Beck v State of New South Wales; Beck v Commissioner of Police New South Wales

Judgment Introduction 1On 17 November 2006 a court attendance notice was issued against the plaintiff, then a constable of police, charging him with conducting himself in an offensive manner in a public place, an offence under s 4(1) of the Summary Offences Act 1988. The court attendance notice was issued by one Sergeant Kevin Sullivan, who was identified as the prosecutor. The notice was served on the plaintiff on 16 November 2006. On 10 January 2007 the plaintiff's solicitor appeared in the Local Court and entered a plea of not guilty on his behalf. On 24 January 2007, he made written representations to the Director of Public Prosecutions requesting that the criminal proceedings be withdrawn. The brief of evidence was served on 9 February 2007. On 20 February 2007 the Director directed that no further action be taken in respect of the notice and, on 21 February 2007 the charge was accordingly withdrawn and dismissed. The plaintiff commenced proceedings in this Court against the State of New South Wales for malicious prosecution. The defendant accepted that the crucial question is whether Sergeant Sullivan had reasonable and probable cause to institute proceedings. 2On 12 October 2007 the Commissioner of Police issued a notice directed to the plaintiff under s 181D of the Police Act 1990 informing him that the Commissioner did not have confidence in his suitability to continue as a police officer and giving him an opportunity to make written submissions in relation to his proposed removal. On 16 August 2007 the plaintiff's increase in rank from level 5 constable to level 1 senior constable was deferred, in other words, refusing to promote the plaintiff from level 5 constable to level 1 senior constable. The s 181D proceedings were brought to an end when the Commissioner did not remove the plaintiff from the force. His pay was reduced by virtue of another process under the Act. Some time later, a fresh notice under s 181D was issued and, on 30 November 2010, the plaintiff was removed from the police force. The plaintiff also commenced proceedings in this Court seeking prerogative relief in respect of the decisions to defer his promotion and reduce his pay level. Both proceedings were heard together, it being agreed that the evidence in one was to be regarded as evidence in the other. 3The plaintiff has taken separate proceedings in the Industrial Relations Commission for reinstatement. The facts leading to the charge 4On the night of 24 September 2006 the plaintiff, who was off duty, went with friends to several nightclubs in Oxford Street, Sydney. He drank consistently during that period, estimating that between 11 pm and 3 am he consumed 10 standard drinks. At about 3 am he and his friends (Mr Saba, Mr McHenry, Mr Barringer and Ms Shillitoe) left the Stonewall Hotel to go home. The plaintiff said he was by this time well intoxicated. He walked across the road to a pizza shop where he bought a kebab. The group then walked west along Oxford Street, turning off into Pelican Street on the way to their cars. On the opposite corner was a Hungry Jack's restaurant. The plaintiff's friends, who were slightly ahead of him, crossed over Pelican Street to the western footpath and continued on whilst the plaintiff walked on the eastern side. His friends stopped outside a shop almost 40 metres from the Oxford Street intersection. The plaintiff said that he was opposite this shop on the eastern side of Pelican Street facing south namely, away from Oxford Street. He needed to relieve himself. He stepped off the footpath into the gutter and stood next to an unattended black hatchback motor vehicle which was parked next to the footpath. He stood next to the pillar more or less in the centre of the cabin, which was to his right. The roofline came to upper chest height and the body of the vehicle obscured any view of him below his waist. Aside from his friends, the street was empty both of pedestrians and motor vehicles. To his left was an empty, unlit shop. There was no streetlight in his vicinity. He was standing in the dark. There were no other cars on the same side of Pelican Street. 5The plaintiff said he needed to urinate and was unable to hold on. There were no public toilets in the vicinity. He looked around to ensure there was no one able to see him and then opened the fly of his trousers, removed his penis with his left hand, which also covered it, and urinated in the gutter between the footpath and the parked car for something less than 30 seconds. He had his kebab in his right hand. He had finished and was either closing his fly or had done so when he noticed a vehicle pull up on his right, stopping in the street slightly forward of the parked vehicle. He noticed the overhead light bar and markings indicating it was a police car. 6A police officer, who was not known to the plaintiff but he later found out was Sergeant Sullivan, alighted from the vehicle and walked around the front of the parked vehicle towards him. By this time the plaintiff had stepped out of the gutter onto the footpath. The driver of the police vehicle, whom he later discovered to be Sergeant Deas, remained inside. Sergeant Sullivan stopped on the footpath next to the front of the parked vehicle and looked at the ground, where there was a wet patch in the gutter. The plaintiff said words to the effect, "Sorry, I could not hold it, I was busting and I didn't touch the car". He pointed to the front passenger door which was dry. Sergeant Sullivan asked for identification and the plaintiff gave him his driver's licence, which the Sergeant took back to the police vehicle. The plaintiff saw Sergeant Sullivan write something on a piece of paper and then make a mobile telephone call. At this time Mr Saba crossed the road and stood next to the plaintiff on the footpath, the others remaining across the road. 7The plaintiff said that he believed that he was under arrest and not permitted to leave the vicinity since Sergeant Sullivan took his driver's licence and did not return it. He used Mr Saba's phone and contacted his station, asking who was the duty officer on shift and was told that it was Sergeant Dempsey. About 10 minutes later Sergeant Sullivan and Sergeant Deas got out of the police vehicle and approached the plaintiff and Mr Saba. Sergeant Sullivan said, "You've been in trouble with the police before". The plaintiff replied, "You already know I am in the job and attached to Kings Cross", quoting his registration number. Sergeant Sullivan asked for his warrant card but Mr Beck replied that he did not carry it when he goes out "as it gets police into trouble". Sergeant Sullivan said, "You could have gone to the SPC [meaning the Sydney Police Station]". The plaintiff replied that he would not have got within five metres of the SPC without police identification and in his intoxicated state. Sergeant Deas said, "What about Hungry Jack's"? The plaintiff replied, "The last time I was there the toilets were closed. At Kings Cross they nailed the toilet doors shut". Sergeant Sullivan said, "Who's this?" (referring to Mr Saba) and the plaintiff responded "He is with me". The officers then walked away, having a conversation. (The plaintiff said that at one point when, as I understand it, Sergeant Sullivan's demeanour was somewhat aggressive, he told Mr Saba, "Just keep quiet and take it".) Sergeant Sullivan then returned and told the plaintiff that the Kings Cross duty officer was on his way. Mr Beck replied, "That will be Sergeant Dempsey". 8About ten minutes later Inspector Birley and Sergeant (then Acting Inspector but, for convenience, I refer to his substantive rank) Dempsey arrived. The four police officers then talked for about 10 minutes before Sergeant Dempsey approached the plaintiff and said, "They want to charge you because you were a smart ass". The plaintiff said, "I wasn't, I apologised, I was trying to explain". Sergeant Deas and Sergeant Sullivan then came up and Sergeant Dempsey responded, "I'm disappointed, given the current issues at Kings Cross, you should have known better". (As the plaintiff understood it, these issues concern police stationed at Kings Cross consuming alcohol in the area when they were off duty, getting into trouble in licensed premises and producing their police identification in these situations). The plaintiff responded, "I might be gay but I am not that gay to be pissing in the middle of the road" and Sergeant Demsey said, "You're pissed, go home and we'll deal with it in the morning", returning his driver's licence. The plaintiff then went to the car and was driven home. 9I interpolate that, in Sergeant Sullivan's statement he said Sergeant Dempsey approached the plaintiff and said, "Aaron you have committed an offence and from what I have been told you have been smart from the start", to which the plaintiff responded, "Look I know I am a fag but -- ", Sergeant Sullivan interjecting, "The fact that you are a fag has nothing to do with this. You were by yourself when we first saw you urinating on the street and you came to our notice because you were in full view of Oxford Street, Hungry Jack's and at no time did you make any attempt to conceal yourself. You blatantly committed an offence and you tried to pretend that you had nowhere else to go and you clearly had other options". The plaintiff said in evidence that he had and never used the word "fag" either of himself or anyone else. It is (as is undoubtedly the case) an offensive, derogatory and homophobic term. He said that, if he had noticed it being said, he would have objected at the time. (I interpolate that I am satisfied that the plaintiff did not use the word. Why Sergeant Sullivan decided to put it into his statement, knowing - as he must have - that it is a term of abuse is unexplained.) 10In cross-examination, the plaintiff said that his response to Sergeant Dempsey mentioning his being gay was to an allegation which was put to him by Sergeant Dempsey that he was urinating in clear sight. This allegation is not adverted to in his affidavit, nor as I understand it, in any of the statements that he made about the circumstances. However, I am minded to accept his evidence that his response was indeed to an allegation to the effect about his urinating in clear sight even if the words "middle of the road" were not exactly used. I accept the plaintiff's explanation that its omission was an oversight. To my mind nothing turns on this. (I mention also that the plaintiff also recollected in cross-examination that, when Sergeant Sullivan first approached him, he believed that he said, "What are you doing?" or words to that effect. This again was omitted from his affidavit, about which he was cross-examined. Again I do not think that this omission matters.) 11The plaintiff was cross-examined about the Hungry Jack's restaurant, which was depicted in a photograph exhibited to his affidavit and showed windows on the first floor. It is evident that no one standing or sitting adjacent to those windows could have seen any part of the plaintiff's person if he was facing away from Oxford Street, even if he had not been obscured by the vehicle. 