Clyne v State of New South Wales

Judgment 1By a fourth amended statement of claim the plaintiff brings proceedings against the State of New South Wales for damages (including damages for psychiatric injury) resulting from what she alleges to be her unlawful arrest and false imprisonment on 25 October 2003 and a malicious prosecution after she was served with a Court Attendance Notice alleging a breach of s 156 of the Crimes Act 1900 on 16 August 2007. 2As at 16 August 2007 s 156 was in the following terms: Whosoever, being a clerk, or servant, steals any property belonging to, or in the possession, or power of, his or her master, or employer, or any property into or for which it has been converted, or exchanged, shall be liable to imprisonment for ten years. 3Detective Senior Constable Cosgrove was one of the arresting police officers in 2003. He was also the informant in 2007. 4The proceedings are brought pursuant to the Crown Proceedings Act 1988. The defendant accepts that it is vicariously liable for the acts and/or omissions of the police officer(s) pursuant to the Law Reform (Vicarious Liability) Act 1983. 5At the close of the plaintiff's case the defendant sought an order pursuant to Part 29 r 9 of the Uniform Civil Procedure Rules 2005 ("UCPR") dismissing the claim for malicious prosecution on the ground that a judgment in favour of the plaintiff could not be supported and an order that the plaintiff pay the defendant's costs of that claim. Pursuant to Part 29 r 9(3) the plaintiff's counsel elected to decline to argue the question raised by the application. The defendant then made application under Part 29 r 10 for a judgment in its favour on the same basis. The operation of this rule mirrors an application at common law that there is no case to answer, save for the operation of r 10(4) which permits a defendant to adduce evidence with leave in the event that the application fails. 6In dealing with a submission of no case to answer at common law the question to be decided is whether, taking the plaintiff's evidence at its highest, there is any evidence reasonably capable of satisfying the tribunal of fact that the matters sought to be proved have been established (see Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269). It was not submitted that there was any difference between the position at common law and the ambit and operation of Part 29 r 10(2) where the question is whether the Court is satisfied that, on the evidence given, a judgment for the plaintiff cannot not be supported. 7Before considering the evidence relied upon to prove each of the elements of the tort of malicious prosecution and whether it is sufficient to support the plaintiff's claim, it is necessary to set out a chronology of relevant events, including the course of the investigation that culminated in the plaintiff's arrest. This is drawn largely from a large volume of documentary evidence tendered in the plaintiff's case. 8On 26 March 2003 the plaintiff, then an employee at the Spit Junction Post Office and aged 43, informed police that at about 1.15pm the previous day she was at the front counter of the Post Office counting money from the morning's takings. She said a man came up to the counter and that she informed him that her section was closed. She said that he then said "Put that in here, all of it" and handed her a medium-sized envelope. She said he also placed a note on the counter which read "I've got a gun, I want the money". The plaintiff initially resisted the man's demand and picked up the money that was sitting on top of that till. She said that the man then leant over the counter and took all the money that she had in her hands, placed it inside the envelope, picked up the note and left. She then said that she notified the manager on duty and contacted police. The total money stolen was $2570. The plaintiff gave police a detailed description of the robber. She described him as being in his late 30s, of Middle Eastern appearance with a strong Middle Eastern accent. She went on: He was about 5 foot 10 inches, dark skinned, dark eye[d] and [had] a big long pointed nose. He was wearing a dark blue or black faded t-shirt with no collar, a dark baseball cap and blue jeans. His hair was just past the hat and it was dyed blonde that had grown out. It appeared to be dirty, but he definitely had dark hair. The guy appeared to have done weights and was broad across the shoulders. I also noticed that he had really badly chewed finger nails, they had been chewed to half way down his nail. She later prepared a COMFIT photographic image of the robber. 9The COPS entry related to the incident records that a statement was not taken from the plaintiff by the police who attended the Post Office as she was being treated at the scene by ambulance officers for shock. The COPS entry also noted that the CCTV surveillance video recording equipment was not operating at the time of the robbery. 10On 21 May 2003 a person described in the COPS entry as an unregistered informant, but later in the same entry identified as Daniel Munn, informed Detective Senior Constable Young as follows: [That] he had a conversation with a male person he knew from a local pub on the northern beaches. The male approached him and discussed the issue of being a principal in a robbery offence at the Mosman Post Office. He was informed that an employee of the post office would ensure the video CCTV was not recording at the time of the intended offence. The informant was asked to act as a second principal by keeping "a look out". The offer to participate in the robbery was declined. The informant later had a conversation with the offender who boasted about the commission of the offence. The offender stated he had attended the post office and met the female employee at the counter who handed him the proceeds of the robbery. The informant stated that the female employee was 41 years of age and currently on stress leave and would be seeking criminal compensation. 11Preliminary enquiries were then made to assess the reliability of the information provided by Munn including enquiries at the address of the cousin of the person who had approached him (it would appear he was not named at this time). The COPS entry goes on to record the following: The reliability of the informant is unknown. It is unknown how the informant has detailed knowledge of the armed robbery alleged by CLYNE ie age/CCTV/possible leave. Motive for providing the information was stated to be both personal and for financial reward. The version obtain[ed] from him at this stage cannot be challenged by Police. 12The COPS entry goes on to record that Detective Senior Constable Cosgrove spoke with an officer within the investigation branch of Australia Post requiring production of the original file relating to the robbery which was by that date housed in Canberra. 