumped out wearing all black, shotguns, looked like they were arresting a terrorist or something.

Q. Well, you just take your time, Mr Zreika, and tell us exactly what occurred.

A. And they jumped out of--

Q. Just take your time.

A. Yeah.

Q. You mentioned something about shotguns or guns?

A. Yeah, they've jumped out, all armed.

Q. Well, when you say armed, what other arms did they have--

A. They had pistols--

Q. --in addition to shotguns?

A. Pistols on each side.

Q. Yes.

A. Black head to toe.

Q. When you say black head to toe, what do you mean by that?

A. Like vested up.

Q. What about their face?

A. Covered.

Q. Did they have helmets?

A. A couple of them did, a couple of them didn't.

Q. Right. Well, then what happened as far as they were concerned?

A. They walked right past me, because I park my van inside of a little car park area and so I can work from the van, because a truck was parked on the road. They marched on past me, and I noticed them like with their guns hanging out, walking around like that.

Q. When you say their guns, were they pistols or were they shotguns?

A. Yeah, shotguns.

Q. Thank you.

A. The pistols didn't - they didn't remove the pistols. I was just there. They walked around the van, and I noted, like, this is odd, you know, and one of them come up to me, real large type of guy.

Q. How big would you estimate him to have been?

A. He was huge, a really big guy.

Q. Well, when you say--

A. Seven foot, probably about 150 kilos, solid, real big guy.

Q. Right.

A. And he's taken off his mask and asked me for my identification.

Q. So what did you do when he asked for identification?

A. I said, "What do you want from me?" And he goes, "Give me your ID." I pulled me licence out of me pocket, handed it to him. He's looked away at his boys and all of a sudden and I'm just - didn't see it coming - head first into the ground, zip-tied.

Q. When you say he zip-tied, zip-tied where?

A. He put some cable ties around me, from behind me.

Q. Yes.

A. And there was just - like I kept asking them, "Like, what's this about? What's it about?"

Q. What did you think in your mind, what could have happened to you?

A. I was spun out, I spun out. It was just something out of this world.

Q. What was going through your mind though when this was happening--

A. My head was spinning.

Q. --as to what might happen to you?

A. My head was spinning like. It was just sudden. I got a bad head spin, and I was asking him what this was all about and he was just being aggressive, violent.

Q. Look, just tell us what you observed to happen. Did he say anything more to you?

A. He said - didn't say anything. You know, he said, "You're under arrest." I asked him what was it about and he's picked me up and dragged me to the fence, and I kept trying to ask him, "What's this all about?" He said he had enough of me and just--

Q. Just tell us what he said to you, your best recollection of what he said.

A. I can't really recall like. Something like, "Oh, that's enough," or something like that. One of them came up pointing the gun at me and he goes, "We're not mucking--"

Q. When you say what - this was someone in addition to the large man?

A. Yeah, one of his personnel.

Q. When you say he came up to you, he came up to you with what?

A. With his shotgun.

Q. With his shotgun?

A. Pointed it to my head.

Q. To your head?

A. Yeah.

Q. And what did you think could happen to you then?

A. I thought I was going to be shot.

Q. Did he say anything to you?

A. He said, "We're not mucking around."

Q. So what then next happened to you?

A. The other guy that was in uniform, I think he was an inspector. Another fellow in uniform, I think he was an inspector. He had stars on him.

Q. Yes.

A. He grabbed me by the mouth.

Q. What, using his hand?

A. Yeah, he grabbed me by his hand, yeah, by the mouth like that, and he said something like, "Cooperate or shut your mouth, we're not here to play games," something like that, I can't recall. Then they just put me on my stomach, the other bloke, the big guy, the first guy I gave my licence to, the one that done the arrest. They stepped on my head and he goes to me, "Shut your mouth, cooperate, you just got done for a murder and plainclothes police will be coming over to see you very soon. And then he goes, "You're not to move. They're going to cut the cable ties and place cuffs." Put the cuffs on, they got the cable ties off me, picked me up and handed me over to two sergeants, two plainclothes police.

Q. Were there any other police other than these policemen who were dressed up in the - you know, had the shotguns and--

A. Plainclothes came and took me very soon after I was arrested, and jumped out of their cars.

Q. In relation to the times that you'd been arrested before, in connection with those offences you've told his Honour about, had you ever been arrested in that fashion before?

A. No way, never.

Q. When these plainclothes policemen came, did any of them identify themselves to you?

A. Detective Jacqueline Devlin approached me.

Q. Yes.

A. She goes, "How are you, Mr Zreika?" She goes, "You're under arrest for last Thursday's shooting in George Street, Parramatta," and I was spinning out. I hadn't even heard of this shooting, first--

Q. So what did you say when she said that to you?

A. I said, "What do you mean, what are you talking about? You've arrested the wrong guy. You've got the wrong bloke. How did you link this to me?"

Q. Yes.

A. And she said - she goes, "No, I got the right guy." She goes, "I've got five signed statements that you did it, Haysam Zreika did it, and you used your van as the getaway vehicle and your numberplate was taken," in exact words.

Q. So was anything else said to you at the scene, other than those words?

A. No.

Q. How were you feeling at this time when you were being - in this state?

A. Shattered, spinning out.

Q. When you say spinning out, could you just try and tell us something about what you mean by the term "spinning out"?

A. Well, I've just been arrested for a major crime which I had no knowledge of and the way it happened was just so sudden and no expectations at all, I felt like I'd died, I was in another world.

Q. You felt like a what?

A. I felt I'd died, like I was in another world. It was just unbelievable.

Q. Had you ever had an experience like that in your life?

A. No, never, never had a feeling like that.

Q. How were you - well, you were taken from the scene where you were arrested. Where were you taken to and by what means?

A. Chatswood Police Station.

Q. And by what means?

A. To be charged.

Q. Well, in some vehicle?

A. In a paddy wagon, the back.

Q. Right, and were you cooperative or uncooperative in relation to it?

A. I was just - I know I was - I was scared.

Q. Well, how were you behaving in the van?

A. I was screaming, tears, upset.

Q. At the place where the arrest took place, in addition to the police officers who were there, were there other people that were there watching what was going on?

A. Owners of the truck, owners of the - my other clients, panel shop owners. There was a lot of people, a bit of a crowd.

Q. How many people do you think came to be there watching what was going on and being said?

A. 20, 30 people.

Q. That's in addition to the police officers?

A. Yeah." ( T 31.33 to 35.33. )

24 At the police station he asked to be permitted to take part in a line up. He was told he would not be getting one that day.

25 He told me that when arrested he gave a DNA swab and a blood sample and the police took his two mobile phones and the clothes he had worn into the Coles store. (All were eventually returned to him.) He was kept in custody until 21 September and then released on bail with a $5000 surety and a requirement to report daily to the Bankstown Police Station. Eventually the requirement for a surety was dropped and reporting was reduced to weekly. Finally, on 27 January 2007 the charges were formally withdrawn, and they were dismissed by a Local Court Magistrate (Ex '3' p.167-172).

26 On 6 October 2006, he had been in Bankstown, buying petrol. A police officer had come up to him and said "Put your hands in the air". Two female officers, with guns drawn, had approached him. He was told to turn around. He said "Me? " An officer told him he was under arrest as he was wanted for a shooting in Parramatta. He said "I've been charged with it already. I'm on bail for it". She said "We don't know that". He asked her to go to his glove box to see his reporting slips. Some other constables then arrived. He was handcuffed. He was in that state for 20 to 30 minutes. Then a sergeant arrived and told police to uncuff him. This officer said to him:

"Don't have a go at us we're just responding to intel. He read back on the computer that you're wanted for a shooting. We've got to arrest you and justify that. Have a go at the police officer that's put the intel on your van and hasn't taken it off that you're wanted for a shooting prior to even being charged."

27 Asked about his feelings about being incarcerated following his original arrest the plaintiff said he had felt distressed, and said:

A. It was bad, because I'd charged for a major - looking at a long time in gaol and not knowing if I was going to get convicted for something I didn't do. I thought about the people involved in this actual predicament, they all had their freedom, I did not know them from a bar of soap, they were all strangers to me, and I was the one incarcerated for this crime.

Q. Did you have any sense of anger?

A. A lot of anger.

Q. In the time that you were there, in the sense of what you've talked about, did that improve or get worse?

A. It got worse. You can kick and scream and yell, but no-one's there to say you're innocent or to believe you until your day comes up in Court.

Q. I think as far as your business was concerned after you got released on the bail, did you try and get your business going again?

A. Yeah, I tried but the financial status was not good and I still had prior Courts coming, I had to get more money for solicitors. So I ended up going back as an employee to my old company. ( T 41.6-24 )

28 After four or five months working as an employee he started his own business again. He told me a weekly wage for a person in his field at the time of his incarceration was about $550 per week net. He only ever managed to make one payment on the Citibank loan. Most of the loan money he had had to use for legal fees, and with interest, he still owed close to $40,000 at the time of the trial. According to records tendered on his behalf, his legal fees were $23,694 (Ex 'A' 275-6).

Plaintiff's evidence concerning identification

29 Identification evidence played a significant part in this case. It is the plaintiff's contention that the police quickly jumped to the wrong conclusion, namely that he had been the perpetrator of the shooting, based on flimsy evidence, apparently overlooking that though he undoubtedly had made a bizarre statement to a shop attendant a few hours after the shooting, and at a place proximate to it, he bore little resemblance to the person described by eye witnesses to the shooting, and was never proved to have been connected with it in any way. He told me that at the time of his arrest his hair had been short, slicked back, gelled, and coloured sandy brown or light brown. He told me too that he had been clean shaven and his build had been slight. At the time he gave evidence before me I was asked to look at a facial scar and I did so, as did counsel. Clearly, the scar would have faded since 2006, but in March 2011 it was still quite obvious, to my own observation. The plaintiff told me that at the time he had visited the Coles store on 21 July he had been wearing a "Sean John fiery red jumper with a hood...light khaki cargo pants and pure white plain K Swiss shoes" (T 36.1). The words "Sean John" had been written on the front (I was told by Mr Hutchings that Sean John is the real name of a popular rapper also known as Puff Daddy). He said that in 2006 the scar on his face had been prominent, red in colour, three to four centimetres in length, and had come from an assault in prison some years before that. The clothes he wore that night were put into evidence without objection. They fitted the description he had given of them. The words "Sean John Collection" may be seen written prominently on the front of the jumper.

30 The plaintiff was not cross examined on his evidence as to what he had been wearing. However he was cross examined about the colour of the clothes he had been wearing. Eye witnesses to the shooting told police the shooter had worn blue jeans. In at least one frame of CCTV footage from the Coles store his khaki trousers, to my observation, could be mistaken for being blue in colour, though the plaintiff did not accept that when it was put to him. I consider one does have to concentrate while watching the footage to see a blue colour. Nor did he accept that his red top could be suggestive in some frames as having an orange hue. To my observation, at a stretch, on some frames, it could I think be thought of as orange, but overwhelmingly the CCTV shows a red coloured jumper. As to what he had said while there, it was put to him he had said: "I've had enough" (That, to me, may easily be heard on the several versions of the recording put into evidence.) He agreed he had said that. He was then asked if he had also said "I've just killed somebody". But he denied that. He also denied having said "I've just killed some cunt". As to the alleged assault, it was put to him that when arrested, he had gone to the ground voluntarily. But he denied that. It was put to him that no guns had been pointed at him, that he had not been dragged by police, or thrown against a fence, or thrown to the ground, or grabbed by the mouth, or stood on. He maintained that what he had said in chief had been true. It was put to him that Detective Constable Ryder had not said when arresting him that she had five signed statements naming him as the shooter or had mentioned his van as the getaway car. But he maintained she had said those things. He agreed the scar on his face had faded over the years. He agreed the line up he had asked for when arrested had eventually been arranged.

31 It was never suggested to the plaintiff in cross examination that he had had anything to do with the shooting. It was never suggested to him that he had had any connection with the place where the shooting occurred, or with any of the people involved in it. He was not cross examined about the financial losses or expenditure he said had arisen from the loss of his business, and in retaining lawyers for his defence. At the time he cross examined the plaintiff Mr Neil told me he had no instructions on the incident at Bankstown on 6 October 2006 and he sought leave to cross examine the plaintiff on that issue once he had obtained instructions. In the course of his closing address he told me he had still not been able to obtain instructions on that matter. Given that, that the incident had not been particularised, and the defendant first given notice of it when the plaintiff gave his evidence in chief, Mr Kennedy then abandoned any claim arising from it.

Mr. Ahmed Zreika

32 Mr. Ahmed Zreika is the plaintiff's father. From time to time in 2006 he had helped in his son's new business, accompanying him on the heavier jobs. On 25 July 2006 he was working with his son at Artarmon. A man had approached him and told him not to say anything, and that police were doing their job. Then he had seen men getting out of two vans, holding shotguns. Guns had been pointed towards his son, who was knocked to the ground and handcuffed. He had then seen his son kicked and dragged; he saw feet on his body. Then his son had been made to stand, and his shoes and socks had been removed. He said he had asked his son in Arabic what was going on. His son had answered: "I swear by the souls of my brothers who passed away that I did not shoot anyone. I am accused of shooting someone" (T 84.45). His son had been taken away in a van. The police had eventually taken Mr Ahmed Zreika home. His house had been searched later that afternoon. His wife had been very upset.

33 It was put to him the police had not kicked his son, but he maintained they had. Asked how many had kicked his son he said two, three or four. Those who had kicked his son had worn a uniform- blue or black- he was not sure. It was put to him that no police had dragged his son or pointed weapons at him. He maintained they had. When it was put to him that his memory was not good for these events, he said he remembered some things very well and other things not so well. The things he remembered well, he said, were the things that he saw happen to his son that day.

How police linked an innocent man to the shooting

The day of the shooting

34 Police received a call to go to unit 2/179 George Street Parramatta at about 11pm on 20 July 2006. Initially, two uniformed officers attended. They were Constables Sturdy and Aitkin. It was clear to Constable Sturdy when he arrived that there had been a shooting. He found the victim, and a number of other people, in the unit. He saw a spent cartridge on the floor and an unfired round. A witness, Jeremiah Mahoney, the tenant of the unit, told him the victim had been "shot in the balls". He then observed a wound on the right side of the victim's scrotum. Mr Mahoney told him they had all been drinking after work. One fellow drinker, a 16 year old boy from Pendle Hill known to Mr Mahoney only as "Johnny", had a sister who had called in to pick him up. Johnny had had an argument with his sister and had hit her. Then his sister's boyfriend had entered the unit with a gun. Her boyfriend had waved the gun around at everyone. A struggle had ensued. The victim had then been shot.

35 It was obvious to police who attended that all present were intoxicated. There were empty bottles of various types strewn about the unit. Mr Mahoney gave written permission to police to take control of the unit as a crime scene.

The day after the shooting

36 On the day after the shooting, police spoke to and took a statement from the boy Mr Mahoney had described to police the night before as "Johnny", whose sister's boyfriend had shot the victim. Johnny's name is Jonathon Bright. He told police he lived with his mother and his sister. His mother's name was Elizabeth Black. He was employed as an apprenticed spare parts interpreter. He was aged 16. A few months before the shooting he had met a group of boys, including Mr Mahoney, with whom he had later gone skating and playing soccer. He had visited Mr Mahoney's unit at Parramatta and been treated as a brother. He gave police a plan of the unit and wrote on it the names of those who had been present, including one he knew as Michael, and showed where they had been at the relevant time. He said his sister Sarah lived with him and his mother and he would see her a couple of times a week. Sometimes she would stay away for a few weeks at a time. On Monday 10 July Sarah had phoned him and said she would pick him up from work. He was surprised, as she did not have a driving licence. At about 5pm that day a male called Michael had phoned him on his sister's phone, to ask for directions to his place of work. At about 5.30 pm Sarah had arrived with a male called Michael, and had picked him up. Michael had been driving a late model silver coloured Holden Commodore sedan. When Mr Bright saw Michael on that occasion he realised he had met him once before with Sarah and another male friend of hers called Frankie, in March 2006. Michael had on that occasion driven him to his friend's unit in Parramatta. His sister and Michael had come in with him on that occasion and he had introduced them to Jeremiah Mahoney. Later, Michael had driven him home. His mother had been at home when they had arrived there. His sister had then introduced Michael to his mother. At that time, Michael had been affected by drugs, and his behaviour had been very erratic. When Michael had been in the unit he (Michael) had helped his mother cut up vegetables. He had also spent some time talking on his mobile phone, and pacing the floor. Jonathon Bright had spoken to Mr Mahoney the next day. Mr Mahoney had remarked to him how annoying it had been that when Michael had visited his unit in Parramatta, he had spoken in Arabic.

37 The next occasion (the third time) Jonathon Bright had met Michael had been on the evening of 20 July. He (Mr Bright) had dropped in at Mr Mahoney's place. Other boys had been there. Some had come after him. They drank, and played X Box. He had noticed at one stage of the evening that his mother had tried to phone him on his mobile; but he had not answered, since he was playing, and he assumed his mother knew where he was. Later, his sister Sarah had arrived. Michael had walked in just after her. Michael had appeared to be affected by drugs, as he was pacing again. Sarah had asked him to come home. But he said he would get a lift with a friend. Sarah had asked why he had not answered when his mother had phoned. He had said he did not know. Then Michael had said to him "Get up and go outside and talk about it." Jonathon had then begun to walk out with his sister, while yelling to her that he had already made arrangements to go home. Michael had then said to him "She's your blood. They're just your friends." Michael had sounded angry. Jonathon said he would get his bag. Then Michael had produced a gun from the back of his pants and pointed it. Jonathon had run outside. Later he had seen Sarah and Michael in Michael's silver Commodore. The car had stopped in front of him. Sarah had opened the door and insisted he get in. He got in. Michael had then driven him home. Michael said to him: "If you fucking tell anyone, I'll kill you". At that time, Jonathon had not known anyone had been shot. Michael had then left. Jonathon told police when giving his statement that the night before, Michael had been wearing a jacket with a hood attached.

38 The police interview with Jonathon Bright was conducted by Detective Constable Ryan in the presence of Jonathon Bright's mother, Ms Black. When giving evidence to me Detective Constable Ryan told me that if Jonathon Bright's mother had disagreed with anything Jonathon told her when giving her the statement, she would have explored it further. I accept she would have.

39 On the same day police took a statement from Jonathon Bright, 21 July 2006, they also took a complete one from Mr Mahoney. He told police he was aged 25 and lived at the unit with his twin brother, Bartholomew, his younger brother Nathaniel ('Nat'), aged 24, and a mate called Wayne Bogle, aged 25. On the evening of 20 July his friend Thomas Neville (Tom) had come around. They and his two brothers and one Bain Farrawell had begun drinking. Nat had gone out and returned later with Mr Bright, who he called "Johnny". He had known Johnny for a month or so and had seen him on a dozen or so occasions. He said he thought he came from the Seven Hills area but now lived with his mother near Westmead. Wayne Bogle had then arrived. Johnny had received some phone calls from his mother but had not answered. At about 10.30pm there had been a knock at the door. Two people had come in. He recognized them as Johnny's sister and her boyfriend. He said he had met both of them once, about two weeks before, when they had dropped Johnny off, and he had spoken to them for about five minutes. He had remembered the occasion, as the boyfriend had tried to persuade him to have a drink and he had declined, as he had been feeling ill. He had not known his name or that of Johnny's sister. On this occasion, that is on 20 July, he could observe Johnny's sister was drunk and loud. She was carrying a bottle of Wild Turkey and Cola. She had asked Johnny why he had not answered his mother when she had phoned. Johnny had protested about going home. Then the boyfriend had slapped Johnny and started to drag him out. He (Mr Mahoney) had then intervened and slapped the boyfriend on the head. Then Tom had had an argument with Sarah, who had slapped his head. Then Tom had pushed her. Then the boyfriend had taken a gun from his crutch area, and waved it about. He had then hit Mr Mahoney with it on the side of his face. Tom had then punched the boyfriend in the head. The two had then wrestled, and the gun had gone off. Sarah and the boyfriend had run out of the unit. Tom had said "I've been shot". He gave this description to police of the boyfriend:

"I would describe the man with the gun (Johnny's sister's boyfriend) as being aged late 20s to 30 years old. He was only short, about 5 foot 4 tall. He had a stocky build. He was not fat, just stocky. He looked to be of middle eastern appearance. He had short black hair and was unshaven. He had a five o'clock shadow. He was wearing a long sleeved orange coloured hooded jumper, dark blue denim jeans and white and blue joggers. When he first arrived he had the hood pulled over his head. I think it came off in the struggle."

(Mr Mahoney's statement was witnessed by Detective Constable Fulmam, who did not give evidence.)

What the police knew about the shooter on 21 July 2006

40 In summary, after interviewing the two young men who had been present when the assailant had produced the gun, one of whom had witnessed the shooting, the police had this information about him:

(a) Although his surname was not known, his first name was Michael;

(b) He drove a late model silver Commodore;

(c) He was a friend of Jonathon Bright's sister Sarah;

(d) Jonathon Bright had met Michael on three separate occasions;

(e) Michael had visited Jonathon Bright's home and been introduced to his mother, spending time enough there to help with the vegetables;

(f) Mr Mahoney had met Michael on a previous occasion in Jonathon Bright's sister's company;

(g) His age was late 20s to 30;

(h) He was short, about 5'4";

(i) He was of stocky build;

(j) He was of middle eastern appearance;

(k) His hair was black;

(l) He was unshaven, in the sense that he had a five o'clock shadow;

(m) He had worn a long sleeved, orange coloured, hooded jumper, dark blue denim jeans, and white and blue joggers;

(n) He was a person with whom Jonathon Bright, his sister Sarah, his mother, Ms Black, and Mr Mahoney, were personally acquainted.

Mr Silver's observations

41 I have referred in [2] above, to the fact that early in the morning of 21 July 2006 the plaintiff, while in a despondent state, had said aloud, while buying a soft drink at the Coles store he had just killed ( or "I feel like killing"), "some cunt". The man behind the counter spoke briefly to the plaintiff when he served him. His name was Jayson Silver. In the course of serving the plaintiff he was able to observe him. He found the plaintiff's conduct odd. He was not sure what the plaintiff had muttered to him, but he thought he had said he had just killed someone. He took down the number plate of his vehicle and rang the police at Parramatta and passed on the information to them. The fact that this event occurred some three hours after the shooting, and within a few hundred metres from it, was obviously something police had to look at. Unfortunately that telephone call caused the police shooting enquiry to go off at an extreme tangent. From contemporaneous police records it is apparent that from the time Mr. Silver first rang police, investigating police essentially ignored the description witnesses had given them of the shooter, and instead, concluded that the plaintiff had been the responsible party.

What the police did after receiving Mr Silver's telephone call

42 Constable Hayman took a statement from Mr Silver on 21 July. Mr Silver's description of the plaintiff and what he said, (with my emphases) was as follows:

"2. I am 21 years of age...

3. I work as a Customer Service Operator at Coles Express Service Station at 88 Victoria Road, Parramatta...

4. About 01:25 21 July 2006, a man knocked on the door, I looked out and saw a white vehicle parked in the car park at the front closest to Victoria Road. I looked at the man, and made an assessment, and felt safe to let him in. At this time I did not pay particular attention to what he was wearing, I was looking at if he was wearing a hood, (which he was not) or if there were any obvious bulges in his clothes, which there was not. The way he dressed was just in casual clothes, but I can't remember what. He looked just like a general customer, by this I mean there was nothing that really struck me about him. I let him in and he went to the fridge on the left side of the shop (as I look from the console), near the back of the store. I wasn't watching him the whole time he was doing this. I'm not sure if there were any other customers in the shop at this time. I remember around this time someone came in and used the ATM, and then leave, (they did not buy anything, people often come in and use the ATM only,) but I don't know if this person was in the shop at the same time as the guy I was serving at the counter.

5. A couple of minutes later this man (who had got out of the van) came to the counter with a Disney Orange Pop-Top drink, they are about 300 millilitres. (They are quite skinny and maybe 10 or 15 centimetres high, and they have Disney characters on them.)

6. I looked at him and the first thing I noticed was a scar he had on his face. This scar was about one inch long, was oval shaped, and I could see the centre was about half to one centimetre in thickness. It looked to me like it was a cut that had not been stitched when it happened. It was not a fresh scar, it may have been two months old, it may have 12 months. There didn't seem to be any discolouration of the scar. It was on the right side of his face, just below his eye and a little bit to the side (towards his ear). He would have been about mid 20s, and he was Caucasian. I can't recall his hair colour. He was about 6'4" tall, and skinny. I would say he would almost be underweight for his height, and he was clean shaven. As he was at the counter, his body language suggested to me he was very uneasy. He appeared to be calm, but his demeanour was like he was on edge.

7 . As I was looking at his scar, I recall he was wearing something red, fire engine red, but I just can't recall what it was. He started speaking to me, I didn't hear exactly what it was, but I recall it made me uneasy. He put the drink on the counter and I was scanning it, he said what I thought to be "I've just killed somebody." I did not detect any accent in his voice, and the way he said this was very relaxed, almost conversational, like he was telling me he had just gone to the shop. He seemed very calm the way he said this, and this alarmed me. I don't remember saying anything back to him. I might have said something back to him, just conversation I make when I'm not really wanting to prolong the conversation, as I often do when serving customers, but I'm not sure. I remember thinking about pressing the hardwire alarm button, but I decided not to, as I didn't feel in any immediate danger. He gave me $2.40 in coins, the exact price of the drink. As he was doing this, he said, "I've had enough". When he said this, the tone of his voice had changed, and he seemed upset and angry. He had raised his voice slightly, but nothing drastic. I think I said, "That's ok." He then left the store, just walked out casually, and I was thinking about what he had said. I wondered if he had actually said to me, "I'm going to kill someone," in light of his other comment about having had enough, but I am 99 percent certain what he actually said was, "I've just killed someone."

8. I watched him get into the drivers seat of the van. I looked at the van, and saw it was a Toyota Lite Ace or Hi Ace, and it was white. I noticed a lot of dents along side the passenger door. It was a very old model, maybe a late 80's model. I could not see anyone else in the car. I noticed the registration to be VZL 917, and I wrote this down. He drove out the driveway and turned left onto Victoria Road and into the kerbside lane. I did not see him after this. I can't recall any other conversation with this man, but it should have all been recorded on the video and audio at the console. (At the time of making this statement, I have not seen this video or audio footage, the manager is the only person with access to the security footage.) I definitely recall this man saying he had killed somebody, (or was going to kill somebody, although my strongest recollection is that he said he had in fact killed somebody.) "

43 It is to be noted that he recalled the plaintiff as:

(a) Having a prominent scar on the right side of his face;

(b) 6'4";

(c) Skinny;

(d) Clean shaven;

(e) Caucasian;

(f) Mid 20s;

(g) Not wearing a hood;

(h) Wearing something fire engine red;

(i) Driving an old Toyota van with dents on the passenger door;

(j) Speaking with no accent.

44 Constable Hayman said she went to the Coles store on 21 July and watched the video and listened to the audio. In a statement she signed two months later, but which I infer was constructed from her contemporaneous note book entries, she said she observed on the video a man wearing a red long sleeved top and heard him say to the console operator "I've just killed someone". Police documents in evidence show that Mr Silver did not phone 000, but spoke directly to a police officer: as a result, there was no recording of the call. A number of copies of the footage were in evidence. I have watched and listened to them a number of times. I have had difficulty hearing what was said. These things seem to emerge from them:

(a) The plaintiff can be seen wearing a bright red top, white shoes, and dark coloured trousers;

(b) He appears to be tall and thin;

(c) The following conversation (or words similar) can apparently (although the audio is far from clear) be heard:

"Can I get a drink?"

"Sorry?"

"Can I get a drink?"

"Just that mate?"

"Just that one?"

"I'm so fucking..."

"I could kill some cunt"

"How much is that?"

"$2.40"

"I've had enough"

"Have a good night mate"

"Fuck off"

"I'll let you out now, sorry mate"

45 As can be seen, the only visual similarity the plaintiff had to the witnesses' descriptions of the shooter was that he was a male in his mid twenties, with a hooded top. As can be noted from what I can make of the dialogue, he did not say "I've just killed someone."

46 In a COPS entry in police computer records created by Detective Constable Ryder at 6.27am on 21 July 2006 (before signed statements from Mr Bright and Jeremiah Mahoney were obtained) she described the POI (person of interest) thus:

"Male, aged late 20's to early 30's, middle eastern appearance. Approx 5'4" tall, stocky build. Short black hair and unshaven. Wearing a long sleeved orange hooded jumper, dark blue denim jeans and white and blue sneakers. Armed with silver pistol with black butt;

...

Of note, about 1.30am the console operator from Coles Express located on Victoria Road and Macarthur St Parramatta, contacted Parramatta Police Station and stated that a customer had just entered the store and stated that he had shot someone tonight and possibly killed them. "

(My emphases.)

One thing from the audio is certain. He did not say he had just shot someone. The reference to shooting appears to have been poetic licence, at the least. As appears below, by 1.37pm that day, police were even asserting he had confessed to having "shot someone".

47 Because Mr Silver gave police the registration number of the plaintiff's van, they immediately discovered his name and address. No sooner had they done that, it appears, unquestioningly, they placed data in the COPS system which named the plaintiff as the party responsible for the shooting. There was a COPS entry for 21 July 2006 at 1.37pm saying this:

"J16 Syd INFT contacted Police and stated that a POI has just entered Coles Express Service Station and stated "I have just shot someone." Possibly related to shooting at 2/179 George St Parra. POI in vehicle- registered to Haysam Zreika of Greenacre. Approach with caution may be armed with pist."

(My emphases.)

Then there was a data entry at 10.52pm that day which named the plaintiff as the shooter. Thus by 10.52 pm on 21 July, the crime had apparently been solved.

48 Between 21 July and 25 July, when the plaintiff was arrested, police did not interview or take statements from any more eye witnesses to the shooting. That was unfortunate. As will become apparent when I set out the details police later obtained from eye witnesses, their descriptions were essentially consistent with those given by Jonathon Bright and Jeremiah Mahoney on 21 July.

The arrest of Sarah Bright

49 Jonathon Bright's sister, Sarah Bright, was arrested by police on 21 July at 7.15pm at Westmead. She was charged with being an accessory after the fact of shooting with intent to cause grievous bodily harm, and concealing a serious offence. Somewhat bizarrely, though entirely consistently, police in the relevant Court Attendance Notices, alleged the plaintiff had been the principal offender. That is consistent with COPS entries for that day describing him as the shooter. According to Detective Constable Ryder's notebook for that day, after Sarah Bright's arrest she 'commenced, review of her mobile phone.' However documents in evidence show that it was not until over a year later when efforts were made to trace the identity of those whose numbers were recorded on that phone as having been in contact with her on the night of the shooting. That also was unfortunate. As later appears, one number found to have been in contact with her that night on several occasions, was from a phone police later found was used by Sarah Bright's friend Michael Farrugia, a man who, as it turned out, drove a Silver coloured Holden Commodore.

The Platten Document

50 On 23 July 2001, two nights after Sarah Bright's arrest, her mother, Ms Black, telephoned police, wanting to speak about the shooting. That telephone call led to an episode which was the subject of a great deal of scrutiny before me. Inspector Troy Platten (now retired) was on duty that night, took her call and then made another. There was a one page, undated, memorandum, put into evidence by the defendant, in which Mr Platten had purported to record the contents of the two calls. The document was never part of the police brief served on the defence, and first came to the notice of the plaintiff's representatives only in the course of this hearing. On its face, it is not a complete record of either conversation. The heading to the document says: " Calls made by offender Haysam Zreika (wanted for shooting at Parramatta) to friends of his and Sarah Bright (accomplice to Hysam (sic))". The author of the note then asserts that when he spoke to Ms Black on 23 July she identified herself as "the mother of the offender Sarah Bright who is the accomplice to offender Haysam Zreika who is the offender for the shooting the other night. " (The emphases are mine). Ms Black was recorded in the document as having told Mr Platten that the plaintiff had contacted a Mr Omar Abukhaled and demanded that he bail out Sarah Bright. Mr Platten was recorded as having phoned Mr Abukhaled and being told the plaintiff had phoned him, demanding he help bail Sarah Bright. The plaintiff was said to have been threatening in manner. A telephone number recorded by Mr Platten as that of the plaintiff was set out in the note.

51 Mr Platten told me that he had emailed a copy of the document to Inspector Newman (another officer working on the case) and had placed a copy on his desk the next morning. He said he had spoken to Inspector Newman on the phone while in the course of preparing the memorandum, on the evening of Sunday, 23 July. Detective Constable Ryder told me she was made aware of the contents of the document shortly after it had been prepared.

52 Obviously, if Mr Platten's note was accurate, the police case against the plaintiff had suddenly achieved a great deal of strength.

53 In cross examination Mr Platten first agreed that when he prepared the document he had the view that the plaintiff was wanted by police for having been the shooter. Later, however, he said he had not known at the beginning of his discussion with Ms Black that the plaintiff was regarded by police as the person of interest for the shooting. He said he had made no handwritten notes about the matter. He claimed to have read none of the statements taken by investigating officers. He maintained that all details, including the spelling of the plaintiff's name, he had obtained from Ms Black. He agreed he had had access to COPS entries at the time he created the document, though he said he did not recall the plaintiff's being named in them as the person of interest, and that what he described as the 'COPS event' had been minimal. (There is a note in his document saying 'no find on cops', confirming that he did have COPS access.) But he denied when it was put to him in cross examination that he had had access to a COPS entry which is at pp 16-34 in Exhibit 2, which refers extensively to the plaintiff by name, and as the person of interest. Mr Kennedy ultimately submitted I should not accept Mr Platten's evidence that the plaintiff's name had come to him from Mrs. Black and Mr Abukhaled rather than from his having read COPS entries.

54 I shall return in a moment to consider whether I accept that submission.

55 The day after Mr Platten says he made that note, police in fact spoke to Mr Abukhaled. The police officer who interviewed him was Detective Constable Ryan. He told her inter alia that at about 8am on 20 July 2006 Sarah Bright had asked if she could come to see him. At that time he had known her and her family for about eight years. The two of them had been best friends. Sarah Bright had arrived shortly after that phone call, in a silver or grey coloured Holden Commodore sedan, he thought a VX model. He had known Sarah Bright did not drive. He had seen a man in the car but could not make out his features.

56 Over the next several days he had tried unsuccessfully to call her. Then on 23 July he had read in the paper that she had been charged over a shooting. He had phoned Parramatta Local Court and been told she had been granted bail but had not found a surety, so was still in custody. He had sent a text to Sarah's friend, Frankie. He had asked him for the number of a man he had known as Sarah's friend, who had the names 'Ali', 'Michael' and 'Big Papa'. Later, he had received a text from a number he had not recognised, saying "Its Frankie call me back". He had rung the number. The man who had answered had not been Frankie. The man had told him Sarah was a good friend of his and he wanted to help her and he had 'five grand' to get her out. Mr Abukhaled had suggested they meet. The man had declined. The man had later given him a number he said was his 'new number'. (In the course of the conversation the man had told him he was aged 27.) He had then gone to Ms Black's home. (They seemed close, since he called her 'mum'.) He concluded in his statement:

"I do not know anything about the shooting that Sarah was charged for. I do not have any information apart from what I have mentioned in this statement if it relates to it at all. I do not know who I spoke with when I rang 016 644 977 but I know for sure it was not Frankie. The person I spoke with spoke Arabic and Frankie cannot speak Arabic. Frankie is Italian. The person I would describe the male as being Lebanese from the North Tripolo region. I think he might be aged 27 after he mentioned that during our conversation over the phone. The person spoke fluent English and didn't speak with an accent when he spoke in English. I don't really remember anything else about him."

57 As can be seen, Mr Abukhaled said nothing about the plaintiff, and confirmed Sarah Bright had a friend with the name Michael. In a statement police took from Ms Black after the plaintiff's arrest, her evidence was largely in accord with that of Mr. Abukhaled. In particular, she said nothing to show she had ever heard of the plaintiff.

58 I would have expected Mr Abukhaled to have mentioned the plaintiff's name to Detective Constable Ryan, who took a careful and detailed statement from him, had he in fact given details about the plaintiff the previous day to Mr Platten. The telephone number Mr. Platten asserted had been the plaintiff's was, as Detective Constable Ryder conceded, never found to have had the remotest connection with the plaintiff. Indeed, no steps were ever taken by police until well after the plaintiff's arrest, to see who it belonged to.

Mr Platten's Credit

59 Mr Kennedy subjected Mr Platten to a vigorous cross examination. Mr Platten seemed to take offence at the idea that his word might not be accepted. That is not unusual, especially for a former experienced police inspector. But I did consider Mr Platten overly aggressive and defensive in his assertions; he had kept no notes other than the one page document; he had had access to the COPS entries; as I have observed, his note did not sit at all well with the statements taken from Mr Abukhaled and Ms Black. It is I think highly significant that neither mentioned the plaintiff by name and both gave police evidence substantially corroborative of that of Jeremiah Mahoney and Jonathon Bright concerning the man Michael. I have no doubt Mr. Platten obtained the plaintiff's name from the COPS entries and put his name in various places as the suspect, and that the two people he spoke to that day never mentioned his name at all, and I so find. I reject Mr Platten's evidence to the contrary. I find he was mistaken in asserting Mr Abukhaled and Ms Black had given him the plaintiff's name.

The OTU request

60 On 24 July at 10am, four days after the shooting, and three days after the plaintiff had been nominated in the COPS records as the shooter, a job request was made by Detective Constable Ryder's senior officer, Detective Sergeant Davey, to the OTU, to arrest Mr Zreika. In the request, a description of the shooting appeared, in which it was asserted that Mr Zreika had been the shooter. Inter alia, this was said: "Police believe that Zreika will be armed with a firearm and is considered dangerous." The plaintiff was arrested by the OTU the next day.

An erroneous assertion

61 An investigator's note prepared by Detective Constable Ryder on 24 July 2006, apart from asserting as fact, that the person in the Coles store had said he had killed someone, asserted too: "Sarah Bright is the girlfriend of Haysam Zreika." When cross examined about that last entry, Detective Constable Ryder said the basis for asserting Sarah Bright had been Mr Zreika's girlfriend was "it could have been true": she denied that she had had no reasonable basis for making it.

Red becomes orange

62 As I have observed, Constable Hayman told me she viewed the CCTV footage at the Coles store on 21 July 2006, and observed on it the plaintiff wearing a red long sleeved top. It is to be recalled that the one person who had seen what the plaintiff was wearing at the store, Mr Silver, had said he had been wearing something "fire engine red". No new evidence of any kind about what the plaintiff had been wearing at the Coles store came to light between 21 July and 25 July 2006. Yet, curiously, from 25 July 2006, police in COPS entries began describing the jumper worn by the plaintiff that night as "orange coloured", that is, the same colour one eye witness said had been the colour of Michael's jumper. Further, that day, COPS entries began to describe the case against the plaintiff as a "strong prosecution case". Yet since Mr Silver had first contacted police, no evidence had been unearthed to link the plaintiff to the shooting. Police still had no eye witness who identified him as the shooter. A number of eye witnesses were yet to be interviewed. The only additional piece of investigation by police was for an officer to have looked at the CCTV footage and listened to the audio.

The Plaintiff is "unemployed"

63 Another, although less significant, error, in the COPS entries as at 25 July 2006 was as to his employment. He was described as "unemployed", whereas tax returns in evidence, which were unchallenged, show that at least since 2002 he had worked as a trades assistant, and the plaintiff's oral evidence, also unchallenged on this point, was that he had a successful vehicle glazing business at the time of his arrest. I conclude that police when creating COPS entries, had access to and regarded as useful, old police data.

64 Some of these errors later, perhaps unsurprisingly, found their way into a document somewhat ironically described as a "Facts Sheet", provided by Detective Constable Ryder to the police prosecutor, who in turn relied on it before a series of magistrates when later opposing bail for Mr. Zreika.

State of police knowledge on the day of the arrest

65 There was one thing the COPS entries as at 25 July did record correctly. They recorded this description of the plaintiff, from his previous encounters with the law:

"Facial appearance/ complexion: Middle Eastern Olive

Build/ Height/ Weight: Thin 180 to ____ cm...

Hair/ eye Brown hair Brow Eye."

66 Thus on the day of the arrest, this was the stage investigations had reached:

(a) Police had signed statements from Jonathon Bright and Mr. Mahoney, containing a description of the shooter; they had a signed statement from Mr Abukhaled adding to evidence they already had, that Sarah Bright's boyfriend was called Michael and drove a silver or grey coloured Holden Commodore sedan, possibly a VX;

(b) They had the names and addresses of a number of eye witnesses to the shooting who had not been interviewed;

(c) They had the details (a signed statement from Mr. Silver, and their own CCTV observations and COPS entries from the plaintiff's police history) concerning Mr Zreika's conduct at the store, and his age and appearance.

67 Especially given that no one had given a positive identification of the plaintiff as the shooter, I infer it would have been elementary for police, (especially Detective Constable Ryder), before having the plaintiff arrested, to compare the descriptions of the assailant from eye witnesses, with what police knew of Mr. Zreika. This is a comparison I have drawn from the available evidence as at the day of the arrest:

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

68 What was the evidence against, and reasoning concerning, Mr Zreika?

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

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

(c) Michael's top had been orange; ( Detective Constable Ryder claimed to me she had observed the plaintiff wearing an orange top on the CCTV);

(d) Michael had shot the victim;

(e) The plaintiff must have been Michael.

The CCTV material

69 It is necessary to say something about some differences of opinion about what the CCTV material disclosed. I consider however that in assessing whether the defendant has discharged its obligation on the false arrest count of proving 'reasonable cause', I should assume that what Mr Silver told police is the best evidence on that issue. The memory of what he thought he heard, was, I infer, fresh in his mind when he was interviewed. He had heard the plaintiff say the words. Unlike investigating police, he had no need to rely on the CCTV. I appreciate Mr Silver's statement disclosed he was not 100% sure whether the plaintiff had spoken in the past, or future, tense. But I think it was appropriate for police on 21 July to have assumed that he had heard the plaintiff say he had just killed someone. I consider too that police ought to have paid heed to what Mr Silver said about the colour of the plaintiff's top. In any event, to my observation, the overwhelming impression from the video and DVD evidence is that it was red. So there was on that issue a coincidence of his description, and what had been captured by the camera. That there were, by 24 July, even after seeing the CCTV footage, obvious differences between the description of the shooter, Michael, from those who knew him, and that of the plaintiff, should, I consider, have been obvious to the average astute police investigator. Yet those obvious differences, which I consider suggested strongly that Michael and the plaintiff were different people, did not seem to have troubled police. As Mr Neil said in his address, on the issue of description: "It is clear ... [police worked] ... on the basis of that [factor] being either a non-relevant matter or one that didn't impact on them, I accept that." (T 663.4.) From their perspective, especially that of Detective Constable Ryder, I infer the case was regarded as solved once Mr Silver had made his phone call. That, I infer, explains why there is no evidence any eye witness was ever asked by police if he had heard of the plaintiff, and why police did not interview any more eye witnesses to the shooting until after the arrest.

Detective Constable Ryder's evidence

70 Detective Constable Ryder, the relevant investigating officer, was recalled to duty on the night of the shooting, being on call at the time. She created a COPS event, on the police computer system, containing a report of the shooting. She told me that officers have access to such entries through the computer system, and that the entry can be added to as time goes by. She described these additions as 'narratives'. She said she had created such an addition on 21 July 2006 at 6.27am. (This appears at pages 13-16 and 18-22 in Tab 21 of Exhibit '2'.) Much of the history of the investigation I have referred to above was from her evidence of what she did after being called in on the night of the shooting.

71 As to the arrest itself, she said that on 25 July 2006 she had gone with Detective Inspector Newman and Detective Sergeant Davey, to Artarmon. Inspector Newman, she said, had at the time been the operation commander and crime manager at Rosehill. By the time she had arrived at Artarmon, the OTU had carried out the arrest. She had observed the plaintiff seated on the ground, with his wrists in flexicuffs, and placed behind him. The police present when she arrived had worn black overalls, with the word 'Police' on the back. She said she had seen no one kick the plaintiff, or grab him by the mouth, or stand on him, or sit on him or point guns at him. The only officer of the rank of inspector she could recall seeing there, had been Inspector Newman, who had been in standard police uniform with the rank insignia on his shoulders. She said she had had a conversation with the plaintiff, when the following had been said:

Detective Davey said, "I am Detective Sergeant Davey and this is Detective Devlin from Rosehill Detectives. You are under arrest. You don't have to say or do anything if you do not want to. Anything you say or do will be recorded and may later be used as evidence. Do you understand that?"

Zreika said. "Yeah. What am I under arrest for?"

I (Detective Devlin) said, "You are under arrest for a shooting that occurred at George Street, Parramatta on Thursday 20 July 2006."

Zreika said, "Are you serious? You must be joking."

I said, "I am very serious."

Zreika said, "What for? When?"

I said, "You are under arrest for a shooting that happened on Thursday night."

Zreika said, "This is a joke. You have got the wrong man. I didn't shoot no cunt. This is fucked."

(See pages 17-18 of Ex 'A'. See plaintiff's evidence to the contrary in para [22] on page 14.)

72 She denied that when she had arrested the plaintiff she had said on being told she had the wrong bloke:

"I've got five signed statements that you did it, Haysam Zreika did it, and you used your van as the getaway vehicle and your numberplate was taken."

In fact the evidence discloses he had been driving a van in the early morning of 21 July, his number plate had been recorded by Mr Silver, and Detective Constable Ryder had, by the time of his arrest, at least five statements, including ones from Jeremiah Mahoney, Jonathon Bright, Mr Silver and Mr Abukhaled. Detective Sergeant Davey conceded the words may have been used. (T 361.25.) As later appears where I discuss Detective Constable Ryder's credit, I have concluded that her evidence lacked frankness, and that I cannot rely on it on any matters of importance. I find she did say those words to the plaintiff when formally arresting him.

73 Detective Constable Ryder left the arrest scene and went to the Chatswood Police Station, to where the plaintiff had been taken. She told me it had not been possible that afternoon to arrange an identification parade, but she had later pursued vigorously arrangements to have one. Although she made arrangements for tests for finger prints, DNA, and gun shot residue, no results arising from those tests were received by police before the charges were dismissed. She considered having Mr. Zreika's top tested for gun shot residue, but police who seized it from his house formed the view it had been washed after the offence. So as any gun shot residue would have disappeared, the laboratory would not accept it for testing.

The grounds said to have been reasonable

74 Detective Constable Ryder said she had been the one who had decided to charge the plaintiff. She had made that decision "Because I believed there was(sic) reasonable grounds and sufficient evidence to charge him." (T 136.26.) She also said she had decided to have the plaintiff arrested: "Essentially because he was considered a suspect for the shooting that had occurred involving Thomas Neville." (T 162.40.) Further, she had seen that as her duty as a police officer. Her opinion at the time he was charged was that he had been guilty. (T 136.40.) She had had no prior dealings with him. She said she had watched and listened to the CCTV video from Coles: she had not found the audio easy to hear, but had read carefully Mr Silver's statement. She said her belief when listening to the audio on the CCTV footage, was that the plaintiff had said "I've just killed some cunt." She said she had considered s.99(3) of the LEPRA Act . Asked why she had recommended using the OTU she said:

"The main reason for recommending that the Tactical Operations Unit was involved related to the offence that was being investigated. It was an offence of violence; it was an offence involving the use of a firearm that, to me, appeared indiscriminate, and then that was also combined by looking at Mr Zreika's past involvement with police, and the intelligence holdings on the police computer system." ( T 164.01. )

75 She claimed to have had no difficulty with identification. (Although controversial at trial, I accept she probably did watch the video before the arrest). These were some of the statements she made to me on that issue:

"I'd say the description of him did match the descriptions provided by the witnesses" (T 140.40);

"The descriptions were very similar" (T 140.49);

"The clothing worn by Mr Zreika at the Coles Service station was almost identical to that described by one of the witnesses on the night of the shooting." (T 141.10 i.e. Mr Mahoney.)

76 She could not recall ever having made an enquiry before the arrest, of any police sources, as to whether there had been any other shooting reported in New South Wales on 20-21 July 2006.

Arguments on wrongful arrest

77 Mr Neil submitted that the defendant had made out its case on the balance of probabilities: the decision to arrest and charge had been reasonable.

78 In particular, he argued that the male customer's clothing as described by Mr Silver "substantially fitted the description of the shooter as provided by [Mr] Mahoney." (Defendant's written submissions [17].) Although he conceded Mr Silver's description had varied, he put to me that the real inquiry involved a comparison of the description from Mr Mahoney with what could be seen on the CCTV, the fact that on the CCTV he looked to be in his late 20s, or early 30s, and to be of medium height, stocky, of middle eastern appearance, and with short black hair.

79 A difficulty with that argument, as I see it, is that even assuming it is a correct description of the plaintiff as seen on the CCTV, it is different from the description police already had of the plaintiff in its own records. And it is not as though police regarded making an arrest of the plaintiff as an especially urgent matter. As I have observed, they labelled him the perpetrator shortly after Mr Silver's phone call, yet waited another four days before arresting him. I conclude they had plenty of time to check their recorded facts.

80 I also appreciate the importance of appearing to be wise after the event. As I have observed, police have to make decisions, and the decisions do not necessarily have to be correct to be reasonable. The different descriptions in the comparison in paragraph [67] above demonstrate what information the police had immediately before the arrest. The available evidence against the plaintiff and what I conclude was the police reasoning process are at [68]. The three most important parts of Mr Silver's evidence I consider to have been the colour of the top, the words used, and proximity of the store and the plaintiff to the scene of the shooting, both as to time and place. I fully accept that in the minds of police, especially Detective Constable Ryder, these things initially created a justifiable suspicion that the plaintiff had been the shooter. But in the four days she took before arresting him police found no evidence to link him to the shooting, and continued to gather powerful exculpatory evidence, but, I conclude, ignored it.

81 I agree with Mr Neil that the plaintiff on the video appears to be in the age range and with the same racial background as the man known as Michael as described by Mr Mahoney, and appears to have short black hair. But I would not describe him as stocky. In any event, the correct details of the plaintiff recorded by police before they saw the video I consider to be of some importance. It is hard to see how he could have reduced his height by 18cm, even assuming his build could have changed. The shooter was short, yet in the video and police records and Mr Silver's statement, the plaintiff was obviously tall.

82 Mr Neil referred me to the information allegedly obtained by Mr Platten on 23 July 2006. But, as I have demonstrated, his evidence is certainly wrong in so far as he says the plaintiff was referred to by name by Ms Black and Mr Abukhaled. He may not have had good reason to record false information, as Mr Neil submitted, but he undoubtedly did record erroneous information. I have explained how I consider that came about. Although, as Mr. Neil noted, the accessory after the fact, Sarah Bright, refused to assist police with their enquiries, that did not take matters any closer to involving the plaintiff in the crime.

83 Mr Neil set out in full in his written submissions in support of his case a factual summary in a document prepared for the OTU called "Operational Orders- Strike Force Wedgewood 25 July 2006." But that document simply made many assertions put forward as fact. For example: "Zreika is clearly depicted in the footage wearing the same clothing as he was at the time of the shooting." The document went on to refer to the statement taken by Constable Detective Ryan from Mr Abukhaled. It referred to the phone call he had received from a number the police had no evidence was connected with the plaintiff, indeed had never even tried to trace to anyone. But the statement went on: "Police are of the belief that the person... is Haysam Zreika." Mr Neil in his submissions said: "The information contained in the memorandum created by Inspector Platten is largely replicated in that document." I do not accept that submission. Unlike Mr Platten's document, it did not contain assertions that Mr Abukhaled or Ms Black had named the plaintiff. I infer from this that Detective Constable Ryder when preparing it relied on the statement taken from Mr Abukhaled, and little at all on what the Platten note said. Indeed, she told me she was unsure of when she first saw that document, in particular, whether it had been before or after the arrest. I find she did not see it for the first time until after the arrest.

84 Mr Neil put to me that the factual basis for the suspicion was the identification evidence at the scene, the plaintiff's attendance at the Coles store a short time later, the audio and video footage, his registration details, and criminal history for firearms offences. It should be said at once as to that proposition however that Detective Constable Ryder never referred to his criminal history for firearms offences as a reason why she had formed her suspicion.

85 Next, however, Mr Neil put to me that Detective Constable Ryder's decision had been made after careful consideration and after consultation with senior colleagues, Detective Inspector Newman and Detective Sergeant Davey, and her state of mind was "conveniently recorded in the facts sheet" she created on 25 July 2006. He said there had been a wealth of circumstantial material and she had had the requisite suspicion: she had believed and objectively had reason to believe the plaintiff had committed the offence. The decision to arrest, rather than proceed by CAN, had been reasonable, he argued. He submitted that I ought find she had decided to arrest for the very purpose for which the power to arrest exists, namely to apprehend a person reasonably suspected of serious offences, and to protect the community: she had been under a duty to prevent and investigate crime and to enforce the criminal law.

86 Finally, Mr Neil submitted (a submission which I do accept) that the period of detention relevant to this cause of action was that which commenced with the arrest and extended at the most to the time when he was brought before a magistrate and remanded in custody: Austin v Dowling L.R 5 C.P.534 at 539 (Willes J); Diamond v Minter [1941] 1 KB 656 at 663; Hunter Area Health Service and Anor v Presland [2005] NSWCA 33 at [101] (per Spigelman CJ).

Conclusion on arrest

87 In Hussien v Chong Fook Kam [1970] AC 942 Lord Devlin, at p 948, said of the test of reasonable suspicion:

"Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion. In the exercise of it many factors have to be considered besides the strength of the case. The possibility of escape, the prevention of further crime and the obstruction of police inquiries are examples of those factors with which all judges who have had to grant or refuse bail are familiar."

88 In George v Rocket (1990) 170 CLR 104 at [115]-[116], the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron, McHugh JJ) as to the required state of mind, contrasting suspicion with a belief or a reason to believe, said:

"Suspicion as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942 at 948 in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown...[I]t is a positive finding of actual apprehension or mistrust. The objective circumstances sufficient to show a reason to believe something needs to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture."

See also: O'Hara v Chief Constable of RUC [1997] AC 286 at 293C-D ) per Lord Steyn).

89 I am not persuaded the defendant has made out its defence on the balance of probabilities. I conclude that Detective Constable Ryder became convinced that the plaintiff was the shooter as soon as she received the information from Mr Silver. So although I do not accept her evidence on most significant matters, I do accept her evidence she did from that time believe the plaintiff was the offender. From then on, however, I am satisfied, she closed her mind, and she ignored exculpatory evidence she ought not have ignored, and gave no weight to or ignored the fact that there were no eye witnesses implicating the plaintiff. I have pointed out the significant differences in description. There was undoubtedly the co-incidence that three hours after the shooting the plaintiff had made his bizarre statement, however it might be interpreted. It is true that red and orange are close on the colour spectrum and people may mistake one for the other. But the overall differences in description (I do not just mean colour) given by all those interviewed except Mr Silver, who was only describing the plaintiff, persuade me that Detective Constable Ryder, though perfectly correct to be initially suspicious of the plaintiff, lacked reasonable grounds for the suspicion four days later when having him arrested. Though she had the important duties Mr Neil enumerated, the obligation for the belief to be reasonably grounded is there for good reason. On the wrongful arrest count, there will be judgment for the plaintiff.

Damages

90 I accept the plaintiff's evidence as to his shock and distress when he was arrested and imprisoned from 25 July 2006 to 26 July 2006. Indeed he was not challenged on that evidence.

91 The parties referred me to Spautz v Butterworth (1996) 41 NSWLR 1, where the Court of Appeal substituted $75,000 for the trial judge's award of $5600 for 56 days of imprisonment. In Vignoli v Sydney Harbour Casino [1999] NSWSC 1113, Bergin J awarded $30,000 for wrongful imprisonment; 2% represented an amount for suffering arising from publication in the Sydney Morning Herald of a statement by the defendant that it was defending its action in imprisoning him. The period of imprisonment (although this is not entirely clear from the judgement) seems to have been about 4 1/2 hours. The arrest was not a public one as this one was, and the plaintiff there (unlike here) was treated with a degree of respect while imprisoned. In State of New South Wales v Zaravinos (2004) 62 NSWLR 58 the Court of Appeal dismissed an appeal from an award of $25,000 for a detention by police of about three hours. The award included components for aggravated and exemplary damages. In Nye v State of New South Wales (2004) Aust Torts Reports 81-725, the plaintiff was awarded $25,000 for a period of detention from the day of arrest until the following day, when he appeared before the Local Court. In a more recent case, Coyle v New South Wales [2006] NSWCA 95, the Court of Appeal (Tobias JA, with whose reasons Mason P and Handley JA agreed) awarded $10,000 for false imprisonment, where the period of detention was about 2 1/2 hours, and the arrest (as here) was in a public area and in circumstances of substantial humiliation. In State of New South Wales v Delly [2007] NSWCA 303 at [77] the Court of Appeal observed that an award of $25,000 for a period of detention by police of about ten hours "was "close to or at the top of the range." I take account of the fact that most of those awards were made some years ago.

92 I regard an appropriate award of damages, excluding aggravated and exemplary damages, as $50,000. For the wrongful arrest I also award $1,000 for economic loss for the lost income for the day of his arrest and the day he first appeared in court. He was not cross examined on his evidence that a wage earner in his position received $550 per week clear. (Generally speaking, the subject of economic loss was dealt with rather lightly by counsel in addresses.) The plaintiff had his own business, and there would have been some financial benefits, I infer, from that fact, beyond the receipt of a comparable income: I infer there were some financial outgoings he had to pay.

93 The plaintiff also claims aggravated and exemplary damages for the wrongful arrest. "[A]ggravated damages are awarded to compensate the plaintiff for increased mental suffering due to the manner in which the defendant behaved in committing the wrong": Whitbread & Anor v Rail Corporation NSW and Ors [2011] NSWCA 130 at [254] ( per Whealy JA). Here the arrest occurred in a very public area, in view of 20 to 30 people other than the police. Further, his father was present, as were some of his customers. I would add $10,000 for aggravated damages. Exemplary damages are awarded rarely: something more than a mere finding of fault must be there: Gray v Motor Accident Commission (1980) 196 CLR 1 at [12] (Gleeson CJ, McHugh, Gummow, and Hayne JJ). The same circumstances may justify both an award of exemplary damages and an award of aggravated damages: Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118 at 130 (per Taylor, J). I do not think here there was a "conscious wrongdoing in contumelious disregard of another's rights." ( Lamb v Cotogno (1987) 164 CLR 1, 8.) Detective Constable Ryder made an appalling error. I have no doubt it was in large part due to her inexperience and lack of common sense. But the decision to arrest did not go beyond that. I decline to award damages for exemplary damages.

The battery count

94 Mr Neil submitted that on this count I would reject the evidence of the plaintiff and his father and accept that of the officers who effected the arrest.

95 In the end, only two police officers who were present for the arrest by the OTU gave evidence. They were the two who effected it. I shall now consider the evidence of each of the officers who gave relevant evidence about the arrest.

96 I have observed that it was Detective Constable Ryder's evidence that she arrived to find the plaintiff already restrained, lying on his front on the ground, with his hands tied behind his back, and that she saw no police misconduct. She also told me she saw no dirt marks on him or his clothing, (T 174.49) but later conceded a video tape of his charging procedure at the police station suggested he had something on his arms. (T 176.28.) I shall return later to consider her credit but it is sufficient to say that I accept her evidence generally concerning the actual arrest, (save as in [72] above).

Detective Inspector Newman

97 Detective Inspector Newman was the crime manager at the Rosehill Local Area Command. He arrived at Artarmon in full uniform just after the OTU had arrested the plaintiff. It is to be recalled that the plaintiff told me a man he thought was an inspector had grabbed him by the mouth and insisted he co-operate. Detective Inspector Newman's uniform of inspector carried three stars on each shoulder. He denied assaulting the plaintiff and said he had seen no one else doing so. He had gone to the scene with Inspector Green, a Chief Inspector. He did not recall seeing the plaintiff with dirt or grass clippings on his forearms or hands.

Credit of Detective Inspector Newman

98 Detective Inspector Newman made some appropriate concessions, such as that it was very much in the plaintiff's favour concerning his innocence that he had immediately asked for an identification parade, and that the fact eye witnesses to the shooting had failed to identify him as the assailant had been very powerful information indicating his innocence. I accept his evidence as reasonably truthful and accurate.

Inspector Smith

99 Inspector Smith was attached to the OTU. He said the actual arrest had been carried out by Sergeant Naven and Sergeant McCormack. He said some officers from the OTU that day would have been in plain clothes and some in black tactical overalls.

100 He gave evidence as at the time of trial of the whereabouts of various OTU members who had attended the arrest. One had been officer Powell. He was not sure whether he was still in the police force. He said officer George had been discharged because of post traumatic shock disorder (PTSD), that officer Highfield was on sick leave because of PTSD, and that officer Smart had been medically discharged because of PTSD. It seems to have been accepted by Mr Kennedy that PTSD disqualifies one from giving evidence, since there was no other explanation for their absence and he made no Jones v Dunkel (1959) 101 CLR 298 submission concerning their absence. There was in evidence a very brief report from a general practitioner, Dr Jon Levenston, to the effect that officer George was suffering from PTSD and was not fit to give evidence in a court. There was also in evidence a brief report to like effect from another general practitioner, Dr Adrian Jones, concerning officer Highfield.

101 Inspector Smith was not present at the time of the arrest. He was with the investigators some distance away, coordinating. He came soon after, with the investigators, so had not been in a position to observe the actual arrest. He could not recall where the plaintiff had been when he arrived. He saw no one assault or ill treat the plaintiff or point a gun at him, and said such a thing had it happened would have been reported.

Credit of Inspector Smith

102 I regarded Inspector Smith as a careful witness, who made concessions appropriately. There were no inconsistencies which I observed or which were brought to my notice, throwing doubt on his truth or accuracy. I accept him as a witness of truth and reasonable accuracy.

Detective Sergeant Davey

103 He was senior to Detective Constable Ryder. He prepared a job request to the OTU. He was present when the plaintiff was arrested by Detective Constable Ryder but not when he was arrested by OTU officers. He said he saw no police officer kick the plaintiff or stand on him or drag him or point guns at him, he said. He said he saw no police inspector grab him by the mouth. He did hear the plaintiff complain they had the wrong man. He conceded Detective Senior Constable Devlin may have said to the plaintiff: "I got the right guy. I've got five signed statements that you did it, Haysam Zreika did it, and you used your van as the getaway vehicle." In cross examination he was shown the video of the charging procedure at Chatswood Police Station. He conceded there appeared to be marks on his arms, and a dark mark on his forehead. As later appears, I do treat his evidence with some caution.

Sergeant McCormack

104 Sergeant McCormack was an operative in tactical teams on 25 July 2006. He was with Detective Sergeant Navin. His unit only dealt with high risk offenders, armed and dangerous. He had been warned the plaintiff might be armed. On the day of the arrest he walked up to the plaintiff from behind and identified himself as police and pulled him down to the ground. The plaintiff did not resist. He denied that he or any other officer had kicked the plaintiff or knocked him down, or dragged him along; or that he or any other officer had sat on him, or that any other officer had grabbed his mouth. He agreed either he or Detective Sergeant Navin may have picked up the plaintiff and handed him to the detectives. Asked why he had pushed him to the ground he said:

"Because, as I said, the intel suggested he's armed and what happens if he doesn't comply with that and he pulls a handgun on me and ends up shooting me or I have to shoot him? Which is - I don't think anyone wants that. So should I give him an opportunity to do that?" ( T 528.20. )

He said he had used only reasonable force when putting his hands on the plaintiff's shoulders. Then he had put flexicuffs on him. He could not recall seeing other tactical officers there. He and his accompanying officer had been in plain clothes. He could not recall having seen dirt or grass on the plaintiff's arms. He said Inspector Smith may or may not have worn the uniform of inspector that day. He could not recall whether shotguns had been carried that day. He said they may have been. He did not recall whether any had been pointed at the plaintiff. Had he observed bad conduct he would have reported it, he said.

Credit of Sergeant McCormack

105 Sergeant McCormack impressed me as somewhat aggressive in manner. He is a very tall and large framed man, no doubt well placed in the OTU. I did not consider he gave his evidence with appropriate objectivity. He appeared outraged at the suggestion he may have done something wrong; and he would at times add things not asked for, in an apparent attempt to assist the defendant's case. For example:

Q. Well, do you have a notebook?

A. I do have a notebook. I took no notes on this arrest because it was uneventful. ( T 524.20-22. )

Or:

Q. Did you push him to the ground forcefully?

A. I placed him on the ground with enough - with reasonable force to effect an arrest. Nothing I do is unreasonable." ( T 531.15-17. )

He appeared to have little real memory of the arrest and gave me the impression he was reconstructing, based on what he normally did. For example he often used the expression "would have", as in "He would have been flexicuffed," or "I would [have] handed him to plainclothes investigators..." (T 513.) He had no recollection of having arrested the plaintiff while the plaintiff was working on a truck. (T 520.27.) When questioned on detail he responded often (and accurately) that the event had occurred five years ago. To him, the arrest had been uneventful. (T 524.21.) I treat his evidence with some reserve.

Detective Sergeant Navin

106 Detective Sergeant Navin was in the OTU on the day of the arrest, with Sergeant McCormack. He told me he had called out several times to the plaintiff that they were police. Sergeant McCormack had then restrained the plaintiff. From when he had left his vehicle until he returned, he said no more than five minutes had elapsed. Other operatives at the scene had "long arms" (shotguns), he said; he did not kick the plaintiff or throw him against a fence, or stand or sit on him. Nor had he seen others do it. Nor had he seen anyone point a gun at the plaintiff. He was asked about the amount of force used on the plaintiff and he said:

"I think I could best describe it, sir, in this - in this way. On zero to ten and based on our levels and our appropriate levels of force, the way Mr Zreika was treated was about one." (T 543.45.)

He said 1/10 had been 'very low'. He recalled no uniformed officers having been there. Neither he nor Sergeant McCormack had stepped on the plaintiff's head. Neither he nor Sergeant McCormack had picked up the plaintiff off the ground. He said some operatives in the OTU group had had shotguns but they had been 'slung': not pointed at the plaintiff's head. Neither he nor Sergeant McCormack had sat on the plaintiff, he said.

Credit of Detective Sergeant Navin

107 He seemed careful about how he answered questions. Overall, I consider he was truthful, and reasonably accurate.

Chief Inspector Green

108 Chief Inspector Green was at the time of the arrest acting commander of Rosehill Local Area Command. He and Inspector Smith had followed the plaintiff from his home to his work place at Artarmon on the day of the arrest. Although he was at the scene, he arrived after the arrest. He had then seen some OTU officers in plain clothes and some in black overalls. But he said they had been 10-15m from the plaintiff, who had been on the ground and handcuffed.

109 He had gone over to the plaintiff, and an officer there had explained to him what had occurred. He had witnessed the handover of the plaintiff to the two investigating police. Flexicuffs had been replaced with ordinary handcuffs.

110 When at the scene, he had been in the uniform of inspector. He denied having attacked the plaintiff or of seeing anyone else having done it. Nor had he seen any long arms having been pointed at the plaintiff. Had he seen any officer assault or mistreat the plaintiff he would have stopped it and reported it, he said.

111 It was put to him that either he, Inspector Smith, or Inspector Nixon, had grabbed the plaintiff's mouth, and kicked him. But he denied that. He recalled the plaintiff's saying police had the wrong man and conceded he may have said he was innocent. He had no recollection of what investigating police had said to the plaintiff when they arrived. He had no recollection of having seen dirt on the plaintiff's forearms or hands. But he conceded that he could have had dirt on him if he had been detained in an area where dirt had been present.

Credit of Chief Inspector Green

112 Chief Inspector Green impressed me as a straight forward witness. He gave his evidence with apparent care. I formed the view he was a witness of truth and reasonable accuracy.

Sergeant Van Hoeven

113 Sergeant Van Hoeven was with the OTU when the plaintiff was arrested. He had no recollection of the arrest or of anything which might have happened that day to the plaintiff when he was being arrested. To him it was an uneventful arrest. But he said he would have recalled it had he dragged him or thrown him against a fence or otherwise ill treated him.

Credit of Sergeant Van Hoeven

114 Mr Kennedy made no submissions about Sergeant Van Hoeven's credit, and I accept his evidence.

Acting Sergeant Christian Gost

115 Acting Sergeant Christian Gost was in the OTU in 2006. He had no recollection of the arrest. He said he would have remembered had he hit a man, or dragged him, or sat on him or kicked him, or pointed a gun at him. He had no recollection of any of these things having occurred.

Credit of Sergeant Christian Gost

116 Mr Kennedy made no specific submissions about Acting Sergeant Gost's credit, and I accept his evidence.

Sergeant Marrs

117 Sergeant Glenn Marrs was attached to Chatswood Police Station and was custody manager on the evening of 25 July 2006. He said he had received no complaint from the plaintiff that he had been mistreated on his arrest. But he did say the plaintiff was "quite verbally abusive towards police" and to his solicitor, and had battered the dock door on three occasions with his head and had pummelled the dock door with his fist. The plaintiff did complain to him that he had sore wrists from the handcuffs. Sergeant Marrs recorded having seen a red mark on his wrists from the handcuffs. He was shown the DVD (Ex G) of the charging process but he did not concede he could see marks on the plaintiff's arms or hands or on the side of his head. He said the plaintiff had continually insisted he was innocent and that police had the wrong bloke.

Credit of Sergeant Marr

118 It was not suggested I should not accept his evidence, and I do accept it.

Plaintiff's credit

119 Mr Neil submitted I would not accept the plaintiff's evidence concerning the circumstances of his arrest as:

(a) He made a number of allegations in his evidence not referred to in the particulars, and vice versa, For example it was said in the particulars in particular he had been thrown to a fence, whereas: "He didn't actually say that in his own evidence" ( T 674.34 );

(b) His father made no reference to a fence;

(c) He has criminal convictions, ( T 675.10 ) (though this submission was later withdrawn) ( T 678.5. );

(d) His evidence was completely inconsistent with that of the defence witnesses, who had had no axe to grind;

(e) No defence witness had made any relevant concession in cross examination.

120 I do not accept Mr. Neil's submission that there were significant inconsistencies between the particulars and the plaintiff's evidence. I see a general consistency between his evidence and the particulars. Contrary to Mr. Neil's submission, the plaintiff gave evidence about the fence at T 33.14: "He picked me up and dragged me to the fence". It is true that he did not say he was thrown against the fence, but his evidence is not inconsistent with such an allegation. As to (b), it is true, as Mr Neil submitted, that the plaintiff's father said nothing about a fence being involved. But his evidence is not inconsistent with that allegation. As to (d) and (e), it is true the plaintiff's evidence was directly contradicted by all the witnesses called for the defendant and that none made significant concessions; but it does not follow that the police witnesses were correct. As to the submission that police had no axe to grind, I regard that as controversial. In any event, as the Court of Criminal Appeal said in R v Jovanovic (1997) 42 NSWLR 520 at 542 (Sperling J), in the context of what should be said to juries in a criminal trial, people lie for all sorts of reasons- sometimes apparent and sometimes not. One can readily see in a case such as this that police witnesses might lie to support a colleague. Further, it is possible that, to police, an event such as this arrest, was commonplace, with a high degree of force common. So police in the OTU would not necessarily see what they do in the same light as that in which others see things.

121 The plaintiff impressed me as a man who was doing his best to tell the truth. He had a genuine grievance, having been imprisoned for two months for offences he did not commit, having been arrested while at work, in his father's presence, in a very public setting, and despite his honest protestations that the police had arrested the wrong person. So he was understandably edgy and angry when giving his evidence. He would not accept, when it was put to him, that the CCTV film from the Coles store had some frames suggesting his top had an orange hue, and his khaki cargo pants in several frames could have seemed blue. But for the reasons appearing in [29] above I do not consider that evidence as suggestive of dishonesty. This event, I infer, would at the time have been far more significant and memorable to him than it would have been to arresting police. I shall return in a moment to consider whether I accept his evidence.

Credit of Ahmed Zreika

122 The plaintiff's father gave evidence through an Arabic interpreter, though he clearly understood some English, and has lived in Australia for a very long time. Mr Neil submitted that he was either untruthful or so confused that he was unreliable. He put to me that he could not have been right, and was at the least confused, since he said the two who had carried out the arrest had been black uniformed officers, whereas I must find no uniformed officer had carried out the arrest. (T 678.40.) Those with black overalls, he put to me, had been on the perimeter.

123 However, I formed the view that he was doing his best to be truthful and accurate. In describing those he accused of assaulting the plaintiff, for example, he appeared careful to distinguish between those dressed in uniform, and those in civilian clothes. He disclosed he had not been asked to give evidence until the day before he did in fact give evidence. He also said he had only discussed the events that day with his son and at the scene. I consider he had good recall for significant matters, the things one would expect a father to recall still about such a traumatic event concerning one's son. I consider he made appropriate concessions, such as that he would have forgotten certain things after such a long time. He did not recall a foot being placed on his son's head, but I consider that is not a significant matter given the traumatic events, and that five years had gone by when he gave his evidence. He said two, three or four men were kicking his son, but I conclude he would have had difficulty in recalling, blow by blow, what happened in the course of the arrest, given what a shock it must have been to him at the time.

124 I found Mr Ahmed Zreika compelling, and accept him unhesitatingly as a witness of truth and accuracy.

Consideration on battery count

125 It is to be recalled that the OTU had been informed that the plaintiff was a very dangerous man, a man who had said he had killed someone. That was why they were asked to carry out the arrest. So one would not necessarily have expected police to carry out an arrest as they might have with, say, someone to be charged with fraud, with no known history of violence or gun use. Secondly, one can readily understand that arresting police would have wanted to take advantage of the element of surprise. So pushing a suspect to the ground and then handcuffing him, does seem to me to be an appropriate way of effecting such an arrest. It is to be recalled Detective Sergeant Navin said in terms of the degree of physical effort used, Sergeant McCormack had used "1/10", the lowest level on the scale.

126 I have set out above my findings on credit concerning Sergeant McCormack. He is an aggressive man, and of very large stature. The plaintiff, though tall, is very slight, compared with him. And though the plaintiff is relatively tall, Sergeant McCormack is taller. I can readily accept he is capable of doing to the plaintiff what the plaintiff described. Even allowing for the fact that Mr Zreika Senior was apparently tired at the time of the arrest, and would have been shocked and upset to see his son being arrested, he told me:

(a) He saw his son being dragged. ( T 84.17, T 90.28, T 90.40.)

(b) He saw police officers pointing weapons at his son. ( T 90.32. )

(c) He saw two, three or four police kick his son. ( T 90.31. )

(d) He saw that police had their feet on his son's body. ( T 84.26, T 84.30. )

127 He was not asked what part of the plaintiff's body he had seen police with their feet on, but I infer it could have been his head. So although Mr Neil submitted that it was significant he failed to mention seeing an officer put his foot on his head, I do not regard that as of great weight. He mentioned several times having seen him being dragged. I infer that meant he was moved along the ground from one place to another. The plaintiff himself said that after being told he was under arrest he asked what it was about and he had then been picked up and "dragged to the fence." That his father did not say where he saw his son being dragged to, is not, I think, a significant point.

128 As is clear from the survey I have conducted of the evidence of those who attended the scene of the arrest, only the OTU members were present at the time. The other officers who gave evidence said they had arrived just after. I infer that it is possible that what the plaintiff claims happened, happened, in the immediate aftermath of the arrest, and before the other officers had arrived. The only officers who were actually present for the arrest and who gave evidence of it, with an apparent recall of it, were Sergeant McCormack and Detective Sergeant Navin. There were, as I have observed, other officers present. But of those who were called, they recalled nothing. And at least four others were not called.

129 Mr Neil submitted that because the plaintiff asserts the officers committed a criminal offence, namely assault, I should have regard to what the High Court said in Briginshaw v Briginshaw (1938) 60 CLR 336. In Gianoutsos v Glykis [2006] NSWCCA 137 at [48]-[49] McClellan CJ at CL said:

"[48] [T]he approach to the making of conclusions considered by Dixon J in Briginshaw , in the well known passage... should not be understood as imposing a test in civil litigation other than the balance of probabilities. However, what is required is that when loading the scales, appropriate weight is given to the matters to which Dixon J referred.

[49] The " Briginshaw standard" is often spoken of quite loosely and as if it is a third standard of proof sitting somewhere between the balance of probabilities and beyond reasonable doubt. This is wrong. As Dixon J points out the civil standard of proof is proof on the balance of probabilities requiring the relevant party to prove the elements of its case to that standard."

130 Bearing in mind the standard of proof as described in Briginshaw at 362 per Dixon J (as he then was), that "the affirmative of an allegation is [to be] made out to the reasonable satisfaction of the tribunal," I am satisfied on the balance of probabilities that the plaintiff's allegations of battery have been made out. I have come to that view because:

(a) I accept the plaintiff as a witness of truth.

(b) I accept Mr Ahmed Zreika as a witness of truth.

(c) I reject Sergeant McCormack's evidence and Detective Sergeant Navin's, to the extent they were at odds with that of the plaintiff and his father.

(d) The plaintiff was, as Sergeant McCormack and Detective Sergeant Navin conceded, brought down to the ground by Sergeant McCormack.

(e) There were, as several witnesses have said, OTU officers present with shotguns.

(f) The plaintiff immediately asked what he was supposed to have done, and protested vehemently on being restrained: I can well accept that Sergeant McCormack then had greater physical contact with him than he might otherwise have had.

(g) The plaintiff had been arrested before: he knew, I infer, the difference between the different modes of arrest. He was not cross examined on his evidence as to a comparison of the different instances of arrest.

(h) Arrests made by the OTU would, I infer, have been far more physical than others, and this arrest, to the arresting police, who said they could recall it, was not out of the ordinary. Detective Sergeant Navin did not recall anything done by Sergeant McCormack as out of the ordinary.

(i) Ex G to my observation shows marks consistent with being dirt from the ground where the arrest occurred. However this is a minor piece of evidence and of very slight weight.

(j) The OTU had been told the plaintiff had admitted killing someone and had used a gun. That is consistent with the plaintiff's having heard words to the effect alleged by him; (see [23] above).

(k) Although neither arresting officer was an inspector, some inspectors were on the scene soon after the arrest. In the heat of the moment, believing police had just captured a very dangerous man, I find one of the inspectors who came soon after the arrest held his head and told him to co-operate, and at least one officer present placed a foot on him to restrain him. These incidents I find were to the officers of such small moment, they were forgotten or not noticed or regarded as insignificant by those present who gave evidence to me.

131 I find that when he was arrested the plaintiff was assaulted by Sergeant McCormack in the manner described by the plaintiff, and that other police performed the other acts on him, in the sense he also described. The plaintiff did not suggest the physical aspects of the arrest were painful or forceful. I think it probable they was neither. I find that while or shortly after the plaintiff was being handled by Sergeant McCormack, at least one of the other OTU members present pointed a shotgun at the plaintiff. Neither side addressed me on the proposition that, if the arrest was unlawful, the issue of "reasonable force" was in any event irrelevant. However, as I have found the arrest was unlawful, that point does not arise. I find to the extent it is relevant, that the physical contact which I am satisfied those police had with the plaintiff, exceeded what reasonable force required.

Damages

132 There was no medical evidence suggesting any injuries or disabilities had resulted from the arrest. There was evidence from Sergeant Marrs that he observed slight injuries from the restraints. But that I conclude ought be regarded as part of the experience of the wrongful imprisonment, and the damages I have assessed on that count are intended to cover that.

133 I bear in mind that damages for the assault should not overlap with damages for the wrongful arrest. In State of New South Wales v Ibbett (2005) 65 NSWLR 168 the Court of Appeal dismissed an appeal against an award of $15,000 for an assault, where police had broken into the plaintiff's home and pointed a gun at her. In Whitbread at [254]-[259] Whealy JA discussed damages for assault where two people had been improperly restrained by railway officers. One, who had received no physical injuries, was awarded $5000. The other, who had received two to three blows to the face, causing his lip to bleed, was awarded $7000 in general, or compensatory, damages. At [255] Whealy JA (with whose reasons on this issue Giles and McColl JJA agreed) described those awards as "low [although] within a reasonable range in the circumstances found by the trial judge". I award $10,000 for the assault and battery. In order to avoid overlapping, and because I have awarded aggravated damages for the arrest, I do not consider a case is made out for aggravated damages for the assault. Because the OTU officers who arrested him were acting on incorrect information from Detective Constable Ryder and I have declined to award exemplary damages for the arrest due to her inexperience and lack of common sense, I also consider no exemplary damages should be awarded for the assault.

Malicious Prosecution

134 Mr. Kennedy put this case in the alternative: in the first place, the charges should not have been laid. Alternatively, once they were, their maintenance or continuation was inappropriate and malicious, and at various later stages, at each of which when significant exculpatory evidence came to light, proceedings should have been dropped.

135 I have observed above [20] there was no issue about the fact that criminal proceedings had been instituted against the plaintiff and later terminated in his favour. The elements of this count which are in dispute are whether there was an absence of reasonable and probable cause to bring or maintain the prosecution, and whether the prosecution was brought or maintained maliciously.

136 Before I consider further the evidence and credit of the other witnesses called by the defendant, it is necessary to trace the history of the prosecution. That will explain how and why the error made was perpetuated. There were some police witnesses (such as Detective Constable Ryder) who were associated with all aspects of the investigation and prosecution, whereas others, such as those from the OTU, were only involved in the plaintiff's arrest. By tracing the history of the investigation and prosecution I shall show the context in which the various police witnesses played a part. At the conclusion of that part of the judgment I will make findings of credit, and proceed to other factual findings and the consequences of those findings.

Some legal principles

137 The absence of reasonable and probable cause is to be determined on the material the prosecution had available when deciding whether to commence or maintain the prosecution, not whatever material may subsequently come to light: A v State of New South Wales at [56]:

"Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should 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."

138 As to malice, in Roberts v Bass (2002) 212 CLR 1 at [91], Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said:

"What is clear is that, to constitute malice the dominant purpose of the prosecutor must be 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."

139 And (I think relevantly here) in Clark v Molyneux (1877) 3 QBD 237 at 249-250, Cotton CJ said:

"In order to show that the defendant was acting with malice, it is not enough to show a want of reasoning power or stupidity, for these things of themselves do not constitute malice; a man may be wanting in reasoning power, or he may be very stupid, still he may be acting bona fide, honestly intending to discharge a duty. The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statement he made were true, but whether he acted as he did from a desire to discharge his duty."

The evidentiary position following the arrest

140 I shall now consider the position from the time of the arrest, beginning with the first court appearance, when the plaintiff first applied for bail. I bear in mind that whereas on the wrongful arrest count. the defendant carried the onus of proving Detective Constable Ryder suspected on reasonable grounds the arrest was necessary, on the malicious prosecution count, it is the plaintiff who carries the burden of proving lack of reasonable and probable cause, and malice. Further, since an adverse finding to the defendant would involve findings of serious misconduct of the investigation, I again bear in mind the Briginshaw requirement that the affirmative of relevant allegations are to be made out to my reasonable satisfaction.

A prosecutor's duty

141 In recent years the Bail Act, 1978 has been amended substantially. Whereas at common law there is a presumption in favour of bail, under s.9D, where a person charged with an indictable offence has previously been convicted of at least one 'serious personal violence offence' there is no such presumption. As the plaintiff had convictions for such offences, he had no presumption of bail in his favour. An onus is cast on such a person to show "exceptional circumstances", before bail can be granted. The result of that is that innocent people may spend lengthy periods in custody before being acquitted. That such a thing can happen, shows clearly (if any reason needed to be shown) why our prosecuting system should be run fairly. The plaintiff, after being, as I have found, wrongfully arrested, proceeded on two occasions to apply unsuccessfully for bail. In both cases police opposed his application for bail. In both cases, important information suggestive of the plaintiff's innocence of the charges, was not given to the court or to the plaintiff's solicitor.

142 As I have observed, the facts sheet supplied for the first bail hearing (on 26 July 2006) was prepared by Detective Constable Ryder. The same facts sheet was used by the prosecutor (and the magistrates) at both subsequent bail hearings. Given that the document, as I shall demonstrate, contained serious, and highly prejudicial misstatements, it is worth noting what was said by the High Court about a prosecutor's duty:

"Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one."

(Per Deane J in Whitehorn v The Queen (1983) 152 CLR 657 at pp 663-664)

Rules 62 and 66 of the NSW Bar Rules provide:

"[62] A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

...

[66] A prosecutor must disclose to the opponent as soon as practicable all material (including the name of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused unless:

Such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person; and

The prosecutor believes on reasonable grounds that such a threat could not be avoided by confining such disclosure, or full disclosure, to the opponent being a legal practitioner, on appropriate conditions which may include an undertaking by the opponent not to disclose certain material to the opponent's client or any other person."

I took Mr Neil to accept that these principles and rules applied to police prosecutors at the time of these events. That was an appropriate concession.

143 In a publication provided to NSW police prosecutors in 2005, (tendered by Mr Neil) the following appeared:

"A police prosecutor is a 'minister of justice.' The police prosecutor's role is to assist the court to arrive at the truth and to do justice between the community and the accused according to law and the dictates of fairness."

The Facts Sheet

144 Police prosecutors are not necessarily legally qualified. They have no right to appear in courts as legal practitioners do. So they must seek the court's leave to appear. There are good reasons why people who are not legally qualified must seek leave to appear. Legal practitioners are taught and must pass examinations in ethics, and have a good knowledge of the law. Legal practitioners know they must not mislead the court. They must be honest with judges and magistrates and their opponents. As appears above, police prosecutors have the same obligations of honesty and candour. In a typical criminal case when it is first before the Local Court the police prosecutor has available the "facts sheet". Typically, the prosecutor tenders the facts sheet as a fair summary of the police case. In a busy Local Court, it may be the only document the magistrate is given to read when bail is applied for. One can see why it is of absolute importance for a facts sheet to be fair and accurate. As a police prosecutor relies on a facts sheet to be accurate, there is obviously an obligation on the officer or officers with the task of preparing the facts sheet, to ensure it fairly and accurately sets out the facts disclosed by investigations up to the court date. Unfortunately, the facts sheet prepared in this case by Detective Constable Ryder contained a number of factual inaccuracies, and, far from being a "facts sheet", was a most misleading, unfair and unbalanced document.

145 For example:

(a) The plaintiff was arrested while in the course of his employment at Artarmon as a vehicle glazier: yet Detective Constable Ryder described his occupation as 'unemployed'.

(b) I have demonstrated in [67] above the differences between the plaintiff and eye witness descriptions of the shooter, yet no information was given concerning the fact that an eye witness had given a visual description of the shooter at odds with that of the plaintiff: or that Jonathon Bright had given a description (by name and appearance) quite at odds with that of the plaintiff.

(c) The narrative asserted throughout that the plaintiff had been present at the shooting- and that he had a relationship with Sarah Bright- when the two interviewed witnesses who knew the shooter, had made no such claim, Sarah Bright, who would have known, was never interviewed, and no eye witness to the shooting had identified him or even heard of him;

(d) The facts sheet claimed "witnesses have provided statements... indicating... the accused was wearing an orange coloured jumper, a dark coloured pair of jeans and white and blue pair of sneakers." Yet no witness had ever said this of the plaintiff.

(e) Although Mr. Silver had told police of a recollection of the plaintiff's wearing an item which was 'fire engine red', the facts sheet asserted incorrectly he had described it as 'orange coloured' and had said the man he had seen had worn blue jeans and white shoes. Mr Silver had never mentioned the colour orange or said the plaintiff had worn blue jeans.

(f) Although in his statement Mr. Silver had expressed doubt as to whether the plaintiff had said he had killed someone, or was going to, there was no reference at all to this doubt: the first alternative was put forward as a certainty.

(g) It was said the Coles store incident had been recorded on "audio and visual" without any qualifications, whereas from my own observation, the 'audio', on any objective view, should have been regarded as of doubtful quality.

(h) Reference was made to the fact that the plaintiff when at Chatswood Police Station had been 'extremely irate and hostile with police and was seen to punch and head butt the door of the dock.' But no reference was made to the fact that as soon as he was arrested he had:

(1) Insisted police had the wrong man.

(2) Requested an identification parade.

(i) The facts sheet asserted that after his solicitor had visited him at Chatswood Police Station the plaintiff had been 'offered the opportunity to take part in an identification parade'. Yet as Detective Constable Ryder conceded in cross examination, it had been the plaintiff who had insisted on this from the time of his arrest: no such offer had ever been made by police.

(j) The facts sheet said 'Their (sic) is a strong Prosecution case', yet the only way one could make that assertion was by ignoring the problems in (a) to (i) above.

146 Such a document if put forward in court by counsel knowing the falsity of those matters would, in my view, lead to disciplinary proceedings. The police prosecutors did not give evidence. I do not draw adverse inferences against them. I conclude the errors and misrepresentations in the facts sheet were the product of Detective Constable Ryder and that the prosecutors were merely acting on her instructions. The danger (if any explanation were necessary) of misleading a court was referred to in Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 200-201 (per Dixon CJ, McTiernan, Fullagar, Menzies, and Windeyer JJ):

"[F]rom the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege [i.e. of free speech], and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence. It is obviously unfair and improper in the highest degree for counsel, hoping that, where proof is impossible, prejudice may suffice, to make such statements unless he definitely knows that he has, and definitely intends to adduce, evidence to support them."

147 A police officer who prepares a facts sheet for a case, knowing it will be used by the prosecutor, who will usually not have witness statements, should be aware of the heavy responsibility he or she has. Where, as here, a man has to prove exceptional circumstances to achieve bail, the need for the obligations of honesty and fairness is all the more apparent, and the potential for the gross misuse of the position of advocate can arise. It is not good enough to say (as Mr Neil said to me) well the accused's solicitor corrected this or that fact. The facts sheet is usually the first document and often the only factual document read by a magistrate on a bail application, and, as advocates know well, first impressions can be powerful, and difficult to shift, even by subsequently introduced exculpatory evidence. Magistrates and judges look to prosecutors for a fair presentation of the facts. None of the magistrates who dealt with Mr Zreika's case was given a fair view of the facts. That was not the fault of the prosecutors. Their conduct is not in question here. The decisions of the magistrates are not in question here. What I have said is a criticism of Detective Constable Ryder, and those who apparently failed to teach her that what she tells a prosecutor or fails to, can reflect poorly on the police prosecuting service, and may lead to injustices at her hands.

Events from 26 July onward

148 The day the plaintiff was arrested, police took and searched his van. They also searched his house. Nothing to link the plaintiff to the shooting was found. The van did contain some number plates which had once been affixed to a white Holden Commodore, but in his evidence in chief the plaintiff said he had never owed a Commodore, and he was not cross examined on that evidence.

149 A police memorandum of 26 July 2006 notes that at about 9am on 26 July Detective Constable Ryan phoned Ms Black and told her

"a person was arrested the previous day, charged with offences relating to the shooting and refused bail. She was very hostile and angry that police had lied to her about the contacts the shooter has. She is extremely fearful of her safety and that of Sarah and Jonathon. She was advised the police did not suspect there were any immediate fears for their safety but she claims to know otherwise. Ms Black then terminated the call."

There was no suggestion in the note that the plaintiff's name came up in the conversation.

150 Detective Constable Ryan also phoned Mr Abukhaled that morning and told him of the arrest. A note she made of the call concludes:

"He was very happy he had been arrested although he feared for his safety and had not returned home because of this. He claims the person arrested is well known in the community with ties to violent people. He was advised police were not aware of any direct threats. He will advise should he hear otherwise."

That note also does not record that the plaintiff's name was used in the course of the conversation.

151 The plaintiff was refused bail on 26 July and remanded in custody until 9 August. As Mr Neil conceded, the police stopped looking for any other assailant once the plaintiff was arrested. (T 21.4.) As later events suggest, the obvious problem caused by the fact that police stopped looking for any alternative assailant, was that they tended to be dismissive of the ever increasing body of evidence suggesting they had no case against the plaintiff. Further, as later appears, police have known since 2008 of the surname of Michael, yet have not charged him for the offence. Why that was so was not explained to me. But it rather confirms that the arrest of the plaintiff could have waited a little.

152 At the bail hearing on 26 July the plaintiff's then solicitor called the plaintiff's girlfriend, Ms Melissa Peterson. She told the court she had known the plaintiff for some time. On the relevant evening (20 July) he had come to her home at 7.30-8pm. The two of them had gone to bed at approximately 10pm. He had left at about 1.45am to go home. He had not left the premises from the time of his arrival until 1.45am. The names of Jeremiah Mahoney, Sarah Bright, and Jonathon Bright, were read to her. She said she had never heard of them and had never heard the plaintiff speak of them. The only cross examination was:

"You don't want your boyfriend in gaol do you?"

and "you want him to be released on bail?"

153 At the same hearing, the plaintiff's solicitor, Mr Barrakat, gave evidence that he had recently had a conversation with Sarah Bright, who had told him she had no idea who Haysam Zreika was, and knew nothing of his vehicle: she would not name the person she had been with on 20 July, but it had not been the plaintiff. Mr Barrakat had then given her this description of the plaintiff: "160-175 cm tall, slim build, short, sandy to dark brown hair, short on top and around the side, maybe a blade one, two, or three, middle eastern appearance." Ms. Bright had said "The hair alone doesn't match."

154 In cross examination he agreed that from his experience people lie when it is in their interests to do so.

155 The magistrate referred to the assertion in the facts sheet that the plaintiff had said "I think I have just killed someone tonight", described that as an 'admission', and described the Crown case as 'strong'. Referring to Ms Peterson's evidence she found she may have been mistaken as to when he had gone out. She found exceptional circumstances had not been made out, and refused bail.

156 A significant criticism of Detective Constable Ryder made at trial by Mr Kennedy was that she had not after that bail application, taken a statement from Ms Peterson, and treated her evidence as significantly exculpatory. However Detective Constable Ryder told me that on 9 August she had asked Ms Peterson to make a statement and been told she wanted to speak to the plaintiff's solicitor before making a statement. She had not given her a statement after that. Detective Constable Ryder was not cross examined on that evidence. Although, as later appears, I am cautious about accepting much of what Detective Constable Ryder said, I do accept that evidence.

157 At 10am on 27 July 2006 the shooting victim, Thomas Neville, and his brother William, went to the Parramatta Police Station to give police statements about the shooting.

158 Thomas Neville told police in a signed statement, that he had met 'Johnno' [Jonathon Bright] a few times. In mid July 2006 he had been at Mr Mahoney's unit. There had been a knock at the door. Johnno had come in with his sister and her boyfriend. He had not met him before and could not recall his name. He said of him: "He is of middle eastern appearance, aged in his late 20s, small build, his height was shorter than me about 175 cms tall, light olive skin with short dark hair about a number 2 crew cut, he was clean shaven. I cannot remember what he was wearing." He recalled the 'boyfriend' being affected by drugs.

159 He had been at Mr Mahoney's unit on 20 July. At about 10pm 'Johnno's sister' had come, and said her boyfriend was coming up. He had come up then. He had worn a bandana on his head: his hair had been cut and was a no.1. There had been an argument. The boyfriend had pushed Johnno out the door and Mr. Neville had then told Johnno's sister to calm down. She had then punched his head. The boyfriend had then pushed Johnno's sister out the door. Then he had produced a gun either from his pants or a bum bag. Mr Neville had stepped in to stop him from shooting Mr Mahoney. He, Mr Neville, had then been shot. The boyfriend had then stepped backward and left. He gave this description of the shooter:

"Wearing blue jeans that were a normal tight fit, a bandana across his head, a bandana around his neck, a round neck long sleeve jumper that was smooth like a normal jumper, a bum bag..."

Whether he was asked the jumper's colour is not apparent.

160 William Robert Neville had known Johnno for about two months. He told police that on 20 July he had been at Mr Mahoney's unit. Johnno had been there. Johnno's phone had rung several times and he had not answered it and Mr Neville had decided he had 'family issues.' At some time after 10pm a female had arrived. He had not known her. She had begun yelling at Johnno. Thomas had gone to close the door but she had said her boyfriend was coming. He arrived. He was Lebanese in appearance, shorter than the female- about 170-175 cm, thin build, with very short black hair; he thought he had a cap on his head; he wore a purple bandana across his mouth and nose, tied at the back. He had been wearing baggy clothes with a black leather jacket on the top. He said: "I don't recall the colour of the clothes underneath, or what pants, shoes he was wearing. I have never seen him before and only learnt later from Johnno that his name may be Michael." The male had told Johnno to go and get his bag. Mr Mahoney had slapped Michael, who had produced a small pistol. Johnno and his sister had left. There had been some punching and Michael had pointed the gun at Thomas' groin and shot him. The next day he and the others had found a cap and a small beanie he thought had belonged to the shooter. Though he had not known the shooter, he said "I would recognise him if I saw him again."

161 Shortly after Thomas and William Neville had left the Parramatta Police Station that day they saw the shooter in the Church Street Mall in Parramatta. They contacted police about this sighting. Police went to the mall. A memo was broadcast on the police radio with a description of the man. The description broadcast was:

"Middle Eastern appearance, medium built, short dark hair, wearing a black leather jacket, white Bonds style round neck short faded blue jeans, white Nike sandshoes with blue around lower edge."

162 In a contemporaneous police document of 2 August 2006 setting out the above, the author noted there had been eye contact from across George Street and recognition from the male, and concluded:

"It is unknown whether the male they saw was actually the shooter but they were absolutely convinced it was."

163 There was a CCTV camera at the Commonwealth Bank branch on the Mall, which took photographs in the area where the shooter had been reported. It took police until the 10 August, two weeks later, to collect the CCTV footage. Detective Fiona Ryan, in a document for which Detective Constable Ryder was 'Reviewer', (and which I find she read at that time) said, in the context of the shooting, after looking at the footage: "A person of interest as described by the victim and witnesses was sighted in the CCTV footage." The footage was in evidence, and a man fitting the description may, to my eye, be seen, wearing white shoes with another colour, light blue jeans, leather jacket, and cap. To my observation, this fits the description of the shooter given to police by eye witnesses to the shooting and does not fit any sensible description of the plaintiff.

164 It seems that after the Neville brothers had seen the person they recognised as the shooter at the Parramatta mall, he revisited Mr Mahoney's unit. Mr Mahoney made a 000 call (Ex AB is a transcript of this call). He gave his name and said:

"Hi there. I just had a person come to my door with a gun... Just in relation of (sic) the shooting on last Thursday, it's the same guy again. He's run off now but my mate ran into him today at Parramatta."

He gave his address and phone number and was asked:

"Okay so do you know who this person is?"

He said:

"Yes it's the guy who did the shooting"

"And what's his name?"

"I don't know his name I know him be Mick and that's it."

He went on to describe the gun 'Mick' had had with him, and said he had pointed it at his head. He described him as:

"small, middle eastern appearance, mid 20s 30s."

He said he had:

"A red hooded jumper on, jeans, white and blue shoes, 5'4" or 5'5."

He was told police would be given the description.

An interlude: some important evidence is kept from the accused

165 As later appears, evidence that the shooter was still at large was apparently not welcomed by police, who treated it with much more scepticism than that with which they had treated the evidence relied on to arrest Mr Zreika.

166 When Detective Constable Ryder gave evidence she was asked why police had not shown a photograph of the plaintiff to the eye witnesses, so it could be made clear that he was not the shooter. However Detective Constable Ryder, consistently with her teaching, no doubt, raised the danger of such means of identification. She said she would have been afraid if someone had identified him when shown a photograph, that the identification evidence would be inadmissible. Such a concern in relation to a potential witness would have been a legitimate one: Alexander v The Queen (1980-1) 145 CLR 395 at 400 (Gibbs CJ); Festa v The Queen (2001) 208 CLR 593; Aslett v The Queen [2009] NSWCCA 188.

167 However it is hard to see how Ms Black could have become a witness. And police had evidence she knew her daughter's boyfriend, Michael. Police took a statement from Ms Black on 28 July 2006. She told police about Michael as follows:

"I have heard Sarah on her mobile... organising to have drugs dropped to her by Michael... I have occasionally read SMS messages she has received... I know Sarah has received messages from Michael and Frankie..."

Her statement went on to say:

"[6] In 2005 I had a family falling out with Sarah, during this time I didn't see Sarah for 8 months, she rang me about twice a month. During this time I believe she was living around the Fairfield area, but then she moved to another area with a man called 'Frankie'. I have met 'Frankie' very briefly about 3 times, I would describe him as Italian, very skinny, dark hair, skinny face, about 30 years old. I have heard Sarah yell at Frankie things like "Your are 30 years old"

[7] Frankie is friends with Nicole Serena who lives around the Blue Mountains area with her family, Nicole and Sarah have known each other for 18 months that I know of. Frankie and Nicole introduced Sarah to a male I know as 'Michael' or 'Ali'. I know Nicole as she lived with us for a few weeks around 2005, I kicked her out because of her drug use.

[8] I would describe Michael (Ali) as shorter than me (I am 5'11"), thin face, Middle Eastern appearance, about 24 years old. When I first met him about March or April 2006 he had a fatter face, he told me he had just come out of gaol. I have met him once again since then, that was about 2 weeks ago around the 8 of July. On that occasion Michael appeared drug affected, he was very agitated he was pacing up and down my flat. I tried to engage him in conversation, but he was very reluctant to give me any information about himself. He helped me cut up vegies. They probably stayed about 1 hour, during this time Michael got a lot of phone calls on his mobile phone.

[9] On the occasions that he has come to my house, he has driven over in a silver Commodore sedan which is a recent model and has tinted windows. He always parks it under my window, I think so he can keep an eye on it. When Sarah and Michael have been in front of me they haven't been touchy/feely affectionate with each other. I am under the impression they are just friends. When Michael rings Sarah on her mobile phone I have seen the caller ID come up on Sarah's phone as 'Big Papa', Michael or Ali."

168 After the shooting, she had learned her son Jonathon had been a witness. She was with him at Ermington Police Station until 1.45am on July 21 when his statement was being taken by Detective Constable Ryder. When being interviewed on 28 July she told police the plaintiff's solicitor had phoned her, telling her he needed Sarah to make a statement, but that she (Ms Black) had refused to help him.

169 Given that by 28 July police had been told by a number of people present at or associated with those present at the shooting that the shooter appeared to have been a man called Michael, or Mick, who drove a silver Holden Commodore, and was of short stature, it is perhaps not surprising that Mr Kennedy raised with Detective Constable Ryder why, even if a witness could not have been shown a photograph of the plaintiff, Ms. Black had not been: common sense would seem to dictate that that would have either cleared the plaintiff, or made the prosecution case much stronger. This line of cross examination raised another curious aspect of the investigation. When he opened the case to me Mr Neil, no doubt anticipating an attack on police procedures because no-one had shown the plaintiff's photograph to anyone who knew Michael to see if Michael and the plaintiff were the same person, said:

"We can wait for the evidence on that, but there will be material before your honour about that which we would submit overcomes the argument that we should've shown [Elizabeth Black] some photograph." (T 20.15.)

Coming from senior counsel, that, I infer, was put on instructions from police, in particular, Detective Constable Ryder.

170 Detective Constable Ryder was asked both in chief and in cross examination, why a photograph of the plaintiff could not have been shown to Ms. Black. In chief there was this evidence:

"Q. It [a reference to an allegation in the pleading] says, "Failing to show relevant witnesses" - and one is mentioned in particular, it says Elizabeth Black - "a photograph of the plaintiff, which would have formed part of the defendant's CNI file of the plaintiff, which would have established that the plaintiff was not the boyfriend of Ms Sarah Bright, and therefore not the assailant." Did you ever consider showing any photograph [of] Zreika to Elizabeth Black?

A. No, I did not.

Q. Tell us one way or the other, did you or did you not take into account the information you got from Platten about his discussion with Bright in forming that view?

A. Yes, I did.

Q. What else did you take into account in coming to that view?

A. That if I had shown her a single photograph of Mr Zreika, any evidence provided as a result of that would be completely inadmissible in a criminal trial.

Q. Why do you understand that to be?

A. Basically because of the suggestion - inference that can be drawn that if a member of the police force is showing a witness a photograph of a person and asking them if they're responsible for certain things, then that person may be more inclined to agree with police than go off their actual memory.

Q. Particularly if there is only one photograph, not of more than one person, just one person.

A. Exactly.

Q. In that regard, did you think you were being fair to anybody?

A. I thought if anything, we were being more fair to Mr Zreika." ( T 143.21 to 143.49. )

171 Then in cross examination, there was this evidence:

"Q. Aren't there situations, though, where you can seek to carry out an informal identification parade by providing witnesses with a series of photographs, one including the accused and other people of a similar appearance?

OBJECTION. QUESTION ALLOWED

Q. Photographic array. His Honour knows the term, I don't.

A. If the person who is considered a suspect has refused an identification parade, as in a physical identification parade, then you can move on to photo identification through a photo array.

Q. You do that? You put photographs together, and you show them to the potential witnesses. Is that how you do it?

A. If a person has refused a line-up.

Q. In any event, that was a procedure that was conveniently available to you, to try and work out whether or not you did in fact have the right person, wasn't it?

NEIL: I object. It could not be available to her if Mr Zreika had not refused an ID parade, and he hadn't. He wanted one.

HIS HONOUR: No, she didn't say it was not. She just said it was what they did if they refused. She didn't say it was not available. It might yet be available, but as a matter of practice they only use it in cases where they refuse.

KENNEDY

Q. It was a procedure which was available to be used by the police, if they so wished.

A. Well, no. My understanding of it - and I don't know the case law off the top of my head - but I believe there was case law saying that if a person had agreed to an identification parade, and police proceeded by way of photo identification rather than physical identification, then any identification evidence gained from the photo identification is inadmissible." ( T 211.16 to 212.2. )

172 This evidence was then given:

" Q. Were any of these witnesses whom you'd seen before the arrest or subsequent to the arrest - did you ever ask them whether they knew a person by the name of Haysam Zreika?

A. Sorry, when are you referring to?

Q. Did you ever ask any of them whether they knew a person by the name of Haysam Zreika?

A. I can't specifically remember asking that question.

Q. Or whether they had ever met such a person at any time? Did you ever ask them that?

A. I couldn't specifically tell you all the questions that I'd asked them. It doesn't spring to mind, but it's not to say that I wouldn't have asked it.

Q. Did you ever endeavour to ask Elizabeth Black to give you a description of Michael?

A. Again, I'd need to check the notes that I've made at the time. I don't recall the exact conversations that I have with these witnesses. It was quite some time ago.

Q. It would be a very logical thing to do, wouldn't it, to get her to describe Michael to you to see whether or not it fitted the identity of Mr Zreika?

A. Well, not necessarily, because she wasn't there at the time of the shooting.

Q. She wasn't a witness.

A. Sorry?

Q. She wasn't a witness to the shooting?

A. No, she wasn't present at the shooting, no.

Q. Therefore, she wasn't a relevant witness in any prosecution, was she?

A. I wouldn't say that's conclusive. It would have depended on the outcome of the investigation. It's not to say she's not a relevant witness.

Q. You did in fact have available to you a photograph of Mr Zreika, did you not?

A. Yes.

Q. There'd have been no problems or difficulties about showing that photograph to Elizabeth Black when you spoke with her, whether it be before the arrest or subsequent to the arrest, and say, "Is this person the person known to you as Michael, who was the driver of a silver Commodore motor vehicle?" was there?

A. Well, yeah, I do see difficulty in doing that.

Q. What was the difficulty about that?

A. Again, it's very suggestive for a police officer to show any witness one particular photograph and suggest to them that it's a particular person. There's a propensity for them to just agree with the police officer.

Q. But she was not a witness to the event.

A. I'm not saying that she was.

Q. Therefore, she couldn't be compromised in any way at all by being shown a photograph, could she?

A. Well, yes, she could.

Q. Why? How?

A. Well, because I would essentially be suggesting to her that the photograph I'm showing her is of Michael. I find that very prejudicial.

Q. Michael wasn't the person who you believe was the offender, so how could that be prejudicial if your view was that Mr Zreika was the offender?

A. I'm sorry. I misunderstood you. I thought you were suggesting that I showed her a photo of Mr Zreika and asked her if it was Michael.

Q. And asked her if - yes, that's right.

A. Well--

Q. There would be no difficulty with that whatsoever.

A. I think there is.

Q. And I suggest to you that if you had done so, it's quite likely that she would have told you that that was not a photograph of Michael.

OBJECTION. WITNESS CANNOT ANSWER. QUESTION ALLOWED

Q. Is that not correct?

A. Could you ask the question again, sorry?

Q. I suggest to you that, if you have showed Mrs Black a photograph of Mr Zreika and asked whether that person was the person known as Michael, it is likely that she would have said no, it wasn't.

A. No, I wouldn't agree with that. " (T 263.42 to 265.26.)

173 Anyone reading the above evidence of Detective Constable Ryder could be forgiven for thinking no photograph of the plaintiff had ever been shown to Ms Black as part of the investigation. Certainly that is the conclusion I drew from her evidence. But I was wrong. What Detective Constable Ryder did not tell me was that on 28 July 2006 police had in fact shown Ms Black a photographic array and asked her to identify the person she knew as 'Michael' or 'Ali'. A photograph of the plaintiff was included in the array. She did not identify the plaintiff as Michael. The array was shown to her by Constable Nix. He was not called. Mr Kennedy made no submission about his absence.

174 One could be forgiven for expecting that, where Ms Black knew Michael, her daughter's associate, and where all eye witnesses had identified the shooter as the friend or associate of her daughter, some by the name Michael, or Mick, and where Ms Black had excluded the plaintiff as that person, his lawyers might have been told about it. Further, one might think the prosecutor would have given the information to the court on the next occasion the matter was before the court. But the fact is the police did not until almost five years later, on the ninth day of this trial, disclose that evidence to anyone. When the relevant documents were produced, the police had had a subpoena calling for documents of that description since the end of 2009, about fifteen months. Mr Neil did not attempt to explain to me how that had come about. Detective Constable Ryder had finished her evidence several days before the material was produced. She was not recalled. The police gave no evidence at all to explain why they had kept back such significant evidence. A document referring to that photo array was created by Detective Constable Ryder on 23 August 2006, the 'reviewer' being Detective Sergeant Davey. He had also finished his evidence by the time evidence about the array came to light, and he was not recalled either.

175 Given Mr Neil's opening, and the vehemence with which Detective Constable Ryder rejected the propriety of showing Ms Black a photographic array, in the interests of fairness to the plaintiff she affected to be so concerned about, I was left with the impression that I could trust little that had come from Detective Constable Ryder. Mr Kennedy did not ask that she be recalled. When the array documents (along with a number of others, including more of an exculpatory nature such as the note above in [163]) came to light, they were tendered without objection. In the course of addresses Mr Kennedy sought leave to amend particulars of malice and absence of reasonable and probable cause to rely inter alia on the failure of the police to tell the police prosecutor, the magistrates hearing bail applications and, not the least, the plaintiff, of the documents. The defendant opposed the application. When I asked him why, Mr Neil said:

"Might well have wanted to call Devlin to meet them ... my learned friend ha[d] an opportunity to recall her. Either way I don't think it matters a great deal. We would say he should ask [for] her recall and tell us why he wants that and give us the particulars. Alternatively, he should tell us what the allegations would be and we can consider bringing her along." (T 785.20.)

176 On 30 March 2011, a week after I had heard final addresses, I heard argument as to whether I should allow the amendments. In the course of that hearing, Mr Hutchings, Mr Neil's junior, said that if I gave leave, Detective Constable Ryder would have to come back (T 795.45) and that the plaintiff had had the opportunity to have her recalled but had elected not to take that opportunity. (T 796.30.) He put to me that as the documents had not been the subject of cross-examination of Detective Constable Ryder there might be a miscarriage of justice if the amendments were allowed. However he had said earlier (T 796.45) the defendant would only recall her if the plaintiff required her since "it's the plaintiff's onus." (T 798.43.)

177 However he later reserved his position about that. (T 99.35.) I then put to Mr Hutchings that the defendant could have recalled her to provide an explanation: that she had withheld the documents deliberately or by accident. (T 802.23.) He again referred to the onus, and added that if the amendments were allowed, and no application made to have her recalled, the rule in Browne v Dunn (1893) 6 R 67 would be offended if I were to draw inferences adverse to her in relation to the documents. Mr Kennedy submitted that he had put his case, but could not have put his case on the array, not having known about it. At the end of the oral submissions that day I invited Mr Kennedy, if he proposed to apply for leave to have her recalled, to let me know by 8 April 2011. By email of 6 April 2011 Mr Kennedy informed my associate that he did not propose to ask for her to be recalled. In a written submission of 11 April 2011 Mr Hutchings made the somewhat startling submission that there was no evidence that the documents' existence had not been made known to the plaintiff; he did however concede that the circumstances suggested that his lawyers had not been told. In a written submission in reply of 19 April 2011 Mr Kennedy and Mr Boyd submitted that in the absence of evidence from the defendant to explain why the array and other documents had only been produced on the ninth day of the hearing, I should infer the defendant had knowingly failed to produce the documents before because they were exceedingly harmful to the defendant's case. They submitted that the failure to produce before that day amounted to an abuse of process. Further, since not every matter needs to be put to a witness in cross examination, merely the tenor of one's case, there had been no breach of the rule in Browne v Dunn , they submitted: Allied Pastoral Holdings Pty Limited v Commissioner of Taxation (1983) 1 NSWLR 17-18; Odgers "Uniform Evidence Law", 9 th ed, pp 160-161. In particular they relied on what appears in Odgers at 160:

"It is not necessary that every detail of the challenge that will be made to witnesses be put to the witness."

( Stephen Odgers, Uniform Evidence Law, (9 th ed, 2010) 160. )

178 After argument, I gave leave to the plaintiff to make appropriate amendments. When addressing me Mr Neil had conceded Detective Constable Ryder had probably known of the array on 31 July, (T 688.9) and that it had not been provided to the prosecutor. (T 688.25.) But by reference to her attendance records he submitted that she had been away from work on 28, 29 and 30 July 2006. (T 689.17.) He said the inference was that she had returned to work on 31 July and found that the array had occurred. He submitted there was nothing untoward about its staying on the file: it may not have been seen as relevant because the plaintiff was not identified. He put to me that because of ss.114, 115 Evidence Act 1995 , it may not have been admissible. He conceded had a prosecutor had the material: "maybe... he would have brought it forward." (T 784.25.) (I note however that ss.114, 115, refer only to evidence to be given. Ms Black was not a witness so I do not consider ss114, 115 are relevant.) In any event Mr Neil submitted that given the plaintiff had not been identified, evidence of the array would not normally have gone into the brief; and by reason of section 114 Evidence Act 1995 , given there was to be an identification parade, he submitted this evidence would have been inadmissible. He went on to say that Detective Constable Ryder, when giving her reasons why an array procedure had not been and could not have been done, had perhaps forgotten about it, and put it on the file and thought it irrelevant or not probative. (T 693.49.) When I put to Mr Neal that the sensible thing would have been to give the documents to the prosecutor, and then the defence, Mr Neil said: "Your honour, I can't take that matter any further". He later said she may have been concerned that the material would be inadmissible. (T 694.48.) Mr Kennedy however submitted (T 748) that she had deliberately covered up the evidence, given she had not been recalled to explain.

179 There are contemporaneous documents suggesting Detective Constable Ryder knew, at the time, of the array. For example in Ex AA, a document of which she was the author, created in August/September 2006, under 'Background Information' she listed: "V1-10 computer ID with Elizabeth Black." As later appears, I have concluded that Detective Constable Ryder was untruthful in giving evidence. I have considered carefully Mr Kennedy's submission that she deliberately withheld information about the array. However I think it probable she forgot about it. There is what I have inferred was her instruction to Mr Neil that no array had been shown, and why. The vehemence, when giving evidence, with which she rejected the concept that showing an array to Ms Black could have been done, consistently with my view that she was reluctant to make any concession that might have helped the plaintiff, suggests far more strongly to me that she was determined to make no concession that there was anything she could have done or should have done to have improved the investigation. I conclude that when she gave evidence to me she had forgotten about the array, and then constructed the theory that an array would have been improper, and that that was why, when trying to be "fair" to Mr Zreika, she had not had one done. I consider Mr Kennedy put fairly his case to Detective Constable Ryder on the array issue, and there was no breach of the rule in Browne v Dunn caused by his not insisting on having her recalled. It seems to me that had she been recalled the only possible explanations she could have given were that she had forgotten about the array or had deliberately withheld knowledge of it.

The narrative resumes

180 I shall now return to the narrative. On 1 August 2006 Detective Constable Ryder spoke to the police scientific officer, Katherine Flynn, about having the plaintiff's clothing tested for gunshot residue, but Ms Flynn later (9 August 2006) explained to Constable Procter on her behalf that if the garments had been washed, (as Constable Procter said had occurred) there would have been no point.

181 Detective Sergeant Davey and another officer visited Jeremiah Mahoney on 27 July 2006 at 11:47pm after he had made the 000 call to report that the assailant had returned to his flat and had threatened him with a pistol. They spoke to Mr Mahoney and Mr Thomas Neville. On the COPS entry for that night prepared by Detective Sergeant Davey this was recorded:

"On 27/07/2006 the victim contacted Police and stated that a male person had just attended his unit, and threatened him with a pistol. Rosehill Detectives attended the address and spoke to the victim.

The address was the scene of a shooting on 20/07.2006, where Thomas NEVILLE was shot in the groin. Statement were taken on this date, one from Jeremiah MAHONEY, the victim in this matter.

As a result Strike Force Wedgewood was initiated to investigate the shooting, and on Tuesday 25 July 2006, Haysam Zreika was charged and subsequently bail refused.

Jeremiah MAHONEY was spoken to about this latest incident. He states that he heard a knock at his front door of his unit. He called out "Who is it?" and did not receive a reply. He stated that he opened the door a little bit and saw the offender with a pistol. He stated that the offender said "if you keep talking about what happened, I'll come back and shoot you" or similar.

The victim claims that he quickly shut the door and called police. Rosehill Detectives attended a short time later. Police spoke with neighbours who were working in a garage next to the door way to the victim's unit. They stated that they had been in this area for some time and had not seen anyone, let alone a person matching the description give by the victim.

Also present at the time of this alleged offence was Thomas NEVILLE. NEVILLE is the victim of the shooting, that occurred on 20/07/2006. He was spoken to and stated that he did not see the alleged offender and did not hear the threats.

During this alleged offence, the brother of Jeremiah MAHONEY (Bart MAHONEY) was asleep, and only woken by Police upon their attendance.

This report is at this stage considered doubtful. The Victim (MAHONEY) claims that he only opened the door a little bit and looked into the darkness, and when he heard the threats he quickly shut the door. However during this short time looking into a dark area, he can describe in detail the alleged offender and his clothing, and nominated the weapon as a 7mm silver handgun (pistol). This description is coincidentally, the same description given by witnesses of the shooting that occurred on 20/07/2006.

Police spoke to MAHONEY in the hallway where the alleged offender was standing, and during this time the hall lights automatically turned off. It was noticed by police the area was completely in darkness, and police had trouble seeing anything.

The victim (MAHONEY) was not convincing in his version, and was not overly concerned with his safety, considering the events of the past week.

Arrangement were made for the victim to attend Rosehill LAC on Friday 18/07/2006 to provide a statement."

182 The fact that Jeremiah Mahoney had made a 000 call after the plaintiff had been arrested, telling police in effect the real offender was still at large, was, I consider, a highly significant matter. I would expect reasonably competent police to take such evidence seriously, at least until investigated. Of course, if the evidence had proved reliable, it would have been embarrassing for police who had identified the plaintiff as the offender and gone to the trouble of having him arrested by the OTU. But potential embarrassment should not have caused police to treat Mr. Mahoney's evidence with more than normal scepticism.

183 The fact that police apparently exercised far greater scrutiny with evidence suggesting a major police error had been made than they had when making the error, was the subject of cross examination of Detective Constable Ryder's colleague and senior officer, Detective Sergeant Davey. When Detective Sergeant Davey gave evidence about why he had apparently looked askance at Jeremiah Mahoney's evidence of having been visited by the shooter on 27 July, this evidence was given:

" Q. Of course, if this report from Jeremiah Mahoney was correct, that obviously meant that Mr Zreika was not the person who was the assailant, because he was already in gaol. Isn't that right?

A. That would be right.

Q. So when you say this report is, at this stage, considered doubtful, what did you mean by that?

A. I formed the opinion that, after speaking with both Jeremiah Mahoney or the victim of the first incident, Thomas Neville, and the brother Bart Mahoney, who was present but didn't see or hear anything, using my observations of both and the conversation that I had with both Jeremiah Mahoney and Thomas Neville, I formed the opinion that there was a possibility that they were making this call up.

Q. A possibility?

A. A possibility, yes.

Q. What conversation did you have with Mr Thomas Neville before you formed that--

A. Very limited.

Q. Pardon?

A. Very limited.

Q. How could anything he said have allowed you to form such an opinion?

A. Well, I would have believed in my - I would have believed that if this was - if this had happened the way they were telling me, that he would be in - maybe in a more state of shock than what he appeared to be at this time, seeing that he was a victim of a shooting a week earlier. He--

Q. Yes, well--

HIS HONOUR: I don't think the witness had finished.

KENNEDY

Q. Go on.

A. And he basically couldn't give me any information than what Jeremiah Mahoney was giving me.

Q. Well, he wasn't the one that had actually been confronted with the revolver, had he?

A. No.

Q. You can't tell us what questions you asked him, or what he said to you about how he was feeling or not feeling at that time.

A. He didn't tell me how he was feeling.

Q. No. It was - Mr Jeremiah Mahoney was the one against whom the threat had been made, wasn't it? There had been no threat made against Mr Thomas Neville that you were aware of.

A. Well, Jeremiah Mahoney was the one that answered the door, yes.

Q. And he was the one that made the call about the threat being made, wasn't he?

A. That's correct.

Q. That was what you were there to investigate, because this COPS entry relates to the alleged victim being Jeremiah Mahoney, not Thomas Neville, doesn't it?

A. That's correct. " (T 365.47 to 367.8.)

.....

Q. There's nothing in the statement to suggest that you looked from inside the apartment through an open doorway in order to determine whether perhaps you could see someone outside the doorway, such as, say, your fellow officer Pride. Isn't that not correct?

A. Sorry, could you just repeat that again. I was just sort of reading what I've got in here.

Q. You formed the view that you had trouble seeing anything from your standing outside of the apartment. You see that? Is that correct?

A. We had a look outside. Obviously, we had to walk to the unit so we knew what it was like standing outside the unit, and while we were inside talking to them - Jeremiah Mahoney and Neville - when I asked Mr Mahoney to show me what had happened, or re-enact it as I referred to, we could see the darkness through the door and into - there was no light coming through from the outside into the door, the distance that he opened it.

Q. Your COPS statement says nothing about that whatsoever, does it?

A. I haven't got it in there, no.

HIS HONOUR

Q. Would there have been one of those switches outside each flat?

A. I don't know, your Honour.

Q. The way they normally work is that each flat gets one just outside the door, which they then can turn on as they go out in the dark. It stays on until they get to the garage or wherever it is.

A. That's my belief, yes.

Q. So if it had gone off while someone is standing there, somebody could have just pushed the thing in and got it on again I suppose.

A. That's my belief.

KENNEDY

Q. When you said the victim was not convincing in his version, what was the basis of making that statement?

A. Other than the description of this alleged person to turn up at his door, his demeanour - he wasn't in any sort of distressed state, emotional state. He didn't feel threatened.

Q. Where does that appear in the statement?

A. That's not there.

Q. Where does the other - what did you say a moment ago, he didn't seem to be--

A. In an emotional--

Q. Emotional state. Where's that in the statement?

A. I don't see it here.

Q. So he was not convincing, so emotional, not feeling threatened, nothing about him saying anything to you about that - or not saying something about it. Is that correct?

A. It's not in this COPS event, no.

Q. He was not overly concerned with his safety. What did you mean by that?

A. He and the other two that were in that unit, from my recollection, I can't remember whether it was myself or Detective Sergeant Pride, but I think we offered some sort of assistance to have them relocated for a night, or whatever, if they felt any threat, because as far as we were concerned, you know, he made a comment - actually, he told us the basis of this person turning up was, if you keep talking about what happened, I'll come back and I'll shoot you. He said something similar to those words, which I've got it recorded there, so we felt - and because of the events of the week earlier, where Mr Neville had been shot, we felt that if this had taken place, and then we should offer some sort of assistance to them to make sure they're safe, that this person that they allege came that night wouldn't come back.

Q. What are you trying to tell me? Did you offer it to him? Assist him?

A. It was. I just can't recall whether it was myself or Detective Sergeant Pride.

Q. Where is that in the COPS event?

A. It's not in the COPS event.

Q. Are you sure that's what you said? That would be a very important thing to put in the COPS event, wouldn't it? If you were forming a view about the fact that he was not overly concerned, you would have put it in the COPS event because - "weren't overly concerned, because we offered him assistance having regard to the events that had occurred, and he declined". Surely that would be a very important thing to put in the COPS document.

A. In hindsight, maybe I should have put it in there.

Q. Can I take you to the document at page 188. Can I just take you to the third paragraph. You say, "When further questioned, Mahoney changed his version to 'He looked like the guy from last week.'" Is that right?

A. That's what it says here, yes.

Q. You became aware of the existence of this document?

A. I can't recall seeing it, but I know what it is.

Q. That doesn't appear in the COPS entry at all.

A. Not in my COPS event, no.

Q. This document would have been made up, presumably from the COPS, because it's got a reference at the bottom. You see the COPS event, 28711316.

A. That's correct.

Q. So there's nothing in the COPS entry about that about changing his opinion, is there?

A. No, I don't see it in the COPS, no.

Q. And then you see, the bottom of the paragraph, you've got, "The demeanour of Jeremiah Mahoney and Thomas Neville do not appear to be consistent with a victim that had been threatened with a firearm, considering that Neville was shot a week earlier." We know that there was no suggestion that Thomas Neville had been threatened on that night, was there?

A. Not directly.

Q. Not at all. Jeremiah Mahoney was the one that was being threatened. You knew that, didn't you, officer?

A. I believed they were both being threatened.

Q. There's nothing in your COPS entry about that, is there?

A. The only thing related to that would be where I've put in here, "If you keep talking about what had happened, I'll come back and I'll shoot you," and seeing that I was of the - well, recollection, I'm sure a statement had been taken from - or a version had been taken from Thomas Neville as well, when he's referring to "stop talking", I've formed the opinion that, talking to whoever had given statements.

Q. Officer, you're just making this up now, aren't you?

A. No, I'm not.

Q. The person who'd made the complaint about being threatened on that evening was Jeremiah Mahoney.

A. He made the phone call, yes.

Q. That he was the one that was threatened. You spoke to him and he told you what had happened.

A. That's correct.

Q. Mr Neville had never - you'd never at any stage said that he was threatened that evening.

A. I can't remember what he told me but--

Q. There's nothing in your COPS entry about it, is there?

A. There's not.

OBJECTION

KENNEDY: Yes. About that, though.

Q. About him being threatened that evening.

A. About Thomas Neville's version.

Q. Thomas Neville being threatened that evening.

A. Yeah, there's nothing in the COPS--

Q. No. If I can just take you back to 188, "The demeanour of Jeremiah Mahoney" - let's deal with him, firstly - "did not appear to be consistent with a victim being threatened with a firearm." What was it about his demeanour that allows you to form that view?

A. From memory, there was no - like I said, we offered to have him move from that unit, or some sort of assistance, with safety. He didn't seem too worried that a man with a gun had just turned up at his address and threatened him.

Q. He was sufficiently concerned to ring up zero zero zero, wasn't he?

A. That's the call he made, yes.

Q. What was it about Mr Neville's demeanour?

A. From memory, Mr Neville basically just stood behind Mr Mahoney and let him speak. He did say something, but again, I haven't got it recorded here, and I can't remember what the exact words were. But again, he had been shot a week or so earlier, and again, he didn't show any particular emotional state, or distress, or any type of behaviour that would be expected of someone who'd been shot a week earlier, and a man turned up on the doorstep where he's living, or where he's staying, or whatever he was doing there, and threatened him.

Q. He wasn't threatened. You had no evidence to suggest that Mr Neville was threatened at all that evening, do you?

A. Not directly, no.

Q. What do you mean, "not directly"? You don't have any evidence.

A. Again, as I explained, the alleged wording given by Mr Mahoney - or something similar: "If you keep talking about what happened, I'll come back and shoot you."

Q. Standing at the doorway, which was just open.

A. Yes.

Q. The doorway was just open a little bit and that's when Mr--

A. According to Mr Mahoney" ( T 368.41 to 373.7. )

....

" Q. He certainly wasn't vague about the nature of the weapon, Mr Jeremiah Mahoney, was he?

A. No, he wasn't. "

Q. Very clear. You formed the view that the description he gave you of the weapon was the same description given by the witnesses of the shooting that had occurred on 20 July 2006.

A. Similar description of the firearm, yes.

Q. The same description.

A. Very similar, yes.

Q. Your - the COPS entry says, "The same description," doesn't it?

A. The same. Yes, that's what I've got in the COPS.

Q. You then said, at page 188, "both" - referring to both Jeremiah Mahoney and Thomas Neville - that the information did not appear believable. What was the basis for you to forming that view in relation to what Jeremiah Mahoney had told you?

A. Everything combined, as in their demeanour. The description that was given was the same description of the person involved in the shooting. Their hesitation to accept any sort of assistance for their safety; they didn't seem too worried, other than reporting it to the police. They didn't appear too worried to get out of that unit.

Q. They'd reported it to the police. The police had come around, and you were there on the job, investigating this matter, weren't you?

A. That's correct.

Q. So it was into the system? The threat was made, I suggest, and they got information to the police quickly, and it was into the police system--

A. The report was--

Q. --which would in itself provide them with a measure of protection, wouldn't it?

A. We can offer them protection, yes.

Q. Just by the information being within the system offers them a measure of protection, would it not?

A. Well, it could be, yeah.

Q. At the time that you were carrying out this investigation, I suggest to you that you knew that the case against Mr Zreika was paper thin, wasn't it, as far as whether he had been the assailant?

A. There was some evidence there, yes.

Q. But pretty minor evidence, wasn't it? Very--

A. There was some evidence.

Q. Amounting to no more than a possible suspicion. Isn't that right?

A. No, there was enough to - a reasonable suspicion. ( T 372 to 372.3. )

184 Against that background Mr Kennedy suggested Detective Sergeant Davey had closed his mind to the plaintiff's innocence:

" Q. What I suggest to you is that you knew that this arrest of Mr Zreika had been botched, was wrongful, didn't you--

A. No.

Q. --at the time that you were investigat[ing] this matter?

A. No.

Q. And that you had closed your mind to Mr Zreika's innocence, hadn't you?

A. No.

...

Q. What I suggest to you, is that the conclusions that you reached in relation to the complaint was designed to suggest, quite wrongly, that in fact the complaint made by Jeremiah Mahoney could not be given any credit. Do you understand that?

A. I think I know what you're getting at but - no. " (T 374.15 to 374.36.)

...

" Q. I suggest to you that you didn't form any genuine view that the demeanour of Jeremiah Mahoney did not appear to be consistent with a victim that had been threatened with a firearm, did you?

A. I did form that opinion.

Q. And I suggest to you that you did not genuinely form the view that Mr Jeremiah Mahoney's information he supplied to you was not convincing in his version, and he was not overly concerned with his safety.

A. I did form that opinion. " (T 385.5 to 385.14.)

185 In re-examination, this evidence was given:

" Q. You were asked some questions about various descriptions, given by witnesses, of what had been seen on the night as compared with what Mr Jeremiah Mahoney had described as the clothing on the night of 27 July. Remember that?

A. Yes.

Q. What part, if any, did the description given on the night, as compared with the descriptions given on the night of the shooting, play in your formation of your opinion?

OBJECTION. MATTER DID NOT ARISE IN CROSS-EXAMINATION. QUESTION ALLOWED

A: The description given by Nathanial Mahoney on the night that I went to his house on the 27th, it was strikingly similar, if not almost the same exactly, of the description given by him on the night of the 20th, which is the night of the shooting.

NEIL

Q. You mean Jeremiah Mahoney?

A. Sorry, Jeremiah. There's three brothers, so yes, Jeremiah.

Q. And the fact that it was strikingly similar, what was the significance of that to you?

OBJECTION. QUESTION ALLOWED

WITNESS: Sorry?

NEIL

Q. What was the significance of that striking similarity to your opinions?

A. It was basically the same clothing that was used in the shooting, being the orange-reddish coloured shirt, the blue jeans and joggers, and the firearm, the description of a silver handgun.

Q. Set aside the firearm for a moment. You formed some opinions that caused you to doubt the version that had been given to you on the night of the 27th by Jeremiah Mahoney. Correct?

A. That's correct.

Q. What I'm asking you is, how did the description of the clothing compare with the previous description assist you in forming your opinions?

OBJECTION

KENNEDY: I accept your Honour's ruling.

WITNESS: Sorry?

NEIL

Q. You formed an opinion that, at least, there was some doubt about what Jeremiah Mahoney was telling you on the night of the 27th.

A. Yeah.

Q. Did his description of the clothing, on that night as compared with the previous occasion, involve you in having some doubts?

A. Yeah, it did.

Q. Why?

A. Because a person of that exact description and clothing turning up at his house, and basically doing the same thing again, I formed the opinion that was extremely doubtful.

Q. What was the effect of his description of the pistol as being the same as before, in terms of your opinions?

A. It was almost to the exact description.

Q. So why did that affect your opinions?

A. It was basically the same as before, and again highly unlikely that the exact same handgun or firearm would be used.

Q. Why, in your opinion, would it be highly unlikely that the same clothing would be used on the two events?

OBJECTION. QUESTION ALLOWED

A: I find it highly unlikely that the exact event would occur again.

HIS HONOUR

Q. But it didn't occur again, this was a man coming back to complain about the fact that he'd been assisting police. This was a threat that he went back and made, wasn't it?

A. Yeah, that's right

Q. Because of what he'd been saying to the police.

A. That's correct, yeah.

Q. What was so unlikely about that?

A. I just formed - this is with their demeanour as well, that, you know, someone under duress and threat, and highly emotional, has told to me he was over the emergency line, which I haven't heard, then when we spoke with him, he could get down to a tee the exact clothing in the minimal time that, apparently, this threat took place; that was a whole bunch of circumstances, including the description of the clothing, the firearm.

Q. But isn't that why you issue descriptions of people, what they've been wearing, so the people will say, "Oh, that's strikingly similar to what the police have said so it must be the same one"? Or could be the same one? Didn't it strike you that perhaps it was more than coincidence?

A. There was a possibility, I would say, but I formed the opinion that just their blas attitude once we were there, you know, and all the other circumstances I've already explained, I formed the opinion that they weren't telling the truth, and this description given by Mahoney was made up, and he already knew what the clothing of the person was that was previously involved.

Q. But he'd been there at the time, when the shooting had occurred.

A. That's right.

Q. That was his history to the police, that the person who'd been responsible for the shooting turned up again and threatened him. What was so surprising about that - or unbelievable about that?

A. I just formed the opinion it was.

NEIL

Q. To understand what you're saying, you formed the same view in relation to the pistol.

A. That's correct.

Q. Why is that?

A. I'd found it striking - highly unlikely that it would occur again with this - you know, with the description he gave. It was so precise, but again, someone under duress, and you know, threatened - feared, yet he could tell me what brand it was and - when I say "brand", like, he described a 7 millimetre silver handgun. " (T 386.12 to 388.41.)

186 It would seem that Detective Constable Ryder also brought to bear a great deal more critical analysis of this inconvenient sighting of the shooter than she had between 20 and 25 July in relation to what little had connected the plaintiff to the offence. In a document dated 9 August 2006 called 'Incident report by Jeremiah Mahoney', this was said:

"On 27/7/2006 the witness Jeremiah Mahoney contacted '000' and stated that he had been threatened at his home by a male person with a pistol. He stated that the male was similar to the person who shot his friend Tom Neville at his unit on 20/7/2006.

Det Sgt's Pryde & Davey attended and spoke to Mahoney. He gave a version of police that: someone knocked on his door. He yelled out 'who is it'? and after no answer he opened the door a few inches. The outside of his unit (foyer) was in darkness, but he saw a male person he thought was similar to the person that shot his friend the week before. He states that he was wearing the same clothing as the night of the shooting, red coloured jumper, blue jeans and white & blue joggers. The male person said "keep talking to the Police and I'll shoot you" or something similar. Mahoney then slammed the door. Mahoney was asked how long he had the door opened? He replied only a second or two.

This amount of time and the small space the door was opened and the foyer area being in darkness, adds to a doubtful report by Mahoney. When further questioned Mahoney changed him (sic) version to be looked like the guy from last week

...

The description of Jeremiah Mahoney and Thomas Neville did not appear to be consistent with a victim that had been threatened with a firearm, considering that Neville was shot a week earlier. Both were very vague with information and did not appear believable. A statement was arranged to be taken from Mahoney." (Sic)

187 Although the note implicitly asserts police received information from Mr Neville, as seems to follow from Detective Sergeant Davey's evidence, Mr Neville had not given any information.

188 A statement was taken from Mr Mahoney on 12 August by Detective Constable Ryder. In it he said of the visit to his unit by the shooter inter alia:

"[7] When I opened the door the lights in the stair well were not on and the only light in the area was from the moon light coming through the window and some of the light from my lounge room was shining out as well. I would describe it as being about 50/50 lit. As I opened the door I saw a male person, who was about 5'4" tall wearing a red jumper and jeans. I can't remember anything else about what he was wearing. I saw that he was holding a small silver coloured pistol in his right hand. He wasn't pointing the gun at any particular direction he was just waving it around. He said, "If you say anything else I will come back and shoot you."

[8] I immediately slammed the door shut and locked it. I called Police on 000. The whole time of the incident would have been no longer than 30 seconds. From where Tom was sitting on the couch he would not have been able to see the front door as the pillar is blocking his view. He has told me that he heard me slam the door and that is it. Tom has told me that he did not hear the comments made by this male.

[9] When he said "If you say anything else I will come back and shoot you" I took this to mean that if I assisted the police in relation to Tom being shot the previous week he would come back and shoot me. I have no reason to think that it would be in relation to anything other then the shooting of Tom on 20 July 2006."

189 It will be recalled that when he had made the 000 call on 27 July he had said the man who had come to his unit had been "the same guy again", "small, middle eastern appearance, mid 20s-30s," [wearing a] red hooded jumper, jeans and white and blue shoes, 5'4"- 5'5" in height, a man he knew as 'Mick'.

190 On the same day as she took that statement, Detective Constable Ryder created a document for the police investigation file headed "Second statement of Jeremiah Mahoney", in which she referred to his visit that day to Granville Police Station. She recorded inter alia:

"Mahoney claimed that the person who had shot Thomas Neville had returned to his unit and threatened him. After obtaining the statement Mahoney stated to police that he was only about 50% sure that it was the same person. He admitted that he only saw the person for a couple of seconds in a dark stairwell."

When cross examined about that note she could not explain why its content had not appeared in the signed statement. The statement, to my observation, is lengthy and detailed, and apparently prepared by her with a great deal of care. I shall return in time to consider the implications of this addition to what she claimed to have been told by Mr Mahoney.

191 I have referred above to the sighting of the shooter, by the Neville brothers, at the Parramatta Mall. A diary entry for 27 July signed and made by Detective Constable Ryder says inter alia:

"Spoke with Jeremiah, and Neville's- convinced it was shooter in Parra Mall. Attended mall + parole made KL04 broadcast... Gave Ardill + Fulham photo of Zreika to ID. Rang back to arrange..."

192 On 3 August 2006 Detective Constable Devlin wrote to Mulawa Correctional Centre requesting an interview with Sarah Bright, who though granted bail, had not succeeded in satisfying bail conditions. On the same day she wrote to Parramatta Local Court requesting CCTV footage from the court room where Ms Bright had appeared on 21 July, asserting "Police have reason to believe [her co-offender] had attended the court [that day] to make attempts to bail Bright out". This issue was not elucidated before me and no submissions were made about it.

An incident at court on 9 August

193 The plaintiff's case was before the Local Court for mention on 9 August 2006. The transcript of the proceedings was not in evidence. I conclude no bail application was made that day.

194 The shooting victim, Thomas Neville, and Jeremiah Mahoney, were both at court that day. They told Detective Constable Ryder when they saw her there that they wanted to look at the plaintiff to see if he was the shooter. But she asked them to leave, and await the formal identification parade. They declined to do so.

195 According to an 'Investigator's note ' prepared by Detective Constable Ryder on 9 August 2006, a short time after Mr Neville and Mr Mahoney were asked to leave the court:

"Thomas and Mahoney both returned to outside Court Room 5 in company with another male who identified himself as Khaled Dandan (this had been confirmed to be Khaled Dandan- CNI 677772627). Dandan was aggressive and abusive towards Detective Davey and Devlin and insisted that it was a public court and Thomas and Mahoney were entitled to attend if they wanted to. Dandan showed blatant disregard for the integrity of the investigation and kept insisting that Thomas and Mahoney were going to attend court to view Zreika. Detective Devlin was able to establish that Dandan is associated with Zreika through work and is also friends with Mahoney. Police are of the belief that the victims and witnesses for this matter are being intimidated by the defence and are of the strong belief that Dandan is involved in this intimidation."

After that incident, the plaintiff's solicitor agreed to have the plaintiff stay in the cell during the hearing, so there would be no 'in court identification' problem.

196 On 8 August Detective Constable Ryder assured the plaintiff's solicitors the CCTV footage from Coles had not yet been copied into a format allowing for VHS viewing.

197 As I have observed, Detective Constable Ryder created a detailed file note (called 'Investigators Note') on 9 August 2006. In it, she set out a summary of what she said had occurred in the investigation. It is to be recalled that in the 'facts sheet' prepared on the day of the plaintiff's arrest, she referred to Sarah Bright as the plaintiff's 'girlfriend'. In her file note of 9 August she also referred to his girlfriend. But this time the girlfriend had become Ms Melissa Peterson, who had said on oath at the bail hearing on 26 July she was his girlfriend and had been with him on the night of the 20 July. Although Detective Constable Ryder was entitled to assume the plaintiff had more than one girlfriend, there was no suggestion in her narrative that such a thought had occurred to her, or as to the obvious irony involving the apparently contradictory assertions in her two documents as to who his girlfriend was.

198 It took police a while to get it, but by 10 August police had obtained the CCTV footage from the CBA concerning the reported sighting of the shooter at Parramatta Mall on 27 July. A police document created by Detective Fiona Ryan and reviewed by Detective Constable Ryder and dated 10 August recorded:

"On the 27 of July 2006 the victim of the shooting, Thomas Neville and his brother William Neville provided a statement at Parramatta Police Station. They left about 1.15pm and walked home along George Street, Parramatta. They later reported seeing the alleged shooter in the Church Street Mall...

On Thursday the 10 of August Detective Constable Ryan collected this footage and viewed it. A person of interest as described by the victim and witness was sighted in the CCTV footage. "

199 As later appears, the CCTV footage was in evidence and appears to show a person fitting a description given by Mr Mahoney to police. There is another version of the document [p47A of Ex A] in which someone has added after "footage", the sentence: "His face was not sighted." In his opening, dealing with this evidence, Mr Neil said:

" Some CCTV files showed a man in a leather jacket, but facing the other way and it couldn't be pinned down."

In evidence in chief Detective Constable Ryder said despite the Mall sighting, she had not withdrawn the charges as: "I still believed there was sufficient evidence for the matter to proceed before the court." (T 128.19.) Mr Kennedy noted without contradiction, in his final address, that the document referred to above prepared by a police officer saying a person of interest had been sighted, was another document police only produced on the ninth day of the hearing, fifteen months after it had been subpoenaed.

200 On 13 August 2006 Detective Constable Ryder spoke to a solicitor who represented Sarah Bright. She asked him not to show his client a photograph of the plaintiff and said police might want to use her as a witness in helping to identify the plaintiff. He said he would get instructions.

201 Police continued unsuccessfully to look for evidence to link the plaintiff to the shooting. On 13 August Constable Hayman spoke to the occupant of a unit near Mr Mahoney's. That occupant recalled on a Wednesday night, a few weeks before, he had been awoken by loud voices. He could hear a girl's voice which had sounded hysterical. He had gone back to sleep. The next day he had given police a bourbon and coke bottle he had found near his garage door: that was after finding police there the next day.

202 On 13 August Detective Constable Ryder sent a memorandum to a David Rapp. In that memorandum she gave a list of telephone numbers, including two belonging to the plaintiff. One belonged to Sarah Bright; one to William Neville (whose phone the victim also used), one to Mr Abukhaled, one to Jonathon Bright and one was the landline for Mr Mahoney's unit. In the memo she said inter alia:

"As discussed the most important link at this stage we need to establish is between Zreika and Sarah Bright."

203 On 14 August Detective Constable Ryder interviewed a man who lived in an adjacent unit complex to that of Mr Mahoney. He had arrived home at 9.15pm on 20 July, and noticed a lot of activity in the units next door. There had been raised voices. He had spent five minutes unloading his car. He had heard the door of a van open and close and the van start to leave. The van had been white in colour, the sort couriers use. He had seen it for only a couple of seconds as it had driven past his driveway. He had paid no particular attention to it. He had a vague recollection of a person walking up the driveway of 179 George Street from the exit of the units to the street.

"In my mind [he said] this person would have arrived at the van around the same time that I heard the door open and close."

He could still hear noise coming from a unit he thought was number 2, at 11.30pm. At around that time he had heard a female voice exclaim loudly. Mr Neil accepted the sighting of this van had been an hour or more before the shooting, but put to me it was something, albeit small, which ought to have been, and was, taken into account. (T 686.28.) He conceded however Detective Constable Ryder had not said how she had taken it into account "or what detail she made of it." (T 687.10.)

204 Although the plaintiff had requested that police conduct an identification parade on the day he was arrested, police did not get around to organising this until 15 August. On that day the plaintiff voluntarily took part in an identification parade with a number of other men. The parade of men was seen by Thomas Neville, William Neville, Jeremiah Mahoney, Jonathon Bright, and Bartholomew Mahoney. Not one of them identified the plaintiff as the shooter.

205 Bartholomew Mahoney was not interviewed by police until 15 August. His account of the shooting was consistent with that given by his brother on 21 July. However the following paragraphs contained material of a potentially disturbing kind:

"23. In the days following this incident I got a number of phone calls from Police making times to arrange to obtain a statement from me. I heard the other guys talking about what had happened. I know that in they (sic) days after the shooting another friend of ours Khaled Dandan, told us that his cousin had been arrested for shooting Tom. I think he said that he (sic) name was Hassin or something like that. When I found this out I told Khaled that if it was his cousin that shot Tom I would tell the Police that it was him.

24. Khaled got annoyed when I said that but told me that he knew how I felt. Another time when we were talking about what happened I know that Khaled offered Tom money to tell police that it wasn't his cousin. A couple of days after the shooting I was at my house with Tom, Scruff [i.e. Jeremiah Mahoney] and Khaled. During this time I heard Khaled say, "Look it's my cousin that got arrested. I know that he wouldn't do it. You guys know that he wouldn't do it. We need to get him out." This was directed at Tom and Scruff.

I said "I don't want any part of this"

I then went straight to my room and closed my door. While I was in my room I fell asleep in my room but I don't know for how long.

25. Later on I was woken by a loud male voice. I walked back into the lounge room and I saw that there were two men in the unit that I didn't know. One of them said to me, "Who are you?" I said, "I live here." I knew then that these guys were Police. I saw the other guy had a note pad out writing things down. I walked back into my room. While I was in my room I could hear Scruff and Tom talking to the Police. They were changing their stories about the shooting. I heard Tom saying that he saw the guy that shot him down the road and Scruff Saying that he had come back to the front door. I know that this didn't happen and they were changing their stories.

26. When the Police left I came out of my room and I asked Scuff and Tom why they were changing their stories. They just said, "I don't know what you're talking about." I left it at that. I shook my head and I could tell that they were both lying by the looks on their faces. They kept contradicting themselves.

27. A couple of days after this Khaled was at my house and so was Scruff and Tom. Khaled told them when his cousin was next going to court. He asked them to come to court with them so they could see if it was the guy that shot him.

28. On Tuesday 15 August 2006 I attended Bankstown Police Station. I went with Detective Senior Constable Clingan to a room within Bankstown Police Station, where I was introduced to Inspector Launder. I saw that a video camera was being operated and I saw eight persons standing in a row with number (sic) placed above their head.

29. After looking at these people I am unable to positively identify any of the persons I saw today at Bankstown Police Station as the person responsible for the incident at 2/179 George St, Parramatta."

206 This is a curious and, for the police, would have been, a potentially disturbing, document. But the last sentence in [27] suggests Mr Dandan's motives were good ones. On 16 August 2006 Detective Constable Ryder created a document called 'Investigator's note.' It summarised the outcome of the identification parade.

207 It is to be noted that by 15 August the plaintiff had been in custody for three weeks and the police had no further evidence to implicate him in the offence and a great deal to exculpate him, perhaps the most powerful of which they had told no one on the defence side about. Further, when police had received apparently significant evidence which threw doubt on the correctness of the decision to charge the plaintiff, they questioned it and cross examined the witnesses, using quite a different approach from that taken before they had decided to arrest the plaintiff.

208 The matter was before the Local Court again on 16 and 17 August 2006. A further unsuccessful bail application was made. The magistrate once again, was given the (by now) fatally flawed facts sheet. In the course of the hearing, the prosecutor asserted: "It is a strong crown case." The transcript in evidence for that part of the hearing is defective. It seems the prosecutor may have had another document, perhaps one prepared by the DPP (this was not explored). The unfairness to an accused, especially one who does not have the presumption of bail in his or her favour, when misleading material is put to the court, is apparent from what occurred at that bail application. The two eye witnesses to the shooting had to be called by the accused's solicitor. The police prosecutor thereby became entitled to cross examine them. There should have been no need for these witnesses to be called. An honest and fair facts sheet would have told the magistrate at least the following:

(a) The differences in description between the plaintiff and the shooter as described by eye witnesses (see [67] above);

(b) The fact that the sound on the Coles store footage was not clear;

(c) The evidence of Ms Black as to the identity of her daughter's friend, Michael;

(d) The fact that the plaintiff's girlfriend had given sworn alibi evidence at a previous hearing;

(e) The array evidence of Ms Black;

(f) The sighting by eye witnesses to the shooting (including the victim) of the assailant, apparently at large, while the plaintiff was in custody;

(g) The CCTV footage from CBA showing a person police regarded as 'of interest' at the Parramatta Mall the day witnesses saw him there;

(h) The fact that all eye witnesses had excluded the plaintiff as the assailant at the line up;

(i) Of the errors in the first facts sheet.

209 There was evidence Detective Constable Ryder was not at court on either day of that bail hearing as she was on leave. But it is hard to see why the prosecutor could not have been properly instructed before she went on leave.

210 As it was, the plaintiff's solicitor called Jeremiah Mahoney, who confirmed he had seen Sarah Bright's associate at his front door on 27 July and then had rung 000. He said Khaled Dandan had told him the case was on that day. He admitted lying to the prosecutor outside the court about how he had known to be there. He said he had gone to school with Khaled Dandan. He asserted Khaled Dandan was the plaintiff's cousin. But he said he had not offered him anything to come to court.

211 The plaintiff's solicitor also called Thomas Neville. He gave a description of the shooter as 165cm tall, clean shaven, crew cut, small build, a little bit of muscle. He had been to the identification parade the day before and had not seen the shooter. He had seen the shooter in the Church Street Mall and had told police about that on the same day. He said Khaled Dandan had not offered him anything to come to court. The plaintiff told the magistrate Khaled Dandan was not his cousin. Bail was again refused, the magistrate observing, (without the fair view of the facts she should have had) "the prosecution case is not the strongest". In the course of that bail hearing, the plaintiff's then solicitor pointed out that a copy of the CCTV footage from the Coles store provided as the defence copy had no audio.

212 According to an investigator's note apparently prepared by Detective Constable Ryder on 23 August 2006, Bart Mahoney spoke to her that day and said he wanted to change his statement. He said he may have been mistaken in relation to Khaled Dandan's offering money to witnesses not to identify the plaintiff at the identification parade. Her note says inter alia: "when asked why he only decided to change this after Zreika was bail refused on 17/08/08 Mahoney claimed to not know about any court appearances." Her note went on to say that she arranged for him to return to the Granville Police Station to give another statement. However she broke that arrangement, and there is no evidence she ever did take a supplementary statement from him.

213 Another police file note of 23 August 2006 says this:

"On Tuesday 22 August 2006 Detective Kelly attended the video unit at the SPC and collected the CCTV footage of Cole Express. This footage has been slowed by video unit to enable it to be viewed on VCR. This footage was returned to Detective Devlin who has since viewed the footage. The footage can be viewed on VCR however, it still changes camera views and there is no sound available in this format. Enquiries will be made with Coles Express Parramatta to determine if any other format is available where the sound recording can be heard."

214 Ms Black was interviewed by Detective Constable Ryder on 24 August 2006. Again she expressed fears for the safety of her children. Again she told her of her daughter's colleague, Michael; she said she believed Sarah Bright had been with him on the night of the shooting: she confirmed having met Michael two or three times, and that he drove a silver coloured car. On 31 August a police investigator's note referred to the possibility that a man known to be an associate of Sarah Bright might have been 'Michael'. He was eliminated. Why?

"His physical description does not match that provided by the witnesses to the shooting. All of the witnesses indicated that the POI was short build, less than 5'5" tall, and had a slim frame."

But the plaintiff remained in custody.

215 On 4 September Detective Constable Ryder tried to speak to Sarah Bright at court but through her solicitor she refused, on the basis of fears for her safety and that of her family A note she later prepared concluded:

"Since this time there has been no contact from either Bright or Titmarsh in relation to this matter. Police involved in this investigation have made a number of attempts to obtain a version from Bright since the shooting, all without success. As no information has been forthcoming from Bright or her family a decision was made to focus on other lines of enquiry in relation to the shooting of Thomas Neville. It was hoped that Bright would assist Police and provide a statement in relation to the identity of the offender, however, as this has not occurred Police have no further evidence to either assist in the prosecution of Zreika or provide exculpatory evidence in relation to Zreika."

216 As I have earlier observed, when the case came before the Local Court on 21 September 2006, the DPP had taken the matter over, and did not oppose bail and bail was granted; and on 25 January 2007, the charges were dismissed.

217 According to police records tendered by the defendants, [Ex 2, p 102]. Detective Constable Ryder on 15 August 2007 began making enquiries into the contacts made by Sarah Bright on the night of the shooting. In a request for information she said:

"On 20/07/06 Thomas Neville was shot at 2/179 George St, Parramatta. Since this time Sarah Bright has been arrested and charged with an accessory to this matter. On her arrest Bright provided a phone number of 0415 904 917. Subsequent checks on this phone revealed that the above phone number called Bright after the shooting and her subsequent arrest. Police have to identify the owner of this phone number for investigations to continue. Police have reasons to believe that this phone may be used by a person of interest in the investigation."

218 The evidence suggests that police did eventually take some steps to find the actual shooter. They "learned" that a man with the name Michael had indeed had an association with Sarah Bright on the night of the shooting, and that a phone he used at that time had been used to try to call Sarah Bright's phone on several occasions between 11.30pm and 11.50pm on the night of the shooting. In a police investigator's note prepared by Detective Constable Ryder on 28 August 2007, when apparently casting her mind back to the events of the previous year, she made the following, among other, assertions:

"[I]nvestigations in relation to the identification of Zreika were frequently hampered by the witnesses and victim. Information was received that witnesses had been bribed to not identify Zreika by his cousin, Khaled Dandan"...

Despite extensive investigation no other suspect was identified other than Zreika...

Investigators... first became aware of [an] association between Bright and [Michael] Farrugia on Tuesday 14 August 2007..."

219 On the same day, she wrote:

"Mobile number 0434 110 207 contacted the phone of Sarah Bright numerous times shortly after the shooting of Thomas Neville... this phone is registered to [__________]. It is believed that this phone number is being used by Michael Farrugia... He is considered a person of interest in relation to this investigation."

220 In an investigator's note of 9 January 2008 Detective Constable Ryan wrote, inter alia:

"Previous information has been received that... mobile number [0434 110 207] is being used by Michael Farrugia, an associate of Bright's who is considered a possible suspect for this matter..."

221 In another investigator's note, prepared by her on 27 February 2008,again apparently reviewing the earlier investigation, Detective Constable Ryder said inter alia:

"The evidence against Haysam Zreika became somewhat contaminated and witnesses in the matter became extremely uncooperative. As a result the charges against Zreika were withdrawn by the DPP... During the course of the investigation several witnesses... indicated that the male person with Bright on the night... was a male by the name of Michael or Ali... [A]s recently as 25 February 2008 Bright and [Michael] Farrugia have been sighted together by police...[A COPS record states] Farrugia and Bright have been in a relationship for the past two years. This would corroborate information suggesting that Bright attended the location on the night of the shooting with her boyfriend Michael. Based on this information Farrugia is considered a person of interest...Farrugia is using mobile number 0434 110 207. This phone number contacted Sarah Bright minutes after the shooting occurred...Farrugia has previously had access to vehicle UWY202 (NSW) being a silver Holden Commodore. This again corroborates information received on the night of the shooting that the suspect was seen to enter a silver Holden Commodore with Sarah and Jonathan Bright. Farrugia was last sighted in the vehicle on 23 February 2006. The vehicle was not found abandoned until 27 July 2006. This is less than a week after the shooting occurred.

Task 37 has been created in relation to speaking with Elizabeth Black and having her identify Michael Farrugia. Black was not a witness to the incident and could not be used for identification evidence. She will however be able to inform police if it is likely Farrugia is the person that Bright would have been with on the night of the shooting. Previous contact has been made Black and she has indicated that she would be willing to look at a photo as long as she did not have to identify any person in court...

Task 38 and task 39 relate to contacting persons who were contacted by Bright immediately after the shooting occurred to determine the content of the conversation and the knowledge, if any, they have of the shooting of Thomas Neville. This has been considered a lower priority task and due to workload and other tasks that this matter has not been completed at this stage... Task 44 has been created for the final exhibit movement to be completed. This relates to the DNA analysis of a drink bottle retrieved from the location. Information from witnesses indicates that the offender entered the location holding this item. This item has been examined at fingerprints with nil result. This was only recently completed and the item now requires to be transferred...

The OIC of this matter.... transferred from Rosehill LAC on 22 February 2008 and at this time the above tasks were still outstanding with the information that has been received in relation to Michael Farrugia being an associate of Sarah Bright it is the opinion of DSC Devlin that these lines of enquiry are required to be completed for a thorough investigation to be completed. Farrugia matches the description of the offender as described by the witnesses. At a minimum it is thought that an identification parade should be offered to Farrugia and if he declines photograph identifications should be completed with the witnesses.

There is a substantial amount of circumstantial evidence to link Farrugia to the offence including his access to a silver coloured Holden Commodore around the time of the offence."

Credit

222 I shall now consider the credit of officers whose evidence was relevant to all three counts.

Credit of Detective Sergeant Davey

223 Detective Sergeant Davey made concessions at times, for example that the words the plaintiff alleges Detective Senior Constable Ryder used when arresting the plaintiff were in fact said. At various times however I considered he appeared unnecessarily defensive. As well, I was troubled about the fact that after he received reports suggesting the true offender was still at large, he seemed to have taken a great deal of trouble to denigrate the quality of the reports. These were the matters explored in that part of his cross examination set out above. In the end the view of him that I formed was of a man with a reasonably good recall for relevant events, but who did not give convincing reasons for doubting the evidence suggesting police had arrested the wrong man. I formed the view he was unnecessarily defensive and apparently over protective of police conduct, especially that of Detective Constable Ryder. I conclude that I should treat Detective Sergeant Davey's evidence with caution.

Detective Senior Constable Ryan

224 Detective Senior Constable Ryan was with police who executed the search warrant at the plaintiff's home. She said she had found there a pair of blue and white Nike sandshoes, and a red coloured long sleeve hooded jumper with "Sea Change" (sic) on it.

225 The jumper had been found in a basket of clean and folded laundry. She said she may be seen taking the red jumper from a laundry basket, in the video of the search: [Exhibit J] She told me she had formed the view, probably by reason of their smell, and feel, that items in the basket had been laundered. She agreed in cross examination she and other police had found no leather jacket at the plaintiff's home.

226 It was she who, on 21 July 2006, took a statement from Jonathon Bright while his mother, Ms Black was present. As I have noted, she was asked if she would have made a note had Ms Black expressed disagreement with anything her son said about the shooting and her answer was: "I would have explored it further." ( T 579.24. ) She had contact with Detective Constable Ryder at least up to the day of the arrest. I infer she passed to Detective Constable Ryder all relevant information, including that Ms Black had been present when Jonathon Bright was interviewed.

Credit of Senior Constable Ryan

227 When she began giving her evidence, I formed the view Detective Senior Constable Ryan was doing her best to be truthful and accurate. But as time went on and various apparent shortcomings in the investigation were drawn to her attention I judged her to be at times somewhat defensive, and a little testy. However, I accept her evidence. Mr Kennedy ultimately did not submit I ought not accept her evidence or indeed that her credit is relevant to any matter of consequence.

Constable Hayman

228 Constable Hayman said she had gone to the Coles store and looked at the CCTV footage and listened to the audio. She said she had heard the accused say on the audio: "I've just killed someone." In fact her hand written duty book note for 21 July 2006, although recording her attendance at the Coles store that day, simply says of the video: "Attended Coles Express... re CCTV. Collect video from... manager..." It does not suggest she saw or listened to the tape on that occasion. Her note for 24 August is:

"To Coles Express on Vic Road re Zreika... Listen to audio again. Clearly heard: 'I've just killed someone, I've had enough'... Advise Devlin re tape..." ( Ex 'AO'. )

229 When being cross examined she was asked to listen to the VHS tape, MFI 13 [Exhibit AJ], and then MFI 16 [Exhibit AN]. She did not accept that the sound on Ex AJ was indistinct, and maintained she could hear on it the plaintiff say "I've just killed someone", when each was played in court. She agreed Ex AN had no sound but did not agree with a proposition put to her in cross examination that she had not actually heard the recording containing the plaintiff's voice until late in August 2006. I find she probably did listen to the tape on her first visit to the Coles store, but failed to record the fact. The use of the word "again" for the entry on 24 August supports that. It was put to her in effect that there was no copy of the sound recording made until after the arrest, ( T 609.36 ) so that the only occasion or occasions to listen had been on visits to the Coles store. She denied that. There was some foundation for the proposition. The copy served on the defence had no audio, and at the bail application on 16 and 17 August, that was the subject of a complaint to the magistrate by the plaintiff's then solicitor. ( Ex 'A', p.149. )

Credit of Constable Hayman

230 It was submitted by Mr Kennedy that I should not accept her evidence as to what she heard on the CCTV at the Coles store on 21 July 2006. Having listened carefully and often to the tapes myself, I find it difficult to accept her evidence as to what she heard. I bear in mind that when she first heard it she would have had the statement from Mr. Silver as to what he thought he heard the plaintiff say. I treat with reserve her evidence as to what she says she heard, both at the store, and when the footage was played in court.

Ms Katherine Flynn

231 Ms Katherine Flynn works in the police forensic laboratory. She received a request from Detective Constable Ryder on 1 August 2006 for her help in analysing gun shot residue. In an emailed reply on 2 August 2006 she explained: "The evidential value of GSR is greatest when the person is denying any contact with firearms and from being present at the scene." Detective Constable Ryder had been invited to send GSR from the "suspect's" clothing and the fired cartridge case found at the scene. Ms Flynn said she received neither. In any event, at that time, she said, there had been a waiting time of a year and a half for the laboratory to analyse GSR samples. Cases could be given priority if there had been a request by police. No such request had been made to her. She explained that if the red jumper taken by police from the plaintiff's home had had GSR on it, there may have been no GSR found if the jumper had been worn or washed after the shooting. As appears above, it was because Detective Constable Ryder formed the view from what she was told that the plaintiff's top had been washed after 20 July 2006 that she could see no point in submitting it for analysis. It was not suggested I should not accept Ms Flynn as a witness of truth and accuracy, and I do so.

Credit of Detective Constable Ryder

232 I shall now consider Detective Constable Ryder's credit.

(a) Detective Constable Ryder is a young woman of 26, who, at the time of the trial, was on leave from the police service. Her cross examination extended over three days. She had ceased to handle this investigation some time before the trial, but clearly had a reasonably good recollection of significant matters in it. My overall impression of her from my lengthy observations and assessment of her demeanour was that she was highly defensive, and greatly disinclined to give any answer which she considered might remotely have assisted the plaintiff's case. Further, I regarded her demeanour as showing a studied disdain for the cross examiner and his client's case.

(b) I have set out at some length the differences between the descriptions of the shooter given by those who were present when the shooter produced the gun, and that of the plaintiff. Against that background Detective Constable Ryder's claims that the descriptions matched, or were "very similar " and that " the clothing worn [by the plaintiff] at [the store] was almost identical to that described by one of the witnesses" were, I thought, not credible: see [67]: see also (c), (d), (h) and (l) below on that issue.

(c) At T 237.8 this evidence was given:

"Q. A reasonable basis for suspecting that the plaintiff had committed the offence justifying your arrest of him. Do you understand that?

A. Yes, I understand.

Q. Can you just tell us what that is.

A. Yes. We had statements from witnesses who were present at the shooting on the night, that were provided only a number of hours after the shooting, providing a detailed description of the assailant, including clothing. We then had the plaintiff attending the Coles Express service station only a matter of, I think it is, three hours after the offence in clothing that I would say is extremely similar to that provided by the description of Jeremiah Mahoney. His general features and appearance is also similar to that described by Jeremiah Mahoney. He then utters the words of, "I've just killed some cunt," which again would raise suspicion, given the fact that there had been a shooting only a matter of streets away from the location where he was. We were then able to identify, through the use of a vehicle registration that was driven to the Coles Express service station, that that car was registered to the plaintiff. Based on looking at certain holdings within the police system, we could see that the person who was registered, the registered owner of that car, Haysam, Mr Zreika, appeared to be the person that had entered the Coles Express service station, and the investigation proceeded from there."

• (My emphases.)

(d) When it was put to her that if at the Coles store the plaintiff had said he was going to kill someone, then the two events could not be related, she said "he still very strongly fits the description of the... offender." I do not consider that an honestly given answer because of the comparison at [67]. When it was put that the audio had been unclear she said "My understanding of it was that he'd said, "I've just killed some cunt" and would not accept the proposition that it was almost completely impossible to work out exactly what he had said. (In a document she created some time after the event (see Ex AG) she said he had said 'I think I have just killed someone', maintained his top had been orange, and that he had worn jeans on the night).

(e) She struggled against accepting that the top shown on the video was red, insisting it was "orangey-red", though did agree at 1.21.03 on the video it "appeared" to be red. ( T 181.19. )

(f) When confronted with Mr Silver's description of the plaintiff's top as "fire engine red" she would not accept the proposition that a witness's observation is often more accurate than what is shown on video material. She agreed the actual top he wore was red, though would not accept it had not been a reasonable view to form at the time of arrest that the garment had been orange. She disagreed with the proposition, after the whole video had been shown to her, that the only fair conclusion she would have been able to form was that the top had been red. ( T 186.24.) When she did concede a particular frame showed red, in an unresponsive addition to an answer she said "but I'd also say that red and orange are a very similar colour." ( T 185.40. )

(g) She would not accept or reject the proposition that the plaintiff's trousers were khaki and not jeans; ( T 177. ) though she did accept his shoes appeared to be white and she did agree that at 1.21.26 on the video he appeared not to be wearing blue jeans; Mr Kennedy invited me to compare that evidence with her earlier evidence that his clothing had been "identical" to that of the assailant. ( T 183.15 )

(h) Asked why she had not told the police prosecutor Mr Silver had told police the plaintiff might have said he was going to kill someone she said "because I had the CCTV footage of what was actually recorded". When it was put to her that if he had said "I think I want to kill someone" there could be no connection, she answered "Well, no. Because as a matter of logic he still very strongly fits the description of the person we had as the offender at the scene at Parramatta."

(i) Asked if it had been an important matter that eye witnesses had said the shooter had been a man called Michael, her only concession was "that's a different name, yes."

(j) She would not agree the evidence that Michael drove a silver Commodore and not a van had been exculpatory evidence which she should have given the police prosecutor or that she had any duty to pass on that information.

(k) Though she claimed to understand her duty to be fair, she prepared and gave the prosecutor the facts sheet with the significantly misleading assertions which I have referred to above;

(l) When reminded that Mr Mahoney had described the shooter as stocky, whereas Mr Silver had said he had a thin build, she would not accept Mr Silver had been correct "according to the video". ( T 224.50. )

(m) The extreme difference in height - 5'4" (Mr Mahoney) versus the plaintiff's height of 5'11" did not trouble her: "People's indications of height vary greatly". Though she did agree his height as shown on the video accorded with a height of 180 cm as recorded in police records, and she claimed not to have ignored the difference in height. ( T 224.50. )

(n) She agreed she had no information to suggest the plaintiff had ever been known as Michael. But even as to that she said: "No, I wouldn't necessarily consider it exculpatory evidence." ( T 204.46. ) She did however agree that if the description given by Mr Mahoney of the shooter had not matched what was shown of the plaintiff on the video, that would have been a powerful piece of exculpatory evidence. ( T 205.32. )

(o) She agreed that if Ms Black had told police her daughter had an association with Michael, and that he drove a late model silver Commodore, that would have corroborated Jonathon Bright's evidence about his having been at the scene. But she would not accept that would have been powerful evidence exculpatory of the plaintiff. She agreed by implication that she had never brought Jonathon Bright's statement to the prosecutor's attention.

(p) She was vehement in asserting it would have been very poor police practice to have shown a photograph of the plaintiff to Ms Black even as part of an array to ask if he was the Michael she knew, and that the law prevented this, yet that is exactly what police did on 28 July 2006 to her then knowledge: see my conclusions on this above at [179]. For the reasons appearing at [179] I conclude she made up her evidence that she had deliberately not shown the plaintiff's photograph to Ms Black and her reasons for not doing so.

(q) As I have noted, there was evidence before me that the shooter had been one Michael Farrugia. Detective Constable Ryder would not agree he met the description of the shooter given by witnesses, notwithstanding that in a statement of 28 August 2007 she had said of Mr Farrugia "he does match the description of the person of interest." (She later said her evidence to me had been an error when confronted with the contradiction.)

(r) She labelled Sarah Bright the plaintiff's "girlfriend" in a note she made on police files at page 35 of Exhibit 2 but would not agree that there had been no reasonable basis for that.

(s) When it was put to her that if Ms Black on 21 July gave police evidence supporting Jonathon Bright concerning the man called Michael, 'it would have been corroborative' she disputed police had that information from her then, but said even if they had she would not agree it was powerful evidence exculpatory of the plaintiff. ( T 219.44. )

(t) She identified a telephone number as that of the plaintiff without ever finding out whose it was and then said her "understanding" was that a telephone call on that line had been made by the plaintiff; she told me that the basis of that understanding was merely "that was the focus of the investigation." ( T 284.7. )

(u) When it was put to her, ( T 296.49 ) her failure to take account of evidence the assailant had been seen on the Mall when the plaintiff was in custody was an example of her closing her mind to the possibility of his innocence she said the person they had seen could not be seen on the CCTV footage (but see [198] above).

(v) She maintained that in her mind the plaintiff remained a suspect in the case, at the time of this trial, despite all of the exculpatory evidence, and the identification of Michael Farrugia as a suspect and the fact it was never once suggested by the defendant's counsel, ( T 136.43 ) and that the proceedings had been concluded in his favour.

(w) She often volunteered answers or qualifications which were not asked for and which were apparently self serving. For example:

"Q. You did appreciate, though, as a prosecutor, that if you come to the conclusion, as a result of material that comes into your possession, that there is no basis for a continuation of prosecution, you have an obligation to bring those views to authority so the charges could be withdrawn. Didn't you?

A. They weren't my views.

Q. But you understood your obligation, though, didn't you?

A. Yes, I understand my obligation, but they weren't my views." ( T 290.23 to 290.30. )

(x) She swore ( T 141.4, T 233.40 ) that no statements had been withheld from the Local Court, whereas as later became apparent, Ms Black's statement taken in connection with the photographic array was withheld, though not necessarily deliberately.

(y) She would not agree that if the assailant was called Michael, and drove a silver Holden Commodore, and that the plaintiff was never known as Michael and drove a van, that would be a powerful piece of exculpatory evidence. ( T 204.47. )

233 I have come to the conclusion that Detective Constable Ryder was often untruthful when giving evidence to me. I treat her evidence with great reserve on all matters.

The case alleged, of malice/ absence of reasonable and probable cause

234 I will now consider the malicious prosecution count in the context of the evidence. In [33] of his amended pleading the plaintiff says the police were malicious and that the prosecution lacked reasonable and probable cause. As I have noted, because the police were very tardy in responding to a subpoena, some significant documents were not produced until the ninth day of the hearing, and that over the defendant's objection I permitted the statement of claim to be amended further to include allegations arising from the late produced documents. I propose now to consider the issue of 'reasonable and probable cause', by reference to such of the particulars as amended as could be applicable, and then the issue of malice, in the same way.

Reasonable and Probable cause

235 In A v New South Wales at [58] the High Court said:

"[T]he enquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution. The material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful."

(My emphases.)

The material which was available

236 I shall begin this analysis by identifying the available material, and whether it might be regarded as inculpatory or exculpatory.

Inculpatory

(a) On the evening of 20 July a man was shot in the course of an altercation in a home unit in Parramatta;

(b) On the same evening the plaintiff stayed until 1.45am with his girlfriend, who lived in North Parramatta. Her unit was quite close to where the shooting had occurred;

(c) Early in the morning of 21 July 2006 the plaintiff left his girlfriend's unit and bought a soft drink at the Coles store in Parramatta. The store was also quite close to the scene of the shooting. When he was at the store he muttered to himself, and an attendant thought he heard him say, that he had just killed someone;

(d) The plaintiff wore a red hooded top when he went to the store. The one eye witness to the shooting interviewed on 21 July told police the shooter had worn an orange top: orange and red may reasonably be regarded as close on the colour spectrum; in any event, another eye witness told police after the arrest the top had been red in colour;

(e) A man called Khaled Dandan may have told at least one eye witness to the shooting (Bartholomew Mahoney) several days after the plaintiff's arrest, that he was the plaintiff's cousin and would pay an amount of money less than $1000 and provide some drugs, so Thomas Neville and Jeremiah Mahoney would change the version of the shooting they had given police;

(f) Mr Dandan may also have told Thomas Neville and Jeremiah Mahoney they knew the plaintiff would not do it and "we need to get him out";

(g) The conversation between Mr Dandan and Messrs Thomas Neville and Jeremiah Mahoney may have occurred on the same day the Neville brothers told police they had seen the shooter in Parramatta Mall, and when Jeremiah Mahoney told police the shooter had returned to his home. Bartholomew Mahoney told police his brother and Mr Thomas Neville had lied about having seen the shooter at large after the plaintiff's arrest; though he later withdrew the suggestion any bribe had been offered to change versions;

(h) When police searched the plaintiff's van after his arrest they found some expired number plates which they later discovered had once been attached to a white Holden Commodore, though evidence did not establish when this had been;

(i) There was evidence the shooter drove a silver coloured Holden Commodore in July 2006;

(j) Both the plaintiff and the shooter were of middle eastern appearance and of a similar age;

(k) Someone had parked a white van near Mr Mahoney's unit an hour or so before the shooting: the plaintiff had a van of that description.

Exculpatory

(a) A witness who saw the shooter produce the gun, but who did not actually see the shooting (Jonathan Bright) knew the shooter as "Michael", that he was a friend of his sister Sarah Bright, and drove a late model silver Holden Commodore;

(b) There was no evidence the plaintiff was ever known as Michael or had any relationship with anyone present at the shooting or was connected in any way with it. There was no evidence any of the eye witnesses had ever heard of the plaintiff;

(c) There was no evidence the plaintiff owned or drove a late model silver coloured Holden Commodore at the time of the shooting: his method of transport was an aged Toyota van with dents on one side;

(d) Police records showed the plaintiff to be 180cm or 5'11" tall, whereas Jeremiah Mahoney told police the shooter had been short - 5'4";

(e) The plaintiff is of thin build, whereas Jeremiah Mahoney told police the shooter had been stocky;

(f) The plaintiff wore a red top, khaki cargo pants and white shoes when seen at the Coles store, with the words 'Sean John Collection' on the front of the top, whereas Jeremiah Mahoney told police the shooter had worn an orange top, blue jeans and white shoes;

(g) Ms Black knew her daughter's friend Michael, and described him to police as shorter than her height of 5'11", thin face, middle eastern appearance, 24, and driving a recent model silver coloured Holden Commodore with tinted windows;

(h) No one who knew or saw the shooter mentioned seeing a facial scar: yet the plaintiff had a facial scar so prominent that it was almost the first thing Mr Silver mentioned when describing him to police on the evening of 20-21 July 2006;

(i) On 28 July 2006 Ms Black, who knew Michael, having seen him in her home several times, when shown the plaintiff's photograph in an array, did not identify him as her daughter's friend Michael;

(j) On 15 August five eye witnesses to the shooting saw the plaintiff in a line up and none identified him as the shooter;

(k) On the day of his arrest the plaintiff told police he was innocent and that they had the wrong man and immediately asked to participate in an identification parade;

(l) The plaintiff's girlfriend swore in the Local Court on a bail application on 26 July that he had been with her at the relevant time;

(m) No forensic evidence such as fingerprints and gunshot residue ever connected the plaintiff to the crime or the scene or anyone associated with it, and no gun was ever found in the plaintiff's possession or control;

(n) Two people (including the victim) who witnessed the shooting told police they had seen the shooter in Parramatta Mall two days after the plaintiff's arrest;

(o) Police recorded in mid August that CBA CCTV footage of people in the Mall at that time showed a "person of interest";

(p) The CCTV footage in fact showed a man whose appearance is consistent with a description of the shooter given by an eye witness;

(q) One eye witness to the shooting, Jeremiah Mahoney, rang and told a 000 operator and later told police, he had been visited on 27 July at his unit by the shooter, a man he called "Mick", who had threatened him about helping police;

(r) When the plaintiff was arrested, the police seized both mobile phones used by him. They never found any connection between any of the numbers used by him and anyone remotely connected with the shooting;

(s) Eye witnesses told police the shooter had been struck on the cheek by one of the occupants of the unit just before the shooting: there was no evidence the plaintiff had any facial injury at any relevant time;

(t) Assuming Mr Silver did hear the plaintiff say he had just killed someone, in fact, there was no evidence anyone connected with him or the offence had just been killed: it was never suggested Thomas Neville's wound was an especially serious one.

The submissions

237 Mr Kennedy put a number of alternative propositions concerning when police should have stopped the prosecution. His fall back position was: assuming there was a time when police had reasonable and probable cause, that time was finite: as police obtained more and more exculpatory evidence, they should at each stage have discontinued the proceedings. Mr Kennedy in that context relied on what Simpson J said in Hathaway v New South Wales [2009] NSWSC 116 at [118]:

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

(The defendant's junior counsel criticised the plaintiff's reliance on that statement, noting that the decision had been overturned on appeal: State of NSW v Hathaway [2010] NSWCA 188. However the Court of Appeal did not criticize her Honour's exposition of the law, but overturned the judgment on factual grounds.)

238 Mr Neil on the other hand submitted inter alia police had been justified in proceeding because of the suggestion witnesses were being tampered with, and magistrates kept denying him bail. ( T 696.20: note transcript at 696.22 says 'giving' but this I infer should be 'refusing'. ) Mr Neil, as to the contention that the charges were maintained longer than they should otherwise have been, put to me that Mr Kennedy had never suggested to police witnesses a point of time at which the prosecutions should have been withdrawn: he had never put to Detective Constable Ryder that charges should have been withdrawn by a particular date, or that she should have consulted her superior, Inspector Nixon, to have the charges withdrawn. Nor was it put to Inspector Nixon, he submitted, that he would have given approval for the charges to be withdrawn at any particular time, or that that would have been appropriate. He put to me that both steps had been necessary ones for the plaintiff to prove, to succeed in proving the prosecutions should not have progressed beyond any particular point before the DPP decided charges should be dropped.

239 However, I consider that in a general sense the plaintiff's case was put to Detective Constable Ryder and I infer that her recommendation to Inspector Nixon would, if made, have been accepted. For example, Mr Kennedy put to her that had she concluded there was no basis for continuation of the prosecution she had an obligation to bring her view to authorities so the charges could be withdrawn. Her response was: "They weren't my views." He put: "But you understood your obligation though, didn't you?" She replied: "Yes I understand my obligation, but they weren't my views." In re-examination she explained the process: she would have prepared a report: it would be sent to her superiors with her recommendation, and they would either agree or disagree. Mr Kennedy also relied, on this issue, on the fact that Inspector Newman accepted Detective Constable Ryder's recommendation to have the plaintiff arrested by the OTU. That, I consider, gives further weight to the conclusion I have come to.

240 In oral submissions Mr Kennedy put to me that there were four distinct stages to consider:

(a) When the plaintiff's girlfriend gave sworn alibi evidence in the Local Court in support of the first bail application;

(b) When Jeremiah Mahoney told police the shooter had returned to his unit and had threatened him, on 27 July and the shooter was seen on the Mall on that day;

(c) When Ms Black did not identify the plaintiff as Michael, her daughter's friend, in the photographic array, on 28 July [Ex AA];

(d) (Possibly in combination with (b)) when perusal of the CBA CCTV material confirmed a "person of interest" could be seen, on 10 August [Ex AB].

Did police ever have reasonable and probable cause?

241 I am persuaded on the balance of probabilities that the defendant lacked reasonable and probable cause to continue with the prosecution from the first bail hearing onward. As to the objective aspect of the test ( A v New South Wales at [77]) there were these factors:

(a) The extreme dissimilarity between the plaintiff and the description from information witnesses gave police about the man Michael: see the table at [67] above;

(b) The lack of any eye witness identifying the plaintiff as the offender;

(c) The lack of any evidence of any connecting factor between the plaintiff and anyone associated with the shooting.

I have taken into account the matters in [68] above in coming to that view. I shall now deal one by one, with the four stages in [240] above.

When the plaintiff's girlfriend gave alibi evidence

242 Mr Kennedy submitted there was no reasonable and probable cause at the first bail hearing, once the plaintiff's girlfriend gave evidence. However I do not consider this evidence made a substantial change to the case. It is not unknown in the criminal law for false alibi evidence to be given. The police were I think entitled to be sceptical of this evidence. The magistrate found the witness might have been mistaken. Nor, contrary to Mr Kennedy's submission, do I consider the prosecutor's cursory cross examination is relevant. He was concerned with making his case to a magistrate, quite a different exercise from what investigating police were doing. I am not persuaded that evidence added substance to the case that police lacked reasonable and probable cause at that stage. I regard it as a matter of slight weight which however added to what I am satisfied was a weighty case already of a lack of reasonable and probable cause.

When Jeremiah Mahoney told police the shooter had come to his home and threatened him

243 This evidence was potentially very significant. But police were obliged and entitled to question it and take a little time to do so. I would not say that that evidence of itself meant that the case lacked reasonable and probable cause. But it gave more weight, if more were needed (which it was not), to show the case was fatally flawed.

When the shooter was reported as having been seen in Parramatta Mall

244 This was the same day Mr Mahoney said the shooter had visited his home and threatened him. It took some days before police could obtain the CCTV footage from the CBA and then look at it. I am disinclined to the view that this evidence of itself meant the case lacked reasonable and probable cause. Police were entitled to investigate the sighting and inspect available video evidence before acting on it. But it added to the heavy weight showing the prosecution case was hopeless.

When Ms Black was shown a photographic array and failed to identify the plaintiff as her daughter's friend, Michael

245 In case it could be said the case had any merit before this occurred (a proposition I could not accept), the case when this event occurred was patently unwinnable.

When police viewed the CCTV footage of the person of interest in the Parramatta Mall

246 This viewing occurred on 10 August 2006. If police were in any doubt before then they had erred, now they had further confirmation. They had a description of the shooter wearing jeans, blue and white shoes and a leather jacket. On the CCTV was depicted just such a person. Further, the man was seen to have been present at the time when the Neville brothers told police they had seen him there, and at a time proximate to when Mr Mahoney said he had revisited him. Although the plaintiff relied on 27 particulars of absence of reasonable and probable cause, those in particular I find do illustrate that absence are (b), (l), (w), (y) and (aa) of his amended pleading.

Conclusion on reasonable and probable cause

247 In conclusion on this issue, I find police lacked reasonable and probable cause from 26 July onward. Further, I find police, in particular Detective Constable Ryder, had no sufficient basis for any honest belief in the case she instituted and then maintained. I consider below under the element of malice what she made of the case from 31 July onward. There I have come to the view that she knew from that day that she had erred in having the plaintiff arrested, and that she lacked reasonable grounds for continuing the proceedings, but kept them going in the hope some incriminating evidence would turn up. In other words, relevantly to the reasonable and probable cause issue, I find she also appreciated from that day there was no reasonable and probable cause. My reasons for that finding are the reasons I have made for the finding on the malice issue that she knew from 31 July onward the case lacked reasonable and probable cause. It follows that even if I accepted her evidence (which I do not) that she honestly had the view there was reasonable and probable cause, I consider she did so on an insufficient basis.

248 I appreciate there were later times, such as when police became concerned witnesses were being manipulated or interfered with, when police were right to be concerned. Mr Neil referred in that context to the diverting effect Mr Dandan's efforts had had on the investigation. But the two witnesses at court on 9 August said they were there to see, in effect, if the police had the right man. One such concerned witness was the victim, and the other, his friend. The information from Mr Bartholomew Mahoney came along on 15 August, and was later, in important respects, withdrawn. As I note below, his evidence, whilst potentially disturbing, included that the same witnesses wanted to know if the police had the right man. I conclude that nothing to do with Mr Dandan could create a case which had never existed.

Malice

249 I propose now on the question of malice, to deal with the same 27 particulars alleged in [33] of the plaintiff's pleading. I shall set out each of them in full, and comment on them one by one.

(a) Failing to conduct an identification parade at an early time following a request by the plaintiff for an identification parade on the day of his arrest.

250 It does seem extraordinary that it took police three weeks to organize an identification parade. But there were in evidence contemporaneous documents such as letters and memoranda, showing the steps police took. Detective Constable Ryder said it had not been possible to arrange it on the night of the arrest, though she conceded he had asked for one as soon as he was arrested. His solicitor told the Local Court he would participate in a line up, provided his solicitor was present. That was on 26 July. On 27 July Detective Senior Constable Clingan wrote to the plaintiff's solicitor with an official request for him to participate. On 28 July the solicitor for the plaintiff wrote to Detective Constable Ryder confirming the plaintiff had agreed to take part. Concern was expressed in that letter about delays, given memories can fade. Because the plaintiff was in custody there were coordination problems, I am satisfied. Detective Constable Ryder wrote to the Department of Corrective Services (DCS) on 2 August asking that the plaintiff be taken to Bankstown Police Station for the identification parade. On 7 August the plaintiff's solicitor wrote to Detective Constable Ryder noting no response had been received to his request for an identification parade. On 8 August she confirmed what I infer she had told the solicitor on the telephone, that she awaited word from the DCS. On the same day she followed up with the DCS. On 9 August Detective Sergeant Davey arranged with DCS for the parade to occur shortly before the next time the plaintiff was to appear in court. Eventually it was held on 15 August. I accept Mr Neil's submission that police had to find a suitable group of people to participate in the parade, and that the parade was arranged as soon as practicable. I do not see the delay in arranging the parade as evidence of malice.

(b) Continuing with the charges against the plaintiff following the identification parade held on 15 th August 2006 and failing to advise the magistrate on the bail application that the plaintiff was not identified by 5 witnesses.

251 Mr Neil made the point that the magistrate was advised by the plaintiff's solicitor of the outcome of the identification parade, and was not contradicted by the prosecutor. I observe that the vice in the misleading facts sheet continued to have its effect at this hearing. The first things the magistrate asked for were the facts sheet and antecedents. ( Local Court (LC) T 1.41 on 16/08/06. ) The prosecutor did not volunteer the fact that none of the eye witnesses had identified the plaintiff as the offender. I infer that was because he had not been told. Detective Constable Ryder was not at court that day. But in the end I did not understand Mr Kennedy to rely on what the magistrate was not told. Rather, he relied on the fact that the police had maintained the proceedings beyond the date of the identification parade, as evidence of malice. There is no doubt that on 17 August 2006 the police prosecutor put as facts to the magistrate things which were quite wrong. ( LC T 32. ) For example he asserted the plaintiff had admitted to police he had killed someone. What he had been told by investigating police I do not know. If he was told that by investigating police, that might be evidence of malice, but there was no evidence about the source of that significant misstatement to the court.

252 As I have noted above, police were unmoved by the outcome of the identification parade, and began to concentrate on Mr Dandan, who may or may not have offered inducements to witnesses to say the plaintiff had not been the offender. As I understand it, it was the concern arising from what he told police that is said to have caused them to continue to pursue the plaintiff. It is noteworthy that when they seemed certain the plaintiff was the offender, such as on 21 July, police did not seem to regard description as important, whereas at least by 31 August, police had, I infer, decided that descriptions were important, as they eliminated Mr Dandan as a suspect, based on his looks: [p.199A Ex A]. I shall return later to consider this allegation with others.

(c) Suppressing the results of ballistic testing, DNA testing, finger print testing and or gunshot residue testing, which would have exonerated the plaintiff and failing to advise the magistrate of the results of these forensic tests at the time of applications for bail and failed to inform the Director of Public Prosecutions of this information which constituted a breach of section 15A of the Director of Public Prosecutions Act 1986 as amended.

253 In fact there never were any such results and I did not understand Mr Kennedy to press this allegation.

(d) Arresting, charging the plaintiff with serious offences involving a presumption against bail, and persisting in the prosecution of those offences in circumstances where there was no evidence of the plaintiff's involvement in the shooting or any reasonable circumstantial evidence of his involvement in the crime.

254 It was not the offences which involved there being no presumption of bail, but the fact that the plaintiff had convictions for indictable offences and had been charged with at least one more: see s 9D Bail Act 1978 . Mr Neil put to me additionally however that the combination of the eyewitness evidence and the CCTV footage amounted to more than reasonable circumstantial evidence of the plaintiff's involvement in the offence: the eye witness evidence he said was the evidence of Jeremiah Mahoney and of Mr Silver. I shall return to consider this with others.

(e) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn alibi evidence exonerating the plaintiff, sworn evidence from the victim of the shooting exonerating the plaintiff, and evidence from a witness of the shooting exonerating the plaintiff.

255 I do not consider this of itself indicative of malice. Police were entitled to be cynical about alibi evidence given by the plaintiff's girlfriend. As to persisting with the prosecution in the face of the evidence in the Local Court from Jonathan Bright and Jeremiah Mahoney, it is not strictly correct to say that each gave evidence "exonerating" the plaintiff. Their evidence was consistent with and confirmatory of statements each had given police shortly after the incident. As I have observed, this evidence, with all the other evidence, was significant. But of itself, it is not necessarily evidence of malice. I shall return to consider this with the others.

(f) Falsely representing to the magistrate that the colour of the assailant's top was orange and that the colour of the top being worn by the plaintiff at the Coles service station was also orange when the video material indicated it was fire engine red.

256 Detective Constable Ryder did not herself make any representations to any magistrates. So this cannot be evidence of malice

(g) Failing to disclose to the magistrate that the description of the plaintiff did not match the description of the assailant provided to the police by witnesses to the shooting.

257 My observation under (f) applies here.

(h) Persisting with the prosecution of the plaintiff in circumstances where the description of the plaintiff, including the clothes he was wearing on the night of the shooting, did not match the description of the assailant or the clothes the assailant was wearing provided to the police by witnesses to the shooting.

258 Of itself, given the coincidence of time and place for the Coles store visit by the plaintiff, this, in the first few days after the offence, was not, in my view, evidence of malice. As time went by however and more evidence exculpatory of the plaintiff emerged, the position changed. I shall return to consider this with others.

(i) Failing to disclose to the court the statement of a witness to the shooting, Jeremiah Mahoney, that the shooter had been seen and identified at the premises where the shooting occurred at a time when the plaintiff was incarcerated.

259 What I have said under (f) applies here. Mr Hutchings submitted that the plaintiff was in effect submitting there had been a breach here of the prosecutor's obligation of disclosure: Cannon v Rochford & Ors [2002] VSCA 84 and that no action could be brought for breach of that duty. But I do not consider that is what the plaintiff is alleging here or in any other particulars.

(j) Failing to disclose to the court that the clothing worn by the plaintiff and depicted in the CCTV footage which was available, did not match the clothing identified by witnesses as being worn by the shooter at the time of the offence.

260 What I have said under (f) applies here.

(k) Failing to inform the magistrate of material information obtained in the course of investigations, including:

The description of the assailant and the clothing he was wearing which would have exonerated the plaintiff;

The results of forensic tests which would have exonerated the plaintiff;

The result of identification parades.

261 What I have said under (f) applies here.

(l) Charging the plaintiff with serious offences and proceeding with the prosecution of the offences in circumstances where the witnesses to the shooting positively identified somebody as the shooter other than the plaintiff.

262 There is no doubt that police had evidence from eye witnesses which positively identified someone other than the plaintiff as the shooter. From 20 July that evidence began to emerge: and more of it emerged each time another witness was interviewed. I shall return later to consider whether this on its own or with other factors, constituted malice.

(m) Maintaining the allegation that the plaintiff was guilty of a serious offence on the balance of probabilities until 1 December 2009.

263 The statement of claim was issued in 2008. Until 1 December 2009 the defendant maintained in its pleading that the plaintiff was guilty of the offences. That was a somewhat remarkable assertion. On that date the assertion was dropped, when an amended pleading was filed. The defendant called no evidence to explain either pleading. Whilst to continue to make the assertion, on its own, that the plaintiff was guilty, is not necessarily evidence of malice, it is open to that interpretation. However, Mr Kennedy did not specifically put to Detective Constable Ryder this was evidence of her malice, or that she had been responsible for the initial pleading. So I accept Mr Hutchings' submission that I should not regard (m) as evidence of malice.

(n) Persisting in the prosecution of the plaintiff and opposing bail when the defendant knew that the plaintiff was innocent of the alleged crimes.

264 No one called for the defendant said he or she knew the plaintiff was innocent. Nor was it otherwise proved. It is not implicit in Mr Neil's submissions that the defendant conceded that he is. Rather, what was conceded was that the proceedings had been concluded in his favour.

(o) The actions of the defendant as particularised above constituted ill-will and spite towards the plaintiff.

265 This is merely a repetition of matters I have already dealt with.

(p) Failing to advise and inform the Director of Public Prosecutions of the matters referred to above.

266 The DPP took over this prosecution on 16 September 2006. Mr Kennedy made no specific submission about this particular. There was no evidence before me as to what the DPP was told by the police. I am not persuaded this allegation is made out.

(q) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn alibi evidence of Melissa Peterson given to the Local Court at Hornsby on 26 July 2006.

267 This is dealt with under (e) above.

(r) Persisting in the prosecution of serious offences against the plaintiff in circumstances where there was sworn evidence given to the Local Court at Hornsby on 26 July 2006 by Jason Barakat, solicitor, that Sarah Bright had said to Mr Barakat that the plaintiff was not the assailant.

268 Of itself this may not have amounted to malice. However I shall return to consider this with others.

(s) Failing to include in the police brief information provided by Elizabeth Black (aka, Bright) to Inspector Platten on 23 July 2006.

269 I do not regard this failure as significant one way or the other. The information was later given in the form of statements from Ms Black and Mr Abukhaled. I have found it is obvious from those statements that Inspector Platten's document was significantly incorrect.

(t) Failing to include in the police brief information provided by Omar Abukhaled to Inspector Platten on 23 July 2006.

270 For the reasons under (s) above I do not think this was necessary.

(u) Failing to show relevant witnesses, in particular Elizabeth Black (aka, Bright), a photograph of the plaintiff which would have formed part of the defendant's CNI file of the plaintiff, which would have established that the plaintiff was not the boyfriend of Sarah Bright and therefore not the assailant.

271 As is now known, police did show the plaintiff's photograph to Ms Black as part of an array.

(v) Failure to provide to the plaintiff, the Police Prosecutor, the magistrate considering and hearing any relevant bail mention or bail application, and to include in the brief to the DPP the information contained in document entitled "CCT footage CBA Parramatta re: sighting of shooter" dated 10 August 2006.

272 Counsel for the defendant submitted there was no requirement for Detective Constable Ryder to place in the brief of evidence or put before the court the CBA CCTV footage: since he said it was "largely irrelevant" and not probative: further, Mr Thomas Neville on 17 August 2006 gave evidence in the Local Court of having seen the shooter at the Parramatta Mall. However, as police who observed the CCTV footage formed the conclusion that a person of interest in connection with the shooting could be seen on it, this I consider was a highly significant omission. I shall return to consider this with others.

(w) Persisting in the prosecution after the receipt of the information referred to in (v) above.

273 This is relevant to (v) above and what is said there applies to (w).

(x) Failure to provide to the plaintiff, the Police Prosecutor and the magistrate considering and hearing any relevant bail mention or application, and to include in the brief to the DPP the results of a photo array which array included a photograph of the plaintiff and which array was viewed by Elizabeth Black on 28 July 2006 and in which array she did not identify the plaintiff as the person known to her as "Michael".

274 This was a most significant omission. It is particularly disturbing, given the opening by senior counsel for the defendant, and the sworn evidence of Detective Constable Ryder, that no such procedure had occurred and that any such procedure would have been inappropriate. But as to this, Mr Hutchings submitted that Ms Black had not seen her daughter in Michael's company on the night of the shooting, and the mere fact she had not identified the plaintiff as Michael did not mean the plaintiff was not the shooter. He said the evidence was "only... circumstantial. It was not dispensable as to the question of the guilt or innocence of the plaintiff... [Further], there is no evidence that the existence of Exhibit AA was (or was not) communicated to the defence." ( Mr Hutchings written submission of April 2011. ) Though he conceded there was a suggestion it had not been. I shall return to consider this with others.

(y) Persisting in the prosecution after the receipt of the information contained in (x) above.

275 This is related to (x) above. The defendant submitted there is no evidence this was reviewed by the prosecutor or Detective Constable Ryder; Mr Hutchings put to me that the "best evidence" is that Detective Constable Ryder first saw it on 31 July; and anyway it did not warrant withdrawal of the charges. I shall return to consider this with others.

(z) Failure to provide to the plaintiff, the Police Prosecutor and the magistrate considering and hearing any relevant bail mention or application for bail and to include in the brief to the DPP the tape of a computer ID with Elizabeth Black (being exhibit AP).

276 This does not significantly add to (v) above. Again, the defendant's junior counsel maintained (despite Mr Neil's earlier apparent concession in address it had not been) that there was no evidence this was or was not communicated to the plaintiff. I shall return to consider this with others.

(aa) Persisting in the prosecution after the coming into existence of the tape of the computer ID.

277 This is covered by (z) above.

278 I shall now consider whether collectively, some, of the particulars made out, bear out the allegation of malice.

279 In that context, I shall consider whether I find Detective Constable Ryder brought or maintained the prosecution for some illegitimate or oblique motive, or for some purpose other than the proper invocation of the criminal law. Mr Kennedy put to me that proof of the various particulars in paragraph 33 of his client's pleading would establish an illegitimate motive, or improper purpose. He identified that motive or purpose as to cover up for her own error. I took the ultimate thrust of Mr Kennedy submission to be however that Detective Constable Ryder had launched the prosecution without sufficient cause and then maintained it, despite the progressive appearance along the way of various significant pieces of exculpatory evidence, engaging in what might be called an exercise of wilful blindness. Mr Neil, however, submitted that she had acted only through a desire to discharge her duty, and in accordance with what she had sworn to do when she became a police officer, and that she had no improper motives.

280 Given that police held back (either by accident or design) what I regard as significant exculpatory evidence until the ninth day of the trial, it was not surprising that Mr Kennedy was obliged to expand on the particulars of malice as the trial progressed. In his opening ( T 10.11 ) he referred me to [118] in Hathaway : and said "[O]nce you become aware that there is no justification, you've got to withdraw the charges." Part at least of that lack of justification Mr Kennedy submitted ( T 23.18 ) was the failure by police to include in the police brief when it was served, relevant information police had obtained from Ms Black and "another person", whom I took to be her son, Jonathon.

281 In his final address however, Mr Kennedy submitted that Detective Constable Ryder had not been frank concerning the photographic array: she had not included it in the police brief, or mentioned it to me, or to the plaintiff's solicitors after he was charged: this lack of frankness showed her motive had been malicious, he put to me. ( T 712.5. ) So was the facts sheet evidence of malice, given, he put, it had been deceptively written. ( T 712.21. ) Mr Kennedy submitted that ( T 136.45 ) her evidence that she still considered the plaintiff a suspect showed she had closed her mind: that she was incapable of appreciating he was innocent or of accepting or facing up to having made an error: further, he put that she had deliberately covered up the array evidence. ( T 765.5 to765.10. ) Mr Kennedy said:

"[A]s time went by, she must have come to the realisation that, in fact, she had completely got it totally wrong but persisted. She must have come to the realisation at a very early time that this man was innocent and did nothing about it but still persisted in the prosecution and still persisted in opposing bail. What happens when the DPP gets into it? Bail is consented to. Your honour can draw your own inference from that."

282 Mr Kennedy submitted that I would not accept that Detective Constable Ryder had an honest view that there had been a proper case for a prosecution, either at the start, or as it went along. ( T 76 8.19. ) When I questioned why a police officer would do such a thing, Mr Kennedy said: "having completely botched this up and to protect herself". At T 747.36 Mr Kennedy said:

"She's made a mistake and then she's not prepared to concede it or accept it and we have the cover up anyhow of the information relating to Ms Black... What clearer case could you have of malice [than] that? "

He said since she had not been recalled to say she had overlooked the array evidence I should infer she had lied to me about that, and had not forgotten the array. It had been her job to prepare the police brief.

283 When I put to him she might have believed him guilty, Mr Kennedy said such a belief would have been an irrational one. ( T 769.24. ) When I raised with Mr Kennedy the fact that police had evidence to suggest possible interference with witnesses, his response was that in the end there was no evidence of any such an attempt but in any event the evidence showed no more than a possible attempt relating to the two witnesses who had arrived at court on 9 August.

284 Mr Kennedy put to me that absence of reasonable and probable cause is of itself some evidence of malice: Brown v Hawkes (1891) 60 LJQB 332 at [51]; Mitchell v Heine (1938) 38 SR(NSW) 464 at 474 (per Jordan CJ); A v New South Wales at [90]. Mr Kennedy submitted I would find that here, there existed: "a motive that was improper or, alternatively... the actions of [Detective Constable Ryder] can only be accounted for by the imputation of a wrong and indirect motive": Skrijel v Mengler & Ors [2003] VSC 270. Mr Kennedy also referred me to Fleming (9 th Edition) at p. 683 for the proposition that evidence of malice may be proved by showing no reasonable person could have believed in the plaintiff's guilt.

285 The relevant part from the 9 th edition as it appears in the 10 th edition of Fleming's the Law of Torts (Carolyn Sappideen, Prue Vines, 2010) (at p. 703) is as follows:

"[I]n order to establish the prosecutor's disbelief in the plaintiff's guilt, the plaintiff must give evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not enough merely to adduce reasons for non-belief, without showing that they were in fact operative. The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed in the plaintiff's guilt, but it is not sufficient merely that the defendant had information, some of which pointed to guilt and some to innocence."

286 Mr Kennedy put that Detective Constable Ryder's maintaining the case had been due to deviousness, not stupidity. (See Clark v Molyneux , above).

Consideration and conclusion on malice

287 I bear in mind that the Court of Appeal observed in Lye v New South Wales [2005] NSWCA 282 at [59] some ineptitude in a prosecution in which a prosecutor believes there is a case to answer, and police resources and procedures are such that there is incomplete attention to and undesirable delay in the prosecution, falls short of malice. Further, it does not follow from Detective Constable Ryder's lack of frankness with me that I ought find that she brought or maintained the prosecution maliciously. It is an extraordinary proposition that a police officer who has sworn to uphold the law would knowingly maintain a prosecution in the face of powerful evidence that a person charged is not guilty. But unfortunately her lack of frankness makes it difficult for me to accept the evidence she gave about her reasons for continuing the prosecution beyond the first Local Court appearance. In A v New South Wales the High Court observed (at [83]) that proof of malice will often be a matter of inference; but it is proof which is required- not conjecture or suspicion: this element focuses on the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law.

288 As I have observed I fully concur with the reasonableness of the police in developing a suspicion after Mr Silver's phone call, that the plaintiff had been involved. But beyond 25 July, as I have found, the case lacked reasonable and probable cause.

289 But has the plaintiff discharged his onus of proving malice on the balance of probabilities, applying the principles in Briginshaw ? I have not found this an easy decision. I have begun with the assumption that the only reason any police officer would usually prosecute an individual is to comply with the oath or affirmation taken or given on becoming a police officer, namely to uphold the laws of the State.

290 So I acknowledge that it would be rare and exceptional for a court to find a police officer has taken or maintained a prosecution for an improper purpose.

291 I have no doubt Detective Constable Ryder considered the plaintiff was guilty of the offence as soon as she learned of Mr Silver's phone call. As I have found, however, by the time of the arrest, she lacked reasonable grounds to suspect the plaintiff was guilty. In making the findings I am about to make, I take account inter alia of my own assessment of Detective Constable Ryder's personality from my observations of her over a lengthy examination in chief and a very lengthy cross examination. To my observation, she is not unintelligent. However in giving her evidence she was most reluctant to admit she had made any error or left any stone unturned in the investigation or indeed that there was even a point of view where two minds might reasonably differ. Unfortunately, her treatment of the facts sheet shows a poor understanding of the obligations of police to be objective, and to take care with peoples' liberty. I accept her evidence that she did not know the plaintiff before the offence occurred. I accept she did not bear him any particular spite or ill will before or after the arrest. But as the authorities show, malice covers any motive other than a desire to bring a criminal to justice: Glinski v McIver [1962] AC 726,766; Rapley v Rapley (1930) 30 SR (NSW) 94,99; A v New South Wales at [55]. Mr Kennedy submitted a desire to cover up the error he said she had made would be such a motive. Further or alternatively, I took him to argue that to prosecute in circumstances of wilful blindness would be such a motive. I did not take Mr Neil to submit either would not amount to malice, though he submitted there was no foundation for any finding of malice. The conclusion I have reached is that although well aware from 31 July 2006 onwards that the case against the plaintiff was unmeritorious and bound to fail, and lacking reasonable and probable cause, she continued to maintain them in the face of that knowledge.

292 A summary of my findings and relevant facts follows:

(a) She believed the plaintiff was guilty of the offence from 21 July 2006 onward;

(b) On 25 July, the day of the arrest, she had not yet realized her error; further, as Mr Neil conceded, once the plaintiff had been arrested, police stopped looking for any other suspect; as it happened, what occurred then was that a minor avalanche of additional exculpatory evidence soon became apparent;

(c) At about 9am on 26 July police phoned Ms Black to give her the news that the shooter had been arrested: however that did not seem to put her mind at rest: she told police she was still very fearful for her safety and that of Sarah and Jonathon Bright: although police tried to reassure her they had no fears for her safety, she "claimed to know otherwise"; later that morning Ms Peterson gave sworn alibi evidence at the plaintiff's first bail hearing; she swore she had never heard the plaintiff speak of Mr Mahoney, Jonathon Bright or Sarah Bright; Mr Barrakat, solicitor for the plaintiff, swore in the course of the bail hearing, that he had spoken to Sarah Bright and had been told by her she knew nothing of the plaintiff; a description he gave her of the plaintiff did not ring a bell with her, and her accomplice on 20 July had not been the plaintiff;

(d) On 27 July Thomas Neville gave police a description of the shooter which was consistent with that given by Jonathon Bright and Jeremiah Mahoney. William Neville also gave a description consistent with that of the other eye witnesses, including that his name was possibly Michael; on the same day both men reported to police they had seen the shooter on the Parramatta Mall; police broadcast a description of him that day (consistently with those descriptions) as of middle eastern appearance, medium build, white Bonds shirt, faded blue jeans, white Nike sandshoes with blue around lower edge; on the same day, Mr Mahoney phoned 000 with a report that the shooter had revisited his unit and threatened him with a gun of the same description earlier given to police; he gave the man's name as Mick, whom he described as small, with red hooded jumper, jeans, blue and white shoes, 5' 4" to 5' 5";

(e) On 28 July police interviewed Ms Black who confirmed Sarah Bright's relationship with Michael, who drove a Commodore, whose description was consistent with that given police by others; further, on that day, Ms Black was shown the photographic array and did not recognize the plaintiff as Michael. (Given her concern for her family's safety even after she was told police had arrested the shooter, one would have expected her to have been keen to pick out her daughter's close companion.)

(f) There was evidence that Detective Constable Ryder was away from work for several days at the end of July 2006, but I infer that she knew all of the above matters by, at the latest, 31 July. She realized, I find, at that time, that an error had been made, and that the case was without merit. Whereas before that time she had treated significant exculpatory evidence as of little moment, and, at least, ignored it, from then on she either ignored it or went out of her way to denigrate it. I find she did that, realising that there was no case against the plaintiff, but hoping one would turn up.

(g) For example, I am satisfied she regarded the array evidence of Ms Black as of so little consequence she failed to tell any prosecutor of it or the plaintiff's then solicitors; she had, as I have found, forgotten about it by the time of the trial, so that she denied to me on oath such an array could occur or had occurred, and maintained such a thing would have been improper and against the plaintiff's interests.

(h) She treated the incident at court on 9 August as one where the plaintiff was trying to intimidate witnesses, However it must have been clear that the two witnesses were puzzled about the arrest of the shooter when they had seen him at large after the plaintiff's arrest. That is not how she treated their attendance at court to inspect the plaintiff; she noted the incident in police records as one of intimidation by Mr Dandan.

(i) Although police records of 10 August described the person seen on the CCTV at the Mall on 27 July as "a person of interest as described by the victim and witness" she said to me in evidence that at that point she had not put an end to the proceedings as "I still believed there was sufficient evidence for the matter to proceed".

(j) Although she took a careful and detailed statement from Mr Jeremiah Mahoney on 12 August about the shooter's visit to his unit and threats, she placed a note on police files later on the same day saying:

"After obtaining the statement Mahoney stated to police that he was only about 50% sure that it was the same person. He admitted that he only saw the person for a couple of seconds in a dark stairwell."

She was not able to explain adequately to me why that was not in the statement.

(k) Her recognition of her difficulties caused by having no identification evidence may be seen in her request to Sarah Bright's solicitor on 13 August not to show her a photograph of the plaintiff, in case police might want to use her to identify him.

(l) I infer her acknowledgement the case was in trouble may be seen in her memo to Mr Rapp on 13 August noting:

"[T]he most important link at this stage we need to establish is between Zreika and Sarah Bright."

(m) As if she needed more reminders of the problems for the case, there was the identification parade on 15 August when, consistently with the evidence gathered before and after the arrest, no one associated with the shooting identified the plaintiff.

(n) Even when Mr Bartholomew Mahoney gave his curious and disturbing statement on 15 August and said Mr Dandan had become involved, he confirmed Mr Dandan had asked Bartholomew Mahoney and Thomas Neville to go to court on 9 August "so they could see if it was the guy that shot him". The mention of money was treated by her as a bribe not to tell the truth, rather than to tell it.

(o) When Bartholomew Mahoney told Detective Constable Ryder on 23 August he may have been wrong about the bribery aspect, and wanted to amend his statement, she made an appointment to take an amended statement but then broke the appointment and never took another statement from him.

(p) She spoke to Ms Black on 24 August, when, again, Ms Black expressed concern for the safety of her family; she told her she believed Michael had been with her daughter on the night of the shooting.

(q) She noted on 4 September 2006:

"[P]olice have no further evidence to ... assist in the prosecution of Zreika."

(r) On 28 August 2007 when looking back at the events of 2006 she noted:

"[I]nformation was received that witnesses were bribed to not identify Zreika by his cousin, Khaled Dandan...Investigators first became aware of [an] association between Bright and [Michael] Farrugia on ... 14 August 2007."

(s) On the same day she wrote:

"Farrugia... is considered a person of interest in relation to this investigation."

(t) On 27 February 2008 she wrote:

" Farrugia matches the description of the offender as described by the witnesses."

(u) When giving evidence to me in March 2001 she said Farrugia did not meet the description as described by witnesses.

293 Neither she, nor any other police, have pursued Michael Farrugia. (Whether this was because to have done so might have been seen to be an admission of error in these proceedings, was not explored before me and I do not speculate about it.)

294 I find she knew from 31 July 2006 she had erred in arresting the plaintiff, and that she lacked reasonable cause for the prosecution but she maintained the case thereafter with that knowledge, hoping she would find enough evidence against him. I find that had she recommended it to her superiors on or at any time past that date and before it was in the hands of the DPP, they would have accepted her recommendation to have the charges dismissed. I find further that no reasonable person could have believed in the plaintiff's guilt beyond 31 July 2006. Particulars proved and collectively supportive of that finding are (b), (d), (e), (h), (l), (r), (v), (w), (x), (y) and (z).

.

295 It follows that the plaintiff has established both of the elements of the tort of malicious prosecution which were in issue. There will be judgement for the plaintiff on that count.

Damages

296 Mr Kennedy submitted that I would award compensatory damages of $100,000 if I were to find this count established. Bearing in mind the period he was in custody was about two months, and that the DPP took over the prosecution on 16 September, the damages awards on the other counts, and my concern overlapping does not occur, I consider the appropriate award should be $75,000. In maintaining the prosecution as she did, I regard Detective Constable Ryder's conduct as contumelious. Her employer needs to pay a substantial sum for exemplary damages so it will learn that police need to be educated and guided properly and not treat suspects in the base way Detective Constable Ryder treated the plaintiff. Police should understand that people's liberty is not to be trifled with. As the court of appeal said in Adams v Kennedy [2000] NSWCA 152 at [36]:

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

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

298 As to the Citibank loan, there was no argument addressed to me about whether, in the light of the rule in the Liesbosch Dredger case, ( Liesbosch, Dredger v Edison,S.S. (Owners) [1933] AC 449 ) I should not award the interest the plaintiff is liable for, because he lost his business and ability to repay the loan. However I have in mind what the High Court said in Fox v Wood (1981) 148 CLR 438 per Gibbs CJ at 441-2 and per Murphy J at 442, concerning impoverished plaintiffs rendered so by a defendant. (Unfortunately the argument on this whole economic loss issue was somewhat underdeveloped). I do not consider the plaintiff is entitled to both compensation for his defence costs, and a sum to cover the principal and interest on the Citibank loan. I took the plaintiff to say he had met his defence costs by using the capital borrowed from Citibank. Since the defence costs were $23,694, and the loan $30,100, the balance, $6,406, I infer was applied for personal expenses. He is, I consider, entitled to an amount to cover the interest on that part of the capital used for defence costs. The sum of $23,694 is approximately 79% of the sum borrowed. The sum outstanding at the time of trial was $37,268 for capital and interest, only one payment having been made. I consider the plaintiff should recover a sum representing his costs and 79% of what I calculate to be the interest component of $7,168, or $5662. Thus under this element of damages the amount should be $23,694 + $5662 = $29,356.

299 As to other economic loss, Mr Neil submitted there is no possible basis to assess "loss of contract or opportunity costs." However I consider it appropriate to award a sum for the loss of eight weeks income, which I assess to be $5000.

Conclusion

300 The plaintiff has succeeded in all three pleaded causes of action. Damages will be:

(a) Wrongful arrest	$50 000
Lost income	$500
Aggravated damages	$10,000
(b) Battery	$10 000
(c) Malicious prosecution (compensatory)	$75,000
Exemplary	$100,000
Aggravated	$25,000
Defence costs and interest component	$29,356
Economic loss	$5,000
Total	$304,556

301 There will be judgement for the plaintiff. I will hear counsel on interest and costs.

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Decision last updated: 15 July 2011