12The plaintiff's friends who were with him that night gave evidence, except for Mr Barringer, whose absence was explained. The first of these was Ms Schillitoe. She said that she was with Mr Beck, Mr Saba, Mr McHenry and his friend Mark (Barringer) on the evening in question. They went to several nightclubs in Oxford Street and about 3.00am they left the Stonewall Hotel. Her recollection was that that they all crossed Oxford Street to the pizza store opposite, where the four men bought food while she stayed outside smoking. They then crossed Oxford Street and turned left into Pelican Street walking towards the lane way where the car was parked. She was talking with Mr McHenry and turned around to see the plaintiff on the opposite side of the road. The plaintiff was standing behind the centre of a parked car, facing down Pelican Street. She could only see his head and shoulders. 13Ms Shillitoe saw the police vehicle turn from Oxford Street into Pelican Street and stop in the middle of the road. She saw a policeman approach the plaintiff and a few minutes later Mr Saba left the group and went to stand next to him. About five minutes later, after seeing the plaintiff talking to the police officer Mr Saba returned and told the group to go home. She then left with Mr McHenry and Mark. She said that at the time there was no one else around and no one walked past or drove past while she was on Pelican Street. She said that it was very dark. She could not recall whether there was sufficient light to make out his features but she could see the plaintiff's face in silhouette. She was certain that the plaintiff was facing down Pelican Street with his back to Oxford Street. She could not remember if he was eating or not at that time. The plaintiff was intoxicated and she remembered him slurring his words. 14Mr Ashley McHenry also gave evidence. He had known Mr Beck for almost five years and was in his company, together with Mr Saba, Mr Mark Barringer and Ms Schillitoe on the night of 24 September 2006, when they attended two bars in Oxford Street. At about 3.00am they left the Stonewall Hotel with the plaintiff, who was affected by alcohol but still ambulatory. They crossed the road to obtain food at a pizza store before walking along Oxford Street and turning left onto Pelican Street to go to the car. Except for the plaintiff, the group stopped opposite the wig shop about 15 metres south of Hungry Jack's. He saw the plaintiff standing across the road opposite them behind a parked car. He could see his head and the top of his shoulders facing down the street with his back to Oxford Street. He was standing behind the centre of the parked car and Mr McHenry could not see what he was doing. There were no other people around. He saw the police car turn into Pelican Street from Oxford Street and stop in front of the parked car in the middle of the road. He could not hear what was being said. He remembered Mr Saba crossing the road and standing beside the plaintiff whilst police were talking to him. About five minutes after this, the group went to the lane way to where the cars were, Mr Saba joined them about 15 minutes later saying that the plaintiff was in trouble and opened the car before returning to the plaintiff. After about 10 minutes Mr Saba and the plaintiff returned and they drove off. He said that in Pelican Street it was dark, there was not a lot of street lighting and, as I gathered, the plaintiff was standing too far down for him to be illuminated by the light from Hungry Jack's. He confirmed that, although he and the plaintiff were close friends, he had never heard him use the word "fag", either of himself or of anyone else. He conceded that he was affected by alcohol, as were other members of the group, except for Mark Barringer and Mr Saba, who were the nominated drivers. He said that he could see the plaintiff clearly, apart from that part of him which was obscured by the car behind which he was standing. He thought that he could make out the plaintiff's features as distinct from a mere shadowy face. 15Mr Saba's evidence was, in substance, to the same effect of the other witnesses, in particular confirming the direction the plaintiff was facing. He had known the plaintiff for about eight or nine years who had never used the word "fag" either of himself or others. He confirmed that the word "fag" is offensive in the gay community. He remembered seeing the plaintiff with a kebab in his mouth (as the plaintiff conceded may have been the case at one stage). It was dark; it was not pitch black but there was not enough light to actually see the plaintiff's features. He saw the police car arrive and the officer alight and speak to the plaintiff. He saw the plaintiff hand one of the officers what he thought was his driver's licence and return to the car to make enquiries. They were both in the car when he went over to the plaintiff. He was present at some conversation between the police and the plaintiff but he did not recall what was said, although he would not describe the officers as being polite. He saw two other officers arrive in due course. He recalled the plaintiff saying to the "duty officer" (identified to Mr Saba by the plaintiff) something about being gay but he does not remember how this came to be said. Shortly after he left with the plaintiff. 16It will be seen that the evidence of Ms Schillitoe, Mr McHenry and Mr Saba largely support the evidence of Mr Beck. The distance between the intersection of Oxford Street and where the plaintiff was standing was later measured by the plaintiff with a wheel measure. When the witnesses were taken to photographs of the scene, their evidence, as I viewed the photographs, supported the distance of 38 metres to which the plaintiff deposed. Estimation of distances is difficult and I am satisfied that the lesser distances to which they deposed were mistaken. I accept the plaintiff's evidence on this point. Although there was some inconsequential cross-examination as to how their affidavits were prepared, there was no cross-examination that suggested either that they were unreliable or untruthful, let alone that they had put their heads together to give evidence in favour of their friend. I thought they were candid and reliable witnesses. Application for a verdict 17 At the close of the plaintiff's case for damages the defendant made an application under r 29.9 of the Uniform Civil Procedure Rules 2005 for what used to be called a non-suit. Since the plaintiff declined to argue the question raised by the application, the Court could not make an order (sub-rules (3) and (4)) and the defendant was required to elect either to adduce evidence or make application for a verdict under rule 29.10 (sub-rule (5)). 18The defendant to elected to make an application under r 29.10 for judgment on the ground that "on the evidence given, judgment for the beginning party [here the plaintiff] could not be supported". A conclusion as to whether "a judgment for the plaintiff could not be supported" must take the evidence at its highest in favour of the plaintiff: see, eg, Hunt v Watkins [2000] NSWCA 229; (2000) 49 NSWLR 508 per Stein JA (with whom Fitzgerald and Heydon JJA agreed) at [9] - [10]. The plaintiff tendered as annexures to his affidavit, the statements of the police officers. It is sufficient to say that those statements contradicted the evidence of the plaintiff and the plaintiff's witnesses in significant respects. It was submitted by Mr Hutchings, counsel for the defendant, that, as these statements were tendered by the plaintiff without any limitation as to the use to which they might be put, they provided evidence, not only of what the officers said but also of the facts which they asserted. He submitted that, in considering whether judgment should be given for the defendant, I should treat the favourable evidence of the plaintiff and his witnesses as having been qualified by the unfavourable evidence constituted by the police officer's statements and tendered in the plaintiff's case. I accept that the assertions of fact in the police statements are evidence of those facts. However, the application of the rule requires me, as I think, to disregard those parts of the statements of the police officers which contradicts or qualifies the evidence favouring the plaintiff. 19Mr Hutchings also submitted that, even accepting (for the sake of argument) that, insofar as the officers' statements contradict or qualify the plaintiff's evidence they must be disregarded, the plaintiff's own account demonstrates that he had committed the offence with he was charged. Since it is an essential element of the tort of malicious prosecution that the plaintiff be innocent of the charge for which he or she was prosecuted, it followed, so Mr Hutchings argued, that the defendant was entitled to judgment. The elements of the offence 20At the relevant time, the Summary Offences Act 1988 provided - 4 Offensive conduct (1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty: 6 penalty units or imprisonment for 3 months. (2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language. (3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. Mr Hutching quoted in his written submissions an observation made in Ball v McIntyre (1966) 9 FLR 237 at 241 by Kerr J in respect of s 17(d) of the Police Offences Ordinance 1930-61 (ACT), creating an offence of behaving in a public place in an "offensive ... manner" - Conduct which offends against the standard of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. (Italics added.) (Regrettably, the defendant's written submission, in quoting the last sentence omits the words in italics, thus completely reversing the sense of the passage. It is difficult to understand how such a mistake came to be made.) It is worthwhile, I think, to set out the preceding passage in his Honour's judgment which gives a context for the concluding words. His Honour referred to Anderson v Kynaston [1924] VLR 214 in which the court considered, the word, "offensive" in connection with the associated words "behaviour", "manner", "view or hearing" and "public place", commenting that they suggested that the test was objective. His Honour went on to briefly summarise some parts of the judgment, which pointed out that the section was concerned with the "preservation of order and decorum in streets and other public places", noting that "offensiveness may sometimes include that which is hurtful or improper... [and care] must be exercised before a substitution is made of either of these words for the word actually used" namely "offensive" which "refers to something... much more direct than conduct which may ultimately turn out in a broader sense to be hurtful to a person's future disposition or character". Kerr J then went on to point out that, merely because conduct might be hurtful, blameworthy or improper, and therefore might offend, is not sufficient to constitute offensive behaviour within the meaning of the section. Citing, Worcester v Smith (1951) VLR 316, Kerr J said - ... The behaviour to be offensive would normally be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man. The word "offensive"... [in the Ordinance] is to be found with the words "threatening, abusive and insulting" all words which, in relation to behaviour, carry with them the idea of behaviour likely to arouse significant emotional reaction. I agree with O'Brien J [in Worcester v Smith] that offensive behaviour is behaviour calculated to produce such emotional actions in the reasonable man. I note that the connected terms to which Kerr J referred are not present in the New South Wales legislation but, to my mind, that does not make his Honour's observations less apt. 21In R v Smith [1974] 2 NSWLR 586 the court considered whether a defendant who had, to use the accurate enough vernacular, given the finger to a police officer who had asked him to move on could be guilty of behaving in an offensive manner within the meaning of s 7 (as it then was) of the Summary Offences Act 1970. Street CJ (with whom the other judges on the court agreed) pointed out that the word "offensive" in the section was part of a series of adjectives which included "riotous", "indecent", "threatening" and "insulting". His Honour pointed out (at 588) - It is to be observed that the word "offensive" does not stand alone in the section. The operative word creating the offence is the verb "behaves". The modification imported by one or other of the five manners which then follow is to be construed in the light of the central direction of this section being towards behaviour. It is behaviour in a riotous manner, or behaviour in an indecent manner, or behaviour in an offensive manner, in a threatening manner or an insulting manner which constitutes the offence. It is not an offence simply constituted by the one word "offensive"... The word has its own meaning, and its own meaning is to be determined by reference to this context in the section. Street CJ pointed out the danger of using other adjectives or adverbs in an attempt to refine the meaning to be attached to the word "offensive" and concluded - ... I have no difficulty in concluding that the offence constituted by the words "behaves in an offensive manner" means behaviour of the character generally described within the third of the Oxford English Dictionary's meanings, that is to say, offensive in the sense of giving, or of a nature to give, offence; displeasing; annoying; insulting. No one of these words in the dictionary is a precise alternative to the word "offensive". The word has its own meaning, and its own meaning is to be determined by reference to this context in the section... His Honour concluded that the defendant's gesture was capable of constituting behaviour of the prohibited kind. 22I should mention the judgment of McClemens CJ at CL (ibid at 589-590) who pointed out that the offensive manner was the gesture, observing that its "offensiveness requires no exegesis, especially when it is made in a deliberate, defiant, provocative fashion..." 23Since the other behaviours are no part of the present section - indeed words are expressly excluded - the meaning of the word "offensive" as explained in R v Smith must be treated with some caution. However, it seems right to approach the present offence by avoiding an attempt to apply other synonyms to the adjective "offensive" and focus on the anticipated response of the reasonable person who might have witnessed the conduct in question. 24In Stutsel v Reid (1990) 20 NSWLR 661 Loveday J considered whether an offence of using "any unseemly words within view or hearing from a public place" had been committed where the words in question were directed to police who had come onto the property and were spoken three metres from the street. The judge below had held that he was not satisfied that the words which were the subject of the charge were in fact uttered by the appellant and, if it had been relevant, he would also have found that the words were within hearing from the street but, at all events, concluded that the prosecution had to prove that there was present in the street, a person who could have heard the words which were the subject of the charge. Citing R v Benson (1882) 8 VLR (L) 2, (to which I will come) his Honour held that the offence is made out despite absent of proof that there was anyone in the public place to be offended, of course, upon the basis that the words spoken were capable of being heard by such a person were he or she present. In Benson, the justices had convicted the defendant for wilfully and obscenely, in view of a public street exposing his person. The defendant submitted that there was no evidence that the wilful exposure was seen by, or in the view of, any person in the street, it having occurred in a private yard and was not seen by any person in the street. The Full Court said (at 5) that "It was quite unnecessary to prove that the prisoner was actually seen by any one in the highway when he was exposing himself; it is sufficient that he was in view and could have been seen by any person there". The nature of the wilful exposure was not described in any way and the court was concerned with the question, not whether it was offensive but whether the exposure was "in view" of the highway. Stutsel v Reid was similarly not concerned with whether the language was indecent but whether, the words being uttered on private land and not in fact being heard by any person in the adjacent street, the offence was nevertheless made out. Whether words are unseemly or exposure is wilful does not depend on the presence of another person. Reliance by Mr Hutchings of counsel for the defendant on these cases as authority for the proposition that it was immaterial that, as it happened (given the plaintiff's positioning of himself and the concealment of his penis with his hand) no-one could have seen the plaintiff's person is misplaced. To be "offensive" requires the conduct to be at least capable of being observed by some person who is in a position to do so. 25This is demonstrated by Spence v Loguch (unreported NSWSC 12 November 1991), in which Sully J considered an appeal by way of case stated from an acquittal in which the learned magistrate found the facts as follows - Between 10.30pm and about 11.00pm on October 5, 1990 the [appellant] was passing the Park Beach Hotel in Ocean Parade, Coffs Harbour in a police car when he observed the [respondent] to urinate against a brick wall outside the beer garden of that hotel in Ocean Parade. ... [At] the time the respondent [was] so observed, apart from a male companion of the respondent, there were few if any people in the near vicinity - and if there were anyone in the vicinity they would have been only the few stragglers that were left at the bar". The grounds for the magistrate's determination was her view that the subject of the charge was not offensive as such and that, unless there was some person present to whom the conduct could give offence, it could not be offensive within the section. In substance, as the reasons of the magistrate stated, there was nobody around to whom any offence could have been given. Sully J held that the concepts of the reasonable person and the impact of the relevance surrounding circumstances were "integral parts of the resolution of the question whether, in any particular case, impugned behaviour was to be regarded correctly as offensive behaviour of a kind and in a sense apt to attract the sanctions of the criminal law". His Honour pointed out that it was not necessary that there be evidence that a reasonable person was in fact offended but it is sufficient that "such behaviour occurred in a place where the presence of members of the public might reasonably have been anticipated; and in circumstances where such behaviour could be seen by any member of the public who happened to be present if he were looking...", citing Inglis v Fish [1961] VR 607 at 611. 26On the facts here, (putting aside the contrary evidence of the police sergeants) it is clear that there was no person at all in the vicinity who was capable of seeing what the plaintiff was doing. It follows that, on the plaintiff's account, he had committed no offence. It will have been noticed that it has not been necessary to consider the effect of s 4(3). If the plaintiff's evidence be accepted (as it must, for present purposes), he was unable to prevent himself from urinating. This must be a reasonable excuse and, on that ground as well, he has committed no offence. 27I should mention, by way of parenthesis, in undertaking this discussion, I have been prepared to assume that the defendant is entitled to attempt to show the plaintiff's guilt of the offence charged upon a basis very different from that particularised by the statement of facts annexed to the court attendance notice (to which I refer below). I doubt that, in the circumstances here, this is the correct approach. The statements of the police officers 28Sergeant Sullivan made a statement about the facts on 26 September 2006 as follows - Background: Complaint: That off duty Constable Aaron Beck was behaving in a manner consistent with offensive conduct, (urinating in plain view of the public) in Pelican Street, Surry Hills at 3.20am on Monday 25th September, 2006. About 3.20am on Monday 25th September, 2006 Sergeants Kevin Sullivan and Tony Deas, Supervisors attached to the Surry Hills LAC were patrolling in Oxford Street Surry Hills in a marked Police vehicle, Surry Hills 14, a Mitsubishi sedan registered number AB 66 BV, serial number 66674. Sergeant Deas was driving the vehicle and turned left into Pelican Street. Immediately both Sergeants Sullivan and Deas observed a male person dressed in beige coloured army style pants, a black singlet with a "Diesel" motif and joggers standing on the eastern footpath of Pelican Street with his penis exposed and urinating towards the gutter. There was a black Peugeot hatch back NSW registration XRS-206 parked on the eastern side of Pelican Street and the male person was standing on the footpath adjacent to the rear near side of this vehicle and urinating towards the gutter. There was no other vehicle parked on Pelican Street between Oxford Street and the location of this black Peugeot and the male person was in clear view of patrons talking on Oxford Street and also numerous patrons who were sitting in the Hungry Jacks premises which is located on the corner of Oxford and Pelican Streets. Sergeant Deas stopped the Police vehicle adjacent to the front of the black Peugeot and Sergeant Sullivan got out of the front passenger seat and approached the eastern footpath to speak with the male person. At this time the male person was still urinating even as Sergeant Sullivan approached, the male person making no attempted either conceal himself of discontinue urinating. The statement goes on to relate the alleged conversation (which I deal with later) and concludes as follows - Comment Off duty Constable Beck was urinating in clear view of Oxford Street, the patrons from Hungry Jacks and made no attempt to conceal himself. He was continually rude and objectionable at all times and showed no remorse for what he had done until after he was directed to apologise by Duty Officer Dempsey. His exposed penis was clearly visible by both Sergeants Deas and Sullivan from the time they turned into Pelican Street from Oxford Street and even when the Police vehicle stopped, he continued to urinate showing total disregard for his conduct. I could not smell intoxicating liquor on off duty Constable Beck. At all times he was steady on his feet and although he was erratic, argumentative and continually dismissed his actions as acceptable, he was quite lucid in his speech. His eyes however, were bloodshot and he seemed affected by a substance other than alcohol. 29Sergeant Sullivan's formal statement is dated 23 October 2006. He said that, at about 3.20 am on 25 September 2006 he and Sergeant Deas were travelling along Oxford Street and, turning left into Pelican Street, "I immediately saw Aaron Beck standing on the eastern footpath with his penis exposed, urinating in the gutter... [being close and] clearly visible from Oxford Street and Pelican Street". He said that the plaintiff was standing next to the rear of the parked car on the eastern curb of Pelican Street approximately 15 metres south of the intersection of Oxford Street. He added - Beck made no attempt to conceal himself as he urinated in the gutter and he was angled towards Oxford Street and the Hungry Jacks restaurant, located on the opposite corner of Oxford and Pelican Streets. The restaurant has a large glass area facing onto Pelican Street and I could see there were numerous persons inside the restaurant at this time... There was an unobstructed view of Beck urinating with his penis clearly exposed as soon as we turned into Pelican Street. 30The statement goes on - At the time Beck was urinating on the street with his penis clearly exposed, there were numerous persons of both sexes walking in the immediately vicinity along Oxford Street, along with vehicular traffic travelling in both directions along Oxford Street and also in Pelican Street. There were also numerous patrons inside the Hungry Jacks restaurant located on the corner of Pelican Street and Oxford Street. The area where Beck had his penis exposed urinating, is illuminated by street lighting along with lighting from business and high rise residential premises in the immediate vicinity. Beck was clearly visible whilst urinating from the time Sergeant Deas and I turned into Pelican Street to the time we stopped the police vehicle. 31He said that he saw no sign that the plaintiff was under the influence of intoxicating liquor; there was no smell of liquor on his breath or person; he was not unsteady in his feet, his speech was not slurred and his eyes were not bloodshot. The statement concludes - 25. Beck's tone and manner were rude and objectionable at all times. He responded in an argumentative way and dismissed his actions as acceptable. He showed no remorse for exposing his penis and urinating in clear view of the public and he challenged both Sergeant Deas and I throughout the verbal exchange. (Of course, it is would be scarcely surprising and not at all unreasonable that the plaintiff showed no remorse for the alleged conduct, if it had not occurred.) It is worth noting, I think, that this statement contradicts the statement of 26 September by stating that the plaintiff's eyes were not bloodshot. It also fails to mention that the Sergeant thought that the plaintiff was affected by a substance other than alcohol. 32It is clear that, if the plaintiff and the other witnesses told the truth, Sergeant Sullivan's account constitutes an elaborate, deliberately false fabrication. His indignation at the plaintiff's denials and lack of remorse would also have been manufactured. There is simply no room for mistake or misunderstanding. Leaving aside the plaintiff's position vis-à-vis the parked car, he was significantly further down Pelican Street than 15 metres, and was facing away from both Oxford Street and Hungry Jack's, which was behind him to his right. It follows from these facts alone that it was impossible for Sergeant Sullivan to have seen the plaintiff's penis when the police vehicle turned the corner and also impossible for the patrons of Hungry Jack's to have done so at any time, as Sergeant Sullivan must have appreciated. The plaintiff was not at the rear of the parked car, but in the centre of the cabin, which must necessarily have concealed him below the waist from any patron of Hungry Jack's, not to speak of the police. Moreover, the plaintiff says that, when the police car stopped, his penis was already in his underpants and his fly was either partly or fully fastened. Thus, the police officers did not see the plaintiff's penis at any time. 33Sergeant Deas' statement, made on 12 October 2006, in preparation of which he said he referred to Sergeant Sullivan's report of 26 September 2006 is to the same effect. The crucial paragraph states - 4. About 3.20am on Monday 25 September 2006 Sergeant Sullivan and I were travelling in a marked police sedan in a westerly direction along Oxford Street Darlinghurst. I made a left turn into Pelican Street from Oxford Street. Immediately on turning into Pelican Street I saw Aaron Beck standing on the eastern footpath urinating into the gutter. He was adjacent to the rear of a black... [vehicle] which was parked at the curb. Beck was angled towards Oxford Street and the Hungry Jacks restaurant located on the opposite corner of Oxford and Pelican Street. This restaurant has a large glass area facing onto Pelican Street, I saw there were numerous persons inside the restaurant at this time. Sergeant Deas added the detail that, when Sergeant Sullivan first approached Beck, he was "eating what appeared to be a chicken skewer with one hand whilst continuing to urinate with the other". Sergeant Deas ended his statement as follows - 9. At the time Beck was urinating there were numerous persons of both sexes walking in the immediate area on Oxford Street, along with vehicular traffic travelling in both directions along Oxford Street. Similarly there were numerous persons patronising the Hungry Jacks restaurant. The area is illuminated by street lighting along with the lighting from business and high rise residential premises in the immediate vicinity. Beck was clearly visible whilst urinating from the time Sergeant Sullivan and I turned into Pelican Street to the time we stopped the police vehicle. Sergeant Deas also said that he did not detect the smell of intoxicating liquor on Mr Beck's breath or person. He makes no mention of the plaintiff's eyes, bloodshot or otherwise. 34Again, if the evidence of the plaintiff and the other witnesses is true, Sergeant Deas' statement is, in every important respect, a dishonest fabrication. 35In Sergeant Sullivan's statement of 26 September 2006 the conversation was recounted as follows - As Sergeant Sullivan approached the footpath, the male person said, "Yeah, I know, I know, I know" Sergeant Sullivan said, "What do you think you're doing?" The male person said, "Mate, I'm intoxicated, I couldn't hold it" Sergeant Sullivan said, Get some ID out. The male person then said, "Get some ID out, I'm on the job, 34506" Sergeant Sullivan said, "What do you mean you're on the job?" The male person said, "Mate, 34506, 34506, I work at Kings Cross" At this time Sergeant Deas had also alighted from the Police vehicle and was standing next to Sergeant Sullivan. The male person handed Sergeant Sullivan a NSW drivers licence in the name of Aaron BECK ... Sergeant Sullivan said, *Do you have a warrant card on you?" Beck said, "No, never carry it with me off duty, I work at Kings Cross, 34506, 34506, I couldn't hold it, there were no toilets open, look I'm intoxicated, there was nowhere else to go." Sergeant Deas said, "Why didn't you go around the corner?" Beck said, "You were driving down there; you would have seen me anyway." Sergeant Sullivan said, "You made no attempt to conceal yourself, you could have gone across the road to Hungry Jacks and you tell me you're in the job and you don't even have your warrant card on you" Beck said, "It's unprofessional to carry your warrant card off duty, look I'm intoxicated, I don't carry it with me when I go out, last time I went to the Hungry Jacks toilets they were really dirty, I wouldn't go in there, look, I couldn't hold it, I had nowhere else to go, I was bustin' to go." Sergeant Deas said, "Intoxication is no defence" At this time, a second male approached Beck stood near him. Sergeant Sullivan said, "Who are you?" This male said, "A friend of his." Beck then said, "Look, I was bustin', I'm intoxicated" Sergeant Deas said, "Why didn't you go down to the SPC and use the toilets there, they are just down the road," Beck said, "I couldn't get in there without a warrant card and anyway, I wouldn't go there." Sergeant Sullivan said, "You have committed an offence and at no time have you made any attempt to conceal yourself." Beck said, "Look, I have just finished the Investigators course, I didn't just get out of the Academy, all these police who flash their warrant card and expect free alcohol, I don't carry my warrant card" Sergeant Sullivan said, "Well, you are behaving like someone just out of the Academy." Sergeant Sullivan then returned to the Police vehicle and made a telephone call to the Duty Officer from Surry Hills Inspector Mike Birley informing him of what had occurred. Sergeant Sullivan then said to Beck, "My name is Sergeant Sullivan from the Surry Hills Police station, I have spoken to our Duty Officer and the Kings Cross Duty Officer will be here shortly" Beck said, "That will be Steve Dempsey" At all times whilst speaking with Beck, he was rude, abrupt, dismissive of his actions, no respect for rank, attempted to lie about what had occurred saying, "I had my back to Oxford Street" A short time later Duty Officer Mike Birley from Surry Hills and Duty Officer Steve Dempsey from Kings Cross arrived at the scene. Sergeant Sullivan and Deas had a conversation with both Duty Officers and then Duty Officer Dempsey spoke with Beck saying, "Aaron, you have committed an offence and from what I have been told, you have been smart from the start" Beck said, "Look, I know I am a Fag, but" Sergeant Sullivan then said, "The fact you are a Fag has nothing to do with this. You were standing by yourself when we first saw you urinating on the street, and you came under our notice because you were in full view of Oxford Street, Hungry Jacks and at no time did you make any attempt to conceal yourself, you blatantly committed an offence and then you tried to pretend you had no where else to go and you clearly did have other options. " Duty Officer Dempsey then said, "Aaron, you know Mr Murdoch has taken a dim view of Police behaving badly off duty, especially after the matter you were involved in" Sergeant Sullivan then handed Beck his licence back and he and the second male left. 36The court attendance notice had attached to it a facts sheet of which Sergeant Sullivan was the author, which made the following assertions - About 3.20am on Monday 25th September 2006 Sergeants Sullivan and Deas from the Surry Hills Police Station were patrolling in a fully marked Police sedan in Oxford-Street Surry Hills. They Police turned into Pelican Street and observed the accused standing on the eastern footpath of Pelican Street, with his penis clearly exposed urinating in the gutter. The accused was facing the Hungry Jacks Restaurant which is located on the corner of Oxford and Pelican Streets and these premises were opened at the time with a large number of patrons inside who had a clear view of the accused. Oxford Street and Pelican Street both have a high volume of both vehicle and pedestrian traffic during all hours of the day and night and the accused was clearly visible from Oxford and Pelican Streets, to pedestrian and vehicular traffic. Police stopped and spoke with the accused who continued to urinate in front of police making no attempt to conceal himself. The accused said, "Yeah, I know, I know, I know. Mate, I'm intoxicated, I couldn't hold it." When asked by police to produce identification the accused said, "Get some ID out? I'm on the job, 34506." When asked by police "What do you mean you are on the job?" the accused replied, "Mate, 34506, 34506, I work at Kings Cross". Police noticed at the time the accused was committing the offence, that the Hungry Jacks restaurant was open and approximately 20 metres from the accused and contained toilet amenities available for both members of the public and customers to utilise. Police said to the accused, "You made no attempt to conceal yourself, you could have gone across the road to Hungry Jacks" to which the accused replied, "Last time I went to the Hungry Jacks toilets they were really dirty, I wouldn't go in there". After the accused had identified himself as a serving Police officer, Police asked the accused "Why didn't you go down to the SPC (Sydney Police Centre) and use the toilets there, they are just down the road?" The accused replied, "I couldn't get in there without a warrant card and anyway, I wouldn't go there." Police observed that there are numerous lanes and areas that are both discreet and dark in the near vicinity and Police said to the accused, "Why didn't you go around the corner?" The accused replied, "You were driving down there, you would have seen me anyway." Whilst speaking with the accused, Police observed he did not exhibit any indications consistent with a person under the influence of intoxicating liquor. There was no smell of intoxicating liquor on his breath or his person, he was not unsteady on his feet, his speech was not slurred and his eyes were not bloodshot. 37Mr Birley made a statement, forming part of the police records, which mentions that he attended at the scene and spoke to Sergeant Sullivan and Sergeant Deas when the plaintiff was in the near vicinity. No conversation involving the plaintiff and Sergeants Sullivan and Deas is recounted. Sergeant Dempsey also made a statement forming part of the police file. He attended at the scene, as I have mentioned. He said that the Sergeants informed him that they were patrolling Pelican Street when they saw the plaintiff "standing on the eastern footpath urinating on the street making no attempt to conceal himself in the process". They told him they stopped and spoke with the plaintiff who informed them "that he had to go right then and there" and that when asked for identification he said that he was "on the job" and had been so for five years, quoting his number to the officers. Sergeant Dempsey went on to say, " [I was told] when queried as to why he chose that location to relieve himself, Beck has become argumentative and displayed an unprofessional attitude towards the Sergeants." He said that he then spoke with the plaintiff "and it was obvious he was well affected by alcohol". Sergeant Dempsey regarded the plaintiff's demeanour as "initially arrogant and flippant, however, when further spoken to he became more rational and understood to some extent that his actions would bring serious consequences". It may be that the flippant description was a reference to the plaintiff's saying that he might be gay but not so as to urinate in the middle of the street. Sergeant Dempsey concluded by saying that the area where the incident occurred was only a short distance from Oxford Street, was well lit and directly opposite Hungry Jacks restaurant which was open and serving customers. Judgment for want of evidence refused 38As I have already mentioned, there is a significant conflict of evidence between the plaintiff and the witnesses called in his case and, in particular, the statements of Sergeants Sullivan and Deas and the facts attached to the court attendance notice. Taking the evidence favouring the plaintiff at its highest, it follows that the charge was based on fabricated evidence by the two police sergeants, a fact which must necessarily have been known to Sergeant Sullivan, the informant and author of the facts statement. Accordingly, there was ample evidence upon which judgment for the plaintiff could be supported. For this reason I refused the defendant's application. 39The defendant declined to seek leave to adduce any evidence and I then proceeded to consider the case on the basis of the evidence as a whole, including the statements of the police officers. The tort of malicious prosecution 40The elements of this tort were summarised in the judgment of the plurality in A v NSW [2007] HCA 10; (2007) 230 CLR 500 as comprising, firstly, proof that the proceedings were initiated against the plaintiff by the defendant, secondly, that the proceedings terminated in favour of the plaintiff, thirdly that the defendant, in initiating or maintaining the proceedings acted maliciously and fourthly that the defendant acted without reasonable and probable cause. 41Here, although the defendant is the State of New South Wales, for all relevant purposes the particular individual whose tortious conduct is in issue is Sergeant Sullivan, who was the informant. There is no contest that the defendant is responsible for the sergeant's tort, if he committed it. 42The proceedings were terminated in favour of the defendant although by way of withdrawal of the charge and dismissal of the court attendance notice rather than by acquittal. In the circumstances of this case the third and fourth requirements are closely related, if they do not entirely coalesce. The substance of the plaintiff's case is that Sergeant Sullivan, with Sergeant Deas, fabricated the crucial factual matters upon which the prosecution was based and that this fabrication necessarily amounted to acting maliciously and also without reasonable and probable cause. As is obvious, this is a case in which the facts of the matter were personally known to the informant and, accordingly, it is not necessary to consider the situation that might have arisen if another informant, who had no personal knowledge of the facts, had laid the charge relying on the statements of the police officers. 43In Mitchell v John Heine (1938) 38 SR (NSW) 466 Jordan CJ said (at 469) that there were five conditions to be met if one person was to have reasonable and probable cause for prosecuting another for an offence - (1) The prosecutor must believe that the accused is probably guilty of the offence. (2) This belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise. (3) The information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true. (4) This belief must be based upon reasonable grounds. (5) The information possessed by the prosecutor and reasonably believed by him to be true must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty. In order to succeed, it is necessary only that the plaintiff establish that one or more of these conditions did not exist". As was said in A (supra at [66]) the conditions specified by Jordan CJ, although not a list of elements to be established in proof of the tort, provide guidance about the issues arising in cases "where the defendant prosecutor may be supposed to have personal knowledge of the facts giving rise to the charge and the plaintiff alleges either that the prosecutor did not believe the accused to be guilty, or that the prosecutor's belief in the accused's guilt was based on insufficient grounds". 44Here, if the evidence of the plaintiff and the other witnesses be accepted, there can be no doubt that Sergeant Sullivan well knew where the truth lay and that the statement of facts was false in every crucial respect. It follows also, as it seems to me, that absence of reasonable and probable cause would be established by the fact that Sergeant Sullivan did not in the slightest believe that the probability of the plaintiff's guilt was such that the charge was warranted. So far as belief about his guilt were concerned, it would follow from acceptance of the witnesses that Sergeant Sullivan positively knew that he was not guilty. (I interpolate that, had Sergeant Sullivan been of the view as to the nature of the offence as submitted by Mr Hutchings, it would not have been necessary for him to have fabricated the evidence.) 45To constitute malice, "the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law ... [which] must be the sole or dominant purpose actuating the prosecutor": A (supra at [91]). Here, if the witnesses be accepted, the dominant purpose of Sergeant Sullivan was to procure a conviction of the plaintiff upon facts which he knew to be fabricated, knowing or believing that, in truth, the plaintiff had committed no criminal offence. It can in no circumstances be a proper invocation of the criminal law to attempt to secure a conviction upon fabricated evidence. It is unnecessary to speculate as to the motives of Sergeant Sullivan or, for that matter, Sergeant Deas, for undertaking the conspiracy which, if the witnesses gave truthful evidence, they undertook. It is well sufficient that they attempted to pervert the course of justice. Decision on the evidence 46Whether ultimate judgment should be given for the plaintiff depends upon a consideration of the whole of the evidence, bearing in mind that the plaintiff bears the onus of proof. In light of the failure of the defendant to call the police officers, their statements, although providing evidence of the facts asserted in them, are worthless in respect of any matters contradicted by the sworn testimony given before me. I have no doubt that I should accept the evidence of the plaintiff and the other witnesses as truthful and reliable. In short, I am satisfied that Sergeant Sullivan and Sergeant Deas fabricated not only the circumstances in which they first saw the plaintiff and what he was then doing but also his position in the street and in respect of the parked car. They also lied about the light, whether from street lighting or Hungry Jack's, at the place where the plaintiff was standing. In my view, also, (in this respect supported by the evidence of Sergeant Dempsey) they lied about the plaintiff's sobriety (probably to remove one of the reasons for not going to the SPC). I do not accept, either, that the toilet facilities at Hungry Jack's were available simply to members of the public as distinct from patrons, or that the plaintiff would have been able to use the toilets at the Sydney Police Centre or that there was any other public toilet available to him in the near vicinity. It follows that the conclusions which I have stated above as to the inferences that follow from acceptance of the witnesses' evidence remain appropriate. 