13On 28 May 2003 Munn again made contact with police and said that he had visited where he believed the suspect lived with his cousin. It was at that time that he provided the name Jamie Young. The COPS entry also noted that further enquiries were being made to validate the information from the informant and to confirm the identity of the suspect. 14On 13 June 2003 Munn participated in an electronically recorded interview of 18 pages with Detectives Cosgrove and Young. On that day he was also registered as an informant with the New South Wales Police Service. In that interview he said as follows: DSC Young: ...you continued before telling us about how an opportunity to be involved in this offence was presented to you by Jamie Young. Munn: Yer. DSC Young: I just want to go into that into a little bit more detail. Was it during a conversation that you had with Young that this idea came up? Munn: ...yer, when we were drinking one day, I was around at his house and ... he said ... if you want to make some money just come over with me to the Post Office at Mosman, I know the girl that works there. She's told me that the cameras were down, so all we got to do is walk in and pick up a bag off her and then meet her after work and split the money with her. DSC Young: When was that conversation? Munn: That was the end of February, start of March. 15He went on to inform police that Jamie Young told him about a week later that there was a couple of thousand dollars taken from the Post Office, that he believed that Jamie Young had received $800 (a figure which he said was ringing in his head for some reason) which was spent on alcohol and food and that the woman from the Post Office got the rest of the money. He also informed police that he knew the woman's name to be "Janet or Jeanette" and that she lived in Mosman. 16He went on to say that Jamie Young told him that she intended to report to police that it was an armed robbery to support a claim for victims injury compensation. He said "I don't know what she said to police. But ... he did mention that she'd get compo ... she'd get paid for going on stress leave". 17In June 2003 Detective Cosgrove submitted a formal request to obtain the telephone records of the plaintiff and Jamie Young from which he confirmed regular daily contact between them in the weeks prior to the robbery and telephone contact at 8.15 on the morning of the robbery and again within an hour of the alleged robbery. 18On 8 July 2003 Luke Mason, an officer of Australia Post associated with the Corporate Security Group, forwarded to Detective Cosgrove a number of documents relating to the business which was conducted at the Spit Junction Post Office by the plaintiff in the days leading up to the reported armed robbery on 25 March 2003. Those documents also revealed that the plaintiff's cash management plan required that she not have more than $300 at her counter at any one time. There was also what was described as a data warehouse report for March 2003 which revealed that it was common practice for the plaintiff to hand over an amount of cash between midday and two o'clock (before she went to lunch). A report from Mr Mason received by police in October 2003 confirmed that Jamie Young and the plaintiff had previously worked together at Australia Post. 19On 10 July 2003 a statement was obtained from Christine Walker, an area manager with Australia Post involved in the management of Post Offices between Mosman and the central coast including the Post Office at the Spit Junction. She informed police that the plaintiff was the victim of a robbery at the same Post Office the previous year which resulted in her having some time off work before she gradually returned to resume full-time duties. She noted that the second robbery was almost identical to the first (an attempted robbery) in the sense that the alleged robber used a note to demand money and that no other person was aware that the offence was taking place. She also confirmed that after the incident the plaintiff was declared unfit for work due to her reporting with post-traumatic stress which she claimed confined her to her home. Ms Walker informed police that she saw the plaintiff in the lounge area of a hotel in the CBD in the company of a man a short time after the alleged robbery. 20Ms Walker went on to inform police that the plaintiff was the only person involved in the robbery on 25 March 2003 however there were a number of other employees working at the time who were unaware that the robbery was in process or had even taken place. She told police that at the time of the robbery the duress alarm was not activated despite staff being trained to activate the alarm in the event of a robbery. She confirmed that the Post Office is monitored by CCTV involving two cameras connected to two video recorders. She confirmed that on the day of the robbery the equipment was not working despite the fact that it was serviced by technicians within weeks of the incident. She said that it was the plaintiff's responsibility to ensure that the equipment was operating. Ms Walker went on to advise police that immediately after the incident the equipment was serviced again and found to be operating effectively and that it was used the day after the offence without incident. 21On 23 September 2003 Detective Cosgrove wrote to the Victims Compensation Tribunal requesting information in relation to a compensation claim submitted by the plaintiff. In that correspondence he said: At the present time police have reliable information that CLYNE has possible involvement in the matter and has not disclosed all information to investigating police. Police intend to arrest and interview CLYNE on Friday, 26 September 2003 and it is imperative that this information be released to investigating police before that date. ( I note that the evidence in the plaintiff's case was that her application for victims compensation was unsuccessful. The evidence was silent as to why that was the case.) 22On 15 October 2003 the plaintiff was arrested at her home on suspicion of involvement in theft of money from Australia Post on 25 March 2003. On legal advice she declined to be interviewed and was released, without charge, within an hour of her arrest. The custody management record noted in the field headed "Release Details" that further evidence was required to substantiate a charge. 23On 15 December 2003 the investigation was officially suspended on the CASE system. 24On 6 October 2006 the plaintiff commenced proceedings in the District Court for unlawful arrest and false imprisonment. 25On 23 October 2006 Detective Sgt Flaherty directed Detective Cosgrove pursuant to clause 9(1) of the Police Service Regulation 2000 to answer a series of questions in relation to the arrest of the plaintiff. He was directed not to discuss the matter with any other officer or to disclose any information to any other person without authority until the inquiry was complete. Those questions included the following: