Borton v State of New South Wales

Medium Neutral Citation: Borton v State of New South Wales [2026] NSWSC 351

Hearing dates: 17–21, 26 November 2025

Decision date: 13 April 2026

Jurisdiction: Common Law

Before: Cavanagh J

Decision: (1) Judgment for the plaintiff in the sum of $755,236.12.
(2) The defendant is to pay the plaintiff’s costs.

Catchwords: TORTS – malicious prosecution – absence of reasonable and probable cause – defendant pursued case that plaintiff did in fact engage in criminal conduct – forensic and other evidence did not support original complaint – continuation of prosecution lacked reasonable and probable cause – improper purpose – malice inferred – aggravated and exemplary damages awarded
TORTS – false imprisonment – wrongful arrest – whether actions of police in arresting plaintiff were lawful – where plaintiff alleges police did not have reasonable grounds to arrest and did not properly inform plaintiff of reasons for arrest – whether police actions were reasonable in the circumstances – information known to police at time of arrest warranted arrest in order to protect the safety of the community – plaintiff unsuccessful

Legislation Cited: Civil Liability Act 2002 (NSW) Pts 2A, 7, ss 3B, 15B, 18
Civil Procedure Act 2005 (NSW) s 100
Crimes Act 1900 (NSW) s 93GA
Crown Proceedings Act 1988 (NSW)
Evidence Act 1995 (NSW) s 140
Firearms Act 1996 (NSW) s 39
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 99, 201, 202, 231
Law Reform (Vicarious Liability) Act 1983 (NSW) s 8

Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9
Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17
Donaldson v Broomby (1982) 5 A Crim R 160
Hathaway v State of New South Wales [2009] NSWSC 116
Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161
Husher v Husher (1999) 197 CLR 138; [1999] HCA 47
Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
Nye v State of New South Wales [2003] NSWSC 1212; [2004] Aust Torts Reports 81-725
Ramsey v Denton [2021] NSWCA 310; (2021) 98 MVR 340
Spedding v State of New South Wales [2022] NSWSC 1627
State of New South Wales v Abed [2014] NSWCA 419
State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445
State of New South Wales v Landini [2010] NSWCA 157
State of New South Wales v Loh Min Choo [2012] NSWCA 275
State of New South Wales v Randall [2017] NSWCA 88
State of New South Wales v Spedding [2023] NSWCA 180
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35
Trobridge v Hardy (1955) 94 CLR 147; [1955] HCA 68
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment

Parties: Luke Borton (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
R McIlwaine SC with R Quickenden (Plaintiff)
P Bodor KC with T Buterin (Defendant)
Solicitors:
Fitzpatrick Solicitors (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s): 2022/00055549

JUDGMENT

1. HIS HONOUR: Pursuant to a further amended statement of claim filed on 14 April 2025, the plaintiff seeks damages from the defendant arising out of his alleged wrongful arrest, prosecution and imprisonment in 2020.

2. He pursues causes of action in false imprisonment and malicious prosecution.

3. The defendant denies that it is liable to the plaintiff, asserting that the plaintiff has not established the elements of any of the causes of action on which he relies.

4. In particular, the defendant submits that the police officer for whom it accepts it is responsible, being Detective Senior Constable Jason Blackbourn (“DSC Blackbourn”), did not act maliciously or without reasonable and probable cause and that the plaintiff was not wrongfully arrested having regard to the information available to the police at the relevant time.

5. The plaintiff claims substantial damages. He alleges that consequent upon his wrongful arrest, charging and imprisonment, he developed post-traumatic stress disorder (“PTSD”) from which he still suffers. He says that prior to the events which happened commencing in March 2020, he operated a successful business as a fencing contractor. He says that he has been unable to return to that work since March 2020 because of his psychological condition.

6. The plaintiff thus claims significant sums on account of loss of earning capacity as well as general damages and damages for false imprisonment.

7. As the causes of action he pursues are intentional torts, the provisions of the Civil Liability Act 2002 (NSW) (“CLA”) limiting damages do not apply. The State accepts that it is vicariously liable for the conduct of DSC Blackburn and that the torts pursued are intentional torts. Damages must be assessed at common law (s 3B of the CLA).

8. The defendant’s position on damages is that, if the plaintiff is successful, he would only be entitled to damages in a small amount (said to be $15,000). It is difficult to understand the basis of that suggestion, in circumstances in which the plaintiff was in prison for 21 days and would at the least be entitled to a sum for each day in prison (Spedding v State of New South Wales [2022] NSWSC 1627 at [283] (Harrison J) (“the Spedding Primary Judgment”); State of New South Wales v Spedding [2023] NSWCA 180 at [207] (Bell CJ, Ward P and Adamson JA) (“the Spedding Appeal Judgment”)).

9. Although the plaintiff was medically examined on behalf of the defendant and the report of the psychiatrist who examined the plaintiff was not served, the defendant relies principally on psychological reports the plaintiff obtained subsequent to the events of 2020 (for the purposes of the plaintiff regaining his firearms licence). The defendant says that these reports are inconsistent with the plaintiff’s later claims and should preferred. The defendant submits that the plaintiff is an unreliable witness and should not be accepted.

Background

11. In and before 2020, the plaintiff lived on a semi-rural property in Glenorie comprising 15 acres. His direct neighbours, being the neighbours across the road, were the Eversons. There were also neighbours to the side of him to whom he was known.

12. At some point long before the events giving rise to these proceedings, the Eversons had placed a spotlight on their property which they kept on at night. The spotlight shone directly into the plaintiff’s property, including into his bedroom. It also shone into other neighbour’s properties.

13. Despite attempts by the plaintiff to convince the Eversons not to use their spotlight, they continued to do so. The plaintiff had complained to the police about the issue but, at least according to the plaintiff, nothing had really been done about it. At one point the plaintiff had approached the Eversons on their property. Their response was said to have been to make insulting remarks to the plaintiff and, according to the police report of the incident, threaten him with violence. Unfortunately, when responding to the initial report which gives rise to these proceedings the police wrongly believed that it was the plaintiff who had threatened Mr Everson with violence.

14. According to the plaintiff, he had become used to the spotlight albeit by his own admission he was not happy about it. Other neighbours might have adopted a similar attitude.

15. The plaintiff had an interest in guns. He owned a number of firearms for which he was appropriately licenced. The defendant accepts that prior to the events which give rise to these proceedings the plaintiff was a person of good character. He had no criminal history. There is no evidence of any wrongful use of his guns.

16. On the evening of 29 March 2020 (at around 9:30pm), a call was made on the Triple Zero line by the son of the Eversons (Nicholas) reporting that shots had been fired into their shed. Indeed, a sound was heard in the background during the Triple Zero call which Nicholas Everson suggested was another shot being fired into the shed. It seems that he and his parents were on the other side of the shed at this time.

17. On further questioning, Mr Everson indicated that he knew where it was coming from and referred to the plaintiff and his property. He did not say that he had actually seen the plaintiff firing the shots, albeit he later said that he had seen the plaintiff on his property (that is the plaintiff’s property) with a gun.

18. The Triple Zero operator said that police would attend and urged Mr Everson to remain safe and hidden from any area where the shots were coming from.

19. The Triple Zero call was played in court. The plaintiff urged upon me a finding that the caller was not panicked or even sounding alarmed. I agree. He sounded quite calm and perhaps amused. He also seemed willing enough to identify the plaintiff or the plaintiff’s property as the likely source of the shots. It is clear that he was offering an opinion or suggestion rather than a direct observation.

The plaintiff’s case

33. On the plaintiff’s case, he should never have been arrested and, even if the police were entitled to arrest him, they quickly became aware that there was no evidence to support the allegations against him or support the complaint made during the Triple Zero call. Information in the possession of police within days (indeed the same day) of the event should have led the police to be aware that there was no basis for the charge against him and steps should have been taken by the prosecutor to withdraw the charge and have him released from custody. Instead, nothing was done and he remained in custody until 20 April 2020 and the shooting with intent charge was not withdrawn until 3 September 2020.

The defendant’s approach to the case

34. As emerged during cross-examination, the defendant’s approach to the plaintiff was to suggest that:

35. The plaintiff was lawfully arrested;

36. Despite the charge being withdrawn, he was actually involved in the conduct. He really did shoot at the shed that evening, perhaps using his air rifle rather than his .22 rifle and that he made up a story from the moment the police came around to exculpate himself;

37. He had become obsessed with what had happened to him and he was determined to obtain vengeance no matter at what cost and irrespective of what needed to be said; and

38. There is really not much wrong with him in terms of psychological problems. He carried out research on the internet into PTSD and his symptoms, and then pursued a claim for damages, obtaining evidence from different psychologists to support his claim for PTSD.

The claim for wrongful arrest or false imprisonment

35. In Donaldson v Broomby (1982) 5 A Crim R 160 Deane J said, at 161:

“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny.”

36. Of course, this is one reason why the power to arrest is governed by statute and must be closely scrutinised.

37. The plaintiff claims that there was no basis for his arrest and that it was unlawful. He says that he was taken from his home without any justification in circumstances of considerable alarm and fear.

38. The plaintiff alleges that he was arrested on two occasions in the early morning of 30 March 2020, being firstly by Leading Senior Constable Leetham (“LSC Leetham”) when he had his hands tied behind his back as he was at the door of his home, and then secondly, by DSC Blackbourn when he was still on his property but outside his home, when the ties were replaced by handcuffs.

39. The plaintiff says that on neither occasion was the arrest lawful. The plaintiff says that he entitled to damages for false imprisonment, the false imprisonment being a consequence of the unlawful arrest.

40. Whether the arrest was lawful depends on whether the police complied with the statutory requirements set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

41. Once a party has established that the act of arrest has occurred, the onus shifts to the State to prove that the arrest was lawful. As was said by Fullagar J in Trobridge v Hardy (1955) 94 CLR 147 at 152; [1955] HCA 68:

“The mere interference with the plaintiff’s person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights. It was for the defendant to justify, if he could, by reference to his office or otherwise.”

Malicious prosecution

42. As stated in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 (“A v State of NSW”) at [1] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ), the four elements of malicious prosecution are:

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

44. The proceedings were terminated in the plaintiff’s favour;

45. The defendant, in initiating or maintaining the prosecution, acted maliciously; and

46. The defendant acted without reasonable and probable cause.

See also Beckett v State of New South Wales (2013) 248 CLR 432 at [4]; [2013] HCA 17; Spedding Appeal Judgment at [13].

43. Pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Crown Proceedings Act 1988 (NSW), the defendant is vicariously liable for torts committed by persons in the service of the Crown.

44. In respect of the malicious prosecution claim, the only person who the plaintiff pleads or identifies as having committed the tortious conduct is DSC Blackbourn. The defendant accepts that it is vicariously liable for his conduct.