47I should add that I do not accept that Sergeant Sullivan's account of the conversation - nor that of Sergeant Deas, to the extent that it corroborates it - is truthful in respect of those parts in which it differs from that given by the plaintiff. Moreover, even if it were accepted, it certainly does not demonstrate that the plaintiff was "rude, abrupt, dismissive of his actions, [with] no respect for rank". Insofar as the plaintiff's denial of the officer's allegation goes, asserting that he had his back to Oxford Street, he did not attempt to lie at all but was telling the truth as both officers well knew. As I said above, their characterisation of the nature conversation was itself manufactured. Damages 48The plaintiff claimed damages to his reputation and the considerable trouble, inconvenience, anxiety and expense in dealing with the proceedings brought against him and, in addition, to the effect of those proceedings on his employment. The particulars of special damage alleged in the further amended statement of claim specified the cost of legal representation in defence of the charge and to make representation to the Director of Public Prosecutions that led to the withdrawal of the charge. 49The also claims that the criminal proceedings gave rise to notices under s 181D of the Police Act 1990, in effect calling on him to show cause as to why he should not be removed from the police force, this process having been instigated by the charge brought against him and the allegations as to his conduct made by Sergeants Sullivan and Deas. It is also alleged that the criminal proceedings led to the withholding of his promotion to the rank of level 1 senior constable on 16 December 2006 and the withholding of promotion to the rank of level 2 senior constable on 16 December 2007, and the subsequent proceedings which reduced his rank from level 5 constable to level 3 constable on 18 October 2008 pursuant to s 173(2) of the Police Act 1990. The plaintiff also seeks exemplary damages. 50I should mention that the Director of Public Prosecutions informed the plaintiff that the decision not to proceed "was based on discretionary reasons including the likely penalty, the triviality of the offence, the cost to the community and the availability of alternative disciplinary processes". The possibility of innocence (perhaps unsurprisingly) was not mentioned. 51On 26 September 2006, Inspector Birley made a report in light of information provided to him by Sergeant Sullivan. He recommended formal action be taken against the plaintiff by way of the prosecution for the offence of offensive conduct and also that "management action [be] taken in respect of his conduct towards the two nominated senior police officers", obviously meaning his alleged presumptuous conduct. That these two streams came together is made clear by a minute recording a meeting on 23 January 2007 of the Commissioner's Advisory Panel, which considered a mandatory referral under s 181D by virtue of the charge of offensive conduct, noting that there were "witnesses in support of [the] conduct" (meaning the police officers) and the charge was listed for hearing on 21 February 2007. It recommended that, as the matter "is subject to s 181D notification to the Commissioner, no management action should occur until a determination is reached by the Commissioner" and, further that, if the Commissioner did not wish to proceed under s 181D, the officer should suffer a reduction in increment from constable level 5 to constable level 3. 52As at 25 September 2006 the plaintiff was a level 5 constable, due for promotion to level 1 senior constable on 16 December 2006, providing certain conditions were met. I deal with the process below in connection with the action for prerogative relief. For present purposes it is sufficient to refer to the requirement that a senior officer complete a promotion form dealing with the prerequisites, including one as to integrity. This form was completed by then Acting Superintendent Hayes on 16 August 2007. In respect of the "aptitude of the constable for the discharge of the duties of senior constable", she commented that it was "satisfactory". In respect, however, of the "diligence and good conduct of the constable", the Acting Superintendent said the plaintiff "has had conduct issues which are now subject of 181D nomination". In respect of the question whether there were "any outstanding integrity issues" she wrote, "Constable Beck is awaiting the outcome of 181D nomination. This matter is outstanding". The form stated that if there "are any outstanding integrity issues registered, then the promotion should not proceed until these are resolved". Accordingly, promotion was "not recommended at this time pending finalisation of IRP/181D notification". 53The basis of the outstanding s 181D process can, I think, be gathered from a notice to the plaintiff of 12 October 2007. On any fair reading, this in effect took up the baton passed by the Director of Public Prosecutions. So far as is relevant, it stated - On 25 September 2006 at about 3.20am police from Surry Hills local area command were patrolling in a marked police sedan along Oxford Street, Surry Hills. They turned left into Pelican Street and state that they observed you whilst off duty standing on the footpath with your penis clearly exposed urinating in the gutter whilst facing Hungry Jacks restaurant. Hungry Jacks was open at that time and serving a number of customers. According to the officers, the patrons of the Hungry Jacks restaurants would have had clear view of your actions. The evidence of Sergeant Kevin James Sullivan suggests that you made no attempt to conceal yourself while you were spoken to by the police officers and that you continued to urinate during the verbal exchange. ... Despite the criminal charges not being pursued, I remain extremely concerned by your alleged conduct. In all the circumstances, I consider that there are grounds to conclude, on the balance of probabilities (even having regard to the seriousness of the allegation) that you behaved in an unacceptable and potentially illegal and obscene manner, by urinating in a public place with your penis exposed. I also consider that the allegation is made more serious by the fact that your actions are alleged to have occurred in an area frequented by the public. The arresting officers report that you made no attempt to conceal yourself, or to urinate in a less public area. I am also extremely concerned by the fact that both Sergeant Kevin James Sullivan and Acting Inspector Dempsey allege that you behaved in a rude, unprofessional and uncooperative manner throughout the incident and subsequent events. Sergeant Sullivan states that your tone and manner were: ".... rude and objectionable at all times. He responded in an argumentative way and dismissed his actions as acceptable. He showed no remorse for exposing his penis and urinating in clear view of the public and he challenged both Sergeant Deas and I throughout the verbal exchange." Sergeant Sullivan also states that: "At all times while speaking to Beck, he was rude, abrupt, dismissive of his actions, no respect for rank, attempted to lie about what had occurred saying "I had my back to Oxford Street" I am concerned that your alleged attitude towards other police officers appears to demonstrate a lack of remorse or contrition for your actions, or any recognition of wrongdoing. As a police officer, I would also have expected you to show some understanding of the difficulties faced by other police officers in having to deal with the type of situation apparently encountered as a result of your conduct on the morning of 25 September 2006. The notice concludes with the assertion that the plaintiff's "alleged behaviour of 25 September 2006 falls well short of the standard of conduct I expect from a New South Wales police officer... you are hereby notified that I am considering making an order for your removal from the New South Wales Police Service under s 181D of the Police Act 1990". 54The fact of the charge was a substantial, indeed, integral part of the process that led to this notice being issued directed to the matters upon which the charge was based but which had not been determined. I do not accept the submission made on behalf of the defendant that the notice simply depended upon the allegations made by the police officers. Its terms themselves show that this was not so. To hold otherwise than that the charge gave rise to and instigated the disciplinary process would defy commonsense. I conclude that the plaintiff's loss of salary by virtue of the deferral of his promotion was in the relevant sense, cause by the malicious prosecution. 55On 10 January 2008, the then Acting Commissioner of Police determined that he had not lost confidence in the plaintiff and decided, instead, to issue a warning notice. The plaintiff was also informed that his Commander was considering "other action to be taken as an adjunct to ... [the] warning". The statement of reasons essentially repeated and accepted the allegations contained in the s 181D notice. The issues concerning the plaintiff's integrity were, therefore, unresolved which is the reason, no doubt, that the plaintiff was not afforded the increment to which he was otherwise entitled. 56The "other action" was instituted by a notice under s 173(5) of the Act under the hand of Superintendent Murdoch dated 30 January 2008. This notice repeated the allegations contained in the s 181D notice as to the plaintiff's offensive behaviour. It mentioned the institution of the criminal proceedings and that they were discontinued following advice from the Director of Public Prosecutions and then went on to state - Despite the criminal charges not being pursued, I remain extremely concerned by your alleged conduct. In all the circumstances, I consider that there are grounds to conclude, on the balance of probabilities (even having regard to the seriousness of the allegation), that you behaved in an unacceptable and potentially illegal and obscene manner, by urinating in a public place with your penis exposed. The notice went on to refer to the allegations as to the plaintiff's tone and attitude towards his superior officers and his lying denial of the allegations about his exposing himself. Superintendent Murdoch then listed the plaintiff's alleged breaches of the New South Wales Police Code of Ethics, specifically referring to "[the] criminal charge ... brought against" him requiring a s 181D nomination with the possibility of dismissal from the force. The notice did not, however, inform the plaintiff of the proposed nature of the order, except that it would be made under s 173(5). (I deal with the obvious unfairness of this omission in connexion with the proceedings for prerogative relief.) 57The response by the plaintiff to the notice under s 173(5) was provided on 25 February 2008. He pointed out that the documents upon which Superintendent Murdoch relied were not supplied to him. This of itself was unfair since it hindered his ability to deal with the conclusions - although perhaps expressed in somewhat less than determinative language - to which he was seeking to respond. Be that as it may, the plaintiff assumed that the notice depended upon the fact sheet, the court attendance notice, the complaint of Sergeant Sullivan, his statement and that of Sergeant Deas. The plaintiff's description of events was largely the same as that given in his case in this court. He explained why he urinated where he did, giving the explanation he had first given to Sergeant Sullivan, that he "couldn't hold it, [he] was busting", no public toilets were available to him, he was unable to enter any nearby police station because he was intoxicated and did not have his police identification with him. He claimed to have made reasonable attempts to conceal himself from public view and that of his friends, an attempt which, as I have held, was entirely successful. His statement then goes on to analyse the statements of Sergeants Sullivan and Deas, essentially by relying on his own evidence and that of Mr Saba, Mr McHenry, Mr Barringer and Ms Schillitoe. He also brought to attention the inconsistency between the statements of Sergeants Sullivan and Deas on the one hand and Acting Inspector Dempsey on the other in relation to his intoxication, a fact to which the witnesses to whom he referred also deposed. He denied that he was in any way disrespectful. Other argumentative material was part of the plaintiff's response but does not call for present comment. 58On 22 September 2008 Superintendent Crandell determined that an order reducing the plaintiff's increment from constable level 5 to constable level 3 was justified. Under the heading "Consideration" he said that he had carefully considered the matters raised in the notice and the plaintiff's response. In respect of the plaintiff's admission that he urinated in Pelican Street and his assertion that he did so "out of urgent necessity" the Superintendent concluded that "given your general location as well as your proximity to a open Hungry Jacks restaurant ... I have formed the view that you could have easily found and used a toilet had you wished to do so". He noted, in addition, "there is considerable dispute as to the degree as to which your actions could be seen by persons in the Hungry Jacks restaurant ... [however] regardless of your exact position while urinating, it is clear from your own admissions that you must have removed your penis from your pants and urinated in a public place". The Superintendent went on to say - "Even if I were to fully accept your version of events as to your exact location and position, I still regard your conduct as seriously inappropriate and unacceptable. Indeed, it is highly likely that it amounted to a criminal offence, even though the DPP decided not to proceed with charges." Again, it is clear that the fact that the plaintiff had been charged, although not continued to determination, was an integral part of the reasoning of the Superintendent. 59The Superintendent cited the New South Wales Police Force Code of Conduct and Ethics, which stated that "each member of the New South Wales Police is to act in a manner which ... upholds the rule of law". If the conduct of the plaintiff was lawful (and I have no doubt it was), it follows that he was not in breach of this rule. The Code also refers to private conduct as follows - All officers have an obligation to act and to be seen to act by the public in accordance with the spirit and letter of the law including the terms of this Code of Conduct whether on or off duty. By the way, I am unable to see, if one accepted the plaintiff's account (which at all events I have found to be the truth of the matter) he was in breach of this rule but this is not presently material. 60The Superintendent concluded - In all the circumstances, I have formed the view that your conduct has been seriously inappropriate and unacceptable and that you should be subject to ... [a reduction] in increment from Constable Level 5 to Constable Level 3. I am not concerned with whether the reasoning of the Superintendent was correct or not, but only with the issue of causation, namely whether this reduction in increment was a result of the malicious prosecution of the plaintiff. In my view, it was. It is true that the conversation as characterised by him was also an element of the reasoning but was very far from the only reason. Not only the facts that provided the basis for the charge but the charge itself was a substantial and an integral part of the reasoning of the Superintendent justifying the order. Conclusion as to damages 61The plaintiff tendered a schedule of estimated loss of salary as a result of the decisions to defer his increment and, ultimately to reduce it. The total estimated loss, based on the award tendered with Superintendent Hayes' affidavit and his tax returns, was $36,134. The defendant did not choose to lead evidence which might have qualified these figures. His damages should, therefore, include this sum. 62The plaintiff should also be compensated by the payment of his legal costs incurred in connexion with the proceedings in the Local Court. He tendered his solicitor's memorandum of costs and disbursements in the sum of $680. I award this sum also. 63On 30 November 2010 the plaintiff was dismissed from the force pursuant to s 181D of the Police Act 1990, following a second notice. That notice has not been tendered. It was put to the plaintiff in cross-exanimation that the second notice did not relate to the plaintiff's urinating in the street (which I took to mean the circumstances alleged by Sergeants Sullivan and Deas). The plaintiff responded that the notice did refer to this matter as a basis for the Commissioner's consideration of his suitability but that additional issues were added. The evidence is somewhat obscure but, as I understand it, some work issues arose because the prosecution affected his work. There were also matters concerning his performance referred to which predated the alleged offence. These antecedent matters concerned his losing a portable radio in a foot pursuit when he should have held onto it, not completing a statement or some of his work at the end of a shift and two minor matters dealt with at local area command level but he could not remember what they were. The plaintiff was not cross-examined on these details even though, of course, the notice was a document created by and in the hands of the defendant. There is no reason for me to doubt the evidence of the plaintiff about the content of the notice. It is very probable that the notice was in similar language, so far as the alleged offensive behaviour was concerned, as the earlier notice. I conclude that both the prosecution as well as the underlying facts was a material factor, almost certainly the most significant factor, in the decision of the Commissioner to dismiss the plaintiff. 64The plaintiff does not seek damages for the economic loss arising from his dismissal, as I understand it, because he is undertaking proceedings in the Industrial Relations Commission for reinstatement. However, the fact of dismissal is relevant to the extent to which his reputation was injured as a result of the malicious prosecution. It constitutes a continuing and humiliating stain on his character which will only be partly repaired by this judgment. The damages assessed to compensate him in this respect must reflect this consideration. It is obvious that the charge could not have remained secret and commonsense leads to the conclusion that the plaintiff's daily working life must have been subject to humiliation and intense embarrassment. 65The plaintiff gave evidence that he was currently unemployed. He said that he was currently diagnosed with stress, anxiety and depression and had been diagnosed as being unfit for employment. He was on unemployment benefits and was exempt from the requirement that he should look for work. He has been using his superannuation and funds from his father to survive. 66The malicious prosecution affected the plaintiff in his employment continuing well past the discontinuation of the proceedings, which was, for all practical purposes, disregarded. The very nature of the charge, which - though perhaps not serious in itself in terms of what the likely outcome of the charge would likely have been - was humiliating and necessarily calculated to affect his working life (quite apart from the disciplinary consequences) and entailed daily humiliation since it must have been known to most, if not all, of his colleagues, let alone his superiors. I accept also that the plaintiff suffered a great deal of anxiety throughout and that it has had an adverse effect on his health. In these circumstances, the compensatory damages must be substantial. Aggravated damages are not sought. Under the head of general damages, I award the sum of $50,000. 67The plaintiff also seeks exemplary damages. The most recent discussion of this matter in the Court of Appeal is State of New South Wales v Zreika [2012] NSWCA 37 - [60] A plaintiff who succeeds in an action for malicious prosecution will not necessarily receive either aggravated or exemplary damages. Aggravated damages are given by way of compensation for injury to the plaintiff which, although frequently intangible, results from the circumstances and manner of the defendant's wrongdoing, while exemplary damages are awarded to punish and deter the wrongdoer: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118, at 129-130, per Taylor J, cited with approval in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, at 646-647 [31],[33]. Aggravated damages are assessed from the point of view of the plaintiff, but an award of exemplary damages is based on the conduct of the defendant: NSW v Ibbett, at [34]; Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1, at 7 [15], per Gleeson CJ, McHugh, Gummow and Hayne JJ. However, the same set of circumstances may justify an award of either aggravated or exemplary damages, or both: NSW v Ibbett, at 647 [33]. [34]. [61] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation" for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights": Gray v MAC, at 7 [14]. [62] Exemplary damages may be awarded against the State in respect of the conduct of police officers for whose torts the State is responsible: NSW v Ibbett; NSW v Landini, at [114]. The assessment of exemplary damages in a case of conscious and contumelious disregard of the plaintiff's rights by the police: "should indicate ... that the conduct of the [police] was reprehensible, [and] mark the court's disapproval of it. The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses ... do not happen." [Italics mine.] Ibbett , at 653 [51], citing Adams v Kennedy (2000) 49 NSWLR 78, at 87, per Priestley JA. [63] In a frequently cited passage, Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd [1985] HCA 12; 155 CLR 448, at 471, observed that the considerations that enter into the assessment of compensatory damages are quite different from those that govern the assessment of exemplary damages and that there is no necessary proportionality between the assessment of the two categories. Nonetheless, in NSW v Ibbett, at 647 [34], the plurality endorsed the proposition that it is necessary to determine both heads of compensatory damages before deciding whether or not a further award is necessary to serve the objectives of punishment, deterrence or condemnation. Their Honours also said (at [35]) that where the same circumstances increase the hurt to the plaintiff and also make it desirable for the Court to mark its disapprobation of the conduct, a single sum may be awarded. Such an award would represent both heads of damage and ensure that no element is compensated more than once. 68In this case, the actions of Sergeants Sullivan and Dias were proved to be deliberate, concerted, elaborate, reprehensible, and contumelious, involving the making of false statements (a criminal offence under s 85 of the Criminal Procedure Act 1986) and an attempt to pervert the course of justice (an offence under s319 of the Crimes Act 1900). These are serious offences against public justice, involving far more than an assault on the rights of the plaintiff. The condemnation of the Court must be unmistakeably demonstrated. 