45. The defendant also admits that elements (1) and (2) as set out in A v State of NSW are established in a sense that proceedings were initiated or maintained against the plaintiff by the defendant through DSC Blackbourn and that the proceedings were terminated in the plaintiff's favour.

46. However, the defendant disputes that in initiating or maintaining the prosecution DSC Blackbourn acted with malice and disputes that he acted without reasonable and probable cause.

The witnesses

The plaintiff’s evidence

47. The plaintiff relied on two evidentiary statements, dated 5 April 2025 and 5 November 2025. By way of summary, he states that:

48. On the night of 30 March 2020, after saying goodbye to guests and spending some time inside, he went outside around 9pm with his .22 rifle and air rifle. He was looking for rabbits. He saw three people standing around the shed on the Eversons’ property. He did not find any rabbits. He went back inside and placed his rifle out of sight next to the study table.

49. His wife went to bed some time after 10:30pm. He stayed up, doing maintenance work on the .22 rifle and the air rifle. Around 1:15am, he saw lights outside. He looked out his window and saw the police. There were many of them, including an armoured vehicle. The plaintiff went outside into his driveway and was arrested. His hands were tied behind his back with cables ties. Later, the ties were replaced with handcuffs which were too tight and his hands were bagged with paper bags (for the purposes of subsequent testing for gunshot residue).

50. He was taken to the police station. He was refused bail the next day. He remained in custody until 20 April 2020 at which time he was granted bail. Thereafter, he continued to pursue the withdrawal of the charges until the more serious charge was withdrawn by the DPP.

51. At all times subsequent to the events of March and April 2020, he has suffered from various psychological symptoms which led to a diagnosis of PTSD.

52. He has been unable to work since April 2020, albeit in his second statement, he refers to performing some work in 2020 involving a small number of small jobs and the completion of a large fencing job. He has not worked at all since 2020. He says this is because of his PTSD.

53. He and Mrs Borton sold their home in Glenorie. They now live in Grose Vale.

The cross-examination of the plaintiff

48. Having regard to the questioning of the plaintiff, the defendant pursued two central themes being:

49. Although the central charge against him was withdrawn, the facts behind that charge were actually true. That is, he did fire at the Eversons’ shed that night either using his .22 rifle or his air rifle, which he did not initially tell the police about. Although this was not put as a direct proposition, the effect of the cross-examination was to raise the prospect that he did it; and

50. He is making up a story about his symptoms and level of disability in the sense that, when he wanted to get his firearms licence back, he told the psychologist who examined him for that purpose that there was nothing wrong with him but, when being examined by Dr Bertucen for the purposes of this case, he provided a lengthy list of symptoms having researched the symptoms of PTSD on the internet.

51. It is difficult to imagine a more direct or aggressive strategy towards a plaintiff pursuing a case for malicious prosecution than to raise the idea (even in open ended questions) that the events really did occur and that his complaints are really a fabrication.

52. The defendant even went so far as to suggest that the stutter from which the plaintiff suffers (which was mild but observable as he gave evidence) only arose when he was lying and that he was lying when answering some of the questions (meaning he was stuttering when answering some of the questions). The foundation for the defendant’s proposition is not known. No evidence, medical or otherwise, was adduced by the defendant to support such a proposition. The plaintiff’s wife and sister entered the witness box and were not asked questions about his stuttering.

53. The defendant commenced cross-examination by reminding the plaintiff that the story he was giving in this Court had already been rejected in the Local Court where he was convicted of not storing his firearms safely and similarly rejected in the Civil and Administrative Tribunal (“NCAT”), when he sought to regain his firearms licence. It was put to the plaintiff that he sold his house to finance this case and that he had become aggrieved with the justice system and that he wanted revenge.

54. It was put to him that he had sought justice in the District Court but lost because he was found to be untruthful. The point was to demonstrate that the plaintiff had become obsessed with seeking justice despite already being found to be untruthful both in the Local Court and NCAT and that he was willing to lie to pursue his claim. Findings in other courts as to his veracity have no role to play in these proceedings.

55. He was then taken to the reports of a psychologist he consulted for different purposes, Mr Kruger-Davis. He accepted that he had relied on the report of Mr Kruger-Davis both on his sentence appeal before Judge Hanley SC in the District Court and in the NCAT hearing.

Other evidence

69. The plaintiff’s wife, Angelique Borton, gave evidence. She presented a picture of the plaintiff being a person of good character, working full time and being a happy person prior to the events of March/April 2020. She said that he had not worked since 2020. The effect of her evidence was to corroborate the plaintiff’s evidence as to the trauma he has suffered since these events. She was not challenged on her statement that the plaintiff had not worked since 2020 and not challenged on her observations as to the before and after picture.

70. Bearing in mind that the cross-examination of the plaintiff was to the effect that he did not suffer from the symptoms of which he maintained, it is surprising that Mrs Borton was not challenged on her evidence. It might be said that this is often a thankless task in these types of cases (that is, challenging a family member on the before and after picture), but left unchallenged her evidence is capable of being accepted. Nothing emerged in her evidence which would cause me to conclude that she was making up a story about the effects of the events on the plaintiff.

71. The plaintiff’s sister also gave evidence. Again, in her evidentiary statement she spoke of the difficulties that the plaintiff had experienced since the events. It emerged during cross-examination that she had not really seen the plaintiff much during that period, although she did speak to him on a regular basis.

72. The plaintiff’s daughter, Rae Borton-Priest, gave evidence. She presented a similar picture to her mother, again tending to corroborate the plaintiff’s evidence. She no longer lived at home and seemingly only came home on weekends, but her evidence was to the same effect as that of her mother, that is to the effect that the plaintiff was no longer doing the things he used to.

73. The plaintiff relied on evidence from neighbours: Michael Kemmis, Suzanne Wood and Peter Wood. The effect of their evidence was essentially the same. It was that the person they knew of as the plaintiff was not a person who would have fired shots at the neighbours shed. Further, Mr and Mrs Wood said that they were home on the night and did not hear any shots being fired that night. Again, their evidence seemed to corroborate the plaintiff’s evidence.

74. Mr Kemmis said that he was in the army during the Vietnam War. He was obviously familiar with the sounds of gun shots. He maintained he did not hear any that night. Of course, this supports the plaintiff’s case that he did not fire any shots.

DSC Blackbourn

75. The defendant accepts that DSC Blackbourn was the officer in charge (“OIC”) for the purposes of the police investigation during the period between the time of the plaintiff’s arrest and the DPP taking over in May 2020. The defendant accepts that DSC Blackbourn was the prosecutor as asserted by the plaintiff for the purpose of the malicious prosecution claim.

76. The defendant relied on DSC Blackbourn’s evidentiary statement of 19 September 2025. He was cross-examined. Some inaccuracies in his statement were exposed, including that, contrary to his evidence, statements were never obtained from John or Janice Everson. Further, reference to an initial belief on inspection of the shed immediately after the plaintiff was arrested, that the indentations might have been caused by a .22 rifle or air rifle, is not supported by any contemporaneous documents (that suggestion was raised around one week later). His suggestion of an initial belief that the indentations might have been caused by an air rifle is wrong and somewhat self-serving.

77. Much of the cross-examination related to the actions of DSC Blackbourn between the time that he arrived at the scene and when he left work the next day, although there was questioning of the events subsequent to that.

78. The focus of the cross-examination was on his state of mind and knowledge prior to the bail application around 11am on 30 March 2020. On a number of occasions, it was put to DSC Blackbourn that he had deliberately omitted things from the Facts Sheet for the purposes of withholding information from the magistrate who would be considering bail. This was strongly denied by DSC Blackbourn.

79. In particular, it was suggested to DSC Blackbourn that he had not included in his Facts Sheet that: (1) he had not yet obtained written statements; (2) he had not yet obtained a final report from the ballistics unit (“Ballistics”); (3) he had not yet obtained a final report from the forensics unit (“Forensics”); or (4) that Ballistics had determined that the indentations in the shed were not caused by gunshots.

80. DSC Blackbourn resisted the idea that it was necessary to put all these matters in the Facts Sheet. He said that he prepared a Facts Sheet for the benefit of the magistrate so as to understand the information he had thus far. He did not consider it necessary to detail all the further inquiries he would make or the information he did not have. He did not consider it to be normal practice when completing Facts Sheet to refer to information that had not yet been obtained.

81. The plaintiff’s approach was to suggest this was a form of deliberate withholding of information. I reject that submission. There is a difference between not being aware of certain matters and omitting evidence with would corroborate the plaintiff’s version.

82. There is no evidence to support the contention that DSC Blackbourn was required to put all this further information in the Facts Sheet. At the time of completion of the Facts Sheet, he was still seeking it.

“DETECTIVE SENIOR CONSTABLE BLACKBOURN

…

Q135 Um, you, is that gunna [sic] come back to your, the, the, lead rounds that we find, near the shed, is that [gunna] come back to your firearm?

A There are no lead rounds of mine anywhere near the shed.

Q136 OK.

A And I know - - -

Q137 Yeah.

A I know unless someone else that didn’t, not from my guns, ‘cause my guns - - -

Q138 Yeah.

A - - - are either locked up - - -

Q139 Yeah.

A - - - or I’m there.

Q140 [03:44] Yeah.

A ….. so I would like someone to show me these fives holes. I’m ge [sic], I can almost guarantee you that they’re, that, that, that they’ve either been put there with a, a pick that - - -

Q141 Yeah.

A - - - someone’s done or that’s nonsense.”

98. He must have thus thought that, if shots had been fired at the shed as reported, there would be physical evidence located around the shed to support that. It is difficult to accept that DSC Blackbourn would not have sought information from Forensics as to their findings. He sought to distinguish between Forensics and Ballistics in his evidence, but it must be that within hours of the plaintiff being charged, he knew that Ballistics did not support his view about the indentations and that Forensics had not turned up anything of significance at the scene (despite his belief that they would, as indicated by his questioning of the plaintiff).

99. After returning from leave, DSC Blackbourn believed, wrongly, that there had been a bail re-determination, but that bail had been refused.

100. He continued to investigate the matter as the OIC. In reality, no further information came to light (other than a statement from another neighbour who lived some distance away from the plaintiff).

101. Despite the absence of the sort of evidence which might emerge in a case such as this (such as evidence from Ballistics or cartridges either at the plaintiff’s home or near the shed, or statements from the person identified by DSC Blackbourn as the victims (the Eversons), DSC Blackbourn maintained that he continued to investigate because he continued to believe that the plaintiff was guilty. Why he did so is unclear.

102. During cross-examination, DSC Blackbourn said:

“Q … charges were withdrawn and dismissed, despite the information that you had, and we’ve been through it all--

A. Yeah.

Q. --you never believed or accepted that [the plaintiff] was innocent of the charge?

A. I believed he was--

Q. You believed he was guilty?

A. I didn’t believe he was guilty, but I believe that he had - I believe - reasonable doubts, yeah. Sorry, I believe that he was, yeah, guilty of the offence, yeah.

Q. That was the motivation for you to continue on with the various inquiries that you made post the initial Ballistics information and forensic information that you received?

A. Yeah, that’s correct.”

103. I accept that DSC Blackbourn believed that the plaintiff was likely to be guilty of the charges at the time that he arrested and charged the plaintiff.

104. He said that he continued to hold that belief throughout his investigation, even though no further evidence emerged to support that belief and significant information emerged within hours of the arrest which should and must have cast a real doubt on the allegations made against the plaintiff.

105. I will come back to this later in the judgment.

Plain Clothes Senior Constable Robert Margiotta

106. Plain Clothes Senior Constable Robert Margiotta (“PCSC Margiotta”) also gave evidence and prepared an evidentiary statement dated 19 September 2025. His initial role in the investigation was to attend the scene and prepare a record of what occurred. He was instructed by his supervisor, Detective Sergeant Hamill, to perform certain roles. One of these appears to have been to contact either Ballistics or Forensics. There was some uncertainty as to when PCSC Margiotta spoke to Ballistics or Forensics. When giving evidence he was adamant that that only occurred on 31 March 2020. He said that as soon as he became aware that Ballistics did not agree that the indentations were likely to be bullets, he sought a bail re-determination.

107. DSC Blackbourn said he was informed that Ballistics did not consider that the indentations were bullet holes in the afternoon immediately following the plaintiff being first refused bail, that is, on 30 March.

108. I am unable to determine when PCSC Margiotta spoke to Ballistics or whether he spoke to Forensics as he says. All that is really known is PCSC Margiotta was told that Ballistics or perhaps Forensics did not consider that, based on the photographs, the indentations represented bullet holes. He reported this to DSC Blackbourn. Further, PCSC Margiotta must have spoken to Ballistics, because he said in the bail re-determination application which he says he prepared on 31 March 2020, that:

“Police have since received information from ballistics experts that the indentations within the shed are not likely to have been caused by the projectile of a firearm. Furthermore, no bullets or spent casings have been recovered from the crime scene.”

He says that he spoke to DSC Blackbourn about these matters.

109. In the bail re-determination application, PCSC Margiotta indicated that police did not consider the charges should be withdrawn and that there was sufficient evidence to pursue the charges. He said there was no real discussion of the charges being withdrawn. When asked to identify the sufficient evidence to pursue the charges (meaning the primary charge) he said:

“Where you say, ‘Police are not looking to withdraw the current charges against respondent with sufficient evidence existing to satisfy a prima facie case,’ do I understand that at that time, there was consideration of whether the police should be withdrawing the charges?

A. From memory, no.

Q. Okay.

A. Yeah.

Q. Well then you go on to say, because presumably you’re meaning in your view there is sufficient evidence to satisfy a prima facie case, is that what you’re saying?

A. Correct.

Q. What was the sufficient evidence?

A. There was other, there was other evidence the police were relying on at the time.

Q. What was it?

A. There--

Q. Check your notes or whatever you like, but what was it?

A. There’s nothing in my statement regarding it, because it’s just, from memory, from other, other conversations that I recall from the time, but from memory there was, there was, on the, there was a Triple-0 record, or an alleged Triple-0 recording where there could be gunshots heard in the background--

Q. So Triple-0, you had a report from someone that they thought there was gunshots hitting the shed?

A. Correct, yeah. There was also, there was also witness statements as well where people provided evidence in relation to the matter, and there was, there was other bits and pieces that--

Q. That’s what I’m trying to understand. What evidence? Because you say there was sufficient cause. I’m trying to understand what you believe was sufficient cause. What was the basis of that relief?

A. Well, the fact that we had the, the statements from other, from, from witnesses, and the fact that there could - I believe there could be shots alleged to be heard on the Triple-0 record, and police officers also recorded hearing shots when they arrived at the scene as well.

Q. You understood the police officers had heard shots being fired when they arrived at the scene?

A. That was my understanding, yes.”

110. In reality:

111. there was no evidence that any shots had been fired at the police when they arrived and that appears to be an internal miscommunication on the part of the police; and

112. statements had not been obtained.

113. The only statement that had been obtained was from Nicholas Everson. Just like on the Triple Zero call, he identified hearing noises which sounded like shots into the side of his shed and put forward the plaintiff as the likely firer of the shots. However, he did not say that he had seen the plaintiff fire any shots.

114. Again, when given the opportunity to identify the information that they had which justified the charging and imprisonment of the plaintiff, both police officers relied heavily on the statement of Nicholas Everson but pointed to little else other than information that was quite false.

115. In reality, there was no other information supporting any belief that the plaintiff had fired any shots that night and, within one day of the plaintiff being arrested, all other information available to the police suggested to the contrary.

False imprisonment/wrongful arrest

The plaintiff’s perspective as to his arrest

114. The plaintiff says that on the morning of 29 March 2020, he removed his air rifle from his safe as he intended to shoot Indian Mynas. However, he did not do any bird shooting that day, albeit he did some target practice at the rear of his house. He became aware that the parallax adjustment (focus) of his air rifle was not accurate. He took it to the workshop to inspect it and dismantle the scope. He took steps to correct the problem.

115. At around 11:30am, friends came to the plaintiff’s house for lunch. One of the friends was an ex-Winchester firearms representative. He showed him his Marlin 39A firearm which he had kept in the safe. His guests left around 5pm. He spent time on the internet including researching items for firearms. He watched TV for a while.

116. Around 9pm, the plaintiff went to the garage or workshop area and got his .22 rifle and air rifle from the safe. He walked around the front of his house and passed the bins. His sensor light came on. At this time, the Eversons’ spotlight was also on. He observed three people standing around the Eversons’ shed. He walked around the back of his house looking for rabbits. He says he did not see any. He did not fire any shots. He came back into the house and put both the air rifle and the .22 rifle out of sight (but not back into the safe).

117. Around 10:30pm, his wife went to bed. He sat at his study table undertaking repairs to his air rifle. Between 9:45pm and 1:05am, he received three calls on his mobile phone from an unidentified number. He did not answer the calls as was his practice.

118. At approximately 1:15am, he was at his desk in his study still working on his two rifles. He saw bright lights coming from the driveway. He went to look through his curtains, whilst coincidently holding his .22 rifle in his hands. He then proceeded upstairs and looked out through the upstairs window, observing an armoured vehicle in the driveway and the police dressed in armoured clothing and military style rifles in the front yard.

119. The plaintiff put his rifle in the walk-in wardrobe after removing the magazine. Believing he had done nothing wrong and had nothing to fear, he went to the front door. He opened the door and raised his right hand to shield from the light in his eyes. He then observed a police officer dressed in black behind an armoured vehicle pointing a rifle at him.

120. The plaintiff says that police shouted orders at him to put his hands down and walk backwards towards them. He did so and a police officer came behind him and bound his hands together with cable ties. Another two officers then attended and escorted him to his front door. He saw his wife there. The police asked his wife if she was ok and asked if their daughter was ok.

121. He was then escorted by the three police officers away from the front door to the rear of the police armoured vehicle. He then spoke to one of the officers who asked him his name. The officer then said, “[Y]ou are under arrest for an alleged shooting. Put your hands behind your back.” According to the plaintiff, the officer then applied cable ties to his wrists behind his back.

The police perspective

126. From the police perspective, the relevant events commenced with the call made by Nicholas Everson to the Triple Zero line at 9:25pm on 29 March 2020.

127. The Triple Zero call was played in the Court and the transcript was admitted into evidence. Nicholas Everson said:

“I would just like to report someone taking pot shots at a shed at Glenorie, um we’re standing beside the shed at the moment and there is somebody in a distant house”.

He went on to say that they were standing by the shed while “its [sic] been hit twice now”. When asked whether he knew where the shots were coming from, he said he had a fairly good idea.

128. During the call, a noise is heard with Nicholas Everson saying, “there you go, did you hear that?” In the transcript of the call, that noise is recorded as being, “you can hear what appears to be a bullet hitting the shed”.

129. Nicholas Everson is asked whether he had an inclination as to who it might be. He said:

“… Ah what’s the guys [sic] name across the road, Luke, so it’s a neighbour of my mum and dads, so this has been a, an ongoing thing, for a little bit and they didn’t ring or make a report the first time the shed was shot at.”

130. He said that the plaintiff had a problem with a light on the house that shines on the shed. He also said that the plaintiff’s house was the only house on that side of the road and there was no one walking up and down the street.

131. The Triple Zero call was directed to police and included the complaint as to the shots being fired. At approximately 11:08pm, information relating to that complaint had been communicated to DSC Blackbourn by Sergeant Pope. DSC Blackbourn arrived at Castle Hill Police Station around 11:30pm, where he printed off a copy of the Computer Aided Dispatch log (“CAD Log”).

132. He then drove to the command post which had been established down the road from the plaintiff’s house. During that drive, he had a telephone conversation with his supervisor, Sergeant Stuart Fortier. He was informed that members of the TOU and the Public Order and Riot Squad and a surveillance plane were on the scene or had been deployed.

133. At least according to DSC Blackbourn, Sergeant Fortier told him that Nicholas Everson, had said shots were being fired at his parents’ shed and that the Triple Zero operator also heard a shot. He identified the plaintiff’s address and said that the plaintiff had a large number of firearms, about 12, registered in his name.

134. Thereafter, at around 12:25am, DSC Blackbourn called Nicholas Everson and had a further conversation with him. According to DSC Blackbourn, Nicholas Everson said:

“Yes, that’s right. I saw indentations on the side of the shed. Even the triple-o operator heard a shot during the call. My parents’ neighbour has had issues about what he says is a spotlight shining onto his property. The gunshots came from his direction. When I was standing outside near the shed, I saw Luke Borton walking around holding a firearm.”

135. DSC Blackbourn says in his evidentiary statement that Nicholas Everson sounded rattled during the conversation. He seemed to be fearful or anxious. Again, why he would not seem to be alarmed when making the Triple Zero call but fearful and anxious hours later is unclear. There may be a number of reasons ranging from a lack of concern for his safety initially followed by a subsequent realisation of the danger he had been in to something more sinister. I emphasise that it is not my task to make any finding about the belief (genuine or otherwise) of Nicholas Everson at the time of his complaint.

136. Based on his experience, DSC Blackbourn formed the view that Nicholas Everson was a legitimate victim. DSC Blackbourn did not record details of that conversation at the time as he expected to speak to him formally shortly thereafter.

137. Subsequently, discussions continued amongst the police about the steps which should be taken to deal with the situation. DSC Blackbourn says that he spoke to Senior Constable Michael Lefel around 12:45am requesting that when the plaintiff was arrested, bags should be placed over his hands and lower arms to preserve gunshot residue.

138. After 1:04am, DSC Blackbourn observed members of the TOU and a police negotiator leave the command post and drive off in a tactical vehicle. At about 1:18am, he was informed that the plaintiff was in custody. He then attended the scene around 1:25am. He was informed by LSC Matthew Leetham that the plaintiff had been arrested without incident.

Compliance with LEPRA

139. The police may arrest a person without warrant in certain circumstances. The scope of the powers is set out in ss 99, 201, 202 and 231 of LEPRA. Section 231 is not relied upon in this matter.

140. As was explained by Basten JA in State of New South Wales v Randall [2017] NSWCA 88, at [10], whether an arrest is lawful must depend on the satisfaction of three criteria, being:

141. The officer must suspect on reasonable grounds that the person is committing or has committed an offence.

142. The officer must be satisfied that it was reasonably necessary to arrest the person for any one of the reasons set out in s 99(1)(b); and

143. The person arrested must be informed of the reason for the arrest.

144. In this case, the plaintiff does not dispute that the arresting officers held a suspicion that the plaintiff had committed an offence.

145. However, the plaintiff submits that:

146. There were no reasonable grounds for the suspicion; and

147. He should have been informed of the reasons for his arrest when his arms were first tied behind his back by LSC Leetham (rather than minutes later).

148. I do not accept that second complaint. Even on the plaintiff’s own version, he was rearrested minutes later at which time he was informed of the reasons for his arrest by DSC Blackbourn, that is, for “shoot with intent”. He was asked by DSC Blackbourn whether he understood what he just said and that information needed to be repeated. The plaintiff responded, “No, I understand what you said. It’s fine”.

149. Having regard to the plaintiff’s assertion that he did nothing wrong that evening and that he did not fire any shots into the Eversons’ shed, the plaintiff may feel aggrieved about the manner and circumstances of his arrest that night, but I do not accept that the police failed to comply with their obligations in terms of informing him of the necessary matters in accordance with s 202 of LEPRA.

150. The plaintiff’s more substantive complaint relates to s 99 of LEPRA.

151. Section 99 is in the following terms:

“99 Power of police officers to arrest without warrant

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

(a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and

(b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

(2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.

(3) The arresting police officer or another police officer must, as soon as is reasonably practicable, take the person who has been arrested under this section before an authorised officer to be dealt with according to law.

Note—

A police officer may discontinue the arrest of a person at any time and without taking the arrested person before an authorised officer—see section 105.

(4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.

(5) This section does not authorise a person to be arrested for an offence for which the person has already been tried.

(6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.

(7) In this section—

arresting police officer means the police officer arresting a person under this section.”

147. The plaintiff accepts that the arresting officers held an honest belief that the arrest was justified. However, the plaintiff submits that the arrest was not justified on reasonable grounds. As set out in s 99 of LEPRA, the power to arrest without a warrant only exists if both the matters set out in ss 99(1)(a) and 99(1)(b) are satisfied, that is:

148. The police officer suspects on reasonable grounds that the person is committing or has committed an offence; and

149. The police officer is satisfied that the arrest is reasonably necessary for one or more of the reasons set out in s 99(1)(b).

150. In Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 571, McColl JA (with whom Hoeben JA agreed) set out the following propositions relevant to determining how a person required to have reasonable grounds either suspects or believes certain matters for the purposes of arresting a person may properly form that state of mind:

“15 The following propositions, adapted by reference to s 3W, can be extracted from decisions considering how a person required to have reasonable grounds either to suspect or believe certain matters for the purposes of issuing a search warrant or arresting a person might properly form that state of mind:

(1) When a statute prescribes that there must be ‘reasonable grounds’ for a belief, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (at 112);

(2) The state of mind that the reasonable grounds for the relevant suspicion and belief exist must be formed by the person identified in s 3W (the ‘arresting officer’); the arresting officer may not ‘discharge the ... duty [of forming the relevant opinion] parrot-like, upon the bald assertion of the informant’: George v Rockett (at 112), quoting R v Tillett; Ex parte Newton (1969) 14 FLR 101 (at 106) per Fox J;

(3) The proposition that it must be the arresting officer who has reasonable grounds to suspect (or believe) the alleged suspect to be guilty of an arrestable offence is intended to ensure that ‘[t]he arresting officer is held accountable ... [and] is the compromise between the values of individual liberty and public order’: O’Hara v Chief Constable of Royal Ulster Constabulary (at 291) per Lord Steyn (Lords Goff, Mustill and Hoffmann agreeing);

(4) There must be some factual basis for either the suspicion or the belief: George v Rockett (at 112); the state of mind may be based on hearsay material or materials which may be inadmissible in evidence; the materials must have some probative value: R v Rondo [2001] NSWCCA 540; (2001) 126 A Crim R 562 (at [53](b)) per Smart AJ (Spigelman CJ and Simpson J agreeing); Shaaban Bin Hussien v Chong Fook Kam (at 949); O’Hara v Chief Constable of Royal Ulster Constabulary (at 293) per Lord Steyn;

(5) ‘The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof’: George v Rockett (at 116);

(6) ‘Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture’: George v Rockett (at 116);

(7) What constitutes reasonable grounds for forming a suspicion or a belief must be judged against ‘what was known or reasonably capable of being known at the relevant time’: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 (at [40]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; whether the relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 (at 714) per Kirby P (Meagher and Sheller JJA agreeing); see also O’Hara v Chief Constable of Royal Ulster Constabulary (at 298) per Lord Hope;

(8) The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O’Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O’Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is ‘[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?’: Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;

(9) ‘The identification of a particular source, who is reasonably likely to have knowledge of the relevant fact, will ordinarily be sufficient to permit the Court to assess the weight to be given to the basis of the expressed [state of mind] and, therefore, to determine that reasonable grounds for [it] exist’: New South Wales Crime Commission v Vu [2009] NSWCA 349 (at [46]) per Spigelman CJ (Allsop P and Hodgson JA agreeing); see also International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 (at [134] - [135]), per McClellan CJ at CL. Although McClellan CJ at CL was in dissent, Allsop P (with whom Beazley JA agreed) (at [51]) would have agreed with McClellan CJ at CL’s conclusion in this respect subject to qualifications none of which are in issue in the present case. International Finance Trust Co Ltd v New South Wales Crime Commission was overturned in the High Court insofar as it concerned the constitutional validity of s 10 of the Criminal Assets Recovery Act 1990, but not in a manner which affects the statements concerning the reasonable grounds issue: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319;

(10) In Holgate-Mohammed v Duke (at 443), Lord Diplock held that the words ‘may arrest without warrant’ conferred on a public official ‘an executive discretion’ whether or not to arrest and that the lawfulness of the way in which the discretion was exercised in a particular case could not be questioned in any court of law except upon the principles Lord Greene MR enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. That aspect of Lord Diplock’s reasoning was applied in Zaravinos v State of New South Wales (at [28]) where Bryson JA (Santow JA and Adams J agreeing) held that that the validity of an exercise of the statutory power to arrest, in that case under s 352(2) of the Crimes Act 1900 (which provided that ‘[a]ny constable or other person may without warrant apprehend’), was ‘not established conclusively by showing that the circumstances in s 352(2)(a) exist[ed], and that the validity of the decision to arrest and the lawfulness of the arrest also depend on the effective exercise of the discretion alluded to by the word ‘may’ ‘; see also Bales v Parmeter (1935) 35 SR (NSW) 182 (at 188) per Jordan CJ. Holgate-Mohammed v Duke has not been followed in Australia to the extent that Lord Diplock held that an arrest for the purpose of asking questions was lawful: see Zaravinos v State of New South Wales (at [31] - [33]); Williams v The Queen (at 299) per Mason and Brennan JJ.”

149. The plaintiff submits that the complaint by Nicholas Everson was not enough to provide a reasonable ground for the arrest of the plaintiff. The reasons include:

150. Nicholas Everson did not say that he witnessed the plaintiff shooting at the property;

151. It was not Nicholas Everson’s property;

152. No evidence had been obtained from John Everson or Janice Everson (Nicholas’ parents, the owners of the property);

153. No disclosed, accurate history had been obtained of the neighbourhood dispute;

154. There is no evidence of Nicholas Everson’s expertise to even suggest that what he heard was from a firearm or that the indentations in the shed were from a firearm;

155. The police radio state coordinator’s question to relevant police officers requiring confirmation that shots had been fired was reasonable, but no confirmation was actually obtained;

156. There were inaccuracies in the CAD Log; and

157. The plaintiff had no criminal convictions and was a licenced firearms owner.

158. According to the plaintiff, the police needed to have done more before arresting the plaintiff, including:

159. Obtaining statements from John Everson and Janice Everson;

160. Corroborating that the indentations in the shed were from a firearm; and

161. Corroborating that the shots had actually been fired.

162. I do not accept the plaintiff’s criticisms. They are based on hindsight and ignore the reality of the situation facing the police, that is the alleged use of a gun in public directed at another property or person.

163. I accept that DSC Blackbourn had a suspicion on reasonable grounds that the plaintiff had committed an offence, that is, shooting at the neighbour’s property.

164. Whilst it may be that in some cases suspicion based on the mere say so of a complainant is not sufficient, DSC Blackbourn was aware of a number of relevant matters at the time of arrest (as were the other officers) including that:

165. There had been a Triple Zero call earlier during which the caller had not only complained of shots being fired but sounds had been heard which the caller identified as the shots hitting the shed. This suggested that there would likely be not only an eyewitness to the events but also physical evidence corroborating that witness statement;

166. That same person had been spoken to directly by DSC Blackbourn. He had confirmed what he maintained had occurred. He maintained that he saw the plaintiff with a gun that evening. DSC Blackbourn believed that Nicholas Everson sounded rattled;

Malicious prosecution

159. There is no dispute that the first two elements of the tort are satisfied. The defendant disputes that it acted with malice and without reasonable and probable cause.

160. DSC Blackbourn was the person who both initiated and maintained the proceedings. The defendant is liable for his conduct, and it is his state of mind which is relevant.

161. The relevant charge was withdrawn on 3 September 2020 after the matter had been referred to the DPP and long after the plaintiff had been released from prison, but it is the actions of DSC Blackbourn in firstly initiating the prosecution by charging the plaintiff and then maintaining it as the OIC which is relevant.

162. There may be more than one prosecutor such that even after conduct was assumed by the DPP, the OIC might remain a prosecutor for the purposes of the tort.

163. In the Spedding Appeal Judgment, at [15]-[16], the Court of Appeal (Bell CJ, Ward P and Adamson JA) observed:

“15 The person who initiates a prosecution may differ from the person who maintains it. Moreover, identification of the prosecutor is not a matter of merely identifying a person who is literally or formally named as the ‘prosecutor’ on Court process and, as Mr Free SC, who appeared in the appeal for the State, accepted, there may be multiple prosecutors.

16 These propositions all flow from the fact that, in Davis v Gell (1924) 35 CLR 275 at 282-283; [1924] HCA 56 (‘Davis’), Isaacs ACJ said, in an important passage, that for the purposes of this tort (with emphasis added):

‘… the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor. It enables the person innocently accused to treat his virtual accuser as party to the criminal charge, a circumstance bearing directly on the question of the effect in the civil action of the judicial termination of the criminal proceedings. The substance and not the legal form must in all cases govern, and while, on the one hand, a person giving information to the police is not necessarily the prosecutor yet, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position.’” (emphasis in original)

See also New South Wales v Landini [2010] NSWCA 157 (“Landini”).

164. The defendant accepts that DSC Blackbourn was the prosecutor up to the time that the DPP assumed conduct. The plaintiff maintains that DSC Blackbourn remained a prosecutor until the charge was withdrawn. In my view, he remained instrumental in pursuing the charge against the plaintiff as he remained the OIC.

165. Having said that, it is really the events which occurred very early in the prosecution which assume some significance in this matter. Whether DSC Blackbourn remained a prosecutor for the limited period after the DPP took over is of limited consequence. No new information came to light.

166. The real issues in dispute are whether the defendant lacked reasonable and probable cause and acted with malice.

Reasonable and probable cause

167. In A v State of NSW at [58], the majority of the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) observed:

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

168. The inquiry into reasonable and probable cause thus involves both subjective and objective elements, including a consideration of the what the prosecutor thought about the charges he was pursuing as well as what he should have thought.

169. In Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466 (“Mitchell v John Heine”) at 469, Jordan CJ observed that that one or more of the following five conditions must be shown not to have existed:

“(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.”

170. It can thus be seen a number of the conditions involve an inquiry into the state of mind of the prosecutor but not all. Conditions 4 and 5 require an objective assessment.

171. As the Court of Appeal said more recently in the Spedding Appeal Judgment, at [41], proving the absence of reasonable and probable cause can be done by proving that the prosecutor did not believe that the plaintiff was guilty or that the belief was based on insufficient grounds.

172. Finally, it is important to recognise that the inquiry involves an assessment of the material available to the prosecutor at a particular point in time and not with reference to material that might have come in later. Of course, that does not mean that regard may not be had to the continuing nature of a police investigation, but the court does not approach the issue with hindsight.

173. The plaintiff maintains that there was never a sufficient basis for him to be charged but, even if there was, it became clear within 24 hours that there was insufficient information to maintain the proceedings.

174. The defendant highlights the heavy onus on the plaintiff, submitting that the defendant bore no onus. Further, the defendant maintains that the plaintiff could not prove the absence of any of the conditions referred to in Mitchell v John Heine without putting before the Court all information available to DSC Blackbourn at the relevant time.

175. The defendant asserted that the plaintiff had been selective as to the tender of the material. I confess to being somewhat confused by that submission in the sense that, plainly, if there was relevant information available to DSC Blackbourn at any particular time which would have provided a reasonable basis for his belief, that information should have been put before the Court.

176. If the defendant sought to rely on such information, there was no reason the defendant could not have put such information before the Court. A mere statement that the plaintiff did not tender the whole of the police brief does not take the matter very far.

177. Having said that, the defendant points to an email from Plain Clothes Senior Constable James Gunther to DSC Blackbourn dated 3 April 2020, which refers to potential evidence from Greg and Christy Edward. They said that around 9:30pm, they heard two shots approximately 5 minutes apart, which sounded like a rifle in the distance at the top of the cul-de-sac (presumably near their property). They also referred to their own history of conflict with the plaintiff. On the defendant’s case, that evidence provided sufficient reasonable probable cause to maintain the prosecution.

178. I accept that DSC Blackbourn was provided with information on that day (3 April) regarding further potential witnesses as to the existence of shots that night. That was certainly relevant information. However, they did not know where the shots came from and the reference to the plaintiff is entirely speculative. It appears to be the only information of any significance (supportive of the charge being pursued) which came to light in the days and weeks after the plaintiff was arrested.

“HIS HONOUR: I just have a question. You can obviously ask any questions, either of you.

Q. Within hours of the plaintiff not been granted bail, not before, but after, within hours, you knew that Forensics hadn’t turned anything up, that is in terms of cartridges, bullets, whatever?

A. Correct.

Q. You knew that Ballistics had said, based on the photographs, ‘We don’t think they’re bullet holes’?

A. Yeah, correct.

Q. You had a statement from Mr Everson saying, ‘Well, I heard sounds and thought they were bullets’?

A. Mm-hmm.

Q. ‘And I’m volunteering the plaintiff as being the person who shot them’, but you knew he didn’t see the plaintiff firing any guns?

A. Actually firing? No.

Q. Didn’t see it, and he didn’t actually see any bullets hitting the shed, he just heard sounds?

A. Yep.

Q. He knew that, right?

A. Correct.”

190. DSC Blackbourn said in cross-examination that he did not necessarily agree that they were not bullet holes, but I have difficulty understanding the basis of that view in circumstances in which the Forensics had been out there and had not discovered anything and Ballistics had said that, at least based on the photographs, they did not think they were bullet holes. Why DSC Blackbourn might have considered his own views as superior to the police experts (Forensics and Ballistics) is not known.

191. In any event, as of the afternoon of 30 March 2020, DSC Blackbourn’s state of knowledge was as follows:

(1) He was aware of the content of the Triple Zero call and he had spoken to the person who had made that call to confirm that information;

(2) He was aware that the person who had made the call had suggested that there were bullets hitting the shed and then volunteered that it was the plaintiff who was probably doing the shooting, albeit he could not say that he actually saw the plaintiff doing the shooting;

(3) He was aware that there was a previous conflict between the plaintiff and the Eversons and he wrongly believed that the plaintiff had threatened violence against John Everson, when in fact it was allegedly the other way around;

(4) He knew that the plaintiff had firearm licences and held guns;

(5) He knew that the plaintiff denied firing any guns or firing anything towards the Eversons;

(6) He knew that the plaintiff had participated in an ERISP and had denied being involved;

(7) He knew that at that time, there was no independent evidence, that is, other witness statements or evidence from any person who had actually seen the plaintiff firing a gun. In view of the situation of the properties, he must also have thought it unlikely that there would be any witnesses to the alleged shooting;

(8) He knew that, at the very least, although Forensics had been to the property that morning, they had not turned anything up, in the sense that there had been no report from them finding anything such as cartridges or anything else to corroborate Nicholas Everson’s statement;

(9) He knew that contrary to what appeared to have been planned, that is, bagging the plaintiff’s hands and carrying out testing, no such testing had taken place and there was no intention of carrying out such testing;

(10) He knew the rifle which had been seized had not been tested; and

(11) Finally, he knew that Ballistics, who must be taken to have been the experts on this issue, had formed the view from the photographs that the indentations were not caused by bullets and they did not intend to go to the scene, that is, they must have been taken to have been so sure of their view they would not inspect the scene.

192. The only information he had on the day following the alleged shooting as to existence of any shooting and the suggestion that it was the plaintiff who fired the shots was the information provided by Nicholas Everson. Even John and Janice Everson, his parents, had not come forward to assist and indeed they never did.

193. None of the other inquires thus far commissioned had produced any evidence of any involvement of the plaintiff in any shooting and, to the contrary, tended to suggest that there was no shooting.

194. DSC Blackbourn says that he still believed that the plaintiff was guilty (of firing the shots into the shed). I’m not sure why.

195. I do not accept that there was any reasonable basis for him to continue to hold that view. To the extent that he held that view on an ongoing basis his view was not held on reasonable grounds.

196. Other than the suspicion or conjecture of Nicholas Everson, there was no evidence or even information that the plaintiff had fired any shots that night. There were no other witnesses. It was too late to test the plaintiff’s hands. Nothing had been found either at the plaintiff’s property or the Everson property to support the suggestion of shots being fired and hitting the shed and the opinion of the police experts (Ballistics) was that the indentations were not caused by gunshots.

197. The charge was withdrawn by the DPP on 3 September 2020. During that period, DSC Blackbourn continued to seek out further evidence, but his attempts to obtain evidence were unsuccessful. This is because:

198. John and Janice Everson refused to provide statements; and

199. His requests for the police dog and a formal examination by Ballistics were rejected.

200. Further, DSC Blackbourn accepted that within days of the plaintiff being arrested, he had spoken to one of the plaintiff’s neighbours, Steven Tomasic, who happened to be a police officer at Castle Hill Police Station. Senior Constable Tomasic had told him that he had not heard gunshot noises that night.

201. In the circumstances, I do not accept that there was a reasonable and probable cause to pursue the prosecution of the plaintiff. This was the situation within a day of him being arrested. It did not change.

Malice

200. Malice is an essential element of the tort. The plaintiff must prove that the prosecutor was acting with malice in initiating or maintaining the proceedings. In this matter, it is somewhat artificial to distinguish between the initiation of the proceedings, which happened when the plaintiff was charged and the maintenance of the proceedings, which happened thereafter.

201. It has been said that maintenance of the proceedings requires some positive act on the part of the prosecutor (see Landini at [52]-[59] (Macfarlan JA, with whom Tobias JA and Sackville AJA agreed); State of New South Wales v Abed [2014] NSWCA 419 at [191]-[201] (Gleeson JA, with whom Bathurst CJ and Macfarlan JA agreed)). Such positive acts might include continuing to investigate and taking steps to obtain evidence to support the charges. This is what DSC Blackbourn did.

202. In A v State of NSW at [61], the majority of the High Court (per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) observed that:

“Because the absence of reasonable and probable cause is understood as containing both subjective and objective elements, one of the chief forensic difficulties confronting a plaintiff is how to establish what the prosecutor (the defendant in the civil proceeding) had in his or her mind when instituting or maintaining the prosecution. Absent some admission by the defendant, the plaintiff must make the case by inference and, if the defendant gives evidence, by cross‑examination.”

203. The plaintiff must prove malice. That might be achieved directly through cross-examination of the prosecutor or malice might be inferred, having regard to all the circumstances.

204. In some circumstances, malice might be demonstrated from the absence of reasonable and probable cause (see A v State of NSW at [40]), but there remain two separate issues to be determined.

205. In Hathaway v State of New South Wales [2009] NSWSC 116, Simpson J observed, at [118]:

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

206. In this case, the police may have been justified in attending at the plaintiff’s property and arresting him, having regard to the complaint of shots being fired into s neighbour’s shed whilst the neighbours were close to the shed. A matter of public safety as well as the safety of the suggested victims plainly arose.

207. DSC Blackbourn may have been justified in charging the plaintiff having regard to the information from Nicholas Everson and the fact that the plaintiff owned guns and the most likely place from where the shots might have been fired was the plaintiff’s property.

208. However, once both Forensics and Ballistics had reported to the effect that there was no physical evidence of any bullets hitting the shed, with the knowledge that Nicholas Everson did not actually see the plaintiff fire any shots and there were unlikely to be other persons who did, it should have been apparent to an experienced police officer such as DSC Blackbourn not just that the case was not strong, but that there was really no evidence at all to support the charge that had been laid. DSC Blackbourn should have been aware that reasonable and probable cause did not exist and the proceedings ought to have been terminated.

209. This is not an assessment made with hindsight. Within a day of the charge being laid, it should have been evident to DSC Blackbourn that not only did they not have evidence to support the charge, but they were unlikely to obtain any further evidence.

210. This was perhaps best demonstrated when PCSC Margiotta was asked in an open-ended way to identify the evidence the police had to support the shooting charge. He referred to having statements from other witnesses (which the police never had) and a belief that shots could be heard on the Triple Zero call (which Ballistics and Forensics did not support), and that police had reported hearing shots when they arrived at the scene (which never occurred).

211. A decision should have been taken very quickly to withdraw the charge. This did not happen. Instead, the plaintiff wallowed in prison for a period of 21 days and the proceedings were not discontinued for nearly 5 months.

212. Malice may be inferred if proceedings are initiated or maintained for an improper purpose. The police must investigate matters and obtain evidence for the purposes of any proceedings but holding a person in custody and maintaining proceedings in the absence of any evidence at all to support the charge in the hope of obtaining evidence at a later stage, must be viewed as an improper purpose. In that sense, the prosecution must be viewed as malicious.

213. That does not mean that DSC Blackbourn somehow held a grudge against the plaintiff or that he was being dishonest, but he was acting with malice in pursuing the proceedings when he must have known there was no evidence at all to support them. Having arrested him, he continued to maintain the proceedings when there was no evidence to support the charge, in the hope that some would emerge, even though he must have known that would be unlikely.

Damages

215. As set out in s 3B(1) of the CLA, the provisions of the CLA do not apply in respect of civil liability for intentional torts except that ss 15B and 18(1) as well as Pts 7 and 2A continue to apply.

216. As such, damages must be assessed under the common law. The restrictions and limitations on the awarding of damages contained in the CLA do not apply.

217. Compensatory damages are intended to put the plaintiff back into the position that he would have been but for the conduct of the defendant.

218. Aggravated damages are also a form of compensatory damages which might be awarded to a plaintiff for stress, anxiety and hurt feelings that he or she suffers, over and above for any injury sustained arising from particularly egregious conduct of a defendant towards a plaintiff.

219. Damages are rarely awarded for hurt feelings, distress or emotional issues without the suffering or development of a recognised psychiatric illness (State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445 (“the Ibbett Court of Appeal Judgment”) at [21] (Spigelman CJ).

220. Exemplary damages may be awarded in cases in which the defendant has shown disregard for the rights of the plaintiff and as a means of bringing the state’s conduct into account. They are punitive in nature and reflect the conduct of the defendant rather than the damage suffered by the plaintiff.

221. The plaintiff must prove his loss. The defendant does not have to prove that the plaintiff did not suffer injury.

222. The plaintiff alleges that, as a result of the tortious conduct of the defendant, he developed psychiatric illness in the nature of PTSD, anxiety and depression.

223. He says that he has been unable to work since his period of imprisonment (except briefly) and claims economic loss accordingly.

224. The medical evidence is not extensive. He relies principally on two reports of a consultant psychologist, Dr Jeff Bertucen, who he saw for the purpose of these proceedings on two occasions, 24 August 2022 and 10 October 2025.

225. He also relies on some reports of psychologists and counsellors who he saw from time to time.

226. The plaintiff was medically examined on behalf of the defendant by Dr Jungfer, but that report was not served or tendered in the proceedings. The defendant objected to the plaintiff relying on it. I draw an inference that Dr Jungfer's report would not have assisted the defendant.

227. Dr Bertucen considered that the plaintiff was suffering from PTSD consequent upon his treatment by the police.

228. The primary basis on which the defendant maintains that the plaintiff does not suffer from any psychological condition is what the plaintiff told Mr Kruger-Davis in the period of 2021 and 2022 when he was seeking to re-obtain his firearms licence.

“Q. What’s the answer to that? That’s what you’ve been asked, I think, isn’t it? Why?

A. One of the reasons are that with - as far as I’m aware of, if you take medication, it’s - it could have an effect on your firearms license.

BODOR

Q. Any other reason?

A. I’ve just – I’ve never had medication. I prefer not to have medication. It’s – it’s not - to me, medication is a Band-Aid for the symptom, not dealing with the problem.

HIS HONOUR

Q. How do you propose to solve your problem then?

A. This is solving my problem, Judge.

Q. What is?

A. Helping anyway.

Q. This case?

A. Yes.

Q. That’s fine.

A. Dealing with all of this.

Q. I just need to understand, you said medication is not going to help you solve your problem, so you say this is helping you solve the problem?

A. If - yeah. To a certain extent, yes.

BODOR

Q. In what way?

A. Whether I consider leaving Australia. Because if, if this is allowed to happen without consequences I can’t live here. Because this could happen to me again at any stage and I cannot allow that to happen again. I need to get out of the country.

Q. And how is the resolution of this case going to help you?

A. Well, we're not there yet. It, it may not. In which case I need to leave the country.”

239. The assessment of damages in a case such as this involves the consideration of not only the medical evidence but a practical and commonsense consideration of the probabilities having regard to lay evidence and the reality of the situation.

240. Claims for malicious prosecution often involve a sense of grievance and betrayal and a preoccupation with seeking justice. Whilst there can be no certainty in what may happen in the future and whilst Dr Bertucen was unable to opine with confidence, it must be that a successful outcome to proceedings brought in part to seek justice will provide some amelioration of the plaintiff’s symptoms. To find otherwise would be to ignore the reality of that which is occurring.

241. Further, in a case in which the plaintiff obtains the benefit of the eggshell skull theory, that is an explanation for his continued symptoms is his obsession with seeking justice, the plaintiff can hardly assert that the obtaining of justice will not bring him any relief.

The medical evidence

242. The medical evidence falls into three categories:

243. The medico-legal reports obtained for these proceedings;

244. Reports and records of the plaintiff’s treating doctors and allied health professionals; and

245. The medical reports relied upon by the defendant in these proceedings, being the reports of Mr Kruger-Davis. These reports were obtained by the plaintiff for the purposes of the sentencing proceedings stemming from his conviction in respect of the lesser charge of ‘not keep firearm safely’.

Reports of Dr Bertucen

243. Dr Bertucen, a consultant psychiatrist, prepared two reports for the purposes of these proceedings, dated 25 August 2022 and 14 October 2025, respectively. As the defendant did not serve the report that it obtained for the purpose of these proceedings, there was no joint report and Dr Bertucen merely attended for the purpose of cross-examination.

244. The history provided to Dr Bertucen was generally consistent with the plaintiff’s evidence, including the plaintiff’s description of the events when he was arrested and kept in custody, his suggestion that he had not worked since approximately October 2020 and his description of the symptoms which he maintains. Dr Bertucen also obtained information from Mrs Borton, which was again consistent with the evidence she gave in these proceedings.

245. In his report of 25 August 2022, Dr Bertucen described the plaintiff as being completely dismayed and demotivated, both regarding his earlier hobbies and work. There were changes to his emotional state, including chronic irritability and impatience. According to Dr Bertucen, the plaintiff became easily distractible, doubted his own skills and was disinterested in pursuing his business. He suffered from disturbed sleep and remained preoccupied with the events which befell him, including constant rumination about “how this sort of thing could happen in Australia”. He denied any prior history of anxiety disorders or psychiatric conditions.

246. Dr Bertucen considered that the plaintiff suffered from:

“… chronic posttraumatic stress disorder (currently in partial remission) and chronic adjustment disorder with features of depressed mood and anxious distress.”

247. These conditions had a significant effect on his psychological wellbeing and his day-to-day activities. Dr Bertucen considered that the plaintiff would benefit from further psychological treatment. At that time, his prognosis was guarded.

248. When seen again in October 2025, Dr Bertucen obtained a history from the plaintiff that his mood was generally stable when on his property, and that he benefitted from the solitude and quite of the rural location. He maintained a similar symptomatology as at the last occasion. He found it difficult to focus and his concentration and memory were impaired.

249. Dr Bertucen opined that the plaintiff continued to suffer from PTSD of moderate severity, as well as what could be described as a persistent depressive disorder. The clinical picture was “dominated by residual posttraumatic stress disorder features”. Dr Bertucen considered the plaintiff had no capacity for any employment, even home-based work, due to his psychiatric symptomatology. Importantly, he said:

“Prognosis is guardedly positive and, in my opinion, could be expected to improve further upon the conclusion of [the plaintiff’s] legal process, which is continuing to exert a great deal of distress.”

250. Further, Dr Bertucen also opined that, if the plaintiff had been wrongfully arrested and not imprisoned, he would not still be suffering from a mental health condition. I confess to being uncertain as to the basis of that somewhat speculative opinion, but it does not matter.

251. Dr Bertucen was cross-examined. Consistent with the defendant’s approach to the plaintiff, he was questioned about the content of Mr Kruger-Davis’ report and what was said to be differences in diagnoses and opinion, initially in general terms and then specifically. It was a difficult task for the defendant, because ultimately, Dr Bertucen could only say that he would fall back on his own questioning and assessment of the plaintiff and, to the extent that his opinions were different from other health professionals, he could only vouch for his own assessment processes.

252. Further, when asked about the differences and inconsistencies between the content of Mr Kruger-Davis’ report and his own reports, Dr Bertucen highlighted that the plaintiff presented in a consistent fashion over two separate periods, that is, 2022 and 2025.

253. Dr Bertucen was also asked about an earlier reference to the plaintiff being obsessive and the significance of that, that is, whether Dr Bertucen took account of the suggestion the plaintiff had an obsessive personality. Whilst acknowledging the earlier references, he did not consider that the plaintiff suffered from an obsessive personality disorder. He did say, however, that constantly reengaging and retraumatising oneself by focusing excessively on the subject matter could have a negative effect on recovery. He was also asked about the plaintiff’s reported experience in gaol, including the question, “[I]n other words, to put it in layman’s terms, he found gaol hell?” There followed the following questioning:

“Q. Working on the basis that he was properly arrested bail refused by a court and incarcerated, you then have a very different scenario than the one that you've just been talking about, the outrage that he came here for greater civil liberties, to use my summary. Do you understand that?

A. Mm-hmm.

Q. Work on the basis that he had a hostile relationship with a neighbour. Work on the basis that he himself describes that relationship as horrible. Work on the basis that he alleges that the neighbour had threatened him to put an axe through his head. Work on the basis that there is an allegation that he was firing a firearm on the night of his arrest, on the basis that there was a tactical response by police to what appeared to be a serious situation. Work on the basis that he gave a different account of his movements on the night in question to his wife.

Work on the basis that he had multiple firearms, access to them, which had not been retrieved, and he was subsequently arrested. Work on the basis that he was put before the Court with that information. Work on the basis that the Court refused him bail. Work on the basis that there was an attempt by police to put the matter back before the Court so the bail could be redetermined when they did not have proof that there was any damage from firearm. Work on the basis that he nonetheless remained in gaol until 20 April, I think it is. In other words, work on the basis that there is a different scenario, a different lead-up to his arrest, charge and incarceration than the one you were given.

…

HIS HONOUR

Q. Are you able to answer that question or not?

A. It’s, it’s a bit difficult for me to comment in the sense that you’re, you’re asking me to make a, I think, a comment on matters outside of my expertise as a psychiatrist. My duty to the Court as far as I see it is to determine or make my opinion as to whether [the plaintiff] has or has not suffered a psychological illness as a result of his experiences. And aside from the procedural matters which regards to the, the wheels of, of justice proceeding correctly or not, I can say confidently that on the basis of his incarceration, whether it was justified or not, that [the plaintiff] has in fact suffered a, a recognised psychiatric illness.”

254. Dr Bertucen was then taken to Mr Kruger-Davis’ report in some detail, the content of which did not cause Dr Bertucen to change his opinion. He highlighted certain matters in the report, such as the suggestion that the plaintiff often felt “angry, shamed and anxious”, which were said to be classic features of PTSD. He also accepted that some of the matters referred to, that is, relating to the plaintiff’s lifestyle, were not consistent with the history of PTSD.

255. The focus of the defendant’s cross-examination of Dr Bertucen was very much on the extent of the differences between the histories obtained by Mr Kruger-Davis and Dr Bertucen and their differing diagnoses. Consistent with the defendant’s cross-examination of the plaintiff, questions were asked about whether the plaintiff had become obsessed and also what might occur at the end of these proceedings.

256. Although the cross-examiner emphasised that he was not putting positive propositions about the plaintiff fabricating symptoms, he was entitled to ask questions as to whether he was. The problem is that not much is gained by the defendant raising the issue of, for example, searching the internet to ascertain the symptoms of PTSD and then feigning symptoms for a medical or allied health professional, without taking it further, such as by asking questions of the witnesses about other conduct which might support such a conclusion.

257. Quite a number of witnesses gave statements, either in written form or in oral evidence, as to the effects of the events on the plaintiff consistent with the plaintiff’s own evidence. The point is that the questioning of the plaintiff and of Dr Bertucen about the earlier statements made by the plaintiff to Mr Kruger-Davis was certainly a valid approach, but no concessions were obtained.

258. The plaintiff and Dr Bertucen had answers (the plaintiff’s being that he wanted to regain his firearms licence, which was an important thing to him and Dr Bertucen’s being that the fact that some of the complaints made by the plaintiff to Mr Kruger-Davis and others who were treating him were very similar to those made to him).

259. I need not accept that evidence and, in particular, the plaintiff’s explanation seems convenient, but a number of lay witnesses who were called corroborated the plaintiff’s history and description of his behaviour and symptomatology.

260. In the end Dr Bertucen maintained his opinion and emphasised that some of the complaints made to Mr Kruger-Davis by the plaintiff were consistent with PTSD.

The treating material

261. There were reports, notes and records from other health professionals who the plaintiff has seen for treatment, rather than for the purposes of this case.

262. For example, Ms Vicki Easson, psychologist, prepared what she described as a psychological report in April 2021. She had first seen the plaintiff in 2013 for treatment of “a grief response” connected with his family. He was then re-referred in July 2020, “following the trauma of being accused of shooting at his neighbours shed” and incarceration. She considered he was:

“… suffering PTSD. He was having nightmares about facing a ring of police whose loaded guns were pointing at him … He feared for his life.”

263. Ms Easson said the plaintiff had been “wounded psychologically by the police charges and subsequent events? and “suffered a dreadful blow to his self esteem”. She described him as “an honest man, truthful to a fault”, who normally “does the right thing”. He had handled guns his entire life and was generally obsessive about their “care, storage and use”. He acknowledged that on the night of the incident he had taken one of his guns into his house as he was using his computer internet access to research information about it.

264. The plaintiff’s GP, Dr Graham Campbell provided a report dated 4 March 2024. He said that he had known the plaintiff for 20 years. He again referred to the events of April 2020 and the plaintiff’s response to them. He said the plaintiff was “sleeping poorly” and was worried all the time. His work was suffering as he could not concentrate. This was when first consulted in June 2020. Dr Campbell had seen the plaintiff on a number of occasions since that date and said he likely had PTSD and referred to persistent symptoms.

265. A further report was prepared on 19 September 2025. Dr Campbell considered that the plaintiff suffered from PTSD due to his arrest and imprisonment and related prosecution. The plaintiff spent much time researching “abuse by police” and dwelling on it. The penultimate paragraph of the report is as follows:

“8. Need for ongoing psychiatric treatment and support.

I have spoken a few times with [the plaintiff about treatment for his PTSD. He does not want any medication as he believes that when the State of NSW admits wrong-doing, that he will recover, shave off his beard (he has not shaved since the imprisonment event) and proceed with his life. Note that it is his opinion that his inability to work is due to the imprisonment event and the subsequent related matters. His prognosis is unknown.

It is my opinion that he will most likely need ongoing counselling and support from psychiatrists and psychologists and that his return to active participation for work and social interactions may be much slower than he hopes.”

266. The plaintiff relied on a report of Dr David Hall, psychiatrist dated 1 October 2024. Dr Hall noted that the plaintiff presented with “a 4 ½ year history of symptoms consistent with PTSD in the context of a reportedly wrongful arrest & incarceration”. Dr Hall diagnosed PTSD and suggested a range of treatment, including trauma-focused therapy, cognitive therapy and monitoring of mental state and mood. He also opined, “[p]harmacotherapy is not indicated & he does not like to be on medication anyway”.

267. Finally, the plaintiff relied on reports of Dr Paul Tyrrell, psychiatrist, dated 4 August 2025 and 27 August 2025, respectively. Consistent with every other medical examination report other than that of Mr Kruger-Davis, Dr Tyrrell said that the plaintiff had PTSD associated with depressive and anxious symptoms. Dr Tyrell further said that the plaintiff’s alleged false imprisonment caused a “moral injury” for him from which he had not been able to recover. He said the plaintiff had “a fair degree of insight into his problems and was seeking treatment”, albeit he did not like to take medication. Dr Tyrell said he had discussed treatment options with the plaintiff, focusing on treatment other than taking medication.

The reports of Michael Kruger-Davis

268. As set out in his report headed “Psychological Assessment Report” dated 16 January 2023, the plaintiff originally contacted Mr Kruger-Davis following advice from his lawyer to provide information for an upcoming District Court appearance to appeal the severity of the sentence handed down in the Local Court. Mr Kruger-Davis’ original review was on 12 April 2021. He then conducted a further review (by telephone and video conference) on 12 January 2023.

269. Mr Kruger-Davis highlighted that as the plaintiff’s offending was not due to mental health issues, he did not complete assessments related to depression, anxiety or psychological distress. He did complete a mental status examination as part of the clinical review, both in 2021 and 2023. That mental status examination was essentially normal.

270. Under the heading “Mood and Affect”, Mr Kruger-Davis said:

“[The plaintiff] was neither elated nor depressed. His affective expression appeared to be normal and appropriate. He did indicate that he was concerned having a criminal record. He stated that since his arrest he has often felt angry, shamed and anxious.”

271. Under the heading “Thought Process; Content”, he said:

‘There were no indications of thought content disturbances such as egomania, obsessions, compulsions or delusions. He denies suicidal ideation, preoccupations, phobias and neither showed nor stated any hostile intent.”

272. The plaintiff denied any suicidal ideation and Mr Kruger-Davis did not consider there was any suicide risk. Under the heading, “Education/employment”, he said:

“Currently unemployed. No issues. Managing life pressures appropriately. Future focused.”

273. Mr Kruger-Davis opined that it was very unlikely the plaintiff would reoffend, adding that he had moved away from his neighbours. He had completed a course of firearms ownership, possession and use, and understood more about properly storing his firearms. Mr Kruger-Davis said he had not been treating the plaintiff for any mental illness or disorder, but was aware that he was being contacted for the purposes of an upcoming NCAT hearing.

274. Mr Kruger-Davis opined that the plaintiff suffered from no impairment which would affect his fitness to possess and use firearms. No medications were prescribed, but Mr Kruger-Davis opined that the plaintiff would be diligent in taking his medication when requested. His opinion cannot sit with the plaintiff’s stated aversion to taking medication.

275. Ultimately, Mr Kruger-Davis concluded that the plaintiff was of sound mind and there was no evidence of mental illness, personality disorder or substance abuse disorder. The plaintiff made rational judgments and exercised willpower in all aspects of his professional and personal life. However, it was also notable that in his first report, Mr Kruger-Davis observed that the plaintiff stated he felt angry and anxious about what had occurred. He described this as “grieving” and then explained the stages of grief, which might provide some indication of the kind of response to the events which befell the plaintiff:

“• The initial phase of grief is shock or numbness. When we first hear that someone has died we are shocked because up until that moment, in our mind, they were alive.

• The second phase is anger. It is not unusual for someone grieving to be angry at [the] person who died, themselves, their God, everybody and anybody. Anger is a normal part of the grieving process.

• The next phase is denial, where we refuse to acknowledge our thoughts, feelings and actions regarding the way we are feeling. The next stage is depression, which is more of an intense sadness than a clinical form of depression. The ‘depression’ or intense sadness is a reaction to the loss and was once referred to as ‘reactive depression’.

• There is often a bargaining phase, where we attempt to trade off something we can do to have the situation return to normal.

• The final stage in the process is acceptance, where we realise that we can live with the grief as the companion instead of the person or thing we have lost.”

Conclusion

276. The plaintiff bears the onus of proving he developed a psychiatric illness consequent upon the events of March/April 2020. The defendant does not have to prove that the plaintiff does not suffer from such illness. Having said that, the plaintiff adduced significant evidence in support of his contentions including:

277. His own evidence;

278. Evidence from his wife, daughter and other persons such as neighbours and sister;

279. Evidence from a qualified psychiatrist obtained for the purpose of these proceedings; and

280. Evidence by way of reports, notes and records from treating health professionals.

281. Importantly, the plaintiff was re-referred to a psychologist in 2020 with symptoms which were diagnosed as consistent with PTSD. In 2021, he was seen by another health professional who came to a similar diagnosis. In 2024/2025, he was seen by a psychiatrist who came to a similar diagnosis.

282. The question that arises is whether I should reject all of this evidence in favour of the defendant’s contention, being that the presentation to Mr Kruger-Davis and his diagnosis was such that I should reject the plaintiff’s claim of the development of PTSD and find (implicit in that rejection) that he made up the claim for the purposes of obtaining compensation. Of course, into the mix must also be included the fact that the psychiatrist retained by the defendant also supports the plaintiff’s claim.

283. It is difficult to reconcile the content of Mr Kruger-Davis’ reports with the content of all the other medical evidence, albeit the plaintiff’s complaints of shame, regret, remorse and anxiety are consistent. The plaintiff’s suggestions to Mr Kruger-Davis of leading a normal existence at home, being future-focused and seemingly able to get on with life are not consistent with what he said to all of the other health professionals.

284. As an explanation, the plaintiff says that he was intent on recovering his firearms licence. The ability to have guns and work on them has obviously been a passion for the plaintiff. By his own admission, he did minimise his feelings and complaints for the purposes of regaining his firearms licence. That is of concern. A view might be taken that he is saying different things for different purposes and at different times. That is also a concern.

285. However, I am unable to accept the defendant’s submission that the plaintiff’s evidence as to his complaints are simply a fabrication based on his own internet research and his desire to obtain compensation in these proceedings.

286. This is because the plaintiff’s own evidence is corroborated not only by his family and friends, but also because the diagnosis of PTSD emerges not just from a medico-legal practitioner, Dr Bertucen, but from a range of other health professionals who have seen the plaintiff from time to time, commencing in the very year that the events occurred, that is, 2020. He must be fooling them all (on the defendant’s case). This seems like an unlikely proposition.

Assessment of damages

292. Assessing damages for psychiatric injury consequent upon a malicious prosecution is always difficult, because the ways in which the arrest and imprisonment of a particular person may impact upon that person is so varied. In this case, the eggshell skull theory looms large, in the sense that the defendant must take the plaintiff as it finds him. Whilst the defendant pursued a case that the plaintiff was not a genuine claimant, I have accepted that he is. In a sense, his reaction to that which happened has been extreme in the sense that he gave up work for such an extended period and appears to have done little over that period.

293. In my view, this is because he has become obsessed with the pursuit of justice and has, as he has said, been unable to focus on much else. This conclusion is supported by the evidence of those who know him.

294. Another important principle to keep in mind when assessing damages is that damages must be fair and appropriate (Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 656; [1968] HCA 9 (Barwick CJ)). The assessment of damages is essentially evaluative. It is not merely a mathematical calculation based on schedules put forward by the parties. The schedule put forward by the plaintiff provides a good example. It includes allowances for economic loss on the basis that the plaintiff will never work again. That is an unlikely proposition.

295. In any event, I will keep those principles in mind in undertaking the assessment.

General damages

296. As damages are assessed at large, without the restrictions under the CLA, the plaintiff is entitled to what are termed general damages. This includes amounts assessed for the injury that is sustained (in this case, a psychiatric injury) and must incorporate feelings of shame and indignity he experienced as a result of being charged and put in prison. Damages are rarely awarded for hurt feelings, distress or emotional issues without the suffering or development of a recognised psychiatric illness (Ibbett Court of Appeal Judgment at [21] (Spigelman CJ).

297. As I have already indicated, fundamental to my assessment is my view that the conclusion of these proceedings will result in a substantial amelioration of the plaintiff’s condition. I do not consider that the plaintiff will be psychiatrically disabled to any significant extent once “justice has been obtained”.

298. I assess general damages in the sum of $220,000. This includes a sum of $170,000 for the past.

299. The plaintiff is also entitled to a daily sum for each day that he spent in prison, at a rate of $1,300 (see Spedding Primary Judgment at [283]). He was in prison for 21 days. He is therefore entitled to an additional sum of $27,300.

Economic loss

300. The task of assessing loss of earning capacity is to compare the plaintiff’s pre-February 2021 earning capacity with his earning capacity since that time and into the future (see Husher v Husher (1999) 197 CLR 138; [1999] HCA 47).

301. Although the events commenced in March 2020, the plaintiff said in closing submissions that he was only claiming economic loss from January 2021. This is because it emerged during the hearing that he had been doing some work in 2020. The extent to which he had been working was not really determined and I gather from the plaintiff’s submissions that the plaintiff was content to commence his claim at the commencement of 2021. He says he has not worked since that time.

302. He had a history of conducting his own business as a fencing contractor. There is no reason to consider that he might have pursued some other occupation if not for the tortious conduct of the defendant.

303. There is no evidence that he has earned any income or worked in any productive capacity. By his own admission, he has helped friends or other persons on an occasional basis. It seems that, if pressed, he has been able to assist friends with some tasks to which he is suited. The problem is that the nature of his illness has meant that he is unable to ever really get going and perform any work in a productive way.

304. The plaintiff must prove his loss. The defendant is not required to prove that the plaintiff did not suffer injury. Having said that, to the extent that the defendant seeks to maintain that any ongoing problems are the consequence of causally unrelated factors, such as other events, accidents or pre-existing problems, then the defendant bears that onus (Watts v Rake (1960) 108 CLR 158 at 163-164; [1960] HCA 58 (Menzies J)).

305. I am left in the position that the plaintiff has not earned any income. That does not mean that I simply calculate his agreed loss of weekly income for the whole period. I must be satisfied that he has been unable to work at all.

306. The evidence does not support such a finding. He was able to do some work when pressed in 2020, albeit it was limited. If pressed he might have been able to do some work in later years. He had a range of skills other than working as a fencing contractor. His symptoms may have prevented him from organising himself to continue with his own business, but I do not accept that he was unable to do any work at all.

307. The defendant submits that I should assess his loss of earning capacity at 50 per cent (if I otherwise I accept him). My assessment is necessarily imprecise but I consider his claim for past loss of income should be calculated with reference to the agreed weekly sum reduced by 30 per cent to reflect some earning capacity during the period that the plaintiff was off work. I thus assess past loss at the agreed rate of $1356.50 for 275 weeks, being 1 January 2021 to 10 April 2026, reduced by 30 per cent, which amounts to $261,126.25. As the restrictions in the CLA do not apply the plaintiff is entitled to interest on past loss of income.

“Awarding a buffer for future economic loss is both well-known and regularly adopted. Whilst a more precise calculation might generally be preferred, a buffer would be permissible when the task of assessing loss of earning capacity cannot be undertaken with reference to precise weekly amounts due to the uncertainty of the claimant’s likely future circumstances and the number of variable factors which would render a more precise assessment merely artificial and speculative.”

309. This assessment is based on the finding that the conclusion of this case will significantly ameliorate his symptoms such that the plaintiff should be able to get back to work over time. Some allowance is necessary, as there remains some uncertainty as to when that might be and what work he might pursue. He has moved away from the area where he conducted his business. He has other skills, such as in carpentry and related areas and once his symptoms abate, he will be fit for a range of work. Whether he is able to earn the same amount as he used to and whether he will ever completely recover remains uncertain. As such, I consider that a buffer for the future is the appropriate way of his assessing any future loss.

Out of pocket expenses

310. During the hearing, it was agreed between the parties that out of pocket expenses would be assessed at $7,500.

Aggravated damages

311. Aggravated damages are also compensatory. If the plaintiff has suffered additional loss, such as hurt feelings, stress and anxiety caused by the conduct of the defendant both during and after the event, aggravated damages may be awarded.

312. In some circumstances, aggravated damages may be awarded having regard to the way in which the defendant conducts the defence (see Nye v State of New South Wales [2003] NSWSC 1212 at [249]-[250]; [2004] Aust Torts Reports 81-725; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 at [381]-[382]).

313. I accept that the plaintiff has suffered additional feelings of shame and distress consequent on what happened to him. Further as was apparent from the cross-examination of the plaintiff the defendant’s approach was to raise the possibility that he really did fire at the shed and then in effect suggest that he was fabricating his symptoms (that is, looking up the on the internet to figure out what to say). It failed on both points, but its approach would have surely aggravated the feelings of shame and anxiety.

314. I award aggravated damages in the sum of $50,000.

Exemplary damages

315. Exemplary damages are intended to punish the defendant and serve other purposes, such as retribution or deterrence (Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149; [1966] HCA 40).

316. Recently, in the Spedding Appeal Judgment, the Court of Appeal (Bell CJ, Ward P and Adamson JA) summarised the principles relating to exemplary damages at [314]-[318] as including:

317. The purpose and award of exemplary damages is to punish and deter the wrongdoer rather than compensating the injured person (Lamb v Cotogno (1987) 164 CLR 1 at 8-9; [1987] HCA 47 (Mason CJ, Brennan, Deane, Dawson, and Gaudron JJ);

318. Exemplary damages are particularly significant where public officials have been involved in the commission of the torts (see New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [39] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ)) (“the Ibbett High Court Judgment”)). This is so because the use of public power for proper purposes may have significant consequences in the administration of justice and other public institutions; and

319. An award of exemplary damages serves to deter future actions and indicate that the Court would not tolerate such conduct (see Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 at 149; the Ibbett High Court Judgment at [40]).

320. I award exemplary damages of $2,000. As I have already said, this is a case in which there was really no information to available to DSC Blackbourn from 12 hours after the plaintiff was arrested to support the principal charge. Yet he waited in prison for 21 days before he was released on bail.

Interest

318. The plaintiff is entitled to interest on past general damages and past loss of income in accordance with s 100 of Civil Procedure Act 2005 (NSW).

319. The plaintiff is not entitled to interest as of right (State of New South Wales v Loh Min Choo [2012] NSWCA 275 at [54] (Macfarlan JA, with whom McColl and Campbell JJA agreed). An award of interest is at the discretion of the Court. The purpose of awarding interest is “to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period” (MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663; [1991] HCA 3 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

320. I will award interest on past general damages calculated at the rate of 2.5 per cent. This amounts to $27,553.97.

321. I award interest on past loss of income from 1 Jan 2021 until 10 April 2026 at the same interest rate. This amounts to $36,755.90.

322. The plaintiff is thus entitled to damages as follows:

323. General damages including loss of reputation: $220,000;

324. Deprivation of liberty damages: $27,300;

325. Past loss of earning capacity: $261,126.25;

326. Future loss of earning capacity: $100,000;

327. Out of pocket expenses: $7,500;

328. Aggravated damages: $50,000;

329. Exemplary damages: $25,000;

330. Interest on general damages: $27,553.97; and

331. Interest on past loss of earning capacity: $36,755.90.

Orders

323. I make the following orders:

324. Judgment for the plaintiff in the sum of $755,236.12.

325. The defendant is to pay the plaintiff’s costs.

326. I remind the parties that should either party seek a variation of these orders they must apply within 14 days.

**********