69Moreover, the response of the officers whose responsibility it was to consider whether action should be taken against the plaintiff was woefully inadequate. The allegations made by the plaintiff in respect of Sergeants Sullivan and Deas were extremely serious, involving the commission of criminal offences. If true, not only would it have been completely inappropriate to have taken any action against the plaintiff but the matter should, at least, have been placed in the hands of the Director of Public Prosecutions. The plaintiff, in his initial statement of 3 December 2007, responding to the first s 181D notice, indicated that he was with friends on the occasion in question. No attempt was made to interview the plaintiff to obtain their names and statements. With his response to the notice of Superintendent Murdoch dated 30 January 2008 the plaintiff attached the statutory declarations of the persons to whom I have already referred which, at the very least, must have given rise to a serious question as to the truthfulness of the Sergeants' statements and certainly warranted further investigation. It is obvious from the terms of Superintendent Crandell's reasons that he undertook no such investigation. That nothing further was done along these lines can also be inferred from the dismissal of the plaintiff. I add that, the absence of any interview of the plaintiff and his friends, or any attempt to do so, is also cogent evidence that the possibility that the plaintiff was telling the truth about what happened and the Sergeants were not was not given any serious consideration. This gross failure of responsible management enlivens the particular relevance of the italicised passage quoted above from Ibbett to the assessment of exemplary damages in this case 70I am conscious of the amount of damages awarded under other heads and have considered whether it, alone, is sufficient to punish and deter. I have no doubt that it does not. In my view the exemplary damages should be assessed at $80,000. Prerogative relief against the Commissioner of Police 71The first decision of which the plaintiff complains is that of 16 August 2007 by Inspector Hayes, to which I have already made reference above. It was not controversial that, although the decisions at issue here were made pursuant to the Police Act 1990 are stated to be the Commissioner's responsibility, this can be delegated, and in fact was delegated, to all officers of Superintendent rank or above, including persons acting in that rank. The second decision in relation to which relief is sought was made by Superintendent Crandell on 22 September 2008 to reduce the plaintiff's increment from constable level 5 to constable level 3. At the end of the hearing on 16 February 2012 I dismissed the claim in respect of the first decision and quashed the second, saying that I would deliver reasons in due course. These are those reasons. 72Promotion to the grade of senior constable is, by reg 16 of the Police Regulation 2000 subject to the satisfaction of the qualifications determined by the Commissioner, the completion of four years service and, of particular relevance here, a "satisfactory fitness report". Regulation 17 prohibits promotion of a constable to the grade of senior constable unless (here, Acting Superintendent Hayes) reported that "the constable is fit to discharge satisfactorily the duties of senior constable": subreg (1). Reg 17(2) requires that such a report is to deal with the constable's "competence, integrity, performance and conduct". 73I should mention also s 71 of the Police Act 1990 which, in effect, required the Acting Superintendent to make appropriate enquiries as to the integrity of the constable whose promotion is the subject of recommendation and to have regard to that information. Where an officer is the subject of consideration under s 181D of the Police Act 1990 his or her "competence, integrity, performance or conduct" is in question (see s 181D(1)). 74The form signed by the Superintendent provided: "If there are any outstanding integrity issues registered, then the promotion should not proceed until these are resolved". It appears to be accepted - and it seems to me to be the case - that the pending proceeding under s 181D was the registration of an integrity issue within the meaning of this note and that there was a proper basis for the limitation. That being so, Acting Superintendent Hayes' decision not to recommend the plaintiff's promotion pending the completion of the s 181D process was not only reasonable but appropriate, even if it were not for the express condition to which I have adverted. She was in no position to determine the question herself. That was for another specified process which did not provide for any enquiry by such an officer as Acting Superintendent Hayes for the purpose of making the recommendation for the plaintiff's promotion. There being a process already undertaken as to this matter, the outcome of which was (from the Acting Superintendent's point of view) uncertain, it is plain that she was unable to be positively satisfied of the plaintiff's suitability for promotion in accordance with reg 17. 75I was informed by counsel for the defendant and it was conceded by counsel for the plaintiff that, if the s 181D proceedings were determined in favour of the plaintiff, then - if there were no other issues - the plaintiff would have been promoted to senior constable level 1, backdated to the date when he otherwise would have been promoted were it not for that outstanding proceeding. 76The plaintiff submitted that the deferral of the plaintiff's incremental promotion came within the provisions of s 173(2), which is in the following terms - (2) The Commissioner may order that the following action be taken with respect to a police officer who engages in misconduct: (a) a reduction of the police officer's rank or grade, (b) a reduction of the police officer's seniority, (c) a deferral of the police officer's salary increment, (d) any other action (other than dismissal or the imposition of a fine) that the Commissioner considers appropriate. However, there was no such order and the deferral of the promotion was not an action within that provision, which in my view concerns only an action that is taken following a decision that the police officer has engaged in this conduct. At the time of deferral of the recommendation in respect of the plaintiff's promotion, no such decision as to his alleged misconduct had been made. The plaintiff's complaint, therefore, that the requirements of subsections (5), (6) and (7) of s 173 were not complied with is misdirected. 77During argument the question arose whether the plaintiff had been provided with a copy of the promotion recommendation form signed by the Acting Superintendent, the plaintiff claiming that he had not received it. The form itself provides that a copy of a recommendation is to be provided to the officer involved and a note made of the date upon this is done. The tendered photocopy does not have this part of the form completed but this might be explained by its not being a copy of the document in its final form. The defendant attempted to make what I accept were conscientious endeavours to obtain the original document or some evidence from the Superintendent (she not having been required for cross-examination) as to whether she had provided it to the plaintiff. However, those enquiries were unsatisfactory. This ground had not been specified or clearly specified in the amended summons and, since it raised a new issue of fact to which the defendant was not in a position to respond, I denied leave to the plaintiff further to amend his summons to include it. 78The prayer seeking an order in the nature of certiorari quashing the decision made by Acting Superintendent Hayes on 16 August 2007 was therefore dismissed. 79I now come to the decision made by Superintendent Crandell on 22 September 2008. On 30 January 2008 a notice under s 173(5) of the Police Act 1990 was served on the plaintiff which was made following an investigation conducted under Pt 8A of that Act. I have set out above the essential terms of the notice and mentioned also that the material upon which it was based was not provided to the plaintiff. Section 173(5)(a) required the plaintiff to be given "a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which... [it is intended] to make the proposed order...". This can scarcely be done if the basis for the allegations in the notice, in particular, in this case the statements made by the relevant police officers, is not disclosed. 80More fundamental is the character of Superintendent Crandell's conclusion as to the plaintiff's conduct. If the plaintiff's position was as he and his witnesses described it, it was impossible that any person whether in the restaurant or otherwise could have seen his person and, although they might have guessed that he was urinating, they could not have known that this was the fact. There was no basis (without actually determining which of the conflicting accounts was the truth - a task which, manifestly, the Superintendent did not undertake - for acting otherwise than accepting that the plaintiff had attempted to conceal himself and had succeeded in doing so in a situation where he had to relieve himself then and there. No reasonable person would have taken any offence at what the plaintiff had done. No reasonable decision maker could have concluded otherwise. Moreover, it was also unreasonable in this sense to conclude that, on the plaintiff's account, his conduct was "highly likely ... [to amount to] a criminal offence". Quite apart from this, it seems to me that the finding that the plaintiff's conduct was so "seriously inappropriate and unacceptable" and deserved the adverse consequences specified in the order was so manifestly unreasonable as to have vitiated the exercise of the statutory discretion proposed in the Superintendent. 81Accordingly, I made the order in the nature of certiorari quashing the decision made by Superintendent Crandell on 22 September 2008. Costs 82The plaintiff must have the costs of the common law action. In respect of the summons for prerogative relief, he did not succeed in respect of the first decision but he did in respect of the second. Considering the litigation overall, as the two matters were heard together and the relatively narrow compass of the controversy in respect of the first decision, it seems to me that, so far as the costs of the summons are concerned, each party should pay their own costs of the plaintiff's unsuccessful application and the defendant pay the plaintiff's costs of the second, successful application.

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